Court vs By Advs
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            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

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

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

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

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

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

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

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

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

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

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

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

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

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

(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

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

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

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. 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.