SUPREME COURT OF INDIA

Before:- K.T. Thomas and S.N. Variava, JJ.

Criminal Appeal No. 1124 of 2000. D/d. 31.10.2001.

Durga Domar - Appellant

Versus

State of M.P. - Respondent

Indian Penal Code, 1860, Sections 302 and 84 - Murder - Unsound mind - Five children brutally murdered - Accused using a pestle and spear - Accused seen running with blood-stained spear - No motive found - Appellant did not engage a counsel of his own in the Trial Court or in the High Court - Report regarding mental unsoundness under Section 84 called during pendency of SLP - Report suggesting mental illness earlier but found okay at that time - Considering the mental illness, sentence of death altered to life imprisonment.

[Paras 8 and 9]

ORDER

Five little children were brutally murdered in the evening of 24.6.1998. Appellant, a close relative of the five slain children had been arrested and charge sheeted by the appellants. The sessions court convicted him of murder of five children and sentence him to death. A division bench of the High Court confirmed the conviction and sentence. He filed this appeal from jail, we appointed Mr. Mathai M. Paikadey, senior counsel to defend the appellant as amicus curiae. Mr. Bachawat, senior counsel argued for the state of M.P.

2. When the facts were narrated to this Court on 17.7.2001, we felt the necessity to have the report of a team of doctors examining the appellant with reference to his mental faculties. Accordingly, we passed a proceeding on 17.2.2001 pursuant to which the registrar general of the High Court of M.P. took steps for the appellant being put under observation and examination by the psychiatrist/superintendent of the Gwalior Central Jail. Though we wanted the head of the department of psychiatry of the Government medical college at Jabalpur to perform the examination, if necessary, with the help of a team of other doctors, the work has been done by the psychiatrist/superintendent of Gwalior Manasik Aroghyashala. It is reported that the appellant had suffered a "psychotic episode" though at present he did not exhibit any such symptoms. After perusing the said report we proceeded to hear the arguments.

3. Mr. Mathai M. Paikadey, learned senior counsel addressed arguments at length pleading for acquittal of the appellant of the charges made against him.

4. The substance of the case against him is the following :

On 24.6.1998 he visited the house of his uncle PW-3 - Bhura. While he was in that house, a child by name Kotu (aged 14), who was the nephew of PW-3 also reached the house. Four children of PW-3 and the said nephew were in that house at the time of the occurrence. In the absence of PW-3 and any other elderly person in the house, according to the prosecution version, accused used a pestle and a berchi (having the shape of a spear) and killed all the five children. He ran away from the scene with the blood-stained berchi in his hand. When PW-4 Chutdana, the brother of PW-3 saw the accused running away with bloodstained berchi, he felt suspicious and made a chase of him. Finally the accused was intercepted with the blood stained berchi. When the matter was brought to the notice of PW-5-Bhura, both the brothers went inside and saw the dead bodies of the children lying in their house.

5. An FIR was lodged at 8.00 p.m. on the same night. The investigating officer seized the blood stained pestle from the scene of occurrence.

6. PW-7-Girish, a teacher has deposed that appellant had confessed to him that the five children were crushed to death by himself. This was overheard by PW-8-Vishalli (a neighbour) and PW 10-Kotwal (a villlage head.). The circumstance of appellant running away from the scene had been spoken to by PW-4 and PW-6.

7. Learned senior counsel who argued for the appellant made an endeavor to show that there are discrepancies in the testimony of PWs 4 and 6 and when the said evidence is juxtaposed with the testimony of PW-3, some doubt could be created to the correctness of the version but when we examined the evidence, we are not satisfied of such discrepancies being of any material dimension as to the effect to the core of the testimony of these witnesses. That apart, the evidence of PWs 7, 8 and 10 would go to show that appellant made the extra judicial confession which does not merit rejection on any ground whatsoever.

8. Learned senior counsel tried to assail the action on the part of PW 12, the investigating officer for not seizing the bloodstained pestle from the scene of occurrence on the night of the incident itself. We are not inclined to make anything negative as against the investigating officer, on the account of the fact that the pestle was seized only on the next morning. The postmortem examination conducted by PW-1 - doctor would show that the victims were attacked with sturdy blunt object as well as a cutting object. This could certainly account for the presence of pastle near the scene of occurrence and the berchi in the hand of the accused. Both would have been used by the assailant for killing the children. We have no reason to interfere with the conviction passed by the trial court and confirmed by the High Court. But in the matter of sentence we have reasons to dissent from the view taken by the sessions court and the High Court. We propose to advert to them now.

9. Even the narration of the occurrence itself would give an impression that the accused would have had some mental derangement particularly when no motive had been attributed to him for such a ghastly massacre of infants. Added to this we have observed from the evidence of PW 7 that eyes of the accused were found red and PW 11 said that the accused was found acting as a demented person. The appellant did not engage a counsel of his own in the trial court either on account of poverty or on account of his impaired mental faculties. The trial court prided him with a counsel appointed on state brief. Even in the High Court he did not engage a counsel of his own and hence an advocate was appointed on state brief. We presume that there was lack of communication between the accused and the counsel appointed on state brief. At any rate it did not occur to the sessions court to conduct a preliminary - enquiry into the mental condition of the accused in order to decide whether the defence envisaged under section 84 of the Indian Penal Code could be thought of for him. Even the report of the psychiatrist who examined him contains a testimonial that appellant is a patient of mental illness though at present he is reported to be free from it. We, therefore, feel that appellant was not able to adopt the defence under section 84 of the Indian Penal Code due to circumstance beyond his control.

10. We considered whether we should remit the case to the trial court for a de novo trial. But after such consideration we now feel that a de novo trial cannot improve the situation as the disability of the accused would be persisting. We, Therefore, persuade ourselves to advance criminal justice in the present case by altering the sentence of death to imprisonment for life. We do so. At the same time we deem it necessary to all one more direction to the jail authorities like the following.

In view of the report of the psychiatrist of Gwalior Mansik Aroghyashala, the jail authorities should subject the appellant to observation by a specialist in mental illness. Whenever he is found ill he must be admitted in the mental hospital for treatment. The superintendent of the jail is directed to send a report to the sessions judge concerned once in three months as to how the person is given the necessary treatment from time to time. The district and sessions judge, Umariya is directed to submit a report to the registrar of the High Court at least annually as long as the appellant remains in jail for undergoing the life imprisonment imposed by us.

11. With these observations the appeal is disposed of.

Orders accordingly.