# Ramesh Yadav v. State 48 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 47
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-22
- **Case number:** Jail Appeal No. 358 of 2018
- **Bench:** Anjani Kumar Mishra, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-yadav-v-state-48-indian-law-reports-allahabad-series-49075
- **Pages:** 19

## Headnote

(A) Criminal Law - Jail Appeal - Indian
Penal Code, 1860 - Sections 302, 307 &
324
-
Voluntarily
causing
hurt
by
dangerous weapons or means - Culpable
homicide - Murder - 'culpable homicide' is
genus and 'murder' its specie - All
'murder' is 'culpable homicide' but not the
vice-versa - 'culpable homicide' sans
'special
characteristics
of
murder,
is
'culpable homicide not amounting to
murder' - it is the degree of probability of
death
which
determines
whether
a
culpable homicide is of a gravest nature or
of lowest degree.(Para -47,48 )

Accused appellant killed his mother - attacked
from the blunt side of the axe - one wound from
sharp edged side of the axe - upon the hand of
the deceased - accused was not of unsound
mind - no intention to cause death of his
mother - assumed - knowledge - from the
attack of axe such bodily injury would be caused
which would likely cause death.

HELD:-Criminal act of accused is not an act of
murder but it is an act of culpable homicide not
amounting to murder punishable under Section
304 IPC. Conviction and sentence under Section
302 IPC modified under Section 304, Part I IPC
but set aside under section 307 IPC and
maintained under section 324 IPC.
 (Para - 52,56,59)

Jail appeal allowed. (E-7)

List of Cases cited:-

## Text

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9 All. Ramesh Yadav Vs. State
47
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded by
learned trial court for life term is very harsh
keeping in view the entirety of facts and
circumstances of the case and gravity of
offence. Hon'ble Apex Court, as discussed
above, has held that undue harshness should be
avoided taking into account the reformative
approach underlying in criminal justice system.

25. Learned AGA also admitted the fact
that appellant - Gaya Prasad Tiwari is
languishing in jail for the last more than 14
years. The accused-appellants are convicted for
commission of offence under Section 304 Part-I
read with Section 34 IPC, which is a major
offence and is sentenced for life imprisonment
along with fine. In our opinion, ends of justice
would be met if sentence is reduced to the
period of 10 years imprisonment for the
aforesaid offence.

26. Gaya Prasad Tiwari is punished for
period undergone rigorous imprisonment. The
fine of Rs. 10,000/- is reduced to Rs. 5,000/- to
him. As far as Mukundi Singh is concerned, we
hold that looking to the factual data and as
ingredient of Section 34 I.P. Code are not
proved as there was no common intention to do
away with the deceased or injure him. We are
fortified in our view by the decision of the Apex
Court in Khokan @ Khokhan Vishwas Vs.
State of Chhattisgarh, Criminal Appeal
No.121 of 2021, decided on 11.2.2021 and
The State of Uttar Pradesh Vs. Subhash @
Pappu, Criminal Appeal No.436 of 2022,
decided on 1.4.2022.

27. Once we hold that there was no
common intention, role of person has to be
evaluated and the act the accused had
committed would have to be viewed in the light
of evidence against the accused. It cannot be
said that Mukundi Singh was not present and
there was no overt act committed by him. The
deceased succumbed is not negated in the
statement under Section 313 Cr.P.C. However,
as long period has elapsed, we reduce the
punishment of Mukundi to sentence undergone
but enhance the fine from Rs. 10,000/- to Rs.
15,000/-. The fine be deposited within 3 months
from his release from jail failing which he shall
be incarcerated for further 2 years.

28. Hence, the sentence awarded to the
appellant-Gaya Prasad Tiwari and Mukundi
Singh by the learned trial-court is modified as
above under Section 304 Part-I read with
Section 34 IPC and fine as above mentioned.

29. Accordingly, both the appeals are
partly allowed with the modification of the
sentence, as above.

30. The Jailer to release the accused if not
wanted in other offence. Mukundi Singh is on
bail. Jailor of concerned jail to do the needful as
per jail manual.

31. Record be sent back to the court
below.

32. This Court is thankful of all the
Counsels for ably assisting this Court ad getting
these old appeals disposed off.
----------
(2022) 9 ILRA 47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.09.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Jail Appeal No. 358 of 2018

Ramesh Yadav ...Appellant
Versus
State ...Respondent
48 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Amit Kumar Srivastava

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - Jail Appeal - Indian
Penal Code, 1860 - Sections 302, 307 &
324
-
Voluntarily
causing
hurt
by
dangerous weapons or means - Culpable
homicide - Murder - 'culpable homicide' is
genus and 'murder' its specie - All
'murder' is 'culpable homicide' but not the
vice-versa - 'culpable homicide' sans
'special
characteristics
of
murder,
is
'culpable homicide not amounting to
murder' - it is the degree of probability of
death
which
determines
whether
a
culpable homicide is of a gravest nature or
of lowest degree.(Para -47,48 )

Accused appellant killed his mother - attacked
from the blunt side of the axe - one wound from
sharp edged side of the axe - upon the hand of
the deceased - accused was not of unsound
mind - no intention to cause death of his
mother - assumed - knowledge - from the
attack of axe such bodily injury would be caused
which would likely cause death.

HELD:-Criminal act of accused is not an act of
murder but it is an act of culpable homicide not
amounting to murder punishable under Section
304 IPC. Conviction and sentence under Section
302 IPC modified under Section 304, Part I IPC
but set aside under section 307 IPC and
maintained under section 324 IPC.
 (Para - 52,56,59)

Jail appeal allowed. (E-7)

List of Cases cited:-

1. Rotash Vs St. of Raj., 2007 CrLJ 758

2. Krishnan & anr. Vs St. rep. by Inspector of
Police, AIR 2003 SC 2978

3. Motilal Vs St. of UP, AIR 2010 SC 281

4. Mohd. Maqbool Vs St. of J & K, 2010 AIR
SCW 3194
5. M'Naughten, (1843) 8 Eng Rep. 718

6. Someswar Bora Vs St. of Assam, (1981) CrLJ
(NOC) 51 (Gau)

7. Amrit Bhushan Gupta Vs U.O.I., AIR 1977 SC
608

8. Dahyabhai Chhaganbhai Thakkar Vs St. of
Guj., AIR 1964 SC 1563

9. Nanhe Khan Vs St. (Delhi Administration),
(1986) 2 Primes 328 (Del)

10. Tolaram Vs St. of Raj., 1996 CrLJ 8 (Raj)

11. Jagroop Singh Vs St. of Har., AIR 1981 SC
1552

12. Prabhu Vs St. of M.P. , AIR 1991 SC 1069

13. Afrahim Sheikh Vs St., AIR 1964 SC 1263

14. Chahat Khan Vs St., 1973 CrLJ 36 (SC)

15. Vasanta Vs St., 1983 CrLJ 693 (SC)

16. Mahavir Prasad Vs St. of Raj. AIR 1991 SC
272

17. St. of A.P. Vs Rayavarpu Punnayya, 1977 (1)
SCR 601

18. Jeevan Vs St. of Raj. 1996 CrLJ 3929

19. Nashari Naik Vs St. of Orissa, 1998 CrLJ
3948

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This appeal has been preferred by
the convicted accused Ramesh Yadav
against the judgment and order dated
05.06.2017 passed by the Additional
Sessions Judge/FTC, Bhadohi, Gyanpur.

2. By the impugned judgment, the
learned trial court awarded following
sentences to the accused:-
9 All. Ramesh Yadav Vs. State
49

(I). Under Section 302 IPC
rigorous imprisonment of life sentence and
a fine of Rs.10,000/-;

(II) Under Section 324 IPC
rigorous imprisonment of three years;
(III) Under Section 307 IPC rigorous
imprisonment of ten years and a fine of
Rs.10,000/-.

3. In brief, facts of the case are that on
16.02.2016 informant Banarsi son of Ram
Nath resident of Mavaiya, PS Gyanpur,
District Bhadohi moved a written tahrir
(Ex.Ka-1) that his son Ramesh Yadav today
at about 12 O'clock had badly injured his
wife Sukhraji Devi from a sharp edged
weapon. He has admitted his wife for
treatment
in
Gyanpur
Government
Hospital.

4. On the basis of written tahrir
(Ex.Ka-1) a chick FIR (Ex.Ka-19) in Case
Crime No.24 of 2016 under Section 324
IPC was registered and entered in GD
(Ex.Ka-18). After death of injured Sukhraji
Section 302 IPC was added through paper
Ex.Ka-8.

5. PW-6, SSI Ram Adhar Yadav,
Investigating Officer visited the place of
occurrence and prepared map (Ex.Ka-6)
recorded the statement of the informant and
other witnesses and after finding sufficient
evidence
submitted
the
charge-sheet
(Ex.Ka-14) under Sections 324, 307, 302
IPC against the accused. The case was
committed to the Court of Sessions on
12.05.2016 and was transferred to the
Court of Additional Sessions Judge/FTC,
Bhadohi who framed the charges on
26.05.2016 from which the accused denied
and requested for trial.

6. The witnesses who have been
examined from the side of the prosecution
are: (i) PW-1, Banarsi, informant; (ii) PW2, Meena Devi, an independent witness;
(iii) PW-3, Bindu Devi, sister of the
accused; (iv) PW-4, Om Prakash, an
independent witness; (v) PW-5, Dr. Girish
Chand Rawat who examined the deceased
before her death and also PW-3, Bindu
Devi (injured); (vi) PW-6, Ram Adhar
Yadav, Investigating Officer; (vii) PW-7,
Raghvendra Singh, the then SO of PS
Gyanpur; (viii) PW-8, Amar Bahadur
Singh, autopsy doctor; and (ix) PW-9,
Jitendra Kumar, Constable.

7. The documentary evidences
which have been produced from the
prosecution side are: (i) Ex.Ka-1, tahrir of
the informant; (ii) Ex.Ka-2, inquest; (iii)
Ex.Ka-3, recovery memo; (iv) Ex.Ka-4 and
5 both photocopy of injury report; (v)
Ex.Ka-6, map; (vi) Ex.Ka-7 and 8, certified
copies of GD; (vii) Ex.Ka-9, police Form13; (viii) Ex.Ka-10, photonash; (ix) Ex.Ka11, letter to CMO; (x) Ex.Ka-12, letter to
RI; (xi) Ex.Ka-13, photonash; (xii) Ex.Ka14, charge-sheet; (xiii) Ex.Ka-15, arrest
memo; (xiv) Ex.Ka-16, letter to Director,
FSL, Varanasi; (xv) Ex.Ka-17, post mortem
report; (xvi) Ex.Ka-18, carbon copy of GD
dated 16.02.2016 regarding lodging of FIR;
(xvii) Ex.Ka-19, chick FIR; and (xviii)
Paper No.Ka-27, report of FSL which is not
exhibited but being public document it is
admissible and exhibitable under Section
293 CrPC.

8.

The
applicant
has
taken
following grounds:-

(i) that the judgment is against the
fact and law;

(ii)
that
there
are
material
contradiction in the evidence of eyewitnesses which has not been considered
by the lower court, therefore, the impugned
50 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order is not sustainable on
this ground alone;

(iii)
that
the
excessive
punishment has been provided which is
against the rules established by law;

(iv) that the learned trial court has
convicted
the
appellant
relying
on
inadmissible evidences and has ignored
admissible evidences;

(v) that the prosecution has not
been successful in proving the prosecution
story beyond doubt;

(vi) that the prosecution could not
establish the place of occurrence and the
person who committed the offence;

(vii) that the lower court has not
appreciated the evidenced in accordance
with law, therefore, the judgment of
conviction dated 05.06.2017 be quashed
and appeal be allowed.

9. In brief, evidences of PWs are
reproduced herein below:

9.1. PW-1, Informant - Banarsi,
father of the accused appellant and husband
of the deceased has deposed that on
16.02.2016 at about 12 O'clock his wife
Sukhraji Devi was washing clothes at the
well. Ramesh, hiding an axe, reached there
and asked to clean his clothes, she replied
that today she was busy in some domestic
work,
she
would
clean
the
clothes
tomorrow. Hearing this, Ramesh started
attacking at her from the axe. Her daughter
Bindu Devi came there to save her mother,
Ramesh also caused injuries to her 2-3
times from the axe. Both the injured were
admitted in Gyanpur Government Hospital
thereafter he reached police station for
lodging an FIR. This witness has proved
paper no.5 (tahrir), Ex.Ka-1. He further
deposed that Investigating Officer had
recorded his statement. He had pointed out
the place of occurrence to Investigating
Officer. District Hospital, Gyanpur referred
the patient to BHU thereafter Sukhraji Devi
was admitted to BHU and Bindu (daughter
of the informant) was admitted in a private
hospital by her in-laws.

9.2. After treatment Bindu Devi
got recovered while wife of the informant
died. Doctor of BHU had informed him
that there was no hope, get her discharged
and keep at the home. On 02.03.2016 after
discharging from BHU when he was
carrying his wife to his house and reached
near Raja Ka Talab, she died. He reached
police station with dead body where
inquest proceeding was conducted and the
dead body was sent for post mortem. Next
day autopsy was done thereafter he
completed the last rituals. This witness has
also confirmed his signature and proved the
inquest (Ex.Ka-2).

9.3.
PW-2,
Meena,
an
independent eye-witness, deposed that at
about 12 noon when she was washing
clothes at the well, Om Prakash (PW-4)
was taking bath there and Sukhraji Devi
(mother of the accused-appellant) was also
washing clothes there, Ramesh Yadav
reached at the well and asked his mother to
clean his clothes. His mother replied that
she would wash his clothes tomorrow then
Ramesh took out a tangari from his shawl
and started beating her. Thereafter Banarasi
transported Sukhraji and Bindu to District
Hospital, Gyanpur. Sukhraji died at the
16th day from the date of occurrence.
Investigating Officer had visited the spot.
He had recovered the axe/tangari in
presence of her and Om Prakash from the
house of the accused and had sealed in a
white cloth. This witness confirmed her
thumb impression and signature of Om
Prakash on recovery memo of the axe,
Ex.Ka-3.
According
to
her,
the
Investigating Officer had recorded her
statement.
9 All. Ramesh Yadav Vs. State
51

9.4. PW-3, Bindu Devi, daughter
of the informant and the deceased and sister
of the accused-appellant deposed that on
the day of incident at about 12 O'clock
when her mother Sukhraji Devi was
washing clothes at the well, Meena and Om
Prakash were also washing clothes and
were taking bath, her brother Ramesh
Yadav reached at the well and asked her
mother to wash his clothes. She replied that
she would wash his clothes tomorrow not
today. Thereafter Ramesh took out an axe
from his sweater and started beating
therefrom. When she arrived to save her, he
also caused her several injuries on her head
and back from the axe. Thereafter her
father took her and her mother at the
District Hospital, Gyanpur where both were
treated. Seeing serious condition of her
mother, Dr. Shahi referred her mother to
BHU Trauma Centre where she was
admitted. He referred the witness for
treatment in a private hospital therefore her
husband admitted her at Orai Private
Hospital where she remained for three days
and was discharged 4th day. Her mother
died at 16th day of the occurrence due to
injury caused by her brother, Ramesh
Yadav from the axe. According to this
witness, she was also washing clothes at
the well and the Investigating Officer had
recorded her statement.

9.5. PW-4, Om Prakash has
deposed that on 16.02.2016 at about 12
O'clock he was taking bath at the well.
Apart from him his elder mother, Sukhraji
Devi and Bhabhi Meena Devi were also
washing clothes and were taking bath. At
the same time Ramesh came covering
himself with a shawl in which he had
hidden an axe. He asked Sukhraji Devi to
clean his clothes, she replied that weather is
not good, let it be done tomorrow. Then
Ramesh took out an axe and started beating
Sukhraji. When Bindu, sister of Ramesh,
came to save her, Ramesh also started
hitting her with the axe. On shouting of
those people they also started shouting by
grabbing hold the axe, on this Ramesh ran
away and went to his house. Sukhraji and
Bindu
were
brought
to
Gyanpur
Government Hospital for treatment where
treatment was started. Due to serious
condition, doctor referred Sukhraji to BHU
Trauma Centre, Varanasi. Bindu was
treated at Orai Private Hospital and
Sukhraji was admitted in BHU for about 15
days. There as the condition became
serious, the doctor discharged her on
02.03.2016. Sukhraji was being brought to
her house, she died on the way. Then body
of Sukhraji was brought to Gyanpur Police
Station where panchayatnama of the dead
body
was
written
by
police.
Panchayatnama was read over by inspector
and after listening, he made signature on
panchayatnama (Ex.Ka-2). On the spot
inspector had sealed the axe in white cloth
and prepared recovery memo. He signed
the recovery memo and Meena Devi put
thumb impression on it. Inspector also
taken his statement.

9.6. PW-5, Dr. Girish Chandra
Rawat deposed that he was working on the
same post on 16.02.2016. On 16.02.2016
Bindu wife of Rajesh Yadav, daughter of
Banarasi - informant, aged about 30 years,
was medically examined at about 10:30
a.m. after identification. She was brought
by Mukesh Yadav. He found following
injuries on her body:

"(i) LW 3 x 2 cm, blood was
coming from the wound. The wound was on
the occipital bone on scalp.

(ii) LW 7 x 2 cm, there was
bleeding from the spinal back on T-10 to L1 lowers of spine. According to this witness
all injuries can be caused by a hard and
blunt object. All injuries referred for X-Ray
and radiologist."
52 INDIAN LAW REPORTS ALLAHABAD SERIES

9.7. After that Sukhraji Devi was
medically examined by this witness and he
found following injuries on body of the
injured Sukhraji:

"(i) LW 5 x 6 cm and the oozing
blood was present in the upper part of the
right temporal bone at scalp.

(ii) Sliced cut wound 7 x 5 cm at
the left shoulder blood was oozing and
humerus bone was visible.

(iii) LW 8 x 6 cm at the left knee
upon deep bone from which blood was
oozing."

9.8. According to PW-5, the
aforesaid injuries were caused by some
hard and blunt object. All injuries were sent
for X-Ray and to the radiologist. All the
injuries were fresh. Seeing the serious
condition of the patient she was referred to
BHU, Varanasi. This witness had proved
the photocopy of injury report of Bindu
Devi and Sukhraji Devi after seeing the
injury report register of District Hospital
(which was summoned in the Court) and
had proved the same as Ex.Ka-4 and
Ex.Ka-5.

9.9. PW-6, Ram Adhar Yadav, the
Investigating Officer deposed that on
16.02.2016 he was appointed Investigating
Officer of Case Crime No.24 of 2016,
under Section 324 IPC, Police Station
Gyanpur, District Bhadohi in which he
copied the FIR GD memo, District Hospital
Report GD, statement of informant and Dr.
Girish Chandra Rawat. He, on the pointing
out of the informant, inspected the place of
occurrence and prepared the map. After
search accused was found at his house. His
statement was recorded. He admitted his
guilt. At his pointing out an axe was
recovered and the recovery memo was
prepared in front of witnesses, Om Prakash
and Meena Devi. On the basis of grievous
hurt and on the statement of doctor on
16.02.2016 he added Section 307 IPC. On
02.03.2016 after death of the injured,
Sukhraji Devi, Section 302 IPC was also
added. This witness has proved map and
GD, Ex.Ka-6, Ex.Ka-7 and Ex.Ka-8. He
also confirmed his writing and signature at
recovery
memo
(Ex.Ka-3)
and
panchayatnama (Ex.Ka-2), this witness has
also proved police Form-13, photonash,
letter to CMO and RI and challannash and
confirmed his writing and signature on on
the papers Ex.Ka-9 to Ex.Ka-13. The truss
of the axe was opened and it has been
exhibited
as
material
Ex.-1.
Further
investigation
was
given
to
SHO,
Raghvendra but it was again given to him
on 29.03.2016. He recorded the statement
of FIR writer Constable Santosh Kumar
Mishra and Constable Moharrir Jitendra
Kumar. He prepared parcha no.11 and
recorded the statement of Bindu Devi and
submitted charge-sheet under Sections 324
and 302 IPC on 03.04.2016. This witness
has
proved
charge-sheet
Ex.Ka-14.
Through supplementary GD No.1 he
submitted that charge under Section 307
IPC is also made out, it was left mistakenly
while submitting the charge-sheet so he
requested that charge-sheet be treated under
Section 307 IPC also.

9.10. PW-7, Raghvendra Singh,
Inspector PS Gyanpur deposed that on
16.02.2016 after lodging the FIR in Case
Crime No.24 of 2016, under Sections 324
and 307 IPC against Ramesh Yadav,
investigation was entrusted to SSI Ram
Adhar Yadav. After death of the injured on
02.03.2016, the investigation was taken
back by him and parcha no.3 was prepared
by him on 04.03.2016. After preparing
parcha no.4, the axe, used in commission
of the crime, was sent to FSL, Ram Nagar,
Varanasi through Constable, Anil Yadav.
On 07.03.2016 he prepared parcha no.5, on
09.03.2016 parcha no.6 and copied the
statement of the witnesses and post mortem
9 All. Ramesh Yadav Vs. State
53
report. On 15.03.2016 he prepared parcha
no.16 and wrote the statement of the
informant
and
the
witnesses.
On
16.03.2016 he prepared parcha no.8 by
which he again wrote the statement of the
witnesses thereafter he was transferred.
Further investigation was completed by SSI
Ram Adhar Yadav. This witness has proved
paper no.18-A as Ex.Ka-16.

9.11. PW-8, Dr. Amar Bahadur
Singh has done post mortem of the
deceased Sukhraji Devi aged about 58
years on 03.03.2016 at 10:30 am. This
witness found that decomposition in body
had not even started. In the post mortem
report
following
injuries
have
been
mentioned:

"(i) There was a stitched injury in
the upper part of the left hand whose length
was 12 cm.

(ii) 7 cm stitched wound adjacent
to the neck on the left shoulder.

(iii) On the side of left arm there
was the stitched wound whose length was
13 cm.

(iv) The injuries sustained on the
left palm whose length was 7 cm from ring
finger to the palm.

(v) There was a stitched wound of
13 cm size on the left thigh, which was 12
cm above the side of the knee.

(vi) Three parallel stitched wound
on the right side of the head on the parietal
region of 8 cm, 6 cm and 3 cm with broken
bones respectively.

(vii) This witness found that
alimentary tube and urinary tube were
attached.
Cause
of
death
due
to
septicaemia on account of spread of poison
in the body due to access to herbs. The
membrane had shrivelled. The brain was
shrunken. The membranes of the lungs were
filled with pus. Death was within one day.
Cause of death was septicaemic shock. He
cannot say from which weapon injuries
were caused to the deceased. He admitted
that viscera was not sent for examination.
According to this witness septicaemia
affects the body 24 hours from the time of
injuries, it depends upon which bacterium
getting involved in the infection.

9.12. PW-9, Jitendra Kumar,
Constable moharrir deposed that chick FIR
in Crime No.24 of 2016, under Section 324
IPC was prepared by Constable, Santosh
Kumar Mishra. The case was entered in
Rapat No.22 at 01:50 p.m. on 16.02.2016
by him in GD. He has proved its copy
Ex.Ka-18 and the chick FIR Ex.Ka-19 to be
prepared by Constable moharrir, Santosh
Kumar Mishra through his secondary
evidence. According to him his statement
had been recorded by the Investigating
Officer. In cross-examination he denied that
GD regarding lodging the case was false
and manufactured.

10. After closer of prosecution
evidence, statement of the accused has been
recorded under Section 313 CrPC in which
the witness had denied the allegations. Oral
and documentary evidences produced by
the prosecution, the recovery memo and
charge-sheet etc. have been denied. He was
stated to produce defence evidence but no
oral or documentary evidence has been
produced in defence. In the last he deposed
that he was innocent and had been falsely
implicated. He has not said himself to be a
person of unsound mind nor had claimed
exemption from trial under Chapter XXV
CrPC.

11. This appeal is decided as
under:-

11.1.(I). In this case according to
the
informant
the
accused
appellant
committed the crime at about 12 O'clock in
the day of 16.02.2016. The informant
54 INDIAN LAW REPORTS ALLAHABAD SERIES
moved tahrir, Ex.Ka-1 same day at 01:50
p.m. after admitting the injured in hospital,
distance between place of occurrence and
police station is 4 kms. Therefore, there is
no delay in lodging the FIR. In the FIR the
informant has named his son Ramesh
Yadav as accused who injured and killed
his wife Sukhraji Devi from an axe. He has
proved the tahrir Ex.Ka-1 and inquest
Ex.Ka-2. In tahrir the informant has not
endorsed that accused had also injured his
daughter,
Bindu
Devi
but
in
oral
examination he has deposed that when
Bindu Devi went to save her mother,
accused also attacked on her and caused 23 injuries from the same axe and both were
admitted in District Hospital, Gyanpur.
From the circumstances, it transpires that
the informant was in haste and as his wife
and daughter were seriously injured,
therefore, in harried manner he briefly
informed the police writing few words
about the incident. The FIR is an
instrument only to accelerate the police
machinery and to start the investigation. It
is not an encyclopedia, Rotash Vs. State of
Rajasthan, 2007 CrLJ 758. In Krishnan
and another Vs. State rep. by Inspector
of Police, AIR 2003 SC 2978 it is held that
the FIR filed immediately after occurrence
rules out any possibility of deliberation to
falsely implicate any person. In Motilal Vs.
State of UP, AIR 2010 SC 281 it is held
that FIR need not contain every minute
detail about the occurrence. It is not
necessary that name of every individual
present at the scene of occurrence is
required to be stated in the FIR. In Mohd.
Maqbool Vs. State of Jammu and
Kashmir, 2010 AIR SCW 3194 it is held
that FIR is not substantive piece of
evidence, it can only be used to corroborate
its maker.

11.2. It is noteworthy that in this
case the informant is the father of the
accused, deceased Sukhraji is his mother
and another injured is his real sister. It is
also pertinent to mention that informant has
only one son i.e. accused Ramesh Yadav as
the another son Mukesh had died prior to
the incident due to cancer. Any enmity
among the accused-appellant, deceased,
informant and sister, Bindu Devi is not
established, therefore, it is concluded that
the FIR has correctly been lodged by the
informant against the accused.

11.3.(II). In this case no major
issue or motive appears to be present
among the parties. As per scene of the
occurrence the accused reached to his
mother at the well hiding an axe and
explored the reason of causing the incident
by asking to wash his clothes and when she
replied to wash his clothes tomorrow, he
attacked from the axe. It appears that the
cause of committing the crime was
something else. From the evidence of PW2, Meena Devi it transpires that the accused
also used to beat his wife and children due
to which his wife leaving him had gone to
her parental house with her child. PW-3,
Bindu Devi, sister of the accused has also
admitted that wife of the accused lives in
her parental house.

11.4. It appears that the accusedappellant Ramesh Yadav is not a person of
cool mind and due to his aggressive
behaviour his wife had left him and is
living with her parents. Admittedly, the
deceased was the mother-in-law of his
wife. Accused might would be thinking that
his wife had left him due to the
shortcomings of his mother. Therefore,
inventing the reason of attack he might
have killed his mother.

11.5. In cases based on direct
evidence there is no need to prove the
motive. Here the prosecution has not put
any substantive or reasoned motive but has
put the mere fact that when deceased
9 All. Ramesh Yadav Vs. State
55
ignored to wash clothes of the accusedappellant same day, he started attack at her
with the axe. The fact that at the time of
occurrence the deceased was washing
clothes at the well and there PW-2, Meena
Devi, PW-3, Bindu Devi and PW-4, Om
Prakash were also present, is proved
beyond any doubt. In this case the
informant has named his sole real son
alone.

11.6.(III). In this case the place of
occurrence is the well shown from Letter-A
in the map, Ex.Ka-6. At this point there is
no difference in the evidence of PWs-1 to 4
and the Investigation Officer, therefore, it is
concluded that this occurrence took place at
place-A as alleged by the prosecution and
the place of occurrence has not been
changed.

11.7.(IV).
It
is
a
day-light
occurrence based on direct evidence of
PW-1, Banarsi, father of the accusedappellant and husband of the deceased;
PW-2, Meena Devi, an independent eyewitness; PW-3, Bindu Devi, daughter of the
deceased and sister of the accused; PW-4,
Om Prakash an independent eye-witness.
There is no difference in the evidence of
eye-witnesses PWs-1 to 4. Thus it is
established that it is a case based on direct
evidence and the evidence of the witnesses
proved
the
prosecution
case
beyond
reasonable doubt.

11.8.(V). In this case occurrence
occurred on 16.02.2016 whereas the deceased
died at Raja Ka Talab on 02.03.2016 when
she, after discharge from Trauma Centre,
BHU on account of no hope of her survival,
was on the way of her home. Thereafter he
directly reached concerned police station with
the dead body where inquest (Ex.Ka-2) was
conducted. In inquest injury on the back side
of the head, on left shoulder, on left thigh and
cutting wounds on forehead and left finger
were noted. They also opined that these
injuries were cause by son Ramesh from the
axe.

12. The inquest is not substantive piece
of evidence. It is only a paper to know the
prima facie reason of unnatural death of any
person whose dead body is scheduled for post
mortem. It is found that there is no infirmity
in the inquest.

13. The post mortem report is not a
substantive piece of evidence but it is
essential to know the actual cause of death. In
post
mortem
report
(Ex.Ka-17)
dated
03.03.2016 conducted after 15 days from the
date of occurrence PW-8, Dr. Amar Bahadur
Singh has opined that deceased, Sukhraji
Devi had died due to septicaemic shock. He
on the internal and external examination of
the dead body found 6 injuries, 7th injury was
alimentary and urinary tube attached in the
body which cannot be said to be an injury. It
appears that the septicaemia developed in
injuries caused by the accused. The injuries
had not occurred in any accident or usual
course of life. From the evidence of PW-1,
informant - Banarsi, it is confirmed that due
to injuries caused by the accused there was
no hope of life or survival of the deceased,
therefore, she was discharged to spend few
days/hours at her home, but she died on the
way
before
reaching
her
home.
14. Learned counsel for the appellant has
argued that it is not a case of Section 302 IPC
but it is a case of Section 304, Part II IPC
which shall be dealt with later on.

15. Recovery of axe and its memo
Ex.Ka-3 has been proved by Pws-2, 3 and 6.
Such injuries can be caused from an axe and
from its blunt object.

16. Mainly, from the accused side two
arguments are advanced: firstly, that at the
time of occurrence the accused was a
56 INDIAN LAW REPORTS ALLAHABAD SERIES
person of unsound mind so the act done by
him is protected under Section 84 IPC and
is no offence as it falls under the general
exceptions; and secondly, that it is not a
case under Section 302 IPC but it is a case
under Section 304, Part II IPC.

17. First of all, it would be proper to
discuss the facts regarding Section 84 IPC.
According to learned counsel for the
appellant, at the time of occurrence the
accused was a person of unsound mind.
Section 84 IPC is as under:-

"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."

18. This provision has been made
with the reason that a person of unsound
mind is incapable of forming mens rea
that is, criminal intent. In the case of
M'Naughten, (1843) 8 Eng Rep. 718,
the accused, Daniel M'Naughten suffered
from a delusion that Sir Robert Peel, the
then Prime Minister of Britain had
injured him and in order to take revenge,
he mistook Edward Drummond, the
Secretary to the Prime Minister, for Sir
Robert Peel and shot him dead. When
charged of murder, the accused took the
defence of insanity. The medical evidence
testified that he was under a morbid
delusion which carried him away beyond
the powers of his self-control. The jury
found him "not guilty by reason of
insanity". Following principles were laid
down in the aforesaid case:-

"1. Every person is supposed to
be sane and to possess sufficient decree
of reason to be responsible for his crimes,
until the contrary is proved.

2. In order to establish the
defence of insanity, it must be clearly
proved that at the time of committing the
crime, the person was so insane as not to
know the nature and quality of the act he
was doing, or if he did know it, he did not
know what he was doing was wrong.

3. The test of wrongfulness of
the act is in the power to distinguish
between right and wrong, not in the
abstract or in general, but in regard to
the particular act committed."

19. In several cases the rule of
M'Naughten case have been followed in
India, therefore, the reference has been
made.

20. The Gauhati High Court in
Someswar Bora Vs. State of Assam,
(1981) CrLJ (NOC) 51 (Gau) held that
in order to seek protection under Section
84, it must be established that "the
accused, at the time of committing the
offence, was labouring under such defect
of reason from disease of mind, as not to
know the nature and quality of the act he
was doing, or that he did not know what
he was doing was wrong".

21. In the case of Amrit Bhushan
Gupta Vs. Union of India, AIR 1977 SC
608 the term unsoundness of mind or
insanity denotes a state of mind in which
the accused is incapable of knowing the
nature of his act and that what he is doing
is wrong or contrary to law.

22. In the case of Dahyabhai
Chhaganbhai Thakkar Vs. State of
Gujarat, AIR 1964 SC 1563 it is held that
the criminal law recognises only legal
insanity as a defence under Section 84 IPC
9 All. Ramesh Yadav Vs. State
57
and not all kinds of medical insanities.
Legal insanity is one which completely
impairs the cognitive faculty of the mind,
to such an extent that a person is incapable
of knowing the nature of his act or what he
is doing is wrong or contrary to law.

23. But, in this case no medical
treatment papers or medical expert have
been produced and examined and during
the course of trial no application was
moved to exempt the accused-appellant
from the trial. In this respect Section 328(i)
CrPC is important which is noted herein
below:-

"328. Procedure in case of
accused
being
lunatic.--(1)
When
a
Magistrate holding an inquiry has reason
to believe that the person against whom the
inquiry is being held is of unsound mind
and consequently incapable of making his
defence, the Magistrate shall inquire into
the fact of such unsoundness of mind, and
shall cause such person to be examined by
the civil surgeon of the district or such
other
medical
officer
as
the
State
Government may direct, and thereupon
shall examine such surgeon or other officer
as a witness, and shall reduce the
examination to writing.

(2) Pending such examination
and inquiry, the Magistrate may deal with
such person in accordance with the
provisions of section 330.

(3) If such Magistrate is of
opinion that the person referred to in sub-
section (1) is of unsound mind and
consequently incapable of making his
defence, he shall record a finding to that
effect
and
shall
postpone
further
proceedings in the case."

24. In this case accused-appellant had
not moved any application in the trial court
that he being a person of unsound mind
cannot defend himself, cannot understand
the language of charge, cannot reply under
Section 313 CrPC and surprising that no
such ground is taken in appeal, therefore,
such plea cannot be raised now. Despite
that learned counsel for the appellant has
argued the point.

25. However, in this regard the details
available on the file are cited:

25.1.(I). That in FIR PW-1,
informant - Banarsi has not mentioned that
his son accused, Ramesh Yadav was a
person of unsound mind.

25.2.(II). That the Investigating
Officer has not found the accused-appellant
a person of unsound mind and none of the
witnesses stated to the Investigating Officer
that Ramesh was a person of unsound
mind.

25.3.(III).
That
there
is
no
medical report on record to prove that the
accused-appellant was ever or particularly
at the time of incident, a person of unsound
mind. At the time of framing charge on
26.05.2016 the accused-appellant has not
moved any application that being a person
of unsound mind, he is unable to
understand the charge levelled against him
and he is unable to face the trial. No
application under Chapter XXV CrPC was
moved.

25.4.(IV).
That
during
the
examination of the witnesses and at the
time of recording statement under Section
313 CrPC the accused-appellant or his
counsel (amicus curiae) has not claimed
him to be a person of unsound mind.

25.5. PW-1, informant - Banarsi,
husband of the deceased and father of the
accused-appellant has not deposed in
examination-in-chief that accused-appellant
is a person of unsound mind and was also a
58 INDIAN LAW REPORTS ALLAHABAD SERIES
person of unsound mind at the time of
commission of crime. During the crossexamination this witness has deposed that
he had admitted the accused-appellant in
Varanasi for treatment of his mental illness
and the treatment was going on since
before
one
year.
Accused-appellant,
Ramesh lived well at home and used to eat
and drink. When the informant gave him
medicine, the accused-appellant used to
throw it. His second son was a cancer
patient and he was busy in his treatment,
therefore, he could not make proper
treatment of the accused. According to this
witness, he took much pains for treatment
of accused but he could not be cured. He
further deposed that for the treatment of
accused his younger son Mukesh used to go
to Varanasi. Except the above questions no
other suggestion regarding unsoundness of
the accused-appellant has been given by the
amicus curiae. This witness has also not
produced any document regarding mental
illness and treatment of the accusedappellant.

25.6.(V). PW-2, Meena Devi has
also not deposed in her examination-inchief that the accused was suffering from
any kind of unsoundness but when the
amicus
curiae
asked
her
regarding
unsoundness of the accused, she replied
that long ago father of the accused Ramesh
had got him treated at Varanasi. Accused
Ramesh used to beat his wife and children
also, due to which his wife left him with
her child and went to her parental home.
This witness has not deposed that at the
time of incident the accused was suffering
from unsoundness of mind.

25.7.(VI). PW-3, Bindu Devi,
sister of the accused-appellant and daughter
of the deceased has not deposed in her
examination-in-chief that accused was
unsound at the time of occurrence. Learned
amicus curiae for the accused, Ramesh has
not asked any question and has not given
any suggestion regarding unsoundness of
the accused before, after or at the time of
occurrence. This witness has simply replied
that at the time of occurrence her brother
was not doing any job.

25.8.(VII). PW-4, Om Prakash
has also not deposed in his examination-inchief that accused was a person of unsound
mind before or after or at the time of
incident. Neither any question regarding
the soundness of the accused has been
asked nor any suggestion has been given by
the amicus curiae.

26. In Nanhe Khan Vs. State (Delhi
Administration), (1986) 2 Primes 328
(Del) no question was put to the witnesses
about the mental condition of the accused
at the time of occurrence nor the accused
took plea in examination under Section 313
CrPC, it was held that plea of insanity
before the Appellate Court was not
available. Here from all the witnesses even
from PW-3, Bindu Devi, sister of the
accused no question regarding insanity has
been asked from the side of the accused
and no plea has been taken under Section
313 CrPC or in appeal.

27. Similarly in Tolaram Vs. State
of Rajasthan, 1996 CrLJ 8 (Raj) the
accused killed his wife by bolting the door
from inside and then tried to escape. He
raised plea of insanity for the first time in
appeal. It was held that the plea was not
tenable.

28. On the basis of above discussion
it is concluded that neither it is proved that
accused was a person of unsound mind at
the time of commission of crime or before
or after the incident nor any ground of
unsoundness had been taken during the
investigation, trial and in appeal.
9 All. Ramesh Yadav Vs. State
59

Whether the accused has also
committed the crime under Section 307?

29.