MATHUR, J. - (1.) THE appellant Janak Raj was charged for the murder of his own son Kanu aged six years and attempt to murder his two other sons Dinesh aged 17 years and Dharmendra aged 9 years. THE appellant claimed protection of legal insanity under Section 84 I. P. C. THE learned Sessions Judge, Balotra, rejected the plea of insanity and found the prosecution case proved. Accordingly, the learned Judge by judgment dated 4. 1. 1996 convicted the appellant for offence under Secs. 302 & 307 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-; in default of payment to undergo simple imprisonment for 3 months on the first count and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 250/- on the second count. Both the sentences have been ordered to run concurrently.
(2.) BRIEFLY stated the prosecution case is that on 28. 10. 1994 at 2:20 A. M. , P. W. 9 Mohammad Ali presented himself along with P. W. 8 Dinesh and lodged an oral First Information Report stating inter alia that some time before, he came out of the house on the call of P. W. 8 Dinesh. He disclosed to him that his father Janak Raj assaulted him and his two brothers by `jambiya' while they were sleeping. His intestine had come out. He caused injuries to both his brothers Dharmendra and Kanu. The appellant Janak Raj also passed through taking his son Kanu. The child was shouting "mujhe Chhudao, Mujhe Chhudao". At that time P. W. 1 Ganpat Lal & P. W. 2 Mangilal also arrived. Dinesh disclosed the incident to them as well. On this information police registered a case for offence under Section 307 & 324 I. P. C. At that time, the appellant also arrived at the police station along with his son Kanu in seriously wounded condition. The accused was arrested on the spot. His blood-stained clothes were sealed and packed. Kanu died after some time. Therefore, the offence under Section 302 I. P. C. was added. The police prepared inquest report and sent the dead body for post-mortem. After usual investigation, police laid charge-sheet against the appellant for offence under Section 302 & 307 I. P. C. The accused appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined 22 witnesses and produced certain documents. The appellant in statement under Section 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against him and he set up a plea of insanity under Section 84 I. P. C. The trial court came to the conclusion that the appellant killed his son Kanu and caused injuries to his two other sons namely P. W. 8 Dinesh and P. W. 10 Dharmendra. The learned Judge also came to the conclusion that evidence before him did not establish the plea of insanity set up by the appellant. It is on the basis of his conclusion that he convicted the appellant and sentenced him as noticed above. The only point argued before us is that the appellant was insane at the time he killed his child Kanu so as to be entitled him to the benefit of Section 84 I. P. C. It is submitted that the evidence placed before the trial court clearly establishes that the appellant by reason of unsoundness of mind was incapable of knowing the nature of the act, which he committed when he killed his own son. In alternate, it is submitted that on the facts of the case, it cannot be said that the appellant intended to commit murder of his son and as such his act at the most may be clothed with knowledge of consequences is not prima facie a murder but culpable homicide not amounting to murder punishable under Section 304 Part-II I. P. C. The learned counsel has placed reliance on the decision of the Division Bench of Madhya Pradesh High Court reported in 2000 CRI L. J. 3253 (1 ). On the other hand the learned Public Prosecutor has supported the judgment of the trial court. The learned counsel did not seriously challenged the prosecution case to the effect that it was the appellant, who inflicted injuries and killed his son Kanu on 28. 10. 1994 in his own house. The evidence has been read before us and we are satisfied on the strength of the prosecution evidence that the finding of the trial court that Kanu was killed by the appellant in the manner alleged by the prosecution is sustainable. P. W. 22 Dr. B. K. Malhotra has stated that he conducted the post-mortem on the dead body of Kanu alias Kanhaiya Lal son of Janak Raj and noticed eight cut injuries. He prepared the post- mortem report Ex. P35. All the injuries were ante mortem in nature. In his opinion the cause of death was shock as a result of injuries.
(3.) P. W. 12 Dr. N. S. Kothari has stated that he examined the injuries of P. W. 8 Dinesh son of Janak Raj aged 17 years. He noticed two injuries. Both the injuries were caused by sharp aged weapon. He prepared the injury report Ex. P16. He stated that the injury No. 1 was grievous as there was fracture of the frontal bone. He also stated that injury No. 2 was dangerous to life. It was repaired by performation. He also examined the injuries of P. W. 10 Dharmendra and noticed four injuries. All the injuries were simple in nature caused by sharp edged weapon. He has proved the injury report Ex. P18. On radological examination injury No. 4 was found to be fracture and as such it was grievous in nature. P. W. 8 Dinesh has stated that they were four brothers and two sisters out of that one brother Kanu died. His mother had gone to her parents house. After taking dinner, they went to sleep in the room. While they were sleeping, his father got up and stabbed a small sword in his stomach and then inflicted another injury on his body. Thereafter, he caused injuries to Dharmendra. Then he caused injuries to Kanu. He grappled with his father to stop him from causing injuries to his brothers, but he attempted to kill him. The witness got released from the grip and went out. He reached at the house of P. W. 9 Mohammad Ali and gave a distress call to him. Mohammad Ali got up and came out of the house. He narrated the incident to him. He went to the police station along with Mohammad Ali. At that time his father also arrived carrying Kanu with him. Kanu was in pool of blood and weeping. Dharmendra ran away in another street. The statement of P. W. 10 is almost on the same line. P. W. 9 Mohammad Ali has also corroborated the statement of P. W. 8 Dinesh. It also finds corroboration from the statements of P. W. 1 Ganpat Lal and P. W. 2 Mangi Lal. P. W. 7 Gayatri Devi is the wife of appellant. She has stated that at time when Kanu died, she was at her parents house. The evidence on record is convincing, probable and cogent. Thus, we are of the view that the learned Sessions Judge was justified in accepting the evidence in holding that the Kanu was killed by the appellant in the manner stated by the witnesses. The learned Judge also rightly held that the appellant attempted to kill P. W. 8 Dinesh and P. W. 10 Dharmendra. The point seriously stressed by the learned counsel relates to the defence under Section 84 I. P. C. Section 84 I. P. C. reads as follows:- "84. Act of a person of unsound mind.-Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. " Thus, Section 84 I. P. C. provides a defence of legal insanity as distinguished from medical insanity. A person is legally insane when he is incapable of knowing the nature of the act or that what he was doing is either wrong or contrary to law. In capacity of the person on account of insanity must be of the nature which attracts the operation of Section 84 I. P. C. Thus, the crucial point of time in which unsoundness of mind should be established is the time when the crime was actually committed. For this purpose, the state of his mind, both before and after commission of the act is relevant. D. W. 1 Dr. Sanjay Gahlot, Assistant Professor, M. D. Hospital, Jodhpur has certified that the appellant was admitted in the hospital on 8. 3. 1995 as he was suffering from Schizo-Phrenia. He also stated that it is a genital disease. However, he could not show as to since how long he was suffering from Schizo Phrenia. P. W. 7 Mst. Gayatri Devi the wife of the appellant has not been able to say anything positively if the appellant was suffering from Schizo Phrenia. P. W. 8 Dinesh has stated that his father loved him and all his brothers and sisters. He never assaulted them. He also stated that his father was admitted in the hospital at Jodhpur because of the mental disorder. It is significant to notice that there is no whisper about any motive for the appellant murdering his own son. Curiously, the learned trial court completely lost sight of this aspect while dealing with the case of plea of the appellant based on Section 84 I. P. C. It is of course true that lack of motive itself may not be a ground for sustaining the plea if insanity under Section 84 I. P. C. However, the various circumstances emerging from the prosecution evidence taking together with the absence of any motive is relevant for consideration of plea of insanity of the appellant. In fact it is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A Division Bench of Delhi High Court while dealing with the case of identical facts in Mst. Shanti Devi vs. The State (2), has observed that:- "generally, a case in which the sanity of the accused is called in question, motivation for the crime with which he is charged assumes unusual importance because if a serious crime like murder is committed by a man, who had absolutely no rational motive to commit it, the plea of unsoundness of mind can be more easily established than in other cases. " ;