KARSANBHAI DAHYABHAI KOLI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Karsanbhai Dahyabhai Koli, by this appeal has brought under challenge the impugned judgment and order dated 18.4.1991 rendered in Sessions Case No. 24 of 1989, passed by the learned Additional Sessions Judge, Morbi, wherein he, on finding the appellant guilty for the alleged offences punishable under Secs. 302 and 309 IPC, at the end of the trial, convicted him for the same and sentenced to undergo R. I. for life. No separate sentence has been awarded for the offences under Sec. 309 IPC.

(2.) According to the prosecution, the incident in question wherein Karsan Dahya murdered his parents, viz. Dahya Amba, father and mother Makuben by means of a sickle, took place on 6.8.1989 at 19.00 hours in his house itself at Village Shekharadi. This incident was witnessed by three eye witnesses, viz. (i) P W 1 Raghu Ratna, (ii) P W 2 Kesha Amba, and (iii) P W 4 Bhawan Mavji. It is further the case of the prosecution that accused Karsan and his parent were all staying together in their house. Karsan had married twice having taken divorce with both wives, and was having two daughters. It is the say of the prosecution that Karsan was quite lazy bone, sleeping most of the time and was doing nothing. On this count, his parents were often scolding him, resulting into continuous bickerings. On the aforesaid date, time and place, it is alleged that, the parents of Karsan once again told him that he was not doing any work and was eating sitting idle. This irked Karsan, resulting into quarrel. This was heard by P W 2 Kesha Amba, the brother of Dahya Amba. Thereafter hardly within sometime he further heard the shouts of Dahya Amba and Markuben yelling for help, as Karsan was beating them. As a result, P W 2 Kesha Amba went to the scene of the incident. In the meantime, Chhana Raja (not examined as a witness), P W 1 Raghu Ratna and P W 4 Bhawan Mavji also came rushing. When all these persons reached the house of Dahyabhai, its door was found bolted from inside, and as a result, all these three witnesses climbed up the house, and removed the roof tiles. At that time, while peeping inside, Karsan was seen having a sickle in his hand, with which he tore open the stomach of Dahyabhai, as a result of which the omentum had come out. Thereafter Karsan gave a sickle blow to Makuben, and she also met with the same fate of her husband, and her omentum also came out. As a result of these injuries, both Dahyabhai and Makuben fell down. Thereafter karsan, with the sickle in his hand also inflicted self injury on his stomach. Immediately thereafter, P W 2 Kesha Amba, his son Somo (not examined as a witness) and P W 1 Raghu Ratna, jumped inside the house, and caught hold of Karsan, and as a result, the sickle fell down from his hand. Then, the door of the house which was bolted from inside was opened and Karsan was made to sit outside. Thereafter P W 2 Kesha Amba and other persons decided to file complaint, and accordingly, P W 2 Kesha Amba filed complaint, Exh. 29 at about 3.30 a.m. before P W 9 Chandrasinh Lachusinh, who, at the relevant time, was the P.S.I, at Wankaner Taluka Police Station. On the basis of this complaint, after the investigation was over, the accused came to be charge-sheeted to stand trial on the charges of the alleged offences punishable under Secs. 302 and 309 of IPC before the Sessions Court at Morbi, wherein, at the end, he was convicted for the same and sentenced to life imprisonment as stated in above paragraph 1 of this judgment, giving rise to the present appeal. It may also be incidentally stated that when this appeal came up for admission before this Court (Coram : M/s B. S. Kapadia and D. G. Karia, JJ.) on 20.11.1991, while admitting the same, Their Lordships also issued notice for the enhancement of sentence against the appellant- accused, which came to be registered as Criminal Misc. Application No. 3867 of 1991.

(3.) Mr. K. G. Sheth, learned Advocate, while challenging the impugned order of conviction and sentence, after carefully taking us through the material prosecution evidence brought on the record, as well as the reasons for conviction and sentence given by the trial Court was frank enough to admit that he was not in a position to assail and thereby take any exception to quite dependable evidence of the eye-witnesses and accordingly he would like to confine his entire submissions only on the limited point whether having regard to the peculiar facts and circumstances of the case, the accused would be entitled to the benefit under Sec. 84 of the IPC. We at this stage only hasten to add that we have also carefully and quite anxiously gone through the evidence of the prosecution witnesses, and must say without any hesitation that there is indeed nothing on the record, on the basis of which Mr. Sheth could have persuaded this Court to discard their evidence from being taken into consideration as connecting the accused with the crime alleged against him. In this view of the matter, we are now required to shift and focus our attention on the only submission of Mr. Sheth as to whether the facts of the present case squarely fall within the narrow compass of Sec. 84 of the IPC, to avail of the ultimate benefit to the appellant- accused if at all that is possible. According to Mr. Sheth at the time of commission of the offence, but for the apparent reason of unsoundness of mind, where the appellant was indeed incapable of ordinarily knowing the nature of the act, as to what he was doing, he would not have committed a double murder and that too of his parents. Making goods this submission, Mr. Seth further submitted than it is inherently improbable that any son worth the name relation would ever thus commit the murder, and that too, at a time, of his old parents. Further according to Mr. Sheth, the mere scolding, and that too, proceeding from none else that the parents themselves to the accused that he was not doing any work and was eating sitting idle, was not such provocative, which would enrage or infuriate the accused to such an extent that he would instantaneously go to the extent of killing them by using a sickle. Some such sort of differences between the parents and children cannot be said to be that uncommon. According to Mr. Sheth, the matter does not rest here, as according to him, quite surprisingly the accused when ultimately came to be arrested, was found simply sleeping in the corner of his house, the conduct which person is otherwise quite unnatural, unless of course, he was totally stupid or of unsound mind. Further according to Mr. Sheth, in the ordinary course of human nature, having regard to the crime natural instict of the preservation, nobody with whatever little senses, later, committing a crime would made himself easily available to be a witness against self to be easily arrested, prosecuted, tried, convicted and then ultimately sentenced to life imprisonment. Further according to Mr. Sheth, despite all these facts, the accused, later having committed murder of his old parents on the alleged slightest provocation, did not run away. The combined effect of all these circumstances, according to Mr. Seth, clearly indicates that, but for the fact that the accused was a person of unsound mind, neither the unfortunate incident of murdering parents would have taken place was alleged, nor would have be made himself easily available to be arrested by the police to be ultimately sentenced to life. These tell-tale self satisfying circumstances, according to Mr. Sheth speak volume, and need no further elaboration and authority to satisfy this Court that when the accused committed the murder, he was indeed incapable of knowing the nature and consequences of his act and in that view of the matter, his case squarely fell within the purview of Sec. 84 of the IPC. In support of this contention, Mr. Sheth has relied upon the decision of this Court rendered in the case of Ramilaben, Wife of Nanilal vs. State of Gujarat, reported in 1990 (2) CrLR (SC) 1202, wherein the accused killed her own four children and plea of insanity under Sec. 84 of the IPC came to be accepted. Mr. Sheth, on the basis of these submissions finally urged that once this position is accepted, the Court shall have to stay its hand from confirming and upholding the ultimate order of conviction and sentence and instead, must allow this appeal and acquit the accused, at least giving him benefit of doubt.