IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942
CRL.A.No.560 OF 2012(D)
SC 199/2004 DATED 21-01-2012 OF DISTRICT COURT& SESSIONS
COURT,THODUPUZHA
APPELLANT/ACCUSED
KURYACHAN @ KURYAN
S/O MATHAI, AGED 58 YEARS, PARATHANATHU HOUSE,
MELECHINNAR KARA, VATHIKUDY VILLAGE, IDUKKI
DISTRICT.
BY ADVS.
SRI.GRASHIOUS KURIAKOSE (SR.)
SRI.GEORGE MATHEWS
RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
BY PUBLIC PROSECUTOR ALEX M.THOMBRA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-12-
2020, THE COURT ON 06-01-2021 DELIVERED THE FOLLOWING:
CRL.A.No.560/2012
2
JUDGMENT
Dated : 5th January, 2021 M.R. Anitha, J.
1. This is the second round of appeal against the conviction and sentence passed in S.C No.199/2004 on the file of Sessions Judge, Thodupuzha.
2. Prosecution case can be summarized as follows:
On 18.4.2002 at about 8.45 p.m accused out of previous enmity towards his neighbour, the deceased Thomas @ Thommachan, while walking through Thopramkudi - Melechinnar public road, intentionally stabbed him with MO1 knife on his vital parts. Thomas @ Thommachan succumbed to the injuries on the way to St. John's Hospital, Kattappana, thereby the accused committed the offence u/s 302 IPC.
3. PWs 1 to 8 were Examined and Exts.P1 to P8 were marked and MOs 1 to 10 were identified and marked from the side of the CRL.A.No.560/2012 3 prosecution. Thereafter accused was questioned u/s.313 Cr.P.C. He almost admitted the incriminating facts and circumstances put to him and pleaded lack of memory and absence of knowledge with regard to some other factors. He also filed an unsigned separate statement stating that he surrendered his life before Christ and so many wonders would happen and he has been implicated not on account of his own intention. He had not committed any offence and the Christ is the only protector and he is submitting the entire case before Christ who know about the facts of the case etc. Finally on hearing both sides, he was convicted and sentenced to undergo life imprisonment.
4. Aggrieved by the same, he preferred Crl.A.No.76/2009 before this Court. As per the judgment dated 04.10.2011 the appeal was allowed setting aside the order of conviction and sentence and the case was remanded to the court below to consider whether accused is entitled to the benefit u/s. 84 IPC.
5. After remand, court below on enquriy was satisfied that he is fit CRL.A.No.560/2012 4 to stand trial.
6. PWs 1 to 4 and 6 to 8 were re-called and cross examined as part of proving the defence. DW1 was further examined and Exts.X1 and X1(a) were also marked. Thereafter, on hearing both sides the learned Sessions Judge again found the accused guilty u/s 302 IPC and convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.50,000/-, in default to undergo simple imprisonment for six months u/s.302 IPC. Against the conviction and sentence this appeal has been filed.
7. Notice was issued to the respondent. Respondent appeared through Senior Public Prosecutor Sri.Alex M. Thombra. Lower court records were called for. Sri. Gracious Kuriakose, Senior counsel appeared for the appellant. Heard both sides.
8. The main argument of the learned senior counsel for the accused is that the appellant/ accused ought to have given the protection u/s 84 IPC since it has come out from the evidence of prosecution witnesses that accused is not mentally sound. It is CRL.A.No.560/2012 5 also his contention that none of the relatives of the accused has been questioned by the investigating officer to ascertain the soundness of the mind of the accused. Investigating officer did not subject the accused to medical examination and place that evidence before the court and that has caused serious infirmity in the prosecution case. Hence benefit of doubt on that count ought have been given to the accused. It is also his contention that the evidence adduced by the prosecution in toto is quite insufficient to find the accused guilty in a grievous offence u/s. 302 IPC.
9. In order to claim the benefit u/s. 84 IPC, 1860 the learned Senior Counsel placed reliance on Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563], Bapu Alias Gujraj Singh v. State of Rajasthan [(2007) 8 SCC 68], Shibu v. State of Kerala [2013 (4) KLT 323], Abilash v. State of Kerala [2015 (3) KLJ 610.
10. The burden of proof in criminal Justice system is always upon the prosecution and that burden never shifts. But in a case of CRL.A.No.560/2012 6 plea of unsoundness of mind and consequent incapacity to know the consequences of the acts done by the accused, the burden is upon the accused. Section 84 of IPC (45 of 1860), provides that 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. It is also well settled that the insanity referred therein is legal insanity and not medical insanity.
11. Section 105 of the Evidence Act,1872 provides that the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or with in any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances.
12. In Dahyabhai's case referred above, the learned counsel CRL.A.No.560/2012 7 highlighted paragraph No.5 of the judgment which has quoted Sections 299, 84 IPC and Sections 105, 4, and 101 of the Indian Evidence Act and part of paragraph No.5 has been extracted as follows:
Sec.105 - when a person is accused of any offence, the burden of providing the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or withing any special exeption or priviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Section 4- "Shall presume" : Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as proved unless and until it is disproved.
"Proved" : A fact is said to be "proved" when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent main ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved" ; A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist or considers its non-
existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist, Section 101 : Whoever desires any Court to give CRL.A.No.560/2012 8 judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist, When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
It is fundamental principle of criminal jurisprudence that an accused in presumed to be innocent and therefore, the burden lies, on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S.299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But S.84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that Act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception under S.105 of the Evidence Act the burden of proving the existence of circumstances bearing the case withing the same exception lies on the accused, and the court shall presume the absence of such circumstances. Under S.105 of the Evidence Act, read with the definition of "shall presume" in S.4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material CRL.A.No.560/2012 9 before the court sufficient to make it consider the existence of the same circumstances so probable that a prudent; man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so place may not be sufficient to discharge the burden under S.105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S.299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that even the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity."
13. Paragraph No.7 has also been highlighted by the learned senior counsel which reads as follows:
"The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions; (1) the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the CRL.A.No.560/2012 10 beginning to the end of the trial, (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S.84 of the Indian Penal Code; the accused may rebut it by placing before the court all the relevant evidence - oral documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."
14. Again paragraph No.9 has been highlighted which reads as follows:
"When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused , by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of S.84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime".
CRL.A.No.560/2012 11
15. In Bapu Alias Gujraj Singh v. State of Rajasthan [( 2007) 8 SCC 66] the learned counsel highlighted paragraph No.8 which reads as follows:
"Under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity t in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards also by evidence of his mental condition and other relevant factors. Every CRL.A.No.560/2012 12 person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts."
16. Shibu v. State of Kerala [2013 (4) KLT 323] was relied on by the learned counsel mainly to point out the failure on the part of the investigating officer in not making any investigation with regard to the mental state of the accused. Paragraphs No.43 and 44 of the said decision has been highlighted by the learned counsel which reads as follows:
"43. Therefore, in cases in which any inappropriate, extraordinary or strange behaviour of accused is noticed or the manner in which offence is committed raises any reasonable doubt or belief, or even strong suspicion that accused must or might have been acting because of some problem in his mental condition or due to unsoundness of mind, investigating officers shall inevitably, conduct investigation into the mental stage of accused. In such cases, he shall ascertain whether accused had any history concerning mental condition.
He shall also get accused examined by a Psychiatrist at the earliest opportunity to ascertain whether he was acting under unsoundness of mind at the time of occurrence, without knowing nature of the acts etc. CRL.A.No.560/2012 13
44. The investigating officer shall not shirk off his responsibility to conduct investigation into the relevant aspects which is thrust upon him by virtue of S.61 IPC as per which he is bound to understand definition of every offence subject to General Exceptions. He must bear in mind that in cases in which certain General Exceptions is involved, acts committed may not constitute offence, under certain circumstances."
17. Paragraph Nos.37, 38 and 41 of Abilash v. state of Kerala referred above had also been highlighted by the learned counsel which reads as follows:
"37. "Even though the Investigating Officer was having the informaton with regard to the mental ailment of the appellant even at the inception of the investigation, the Investigating Officer did not incline to make any investigation with regard to the mental condition of the appellant and in the said circumstances, the appellant is entitled to the benefit of S.84 of the Indian Penal Code. The learned counsel has relied on the decision of this Court in Shibu v. State of Kerala (2013 (4) KLT 323) to support his argument. In Shibu case (supra) this Court held that if during investigation, it comes to the knowledge of the investigating officer from any of the relatives or friends or neighbours that there is something wrong with the accused mentally, the investigating officer shall necessarily conduct the investigation into the mental condition of the accused.
CRL.A.No.560/2012 14
38. In Bapu Alias Gujraj Singh v. State of Rajesthan (2007 (8) SC 66) the Supreme court held in paragraph 8 thus :
"The onus of proving unsoundness of mind is on the accused. But where during the investigation, previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing the evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidene of his mental condition and other relevant factors. Every person is also presumed to know the law. The prosecution has not to establish these facts"
41. It is settled law that if the Investigating Officer comes to know about the previous history of insanity during the course of investigation, it is the duty of the investigating officer to subject the accused to medical examination and place that evidence before the court. If this is not done, it creates serious infirmity in the prosecution case. However the onus will be discharged by producing the evidence as to the conduct of the accused shortly prior to the offence, and his conduct and mental condition at the time of the offence or immediately thereafter. Every person is presumed to know the nature and the consequences of his act. The onus of proving unsoundness of mind is on the accused and it is not for the prosecution to establish that fact."
18. As stated earlier, the burden of proof in criminal CRL.A.No.560/2012 15 jurisprudence is always upon the prosecution and it never shifts. Paragraph No.6 of Dahyabhai's case referred above quoting the text book and the decision reads as follows:
"The onus of establishing insanity is on the accused. The burden of proof upon him is no higher than which rests upon a party to civil proceedings." Quoting Glanveille Williams in his book "Criminal Law", General Part, 2nd Edn., places the relevant aspect in the correct perspective thus, at p.516:
"As stated before, to find that the accused did not know the nature and quality of his act is, in part only another way of finding that he was ignorant as to some fact constituting an ingredient of the crime; and if the crime is one requiring intention or recklessness he must, on the view advanced in this book, be innocent of mens rea. Since the persuasive burden of proof of mens rea, is on the prosecution, no question of defence, or of disease of the mind, arises except in so far as the prisoner is called upon for his own safety to neutralise the evidence of the prosecution. No persuasive burden of proof rests on him, and if the jury are uncertain whether the allegation of mens rea is made out ... the benefit of the doubt must be given to the prisoner, for, in the words of Lord Denning in another context, "the Crown would then have failed to discharge the burden imposed on it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner."
Again quoted K.M. Nanavati v. State of Maharashtra, CRL.A.No.560/2012 16 (1962) Supp (1) SCR 567 at pp.597, 598: (AIR 1962 SC 605 at p.617) wherein the court had to consider the question of burden of proof in the context of a defence based on the exception embodied in S.80 of the Indian Penal Code. In that context law is summarized thus:
"The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under S.105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statue may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see Ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception, if proved, affecting the proof of all or some of their ingredients of the offence. (see S.80 of the Indian Penal Code)... In the third case, though the burden lies on the accused to bring his case within the exception the facts proved may not discharge the said burden but may affect the proof of the ingredients of the offence."
19. It is relevant in this context to quote Kuttappan v. State of Kerala [1986 KLT 364] wherein the ambit and scope of burden of proof u/s. 84 IPC has been dealt with in detail. In that decision CRL.A.No.560/2012 17 while dealing with the matters to be considered while appreciating a case where benefit under Section 84 is claimed by the accused it has been held that Section 84 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 was wrong or contrary to law. Incapacity of the person on account of insanity must be of the nature which attracts the operation of S.84. Under S.105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the exception contemplated under S.84 IPC lies on the accused and the court has to presume the absence of such circumstances. Under S.4 of the Evidence Act, court has to regard the absence of such circumstances proved, 'unless, after considering the matters before it, it believes that such circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the CRL.A.No.560/2012 18 supposition that they did exist. Accused has to rebut the presumption that such circumstances did not exist by placing material before court or relying on materials already before the court, sufficient to make it consider the existence of such circumstances so probable that a prudent man would act upon them. In order to decide this question, court has to examine the available material such as oral and documentary evidence and should have due regard to admissions, presumptions and even the prosecution evidence. The burden which rests on the accused is however not higher than that which rests upon a party in a civil litigation. Material so placed before the court may not sometimes be sufficient to discharge the burden under S.105 of the Evidence Act; however, it may raise a reasonable doubt in the mind of the court as regard one or the other of the necessary ingredients of offence itself, either actus reus or mens rea. If it raises a reasonable doubt in the mind of the court whether the accused had the mens rea 'required for the offence, CRL.A.No.560/2012 19 accused would be entitled to the benefit of doubt. In such an event, prosecution must be taken to have failed to prove the guilt of the accused beyond reasonable doubt. The crucial point of time at 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 the commission of the act, is also relevant. The court has to pay due regard to the circumstances which preceded, attended and followed the act. It would not be proper to assume that the investigating officer is to direct his attention only to the act but not to the mens rea. Of course, ordinarily attention of the investigator would be directed to the act, particularly in the absence of circumstances throwing any doubt on the sanity of the perpetrator of the act. But where the investigator comes across any suggestion or material throwing any such doubt, it would be his duty to investigate the mental condition of the accused also and place the material before court.
CRL.A.No.560/2012 20
20. Bearing in mind the above settled principles we have to analyze how far the accused succeeded to establish his entitlement for the benefit u/s. 84IPC.
21. Originally while considering Crl.A.No.76/2009 it has been found by this court that the case of the accused was not properly defended and that has caused miscarriage of justice and if as a matter of fact he had been treated for mental ailment in the Sacred Heart Hospital, Painkulam, Thodupuzha there would be records to show that. It is further found that If at the time of occurrence which took place on 18.4.2002, appellant by reason of morbidity of mind was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law attracting "Mc Naughtons' Rules which stand statutorily recognized u/s. 84 IPC it may not even amount to an offence. It is further found that the trial before the court below was one- sided and there was no even handed justice attempted at the trail side. Hence an opportunity was given to the accused to CRL.A.No.560/2012 21 substantiate his defence by recalling any of the prosecution witness and to take steps for summoning medical records either from Sacred Heart Hospital, Painkulam or any other hospital where he might have received treatment for any mental ailment and accordingly the conviction and the sentence was set aside and the case was remanded. But after the remand though PWs 1, 2, 6, 7 and 8 were recalled and further cross examined as a part of adducing defence evidence and DW1 was examined and Exts.X1 and X1(a) were marked, there seems to have no much improvement in the evidence.
22. In this context we may discuss the evidence which could be brought in by the defence through the evidence of prosecution witnesses. PW1 who had given the FIS and is an eyewitness to the incident clearly states about the overt act of the accused of stabbing the deceased with a knife two - three times. During cross examination it was brought out that at the time of incident there was no wordy altercation between the deceased and CRL.A.No.560/2012 22 accused and he did not know for what reason accused had stabbed the deceased. Further he stated that people in the locality used to say that accused had mental illness. But during re examination he stated that accused and deceased have got boundary dispute and they are on enimical terms.
23. After the remand he was recalled and he stated that while himself and deceased were walking together the accused joined them as called by him. He has not seen the accused quarreling with anybody or quarreling with the deceased on the date of incident. Further he stated that there is a talk in the locality that accused is a mentally ill person. At the same time he would say that accused was not in the habit of talking a lot to anybody. Further a question was put as to whether accused left the place after stabbing the deceased happily by stating that he had stabbed deceased. For which, the initial answer of PW1 was that he had not heard what he said but further stated that accused was going happily after stab. He also stated that it was heard CRL.A.No.560/2012 23 that accused had been undergoing treatment at Painkulam, Thodupuzha hospital for quite long time, which was an answer to a leading question also. During re examination it was brought out that he has not stated to the police initially about the mental illness of the deceased . But according to him it was because he was not asked about it. It was also brought out that he has not stated in Ext.P1 that accused left the place after stabbing the deceased happily. To a Court question, he pleaded total ignorance about the mental illness or the treatment undergone by the accused or the nature of illness of the accused.
24. So on evaluating the evidence of PW1 what could be gathered is that he only stated about some hearsay knowledge from the local people about the mental illness of the accused. Though he deposed that accused left the place after stabbing the deceased happily by stating that he stabbed the deceased, it has been brought out as an omission during re examination. In effect he has no direct knowledge regarding the mental illness or CRL.A.No.560/2012 24 the treatment alleged to have been undergone by the accused. So his evidence will not in anyway probabilise the defence case of insanity of the accused.
25. PW2 is also a neighbour and his evidence is that on 18.04.2002 at about 8.45 p.m while he was sitting in the shop of one Kochettan at Melechinnar City accused came to the shop of Vijayan and he told him that he stabbed deceased and on single stab deceased fell down. Then he asked the accused to show the knife and he showed the blood stained knife from his loin (MO1) and accused handed over the knife to him and he in turn handed over the same to PW3 who was the Vathikuty panchayath member. It is true that he stated that at the time of incident deceased and accused were in cordial terms. But at the same time during cross examination he stated that accused told him that being unbearable of the nuisance of the deceased that he had done the act. He also stated that accused did not attempt to ran away and he is a nice fellow.
CRL.A.No.560/2012 25
26. After remand he was recalled and stated that accused and he belongs to the same parish. When a question was put to him that the accused used to talk in contradiction, his answer was that accused is not in the habit of talking more. When a leading question was put to him that there was an opinion including the parish priest that accused has to be treated by taking to mental hospital and should not be participated in parish meetings, he answered that there was such a general opinion. Again a leading question was put to him that at the request of the parish priest the family members of the accused subjected him to treatment for a long period at Painkulam Mental Health Centre, his answer was that he heard so. Again a leading question was put to him as to whether accused was disclosing about the attack upon the deceased happily or sadly and he answered that it was with happiness. He also answered to a leading question that there is a general talk that accused is mad. It is also stated that accused used to publish and circulate notices stating that CRL.A.No.560/2012 26 himself and society are not getting justice from the police and church stating contradictory matters. He also stated that since police did not ask him he did not state about his mental illness to the police and further that accused has not made any attempt to escape from there. But during cross examination it was brought out that himself and others made the accused sit in the shop of Kochettan and as requested by him the accused handed over the knife to him. He also stated that he does not know the nature of ailment of the accused and he used to talk to the accused and they are living on either of side of a river and accused also used to talk to him.
27. So on analyzing the evidence of PW2 also apart from the fact that accused voluntarily declared that he has stabbed the deceased and handed over the knife on his request and there was no attempt by him to escape , that all amount to his subsequent conduct, there is no admissible material brought out from the evidence of PW2 to show that accused was insane at CRL.A.No.560/2012 27 the time of the commission of the offence. He only would state about a hearsay knowledge regarding the mental illness during his examination. So his evidence also would not prove that accused was mentally ill at the time when the offence was committed.
28. It is pertinent to note that PW3 who is a panchayath member would not state anything about the mental illness of the accused. No question in that regard has been put to him during his cross examination, he was also not recalled after the remand. It is with him PW2 entrusted the MO1 knife after getting it from the accused. It is he who had handed over MO1 knife to the police and he had called the police from the shop of Kochettan. The witness also categorically state about the boundary dispute between the accused and deceased.
29. Evidence of PW4 did not state anything regarding the mental illness of the accused.
30. Apart from the above factors brought in during the CRL.A.No.560/2012 28 examination of prosecution witnesses, DW1 also was examined and Exts.X1 and X1(a) were marked from the side of the defence. The evidence of DW1 who is a consultant psychiatrist and associate professor in psychiatric department SH Hospital, Piankulam would show that he produced the case sheet along with the attested copy kept in the hospital pertaining to the accused and attested copy compared with the original were marked as Ext.X1. His evidence is that on 22.08.2005 Kurian Mathai, S/o. Mathai (Accused herein) had been admitted in the hospital and was discharged on 06.09.2005. He examined him on that day in the hospital and was referred by a physician from Karuna Hospital with history of insomnia (sleeplessness) for one year or more and advised a psychiatric consultation. The letter from the Karuna hospital in the file is marked as Ext.X1(a). The history of the patient was taken by DW1 which would show sleeplessness, decreased talk, gloomy mood, restlessness, fearfulness following stress. He deposed that on examination he CRL.A.No.560/2012 29 made a diagnosis of depression with psychosis (fear). He also state that the duration of illness of the patient was stated by his son that the complaint persist for more than ten years and it is increased in three years. He had given medicines one anti depression and anti psychotic and he was discharged with advice to undergo counselling and continue medical treatment and treatment for stress reduction. Further he deposed that after that the patient came for follow up on 17.10.2005 and on that day he had given one tablet which is the combination of anti depression and anti psychotic for one month. Thereafter he had not seen that patient.
31. During cross examination he stated that he cannot say whether the patient was suffering from illness during 2002. It is also stated that if the patient was irritated by somebody there is possibility of getting violent since he is not able to express his mental state by vocal expression. During his treatment he never shown the sign of any violence.
CRL.A.No.560/2012 30
32. First of all the evidence of DW1 would only speaks about the state of affairs with regard to the mental condition of the accused starting from 22.08.2005 and even according to him after 17.10.2005 he had not seen the patient also. The incident in this case admittedly is on 18.04.2002. So the evidence of DW1 the doctor will not in anyway speaks about the mental condition of the accused on the date of incident or soon after that or before that.
33. In Dahyabhai's case it has been categorically held by the Apex Court that when a plea of insanity is set up, the Court has to consider whether at the time of the offence the accused by reason of unsoundness of mind was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. It is further categorically held that the crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of CRL.A.No.560/2012 31 section 84 can only be established from the circumstances which preceded attended and following the crime.
34. The evidence of DW1 at any rate would not relate to the time when the offence was committed. On the other hand it relates to a period much after about three years. Though there was attempt from the side of the defence to establish through the conduct subsequent to the offence that he did not attempt to evade from the process of law and disclosed about the incident to PW2 and handed over the weapon to him etc those factors cannot at any moment leads to an inference of any insanity.
35. It is relevant in this context to quote Elavarasan v. State [AIR 2011 SC 2816] wherein while dealing with a murder trial where a plea of insanity was taken by the defence it has been held that appellant did not run away from the place of occurrence or that he had attacked his wife, mother and child without any reason did not establish that he was of unsound mind and the doctor also deposed in that case that he was not an insane person at CRL.A.No.560/2012 32 the time of incident. So the fact that there was no attempt from the part of the accused to escape or that he himself disclosed about the act to PW2 or handed over the weapon on request to Pw2 etc will not prove that he was of unsound mind ,rather it would only show the subsequent conduct which actually is admissible u/s. 8 of the Indian Evidence Act. So also though questions were put to the prosecution witnesses which have been discussed above that there is a talk by the parish priest that he has to be taken to mental hospital for treatment or that there was a talk in the locality that he was mad etc will not constitute as facts which discharges the burden of the accused to prove the unsoundness of mind. So also though PW2 would depose that there is a talk in the locality that he is mad during re examination he categorically stated that he does not know about the illness of the accused and he used to talk to accused and also accused used to talk to him.
36. Bapu Alias Gujraj Singh reffered above Paragraph No.7 is CRL.A.No.560/2012 33 relevant in this context to be extracted which reads as follows:
"Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity. The burden of proof rests on an accused to prove his insanity, which arises by virtue of Section 105 of the Evidence Act, 1872 (in short "the Evidence Act") and is not so onerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding. (see Dahyabhai Chhaganbhai Thakkar v. State of Gujarat). In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appears sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarizes them as follows :
"Where there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment; whether after the crime, the offender showed CRL.A.No.560/2012 34 consciousness of guilt and made efforts to avoid detections, whether after his arrest, he offered false excuses and made false statements. All facts of this sort are material as bearing on the test, which Bramwall, submitted to a jury in such a case; 'Would the prisoner have committed the act if there had been a policeman at his elbow ?' It is to be remembered that these tests are good for cases in which previous insanity is more or less established."
These tests are not always reliable where there is, what Mayne calls, "inferential insanity".
37. So in this case as found earlier the defence could not establish either by adducing evidence directly or through the evidence of prosecution witnesses that accused was suffering from unsoundness of mind. The factors which could be brought in during the examination of the prosecution witnesses are also quite insufficient to draw an inference that accused was of unsound mind either at the time of commission of the offence before and after.
38. Though the learned counsel argued about the failure on the part of the investigating officers to conduct any investigation regarding the mental illness of the accused and prejudice that CRL.A.No.560/2012 35 has been caused to the accused in that regard and it would in turn enable the accused to get benefit of doubt, it is very pertinent to note that PW6 the Sub Inspector of Police who recorded the FIS and PWs 7 and 8 the Circle Inspectors who subsequently conducted the investigation and filed the final report would not show that they had any information regarding the alleged mental illness of the accused. PW6 the Sub Inspector categorically stated that after the accused was produced before the police station till his arrest and after when he was present at the police station he did not show any symptoms of mental illness. PW7 while initially cross examined no question was put with regard to the mental illness. After remand he was recalled and cross examined further. Then also he categorically stated that none of the inhabitants in the locality or the relatives or any other witnesses did disclose that accused is having any mental illness. He also stated that no treatment records also had been produced before him. The suggestion CRL.A.No.560/2012 36 that he was convinced about the chronic mental illness of the accused during the investigation from the local public and the relatives of the accused is stoutly denied by him.
39. PW8 who continued the investigation of PW7 was also not initially questioned with regard to the mental illness of the accused. After remand he was recalled and he would state that he had not recorded the statement of any of the witnesses or the relatives of the accused . He also stated that as per the CD file his predecessor also has not questioned any of the relatives of the accused. Further a suggestion was put to him that during the course of the investigation the relatives of the accused and the local people told him that accused was mentally ill at the time of incident before and after and without investigating that fact he filed the charge sheet,is stoutly denied and he further clarified in re-examination that from the records he verified he could not find out any documents or the statements of the witnesses showing that accused has got any mental illness. So the CRL.A.No.560/2012 37 statements of the Sub Inspector who registered the FIR and also the evidence of the Circle Inspectors who conducted the investigation and filed the charge also would not give any indication to infer that they have been informed by any of the witnesses or by records that accused is mentally ill. So the accused cannot be heard to contend that the investigating officers failed to investigate the question regarding the unsoundness of the mind of the accused and that has caused prejudice to him and which in turn enable him to claim benefit of doubt.
40. It is true that the learned counsel took my attention to Shibu's case referred above to contend that the investigating officer has a duty to investigate into the mental state of a person and since that has not been done prejudice has been caused to him. But in Shibu's case what has been held is that if during investigation it comes to the knowledge of the investigating officer from any of the relatives, friends or neighbours that there is some wrong CRL.A.No.560/2012 38 with the accused mentally, investigating officer shall necessarily conduct investigation into the mental condition of the accused. In Joseph Mathai @ Jose v. State of Kerala [2019 KHC 934] also while dealing with a case u/s. 84 IPC it has been held that if previous history of insanity of accused is revealed during investigation, investigating officer has a duty to subject the accused to medical examination and place that evidence before the court and if it is not done, it creates serious infirmity in prosecution case and benefit of doubt has to be given to the accused. But in this case as discussed earlier, there is nothing in evidence to conclude that there was any occasion for the investigating officers to come to know about the alleged unsoundness of mind of the accused. Even after giving an opportunity by this Court to prove that fact the accused could not establish by adducing any satisfactory evidence to infer that he has got any unsoundness of mind at the time when the incident occurred before and soon after. The evidence of DW1 relates to CRL.A.No.560/2012 39 a period after 3 years of the incident. So accused cannot claim benefit of doubt on that account.
41. So on evaluation of the facts and circumstances, we do not have any hesitation to find that the accused could not discharge the burden casts upon him even as per the yardstick of preponderance of probabilities from the evidence adduced from the side of the prosecution or through the evidence of DW1 the doctor. So it can safely be concluded that accused is not entitled to get the protection u/s. 85 of the IPC.
42. The next question is whether any interference is called for with the finding entered into by the court below u/s. 302 IPC.
43. The law was set in motion as per Ext.P1 FIS given by PW1 who is a witness to the occurrence. PW6 was the Sub Inspector of Police, Murickassery police station during the relevant time who recorded the FIS given by PW1 and registered the FIR Ext.P1 (a). The FIS was given at 11 p.m on the same day. Thereafter PW7 the Circle Inspector, Idukki took charge of the CRL.A.No.560/2012 40 investigation and prepared the inquest report which is marked as Ext.P3, he seized MO2 shirt Mo3 lungi and Mo4 underwear found on the body of the deceased by describing in Ext.P3 inquest. Ext.P4 is the scene mahazar prepared by him. He seized MO5 plastic footwear and a rubber footwear MO6 a sack bundle MO7, Mo8 umbrella, Mo9 jerry can and MO10 blood stained soil by describing in the scene mahazar.
44. PW3 produced MO1 knife that was seized by PW7 describing in Ext.P5 seizure mahazar. On the same day he arrested the accused and there after questioned the witnesses. Ext.P6 is the forwarding note produced by him for sending the articles to FSL and Ext.P7 is the FSL report.
45. PW4 is the witness to whose house PW1 immediately rushed after the incident to intimate about the act of the accused. She also stated that after PW1 came to her house accused came to the courtyard holding a knife, then she closed the door and thereafter she went for bringing the jeep.
CRL.A.No.560/2012 41
46. PW8 is the successor of PW7 and continued the investigation and collected the scene plan Ext.P8 thereafter he completed the investigation and filed the charge sheet.
47. PW5 is the Professor, forensic medicine, Medical college hospital, Kottayam. He conducted post-mortem examination on the body of the deceased and Ext.P2 is the postmortem certificate. Ante mortem injuries noted are as follows:
1. Incised penetrating wound 4.5 x 1 cm horizontal on left side of back of chest, 4 cm outer to midline and 7 cm below top of shoulder. Inner end showed spitting of tissues and other end of the wound sharply cut. Left chest cavity was penetrated by cutting 3rd left intercostal space close to vertebral column and punctured the back of upper lobe of left lung, left chest cavity contained 250 ml of fluid blood. Left lung partially collapsed and pale. The wound was directed forwards and downwards for a depth of 8.5 cm.
2. Incised penetrating wound 5x1.5 cm oblique on the right side of back of chest, upper inner blunt end 1.7 cm outer to midline and 3 cm below root of neck, other end of the wound sharply cut. Right chest cavity was penetrated by cutting 2nd rib and 2nd intercostal space class to vertebral column and punctured 150 ml. Fluid blood. Right lung partially CRL.A.No.560/2012 42 collapsed and pale. The wound was directed forwards and downwards for a depth of 7.5 cm.
3. Incised penetrating wound 3.5 x 1x 4.5 cm horizontal, on right side of back of chest, inner blunt end 17 cm, outer to midline and 30 cm below top of shoulder, other end of wound sharply cut. Right chest cavity was penetrated by cutting through 9 th intercostal space.
4. Two linear abrasions, 2 cm and 1.5 cm long oblique one below the other 0.5 cm apart on the back of right arm 13 cm above elbow.
48. According to PW5 the opinion as to the cause of death is the penetrating injuries sustained to the chest. He also stated that injuries no.1 to 3 could be caused by stabbing with MO1. During cross examination he would also state that all the injuries are independently sufficient to cause death in the ordinary course of nature. So the fact that the death of the deceased was a homicide is proved through the evidence of PW5 the doctor. More over the fact that the death of the deceased was a homicide is not in dispute also.
49. To prove the occurrence prosecution mainly relies upon the evidence of PW1 to 3. PW1 is an eyewitness who was present CRL.A.No.560/2012 43 along with the deceased and accused while returning from the shop and was walking just on the back of the accused and deceased. He stated that while himself and deceased were returning from the shop to the house, accused joined them from Chinnar Library when they reached near the house of Rajankutty (PW4) there is a narrow short cut and he was walking about ten feet back to them. He heard a noise and lighted the torch and found the accused stabbing the deceased two - three times. The deceased cried and approached him and fell down near him. Then accused came with a knife and he ran to the house of Rajankutty where PW4 was there. The incident was disclosed to her and immediately Rajankutty also came and somebody has brought a jeep and deceased was taken to hospital. After 10'o clock police came to his house and taken to police station and he gave FIS which is marked as Ext.P1. The attempt during his cross-examination was to bring out that there was no rivalry between the deceased and accused and he did not know the CRL.A.No.560/2012 44 reason why the accused stabbed the deceased. Though he was cross examined at length there was nothing brought out to discredit his testimony that he has witnessed the accused stabbing the deceased 2 - 3 times.The medical evidence also corroborates with the oral testimony of PW1.
50. PW2 stated that at about 8.45 p.m., on 18.4.2002 while he was sitting in the shop of Kochettan accused came there and informed that he stabbed the deceased and showed the blood stained knife and the knife was identified as MO1 .What has been brought out during his cross examination is that there was no attempt on the part of the accused to escape and accused told him that being unbearable of the nuisance of the deceased that he had done the act. So the fact that accused immediately after the incident came to the shop and confessed about the act done by him to PW2 and handed over the blood stained weapon to him is proved through his evidence. PW3 is the panchayath member to whom MO1 knife was handed over by Pw2 .PW3 CRL.A.No.560/2012 45 inturn intimated the police about the incident . PW3 was also present when accused came to the shop of Vijayan. He was also present when accused confessed that he had stabbed the deceased. So the evidence of PW2 and 3 would constitute extra judicial confession made by the accused which can be read in corroboration with other evidence.
51. MO1 blood stained knife and the clothes of the deceased Mos 2, 3, 4 etc were sent for examination to Forensic Science Laboratory and Ext.P7 FSL report would state that MO1 knife, MO2 shirt , MO3 lungi and MO4 underwear contained human blood. The blood stained soil collected from the scene of occurrence , MO10 also reported to contain human blood as per Ext.P7. So that also constitute corroborative evidence to support the prosecution case. So on evaluating the evidence adduced from the side of the prosecution it could be found that ocular evidence is corroborating with medical evidence and the doctor PW5 who conducted the autopsy categorically stated that the CRL.A.No.560/2012 46 injuries caused are independently sufficient to cause death. Injuries No.1 to 3 are also on the vital parts involving the chest. So the oral evidence coupled with the medical evidence prove beyond any reasonable doubt that the accused has caused the death of the deceased by inflicting stab injuries with MO1 knife and there by he is responsible for the death of the deceased.
52. The learned counsel would further contend that accused is an aged man of 75 years and he has been under confinement for the last more that 12 years. The incident occurred out of sudden provocation and he had no intention to commit the murder of the deceased. That could be revealed from the evidence of PW1 when he says that while himself and deceased were returning from the shop the accused joined them as PW1 called him and it was not a premeditated act and occurred out of sudden quarrel in between deceased and accused and hence his act would come under culpable homicide not amounting to murder.
CRL.A.No.560/2012 47
53. It is relevant in this context to quote Gokul Parashram Patil v. State of Maharashtra (AIR 1981 SC 1441 = MANU/SC/0144/1981). In that decision in a case of alteration of charge under Secs 300(c)(ii), 302 and 304 Part-II of IPC it has been discussed whether particular injury which was found to be sufficient in the ordinary course of nature to cause death was the injury intended by the appellant and it has been held that Sec.300(c)(ii) IPC provides that injury must intended to have been caused by the culprit and injury which was found sufficient in the ordinary course of nature to cause death does not satisfy the above test because it cannot be said to have been intended by the assailants and accordingly the appeal was allowed and conviction under Sec.302 IPC was set aside and altered to Sec.304 Part-II IPC. In that case also, prosecution case was that appellant attacked the deceased with a knife giving the latter a little blow above the left clavicle where it goes muscle deep incised wound having dimension 1 - ¼ x 1/3 .
CRL.A.No.560/2012 48
54. In Ajit Singh v. State of Punjab (2011 (9) SCC 462 = 2011 KHC 4773) while dealing with Secs 302 and 304 IPC, it has been held that, in the absence of clear evidence regarding intention to cause death and the intention to cause more bodily injuries to hold whether an offence would fall under Sec.302 or 304 Part-I IPC, the courts have to be cautious in examining whether the same falls under Sec.300 or it would fall under its five Exceptions which lays down when culpable homicide is not murder.
55. During evidence attempt on the part of the accused was to establish that there was no wordy altercation between the accused and the deceased before the incident. It was also tried to establish that they were in cordial terms. But it has come out in evidence that there was boundary dispute in between them. It has also come out that accused joined the company of the deceased and Pw1 accidentally. While Pw1 and deceased were returning from the shop ,Pw1 asked the accused to join them CRL.A.No.560/2012 49 and accordingly he joined them.
56. Ext.P1 given by Pw1 with in three hours of the incident would state that while they were walking there was exchange of words between the deceased and accused regarding boundary dispute and during that course that the accused stabbed the deceased. So that fact would corroborate with the defence version that it was not a pre meditated and occurred out of sudden quarrel in a heat of passion.But at the same time the injuries are on the vital parts and hence his intention and knowledge that his act would likely to cause death of the deceased is made out from the facts and circumstances. So the act of the accused will come under culpable homicide not amounting to murder coming under Part-I of 304 IPC.
57. In the result, Crl.Appeal allowed in part setting aside the conviction and sentence passed against appellant/accused under S.302 IPC and altered it to S.304 Part-1. He is sentenced to undergo rigorous imprisonment for ten years and to pay fine CRL.A.No.560/2012 50 of Rs.50,000 in default to undergo further period of imprisonment for one year. Fine amount, if realised, shall be given as compensation to the legal heirs of the deceased. Set off allowed.
Sd/-
A.HARIPRASAD Judge Sd/-
M.R.ANITHA Judge Shg/Mrcs/16.12.