Crime No.173/2015 Of ... vs By Adv. Sri.M.S.Radhakrishnan ...
2021 Latest Caselaw 3430 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

       THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                             &

         THE HONOURABLE MRS. JUSTICE M.R.ANITHA

 MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                    CRL.A.No.815 OF 2020

  SC 571/2015 DATED 25-02-2020 OF ADDITIONAL    SESSIONS
                  COURT,MOOVATTUPUZHA

   CRIME NO.173/2015 OF Kunnathunadu Police Station ,
                        Ernakulam


APPELLANT/ACCUSED

           VARGHESE
           AGED 77,
           S/O.CHACKO,THURUTHUMMEL HOUSE,
           NJARALLUR KARA,KIZHAKKAMBALAM VILLAGE.

           BY ADV. SRI.M.S.RADHAKRISHNAN NAIR

RESPONDENTS/COMPLAINANT

           STATE OF KERALA
           REPRESENTED BY THE SUB INSPECTOR OF
           POLICE,KUNNATHUNADU POLICE STATION,THROUGH
           THE PUBLIC PROSECUTOR,HIGH COURT OF
           KERALA,ERNAKULAM.


           R1 BY SMT.AMBIKA DEVI S, SPL.GP (ATROCITIES
           AGAINST WOMEN AND CHILDREN AND WELFARE OF
           WOMEN AND CHILDREN

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19-01-2021,  THE   COURT  ON   1.2.2021 DELIVERED  THE
FOLLOWING:
 Crl.A.815/2020
                                   2


                               JUDGMENT

Dated : 1st February, 2021

M.R.Anitha, J.

1.This appeal has been filed against the

judgment in S.C. 571 /2015 on the file of

Addl. Sessions Judge Muvattupuzha.

2.Prosecution case can be summarised as

follows:- Accused was under mental stress

since his wife was affected with Hepatitis B,

a contagious disease and his daughter was

physically challenged, deaf and dumb by birth

and was incapable of taking care of herself.

Due to the illness of the wife, none of the

friends, relations and neighbours are turning

up to their house also. Out of that

desperation with intention and preparation to

do away with the wife and daughter in between

12 midnight on 27.1.2015 and 2.30 am on Crl.A.815/2020

28.1.2015 accused intentionally caused the

death of his wife at the bed room situated on

the south eastern corner on the ground floor

and the daughter was killed in the hall by

smothering and strangulation using pillow and

bath towel (MO2 and 3) and by clobbering

them with the blunt edge of MO4 chopper and

with MO1 spanner on the head and face. Both

of them succumbed to the injures at the spot.

Thereby accused committed offence under S.302

IPC.

3.Immediately after the incident accused

informed the matter over land phone to PW2

the neighbour. PW2 in turn informed the

matter to PW1 the nephew of the accused and

he along with his brother and PW5 came to the

house of Pw2 and all of them together went to

the house of the accused and saw the accused

and dead bodies inside the house. Thereafter Crl.A.815/2020

Pw1 went to the police station and lodged the

FIS Ext.P1. PW 18 the SHO Kunnathunadu

recorded the FIS of PW1 and registered

Ext.P20 FIR. In the meantime the bodies of

the deceased were taken to TD Medical College

and PW10 and 12 conducted postmortem on the

body of the deceased persons. PW20 the

Inspector of Police Kunnathunadu took charge

of the investigation. PW19 the Scientific

Assistant visited the spot of incident and

collected the blood stains from the floor

near the head of the deceased persons and the

wall. The report of the Scientific Assistant

is marked as Ext.P21. Pw16 who was the CPO

attached to the Kunnathunadu Police Station

was on surveillance duty of the accused. PW5

was the SCPO attached to Kunnathunadu Police

Station who went to the house of accused on

getting information regarding the murder Crl.A.815/2020

while doing night patrol duty and saw the

accused and the two dead bodies inside the

house. PW17 was the Head Constable attached

to Kunnathunadu Police Station who was a

witness in Ext.P18 seizure mahazar of DVD.

Ext.P19 is the seizure mahazar for seizing

the photos-Ext.P14 and CD-Ext.P15.

4.PW11 was the Village Officer who prepared

Ext. P11 site plan (ground floor) and Ext.P12

the first floor).Pw8 is the witness in

Ext.P9, inquest carried out of Elizabeth,

the deceased daughter of the accused. Ext.P6

is the inquest carried out of Annamma, the

deceased wife of the accused. PW5 signed it

as witness. Further PW20 questioned the

witnesses, collected evidence and final

report was filed before the JFCM Court,

Kolencherry.

5.On the side of prosecution PW1 to 20 were Crl.A.815/2020

examined, Ext.P1 to P34 were marked and MO1

to 12 were identified and marked. Thereafter

on questioning the accused, he denied all the

incriminating facts and circumstance put to

him and filed additional statement . DW1 and

2 were examined and Exts.D1 to D4 marked from

the side of the accused. After hearing both

sides court below found the appellant/accused

guilty under Sec.302 IPC and sentenced him

to undergo imprisonment for life and to pay

fine of Rs.50000/- in default to undergo

Rigorous Imprisonment for six months.

6.Assailing the conviction and sentence,

appellant/accused came up in appeal before

this court for various grounds stated in the

memorandum of appeal.

7.Lower court records were called for and

perused. Heard the learned counsel for the

appellant and the learned Special Public Crl.A.815/2020

Prosecutor.

8.Though various grounds are raised in the

Appeal memorandum assailing the conviction

and sentence, the argument of the learned

counsel for the appellant/accused

(hereinafter be referred as accused) was on

the plea of unsoundness of mind and claiming

protection under Sec.84 IPC. However, before

going to that aspect, it would be necessary

to find about the correctness of the

conviction passed by the learned Additional

Sessions Judge.

9.In order to prove the cause of death, the

prosecution relies on the evidence of the

Doctors who conducted postmortem on the

bodies of the deceased Annamma and Elizabeth.

PW10 was the Associate Professor of Forensic

Medicine and Deputy Police Surgeon,

Government T.D Medical College, Alappuzha who Crl.A.815/2020

conducted postmortem on the body of

Elizabeth, the daughter of the accused and he

issued Ext.P10 postmortem certificate. The

history revealed to the Doctor is "on

28.1.2015 between 12 am and 3 am father of

the deceased person attacked her with a

spanner and suffocated her by using pillow".

The ante-mortem injuries noted read as

follows :

1. Lacerated wound 3.1x0.6cm, bone deep on the right side of forehead, its lower inner end 5cm above the inner end of eyebrow.

2. Lacerated wound 2x0.5cm, bone deep on the right side of forehead 1.5cm above the eyebrow, 0.5cm outer to inner end of eyebrow.

3. Two lacerated wounds 1.5x0.3 and 1.3x0.2cm, bone deep 1cm apart on the forehead 2cm above the root of nose.

4. Lacerated wound 1.1x0.2cm, bone Crl.A.815/2020

deep on the bridge of nose 3cm above the tip with fracture of nasal bone underneath.

5. Abrasion 1x0.5cm on the outer end of right eyebrow.

6. Lacerated wound 1.5x0.5cm bone deep on the outer end of left eyebrow.

7. Abrasion 1x0.4cm on the left side of face, 1.5cm outer to outer angle of left eye.

8. Lacerated wound 2x0.5cm, bone deep on the back of head overlying the occiput.

9. Contusion 7x4x0.5cm on the right side of head just above the ear (seen after dissection of scalp).

10. Three lacerated wound 1.5x0.5cm, 2x0.5, 1.5x1cm bone deep over an area 5x3 cm on the right side of head 4cm above the top of ear.

Brain showed bilateral subdural and subarachnoid haemorrhages. Sulci were narrowed and gyri flattened.

11. Four abrasions varying in sizes from 0.3x0.3 cm to 0.5x0.4cm over an area 3.5x2.5cm on the right side of chin 2cm outer to midline.

Crl.A.815/2020

12. Abrasion 2.3x0.5cm on the right side of face, just outer end and just above the right angle of mouth.

13. Three abrasions varying in sizes from 0.1x0.1 to 0.3x0.2cm over an area 2x0.6cm on the right side of nose just above ala of nose.

14. Abrasion 0.5x0.3cm on the outer aspect of right side of upper lip 1.5cm outer to midline.

15. Six abrasions varying in sizes from 0.1x0.1cm to 0.3x0.3cm on the top of nose over an area 3x1cm, 1cm above the tip of nose.

16. Multiple small abrasions (twenty numbers) varying in sizes from 0.2x0.1 to 2x1cm over an area 10x6cm on the left side of face over the left ala of nose, adjacent part of upper part of lip and cheek.

17. Abrasion 1x0.3cm on the outer aspect of lower lip margin 2cm inner to left end.

18. Two abrasions 0.5x0.5cm, 0.6x0.5cm on the left side of lower lip margin, just outer to midline.

19. Two abrasions 0.5x0.3 and 0.3x0.1cm Crl.A.815/2020

on the right side of chin, 5.5.cm outer to midline, 4cm above the margin of jaw.

20. Abrasion 2x0.5cm on the back aspect of right forearm, 7cm above the wrist.

21. Contusion 1.5x1x0.5cm on the back of right hand over the knuckle of right little finger.

22. Multiple small abrasions over an area 9x8cm on the right side of back of chest, inner extent 2.5cm outer to midline and 5cm below top of shoulder.

10. The doctor also stated that death was

caused due to the injury sustained to head

and around the mouth and nostrils (smothering

- injury Nos 1 to 19). He would further state

that injury Nos 1 to 10 are blunt injuries

and all those injuries are possible of being

caused with the blunt portion of MO4 chopper.

According to him these injures are also

possible with a forceful impact with MO1

spanner. It is also stated by him that injury Crl.A.815/2020

Nos.11 to 19 are suggestive of smothering.

Though it was suggested during cross-

examination that injury Nos.11 to 19 would

not have been caused by smothering, he

stoutly disagreed with the suggestion because

injuries are suggestive of smothering. So in

effect, nothing could be brought out to

discredit the testimony of PW10 and Ext.P10

postmortem certificate of Elizabeth, the

daughter of the accused.

11. PW12 was the Medical Officer of Forensic

Medicine, Government T.D.Medical College,

Alappuzha who conducted postmortem

examination on the body of Annamma, wife of

the accused and issued Ext.P13 postmortem

certificate. The brief history stated to the

doctor is "murdered by smothering,

strangulation and by beating with a metal

spanner on her head between 27.1.2015, 24 Crl.A.815/2020

hours, 3 am on 28.1.2015".

12. The ante-mortem injuries reads as

follows :-

1. Contusion 3x4x.5 cm right side of head, 5cm above right ear, 9 cm outer to midline.

2. Contusion 3x2.5x.3cm right side of forehead 7cm outer to midline 3 cm above outer end of eyebrow.

3. Contusion 4x4x.3cm left side of forehead just outer to midline 5 cm above root of nose.

4. Contusion 1.5x2x.5cm left side of forehead 5.5cm outer to midline 1cm above eyebrow.

5. Contusion 7.5x5x.3cm involving both upper and lower eyelids, its inner extent just outer to midline.

6. Abrasion 1x.3cm, vertical right side of forehead .5 cm outer to midline, 1.5 cm above eyebrow.

7. Lacerated wound 1x.3cm, bone deep right side of head 4.5 cm outer to midline, 8cm above eyebrow.

8. Lacerated wound 2.5x3x.4cm right Crl.A.815/2020

side of face 6cm outer to midline just below the right angle of eyes.

9. Lacerated wound .8x.2x.3cm right side of face 13 cm outer to midline 1.5 cm below right ear.

10. Lacerated wound .6x.2x.2cm right side below angle of jaw 2cm below right ear, 15 cm outer to midline.

Brain (1114 gm) showed diffused subarachnoid haemorrhage over frontal, parietal, temporal and occipital regions of both hemispheres. Brain was congested and sulci were narrowed gyri flattened (sing of oedema).

11. Abrasion .8x2cm right side of face 10cm outer to midline just above the right angle of jaw.

12. Multiple abrasions varying in size from .4x.2 to 1.2x1.2cm on right side of face over an area 5x4cm just outer to midline and 4cm below eyebrow.

13. Two abrasions .8x.2, .5x.2cm on left side of nose and face 1cm apart 1.5 cm outer to midline, 4.5 cm below eyebrow.

14. Abraded contusion 1.5x2x.3cm on the outer angle of left eye.

15. Three abrasions varying in size from Crl.A.815/2020

0.1x2 to 0.2x0.2cm over an area 3x2.5 cm over right cheek.

16. Abrasions varying in size from 0.2x.2 to .5x1cm on right side of face over an area 2.5x3cm, 2.5cm outer to midline just below right angle of mouth.

17. Abraded contusion 4x1.2x.3cm on the upper lip across the midline, its left end 2cm outer to midline.

18. Abraded contusion 3.5x1x.3cm on the inner side of lower lip across the midline, its right end .5cm outer to midline.

19. Multiple small abrasions varying in size from .2x.2cm to .5x 4cm on the right side of neck 1.5cm outer to midline 5cm above inner end of clavicle.

20. Contusion 8x8x1cm on the right side of front of neck involving the muscles underneath.

Flap dissection of neck was done under bloodless filed. Subcutaneous tissue underneath the abrasions were infiltrated with blood there were contusion of the left sternocledo mastoid muscles in the middle one third, contusion involving whole of both lobes Crl.A.815/2020

of thyroid gland and fracture of the left side of greater horn of hyoid and left side of thyroid cartilage. Other neck structures including other muscles, bones, cartilages were found to be normal and intact.

21. Contusion 8x4x.5cm over the tip of left shoulder.

22. Contusion 2x2x.5cm left side of front of shoulder, 3cm below its tip 16 cm outer to midline.

23. Seven abrasions varying in size from .5x.3cm to 1.5x.5cm on the inner aspect of left upper arm over an area 13x5cm, its lower extent 3cm above elbow.

24. Linear interrupted abrasion 29x1cm on the back and inner aspect of left upper arm, elbow and forearm. Its upper extent 7cm below arm pit.

25. Contusion 8x1x.5cm, vertical on the left upper arm 8cm below tip of shoulder.

26. Contusion 3.5x1x.3cm front of right forearm 11cm above wrist.

27. Six small contusions varying in size from .5x.5x.2cm to 1x.5x.2cm over an area 8x7cm on the back of left hand, 2cm Crl.A.815/2020

below wrist.

28. Abrasion 3x1.5cm back of right elbow.

29. Two abrasions 3x.1cm and 3x.2cm, 3 cm apart on the back of right elbow.

30. Abrasion 3x3cm front, outer aspect of right leg, 2cm below knee.

31. Abraded 'C' shaped contusion 4x.5x.3cm on the front, outer aspect of right leg just below the previous injury.

32. Abrasion 2.5x3cm front, inner aspect of right leg 2cm below knee.

33. Abrasion 1x1.5cm front of let leg 5cm below knee.

34. Abraded contusion 3x6x.5cm horizontal back of top of right shoulder 7cm outer to midline, just below the top of shoulder.

13. The opinion as to cause of death - death

due to injury sustained to head and face.

Ext.P13 is the postmortem certificate issued

by the Doctor. He would further state that

injuries 1 to 9 can be caused by blunt force Crl.A.815/2020

with MO1 and injury Nos.10 to 19 abrasion can

be caused by blunt force by MO4. Injury No.20

can be caused by blunt force over front

forehead. It is further stated by him that if

MO2-pillow is placed over the neck and force

is applied over pillow, it can cause injury

No.20.

14. During cross-examination of the Doctor

nothing material was brought out to discredit

his testimony. Exts.P31 and P32 are the

chemical analysis reports of blood and

vaginal swab with respect to the deceased

Elizabeth and Annamma respectively. Reports

would state that no poison was detected in the

items. So the evidence of PW10 and PW12, Exts.P10

and P13 postmortem certificates, and Exts.P31 and

P32 chemical reports will leave no room for

doubt to conclude that the death of the

deceased Annamma and Elizabeth were homicide. Crl.A.815/2020

15. The case was investigated based on

circumstantial evidence since there was no

eye witness to the incident. In a case based

on circumstantial evidence the prosecution

has to prove a chain of circumstances which

would point only to the guilt of the accused.

16. Prosecution case is that brutal murder

of wife and daughter was divulged to PW2

Kuriachan who is the immediate neighbour of

the accused by himself and the evidence

brought out through PW1 to 5 was mainly to

prove the fact regarding the disclosure made

by the accused to PW2 and their immediate

visit to the house of the accused and having

seen the corpse of Annamma and Elizabeth.

Among them, PW2 was the neighbour to whom

the accused, over telephone, confessed about

his act of having murdered his wife and

daughter. PW2, in turn informed PW1 and Crl.A.815/2020

subsequently PW3 and 5 were informed and all

of them together went to the house of

accused.

17. Presence of the accused in the house and

the extra judicial confession made by him to

PW2, PW1 and PW5 are the prime circumstances

relied on by the prosecution. PW2 who is the

immediate neighbour to whom accused confessed

first about the incident is the most crucial

witness. He would depose that on 28.1.2015 at

about 2.15 am accused called him on his land

phone and told him that he is totally upset

and he killed his wife and child and consumed

poison. PW2 informed the matter to PW1 and he

in turn informed his brother and Panchayath

Member George (PW5) and all the four of them,

went to the house of accused. PW2 called the

accused who was lying on the 'setty'. PW2

remained in the courtyard and did not enter Crl.A.815/2020

into the house. Three others, ie, PW1 , his

brother and PW5 went inside the house. On

peeping through the window from outside, he

saw Elizabeth lying dead. He identified MO1-

spanner, MO2-pillow, MO3-bath towel. Ext.P3

is the Sec.164 Cr.P.C statement given by him

to the Police.

18. During his cross-examination it is very

pertinent to note that no single question was

put challenging his evidence regarding the

extra judicial confession made by the accused

to him. So in effect the evidence of PW2 as

to the extra judicial confession made by the

accused to him with regard to the commission

of the murder of his wife and daughter stood

unchallenged. No ill-will or animosity was

attributed against him also.

19. PW1 the nephew of the accused deposed in

corroboration with PW2 with regard to the Crl.A.815/2020

confession made by the accused to PW2 and he

categorically stated that on hearing that he

stood upset for a while and thereafter he

informed his brother. Thereafter they went to

the house of accused along with PW5 the

Panchayat Member. When they reached there he

called the accused. The accused asked him to

enter the house and he saw the dead body of

the wife and daughter. He stated about the

presence of blood near the body and a spanner

identical with that of MO1, though he could

not identify MO2 pillow and MO3-bath towel.

Further he stated that when he asked the

accused as to what happened he told him that

he is mentally upset due to his ailing wife

and invalid daughter. A home nurse who was

tending to them left two days earlier due to

a quarrel with him. Since the wife was

affected with Hepatitis B, friends, relatives Crl.A.815/2020

or neighbours were not coming to the house.

Being mentally depressed as per the joint

decision taken by them he killed the wife

and daughter and consumed poison. Immediately

PW1 informed the police and they went to the

Police Station and gave Ext.P1 FIS. The 164

statement given to the Police is marked as

P2.

20. PW5 is the Panchayat Member who had

accompanied PW1 and 2 to the house of the

deceased on the fateful day. He had seen the

accused on that day inside the house and saw

two persons lying dead. He also stated about

the extra judicial confession made by the

accused. He is also a witness in Ext.P6

inquest.

21. PW3 is the brother of deceased Annamma.

He went to the house of the accused

immediately on getting information regarding Crl.A.815/2020

the incident. He speaks about the presence of

PW5, PW2, PW1, accused and also the brother

of accused at the spot. Ext.P4 is his 164

statement given to the Magistrate.

22. PW4 is the wife of PW2. She speaks of

having witnessed PW2 answering the telephone

which immediately PW2 informed her was from

the accused who confessed of the gruesome

act. She pin pointed the conversation to be

on 28.1.2015 at about 2¼ hours.

23. On evaluating the evidence of PW1 to 5

the factum of presence of accused inside the

house and two dead bodies found inside the

house have been established as stated

earlier. The evidence of PW2 with regard to

the alleged confession statement given by the

accused also stands unchallenged. PW1 also

refers about the extra judicial confession

made by the accused. PW5 also stated about Crl.A.815/2020

the extra judicial confession made by the

accused of causing the death of his wife and

daughter. That portion with respect to PW5 is

also marked as Ext.P5. During cross-

examination there was no attempt on the part

of the accused to challenge the extra

judicial confession made by the accused. The

extra judicial confession made by the accused

to PW1, PW2 and PW5 are proved to be

deliberate and voluntary confession of guilt

and such confession are held to be the most

effectual proof in law Chattar Singh &

Another v. State of Haryana (2009 KHC 4308:

AIR 2009 SC 378). It is also relevant in this

context to quote Silash Singh @ Kurid v.

State (2018 KHC 4660) wherein Calcutta High

Court held that corroboration of extra

judicial confession in all cases is a sine

qua non; is neither just nor reasonable Crl.A.815/2020

preposition. If extra judicial confession is

found to be unbiased untainted coming from

evidence of trustworthy and reliable witness

who has to test of cross-examination against

whom there is no remote suggestion or

allegation of enmical terms, same can be the

basis for holding accused guilty.

24. In Ponnuswamy v. State of Tamil Nadu

(2008 Crl.L.J 2563 [SC]) it has been held

that extra judicial confession if found to

be voluntary and medical report supported

prosecution case conviction of the accused

for murder is proper.

25. Another important circumstance is the

presence of accused in the house and apart

from him and the deceased persons nobody else

was present in the house. Though questions

were put to prosecution witnesses to

establish that the rear door was opened and Crl.A.815/2020

there is possibility of anybody else doing

the act, nothing suggestive of that could be

brought out. Since the incident occurred

within the four walls of his house there is

a burden cast upon the accused to explain as

to how the incident happened. When a specific

question was put to him with regard to the

extra judicial confession made by him to PW1

he just pleaded ignorance. About the

statement given to PW2 apart from the fact

that wife and daughter were lying dead and he

was fully upset; he was not further prepared

to admit that he had caused the death. So in

effect no explanation is seen to have been

offered by him. Though an additional

statement has been filed at the time of his

examination, apart from stating about his

mental ailments and the medications in

connection with the same; he only pleads that Crl.A.815/2020

he cannot kill his loving wife and daughter

and somebody else might have done the act. No

other plausible explanation is forthcoming

from his statement. The extra judicial

confession proves beyond doubt the presence

of accused inside the house at the time of

incident. The accused also does not deny his

presence in the house and does not also speak

of any others being present in the house,

other than his wife and daughter.

26. In this context it is relevant to quote

Trimukh Maroti Kirkan v. State of Maharashtra

(2006 (10) SCC 681) That was a case of dowry

death and the Apex Court considered the

circumstance of the wife found dead inside

the house and the implication of S.106

Evidence Act in such context. Paragraph 14 &

15 of the said decision are relevant in this

context to be extracted which read thus :

 Crl.A.815/2020





           "If    an   offence       takes         place      inside        the
           privacy       of      a      house          and        in    such
           circumstances         where       the       assailants       have

all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (see Stirland v. Director of Public Prosecutions - quoted with approval by Arijit Pasayat J, in State of Punjab v. Karnail Singh ) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable Crl.A.815/2020

of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads : "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him"

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was Crl.A.815/2020

committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

27. Ratan Jani v. State of Orissa (2016 CrL.J

5046 = 2016 KHC 4628) is also relevant in

this context . That was also a case of

killing the wife and husband facing trial

under S.498A and 302 IPC. Paragraph 12 of the

said decision is relevant in this context

which reads as follows :

"The provisions of Sec.106 of the Evidence Act are unambiguous and categoric in laying down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If he fails to offer any explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the Evidence Act.

When the accused fails to throw any Crl.A.815/2020

light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as additional link which completes the chain.

When the husband (appellant) and wife (deceased) were together in their house along with their small children and the deceased was found dead with a number of ante mortem injuries and the death was opined to be homicidal in nature, it is the appellant who was to explain as to under what circumstances, the deceased met her end and if he failed to discharge his burden of proof and failed to give a cogent, probable and satisfactory explanation, that itself would provide an additional link in the chain of circumstances. The incriminating links of facts were in the personal and exclusive knowledge of the appellant and he has failed to explain under what circumstances the death of his wife had occurred. The plea taken by the appellant that he was not present in the house when the offence took place is not at all acceptable in view of the overwhelming evidence regarding his presence in the spot house. Keeping in view the overall circumstances available on record and failure of the appellant to give any explanation, we are of the view that it is none else but the appellant who is the author of the crime."

28. In the present case as found earlier it Crl.A.815/2020

has come out in evidence that accused was

very much present inside the house at the

time when the incident occurred. That fact is

proved by the subsequent conduct of extra

judicial confession made by him to PW2 the

immediate neighbour, which is also found to

be very probable, natural and voluntary.

Further the presence of the accused inside

the house when Pw2, PW1, PW5 and the brother

of PW1 came to his house also is clearly

established. All of them deposed in

corroboration that when they reached the

house of the accused immediately after the

telephone call made by the accused to PW2

they saw the accused inside the house. But

accused could not offer any explanation

during his examination or otherwise about the

cause of death of his wife and daughter. So

that would definitely form a link of Crl.A.815/2020

circumstance connecting the accused with the

crime.

29. Motive behind the incident is of great

significance in cases based on circumstantial

evidence. Usually every criminal act would

be perpetrated by a motive. The motive

alleged in this case is the mental stress and

strain alleged to have been undergone by the

accused due to the ailment of his wife and

also the permanent disablement of the

daughter. It has come out in evidence that

his wife was affected with Hepatitis B. It

has also come out in evidence that accused

told PW1 that since his wife was affected

with Hepatitis B, friends, relatives or

neighbours were not coming to the house and

contacting them. PW3 the brother-in-law of

accused also speaks that deceased Annamma was

affected with Hepatitis B and he had made a Crl.A.815/2020

visit to the hospital. PW4 the wife of PW2

also stated that deceased Annamma was

affected with Hepatitis and since it was a

contagious disease she did not go to her

house. PW5 the Panchayat Member also spoke

about the disease with which Annamma was

affected with. All of them also stated that

the daughter, Elizabeth was a physically and

mentally challenged woman. It has also come

out that the only son of the accused who is

in the U.S. is not turning up for assisting

his parents. More over the accused

categorically stated to PW1 his own nephew

that it was that mental depression which

led him to do this act. So the case of the

prosecution that accused murdered his ailing

wife and incapacitated daughter since there

was nobody to look after them and nobody was

aiding him and out of that mental stress he Crl.A.815/2020

has done the act, is rather established. So

motive alleged by the prosecution has been

proved to a great extent.

30. The other circumstances prosecution

relies is the recovery of weapon, MO4

chopper. MO1 spanner has been seized and is

described in the mahazar Ext.P7. PW20 the

Investigating Officer deposed that after

arresting the accused he questioned him on

4.2.2015 and he gave Ext.P8 (a) disclosure

statement and as led by the accused the

chopper was recovered from the slab of the

store room of the house of the accused and

that mahazar is marked as Ext.P8. Ext.P8(a)

is the relevant portion of disclosure

statement. MO4 is identified as the chopper

so discovered. PW7 is the witness in Ext.P8

recovery mahazar. He states that accused has

produced MO4 chopper kept on the slab in the Crl.A.815/2020

store room of the house of the accused.

Though he was cross examined at length

nothing could be brought out to discredit his

testimony regarding the recovery of weapon at

the instance of the accused. The evidence of

PW10 the doctor who conducted postmortem on

the body of Elizabeth would state that injury

Nos 1 to 10 are blunt injuries and all these

injuries are possible of having been caused

with blunt portion of MO4. He also added that

those injures could be caused with MO1 also.

31. PW12 the doctor who conducted postmortem

on the body of Annamma stated that injury 10

to 19 are abrasions which can be caused by

blunt force with blunt side of MO4. So the

medical evidence corroborates the prosecution

case with regard to infliction of injuries

with MO4.

32. Apart from the above, prosecution further Crl.A.815/2020

adduced scientific evidence by forwarding the

material objects involved in the case to the

FSL laboratory. Ext.P22 is the forwarding

list of items and Ext.P23 is the forwarding

note. Ext.P29 is the property list with

respect to MO4 chopper and Ext.P33 is the FSL

report.

33. As per Ext.P33 the blood collected from

the floor near the head portion of deceased

Annamma and the blood stain collected from

the west wall of the room where the body of

Annamma was found and cotton gauze socked in

blood collected from the place where the body

of Elizabeth was found and the dress of

Annamma and of Elizabeth and also of accused

(MO5 and MO6) and MO1 the spanner were found

to be containing blood of human origin.

Presence of blood though detected in MO4-

chopper the origin and group could not be Crl.A.815/2020

determined. It would also show that the blood

group of Annamma was group 'A' and that of

Elizabeth group 'B'. It also would prove

that dress of accused which is MO5 and 6,

also contained human blood. PW16 who was on

surveillance duty of accused, seized the

lunki and shirt (MO5 and 6) worn by him which

were produced by Dr.Sreenivas to the

Investigating Officer. The seizure was

effected by Ext.P17 seizure mahazar; which

contained its description too. PW16 is the

witness in the mahazar. He identified MO5 and

MO6 as the said lunki and shirt belonging to

the accused. So FSL report proving the

presence of human blood in the dress worn by

the accused at the time of incident is a

clinching circumstance connecting the accused

with the offence. No plausible explanation

was offered from his side in this regard even Crl.A.815/2020

though an additional statement was filed by

him at the time of his examination under

S.313 Cr.P.C.

34. The next aspect is with regard to the

intention of the accused in doing the act.

The extra judicial confession which we have

already discussed would prove in abundance

the intention of the accused to cause the

death of the ailing wife and the

incapacitated daughter. It is true that he

has got a reason for doing the same and it is

not out of any ill-will towards wife and

daughter. The immediate reason obviously was

the mental stress of the home nurse appointed

to look after the daughter having left the

service on the previous day and his wife

having been affected with contagious disease.

It has also come out in evidence that his son

was not turning up in spite of his request. Crl.A.815/2020

So whether those reasons stated by him for

doing the act would absolve the liability of

the intentional killing of his wife and

daughter is the question. First of all in

this context we would like to point out the

evidence of PW1, nephew of the accused who

reached the house immediately after the

incident. He would state that on enquiry with

the accused about the incident he confessed

that due to the ailing daughter and wife he

is totally upset mentally. A home nurse who

had been there was sent away before two days

due to the quarrel with him. Since the wife

was affected with Hepatitis B, friends,

relatives and neighbours were not coming to

the house. Hence they were mentally upset and

as per the joint decision taken by them, he

murdered the wife and daughter and consumed

poison. So also PW2 the neighbour to whom Crl.A.815/2020

accused informed the matter over land phone

would state that accused informed that he is

mentally upset and killed his wife and

daughter and he consumed poison. So there is

no statement to PW 2 that they have jointly

taken the decision and accordingly he killed

the wife and daughter. The fact that

immediately after the incident he informed

over phone about the act to PW2 itself would

prove that he was quite aware of the act done

by him resulting in the death of his wife and

daughter. The evidence of PW10 and 12 the

doctors who conducted postmortem on the body

of deceased persons which we have already

discussed would prove that the injuries

caused to deceased persons are possible to be

caused with MO1 and MO4. So the intention of

the accused to cause the death of the

deceased persons is quite evident from the Crl.A.815/2020

facts and circumstances. Hence we find that

prosecution could prove a chain of

circumstances consistent only with the guilt

of the accused.

35. As stated in the beginning the main

argument of the learned counsel for the

accused was based on S.84 IPC claiming

exception on the ground of unsoundness of

mind.

36. In a case of 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 Crl.A.815/2020

is also well settled that the insanity

referred therein is legal insanity and not

medical insanity.

37. 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.

38. In Dahyabhai Chhaganbhai Thakkar v. State

of Gujarat [AIR 1964 SC 1563], paragraph

No.5 of the judgment which quoted Sections

299, 84 IPC and Sections 105, 4, and 101 of

the Indian Evidence Act is relevant to be Crl.A.815/2020

extracted :

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 exception or proviso 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 Crl.A.815/2020

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 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 is 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 Crl.A.815/2020

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 bringing 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 Crl.A.815/2020

not exist, by placing material 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 placed 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 event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general Crl.A.815/2020

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."

39. The learned counsel for the appellant in

this context relies upon Devidas Loka Rathod

v. State of Maharashtra (2018 KHC 6471 [SC] =

AIR 2018 SC 3093) and also E.P.Paul v. State

of Kerala (LAWS (KER) 2020 11 29) to

contend that the investigating officer has

not made any effort to investigate about the

soundness of the mind of accused in spite of

the fact that at the time of committing the

offence accused was of unsound mind. On going

through the facts in Devidas Loka Rathod's

case referred above, it is seen that it was a

case in which appellant/accused in the

morning alleged to have suddenly picked a

sickle from the shop floor of the iron smith Crl.A.815/2020

and attempted to assault PW1, resulting in an

injury on the jaw and cheek and gave a

further blow on his shoulder. On the same day

he later assaulted PW3 on his back and neck

and rained blows on the back and stomach of

the deceased when he tried to intervene.

Thereafter he tried to flee throwing the

sickle en-route when he was apprehended by

the villagers and handed over to the police.

From paragraph 15 of the judgment it is

revealed that the trial records reflected

several medical visits in prison even weekly

and administering anti psychotic drugs with

the impression recorded by the doctor that

patient is psychotic and needs continuous

treatment. During trial an application was

also moved on behalf of the accused under

chapter 25 of Cr.P.C stating that he is not

fit to face trial. Then a fresh medical Crl.A.815/2020

report was called for and it was opined that

the accused was a chronic patient of

psychosis who has been evaluated time and

again by the Mental Hospital Nagpur. That was

the state of affairs of that case.

40. But the proceedings sheet in the present

case, would not give any such single occasion

to show that accused has been taken for

treatment at any point of time during trial.

So the fact situation in Devidas Loka

Rathod's case is entirely different from the

case in hand.

41. It is also pertinent to note that at the

time of lodging Ext.P1 FIS, PW1, his nephew

did not have any such case. It is true that

while giving Ext.P2 statement which is after

three months of the incident he has made a

mention that accused is a person having

mental derangement. That appears to be an Crl.A.815/2020

after thought. So also he did not state about

any treatment alleged to have been undergone

by the accused. During examination of PW20

the Investigating Officer he categorically

stated that none of the witnesses has stated

to him about the mental illness of the

accused though he added that they have

revealed about the mental agony of the

accused. Though he deposed that PW8 has

stated that accused was not a person having

normal mental stability, PW8 admitted that

after the wife of the accused was affected

with Hepatitis B, the accused was in a

mentally deranged condition. It was also

deposed that he had made investigation

regarding the treatment and the mental stability

of the accused but no document was obtained and

the son of the accused informed that there was

no treatment given to the accused. Crl.A.815/2020

42. Further there was nothing in the conduct

of the accused after the incident to motivate

the Investigating Officer to carry out an

investigation regarding the mental capacity

of the accused, other than that carried out

at the hospital to which he was taken

immediately after the incident. There is

nothing to show the accused having suffered

mental illness, impairing his normal

faculties, or any indication of he being

under continuous medication. The composed

conduct of the accused after the incident, of

having called up his neighbour is also consistent

with the prosecution case of the action of the

accused being motivated by sheer frustration.

43. In E.P.Paul's case also the prosecution

case was that accused killed his nephew aged 3½

years towards whom he had no ill will. So

also umpteen evidence was adduced in that Crl.A.815/2020

case to prove that the accused in that case

had been undergoing treatment. Immediately

after the incident accused was taken to

hospital for treatment and he was arrested

only after two weeks of the incident. During

trial also he had been undergoing treatment

and doctors who treated him on various

occasions have also been examined and it has

come out in evidence that the accused was

incapable of understanding the nature of acts

done by him immediately before and after and

at the time of the incident. It was in the

above circumstances that it has been found

that the accused is entitled for the benefit

of Sec.84 and further that infirmity has been

caused in the investigation since the

investigating Officer did not take any

measures to collect any evidence regarding

the mental illness of the accused. Crl.A.815/2020

44. In this case PW14 was examined from the

side of the prosecution and through whom

Ext.P16 certificate issued by Dr.Sreenivasan

who treated the accused at casualty on

28.1.2015 has been proved. On perusing

Ext.P16 it is seen that he has been treated

for attempt to commit suicide by consuming

aluminum phosphate at around 12 30 am on

28.1.2015. It would not give any indication

of psychiatric treatment.

45. At the instance of the accused DW1 and 2

were examined. DW1 is the doctor attached to

Kusumagiri Mental Health Centre and Ext.D1 is

the treatment chart produced by him. On

examining the same what could be seen is that

he had undergone treatment during 2004 and

2007. Dw1 stated that he has treated him for

bipolar disorder, a mental illness. But his

evidence is that at the time when he is Crl.A.815/2020

afflicted with the illness it would be

reflected in his personality and clinical

faculties. But the doctor was not prepared to

admit that these type of patients would feel

difficulty in facing strong mental pressures

and according to him it is only a

possibility. Doctor also stated that the

father of the accused had psychiatric illness

as per the history. Doctor was also not

prepared to admit that this is an illness

which required continued treatment. Further

he stated that the final treatment was on

27.2.2007 and he had seen him on 22.4.2016

when he came for a medical certificate.

During cross examination it has come out that

he was never treated as inpatient and was not

referred from any hospital. And on several

occasion he came by himself. So the evidence

of DW1 will not prove that he was of unsound Crl.A.815/2020

mind and was incapable of understanding the

nature of acts done by him as being wrong or

contrary to law at the time of incident or

just before and after.

46. DW2 is the Professor of Psychiatry, MOSC

Medical College, Kolenchery. Ext.D2 is the

case sheet produced. He would state that on

28.1.2015 he was working at MOSE Medical

College and accused was admitted in the

general medicine department. He would also

state the alleged history was suicide attempt

by intake of aluminum phosphate and he had

given treatment for the same and accused had

psychiatric consultation when he was

inpatient. Dr.Nisha, the Psychatrist made a

diagnosis of bipolar disorder and he was

prescribed medicine for current episode of

severe depression with psychotropic symptoms

and as per the discharge summary patient was Crl.A.815/2020

transferred to psychiatric ward but the

bystanders were not willing for further

management and hence patient was discharged.

Doctor also stated that bipolar disorder is a

mental disease and it requires continued

treatment. Doctor stated that delusion may

occur but it is not compulsory. Though the

evidence of DW2 would go to show that on the

fatefull day when he had treated the accused

for attempt to commit suicide by consuming

alumininium phosphate, psychiatric

consultation was also given, the evidence of

Doctor would not give an indication that the

accused was suffering from any serious mental

illness to infer that he was incapable of

knowing the nature of his acts. That he was

incapable of understanding that what he did

was wrong and contrary to law.

47. It is relevant in this context to note Crl.A.815/2020

that in order to claim the benefit under S84

IPC, it must be proved that at the time of

doing the act by reason of unsoundness of

mind the accused is incapable of knowing

the nature of act or he is incapable of

understanding that, what he is doing is

either wrong or contrary to law. It is to be

noted that every mental illness is not ipso

facto exempted from criminal responsibility.

It is also well settled that there is a

distinction between legal insanity and

medical insanity. The learned Special Public

Prosecutor in this context drew our attention

Bapu @ Gajraj Singh v. State of Rajasthan

(2007 3 KHC 103), an unreported decision

Crl.A.1229 of 2008 dated 12 th April 2012 -

Karim C. v. State of Kerala ) and Sudhakaran

v. State of Kerala (2010 KHC 4816).

48. Para 7 in Bapu @ Gajraj Singh's case is Crl.A.815/2020

relevant in this context which reads as

follows :

"S.84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in the IPC. 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 S.105 of the Indian Evidence Act, 1972 (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 Crl.A.815/2020

Dahyabhai v. State of Gujaraj 1964 (70 SCR 361 : 1964 (2) CriLJ 472 : AIR 1964 SC 1563). 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 intends and purposes, appears to be sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind."

49. Paragraph 19 of Sudhakaran's case is

relevant in this context which reads as

follows :

"It is also a settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of S.84 is the time when the offence is committed. We may notice here the observations made by this Court in the case of Ratan Lal v. State of Madhya Pradesh 1970 (3) SCC 533). In paragraph 2 of the aforesaid judgment, it is held as follows Crl.A.815/2020

: - "It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the appellant".

50. In Karim's case also the learned counsel

for the appellant advanced an argument under

S.84 IPC. A portion of paragraph 16 of the

said judgment is relevant to be extracted

which reads as follows.

".....................Unsoundness of mind has to be proved. Any and every aberration in mental health is insufficient to justify the claim for protection under S.84. The unsoundness of the mind must be proved. The unsoundness of the mind must be of such nature and intensity that it must render the indictee "incapable of knowing the nature of the act or that he is doing something which is either wrong or contrary to law. Precedents galore to suggest that the evidence of prior acts and subsequent acts as well as attendant acts will have to be taken into consideration to answer the Crl.A.815/2020

precise question whether at the time when the culpable Act was committed the indictee was by reason of unsoundness of mind incapable of knowing the nature of the act or that what he was doing is either wrong or contrary to law. The Mac Naughten Rule in the English Law has been imported into Indian Law by Section 84 of the IPC."

51. So bearing in mind the above settled

positions of law the facts and circumstances

in this case has to be analyzed. It has come

out in evidence that immediately after the

incident accused informed his act of

committing murder of his wife and daughter to

his close neighbour. Thereafter PW1-his

nephew, PW2-the neighbour and PW-5 the

Panchayat Member came to his house. To them

also he confessed about the act committed by

him. So the facts and circumstances would

reveal that accused was quite aware of the

act committed by him and there is nothing to Crl.A.815/2020

infer that by reason of unsoundness of mind

he was incapable of knowing the nature of act

or that he was not aware that he was doing

something wrong or contrary to law, as

contemplated under Sec.84 IPC. In fact Ext.

D2 Case Record of the accused as issued from

MOSC Medical College, where he was taken

after the incident by the Police, records

that though he reported Psychiatric illness

for the past 15 years ; he was not on regular

medicines. The narration of the incident by

the accused to the Psychiatric Consultant as

recorded by the Doctor is consistent with the

extra judicial confession. He has spoken of

the illness of his wife and daughter and the

distress caused in looking after them and

also the house hold affairs. He spoke of

having asphyxiated his wife and daughter and

having used the blunt end of a knife and a Crl.A.815/2020

spanner on them. He also spoke of he having

felt guilty and trying to sleep and having

failed, calling up his neighbour to inform

him of the murder. The Doctor has also

recorded that the accused has no history of

psychotic substance abuse or psychotic

symptoms. The accused was also depressed

after the incident and had ideas of guilt

which definitely points to he being aware of

the wrong he committed. He was also

apprehensive of how the Police will treat him

if he is taken to jail which again is

consistent with the inference that he knew

the act he committed to be contrary to law.

52. It is relevant in this context to cite

Elavarasan v State (AIR (2011) SC 2816)

wherein in a murder trial while a plea of

insanity was taken by the defence it has been

held that appellant did not run away from the Crl.A.815/2020

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 doctor also deposed in that case

that he was not an insane person at the time

of incident. In this case also the fact that

accused remained in the house and did not

make any attempt to flee away from the place

of incident etc are not at all factors which

could be relied on to infer about the

unsoundness of mind.

53. On an evaluation of the facts,

circumstances and the evidence adduced, we

are of the considered view that the learned

Addl.Sessions Judge has discussed the facts

and circumstances and evidence adduced in the

correct perspective and found the accused

guilty. We find no reason whatsoever to

interfere with the same.

Crl.A.815/2020

54. In the result, appeal is found to be

devoid of any merit and hence dismissed,

confirming the conviction and sentence passed

against the accused/appellant.

Sd/-

K.VINOD CHANDRAN Judge

Sd/

M.R.ANITHA Judge Mrcs/21.1.