Kerala High Court
Franklin Francis vs State Of Kerala on 25 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 25TH DAY OF AUGUST 2023 / 3RD BHADRA, 1945
CRL.A NO. 1347 OF 2018
AGAINST THE JUDGMENT IN SC 99/2016 ON THE FILE OF THE
ADDITIONAL SESSIONS COURT-I MAVELIKKARA
CP 70/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
CHENGANNUR
APPELLANT/ACCUSED:
FRANKLIN FRANCIS,
AGED 21 YEARS, C.NO. 2048,
CENTRAL PRISON, TRIVANDRUM
BY ADVS.
STATE BRIEF
SHEENA.E, STATE BRIEF
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY DGP,
HIGH COURT OF KERALA.
SRI.E.C.BINEESH P.P
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 22.08.2023, THE COURT ON 25.08.2023 DELIVERED THE
FOLLOWING:
Crl.Appeal No.1347 of 2018
2
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------------
Crl.Appeal No.1347 of 2018
-----------------------------------------------------
Dated this the 25th day of August, 2023
JUDGMENT
C.S.Sudha, J.
This appeal under Section 374(2) Cr.P.C. by the sole accused in
S.C.No.99/2016 on the file of the Court of Session, Alleppey has been filed
through the Superintendent, Central Prison and Correctional Home,
Poojappura, Thiruvananthapuram under Section 383 Cr.P.C. challenging the
conviction entered and sentence passed against him for the offence
punishable under Section 302 IPC by the learned Additional Sessions Judge,
Mavelikkara.
2. The prosecution case as stated in the charge sheet is - the
accused was in inimical terms with his father, Francis, as the latter had
deserted his mother PW3 Nitha, and was living with PW2 Sindhu in a rented
building by name Bharatheeyam bearing no.VII/143, Puliyur Panchayath.
Due to this enmity, the accused with the intention of murdering his father, on
12/07/2015 at 12.30 p.m. with MO.9 hammer hit Francis who was sleeping
on a mat in the hall of the house, causing grievous injury, to which the latter
Crl.Appeal No.1347 of 2018
succumbed. The accused also threw MO.1 concrete brick at Francis
resulting in injuries on his left hand and knee. Hence the accused is alleged
to have committed the offence punishable under Section 302 IPC.
3. Based on Ext.P1 FIS of PW1 recorded by PW10, the then Sub
Inspector, Chengannur police station, Crime no.1686/2015, i.e., Ext.P9 FIR
was registered by PW10. Investigation was conducted by PW12, the then
Circle Inspector, Chengannur, who completed the investigation and
submitted the charge sheet before the court.
4. On the final report being submitted, the jurisdictional
magistrate, after complying with the statutory formalities, committed the
case against the accused to the Sessions Court concerned, which court took
the case on file as S.C.No.99/2016. On the appearance of the accused before
the Court of Session, he was furnished with the copies of all the prosecution
records. On 15/07/2016, the trial court framed a charge for the offence
punishable under Section 302 IPC, which was read over and explained to the
accused to which he pleaded not guilty.
5. The prosecution examined PWs.1 to 13 and got marked Exts.P1
to P21 and MO.1 to MO.17. After the close of the prosecution evidence, the
accused was questioned under Section 313(1)(b) Cr.P.C. regarding the
Crl.Appeal No.1347 of 2018
incriminating circumstances appearing against him in the evidence of the
prosecution. The accused denied all those circumstances and maintained his
innocence.
6. As the Sessions Court did not find it a fit case to acquit the
accused under Section 232 Cr.P.C., he was asked to enter on his defence and
adduce evidence in support thereof. No oral or documentary evidence was
adduced by the accused.
7. On a consideration of the oral and documentary evidence and
after hearing both sides, the trial court by the impugned judgment found the
accused guilty of the offence punishable under Section 302 IPC and hence
convicted and sentenced him to imprisonment for life and to a fine of ₹1
lakh and in default of payment of fine, to imprisonment for a period of one
year. Set off under Section 428 Cr.P.C. has also been allowed.
8. The only point that arises for consideration in this appeal is
whether the conviction entered, and sentence passed against the accused by
the trial court is sustainable or not.
9. Heard Ms. Sheena.E. the learned counsel appointed on State
Brief for the appellant and Sri.EC. Bineesh, the learned Public Prosecutor
for the respondent.
Crl.Appeal No.1347 of 2018
10. The prosecution relies on the testimony of PW5 and Ext.P4
postmortem certificate to prove that the death of Francis was a case of
homicide. PW5, Associate Professor, Department of Forensic Medicine,
Government Medical College, Alleppey, deposed that on 13/07/2015 he had
conducted postmortem examination on the body of Francis. The following
ante-mortem injuries were noted by him.
"B. INJURIES (Ante-mortem)
1. Laceration 2.3 x 1cm x bone deep, slightly curved, with a
surrounding area of small abrasions over an area 5 x 3cm on the
right side of top of head, overlying the right parietal eminence, 7cm
above the attachment of the ear. On dissection, internally, the scalp
showed a contusion over an area 4.5 x 5cm with coalescing fracture
hematoma surrounding it. The vault of the skull showed an oval
depressed comminuted fracture 3.8 x 4 x 1cm with concentric
fracture lines radiating from the centre. This fracture was over the
right parietal eminence. Fissure fractures were seen to radiate in (a)
forward direction towards the frontal region for 6cm and (b) two
small fissures 4 and 4cm long were seen directed backwards. A
circular portion of the fractured and internally displaced inner table
of size 4.5 x 4cm was seen adherent to the underlying Dura. The
Dura was intact. The brain showed a thin layer of focal subdural
hemorrhage on the poles and under aspects of both frontal regions,
more thick on the left side. Localized subarachnoid bleeding was
seen over bilateral infero-frontal regions. The brain weighed
1134gms and did not show evidence of raised intracranial tension
Crl.Appeal No.1347 of 2018
or herniations.
2. Laceration 3 x 2cm with surrounding abrasions over an area 10
x 5cm on the inner aspect of the left elbow.
Both injuries are assessed to be fresh."
According to PW5, Francis died due to traumatic brain injury. Injury no.1
was a fatal one, which could be caused by application of a blunt force like
hitting with a hammer. He deposed that injury no.1 could be caused by
MO.9 hammer and that the said injury is independently sufficient to cause
death in the ordinary course of nature.
10.1. PW12, the investigating officer, deposed that on 13/07/2015
he had taken over investigation in this case and on the said day, he had
conducted inquest on the body of the deceased and that Ext.P3 is the inquest
report prepared by him. PW4 is an attestor to Ext.P3 inquest report.
10.2. The aforesaid evidence has not been disputed or discredited in
any way by the accused. The prosecution by the aforesaid evidence has
succeeded in establishing that the death of Francis was in fact a case of
homicide as contemplated under Section 299 IPC. Hence the finding of the
trial court regarding this aspect needs no interference.
11. Now coming to the question whether it was the accused who
had caused the injuries on Francis, resulting in his death. There are no
eyewitnesses to the incident. The prosecution relies on circumstantial
Crl.Appeal No.1347 of 2018
evidence to establish the case. We make a brief reference to the evidence
relied on by the prosecution to establish the case. PW1, the informant, is the
landlord of Francis, the deceased. PW1 in Ext.P1 says that he owns two
houses, of which one had been let out to the deceased. The deceased was
residing in the said house with his second wife PW2 Sindhu, and his son
Franklin, the accused. There would be frequent quarrels between the father
and the son. PW3 Nitha, the first wife of Francis, had left him. The
deceased had four children through PW3 Nitha. The accused did not like
PW2, his stepmother. Due to this, there would be frequent quarrels between
the father and son. A few days before the incident, the accused had
assaulted PW2 Sindhu by kicking her, relating to which also, there was a
quarrel between the father and son. PW2 shifted her residence and
thereafter only the father and son were living in the house. When he passes
through the pathway situated by the side of their house, he has seen and
heard the quarrels between the father and son. 12/07/2015 being a Sunday,
he was at home and near its vicinity. In the morning of 12/07/2015 also,
there was a quarrel between the two. After the quarrel he saw the accused
standing at the door of their kitchen. When he enquired about the reason for
the quarrel, the accused did not answer. When he asked for the rent, the
Crl.Appeal No.1347 of 2018
accused still did not respond. He thought that this conduct of the accused
was perhaps because of the quarrel the latter had with the former. In the
evening after 05:00 p.m., when he passed through the pathway situated
adjacent to their house, he saw the accused standing there. On seeing him,
the accused quickly moved away. The kitchen door was open. The conduct
of the accused raised doubts in his mind and so he went inside the house
through the kitchen door. He saw Francis lying on his stomach on a mat with
blood around. He saw a brick near the body. Francis had an injury on his
head from which blood had flown on to the floor. He could see particles of
the brick on the body and head of Francis. The T.V. had been switched on.
He realized that the accused had murdered his father with the brick. He
quickly came out of the house and rang up his friend and asked him to
inform the police. The accused, due to his enmity towards his father had
murdered him. (അവന അചനന ട ള വവര ഗ ക ണണ
ഇങകന ക യത). On many occasions when the father and the son used to
quarrel, he had heard the latter threatening to do away with the former.
11.1. PW1 in the box stands by his version in Ext.P1 FIS. He
deposed that his family house in which he is residing is situated just 50
meters away from the house which he had leased out to the deceased. On
Crl.Appeal No.1347 of 2018
12/07/2015 he witnessed the quarrel between the father and the son. In the
afternoon, when he was passing through the road, he saw the accused
standing near the kitchen. He asked the accused the reason of the quarrel.
However, the accused did not respond. He then proceeded to the junction.
Thereafter by 4:00 p.m. when he was walking towards the road from his
house, he saw the accused standing outside his house near the kitchen. The
accused on seeing him quickly moved away at which time the accused was
looking nervous/disturbed (Franklin പര ഭ മന കടയ ണ അവ കട
ന ന മ റ യത. See page 5 of his deposition.) Suspicion arose and hence
he went inside the house and checked. He saw Francis dead on the floor.
Nobody apart from the accused and the deceased were at home on the said
day. The accused used to behave badly with his mother and sisters and hence
the reason why the deceased had shifted residence along with the accused
(Franklin ട യ നകറ സന% ദര നമ നര ട അമനയ ട മറ
നമ ശമ യ കപര മ റ യ ര ന . അത ക ണണ Francis
ഭ* ങ ള കനയ -ട ഈവ0ട ന1ക വ ട ക ത മസ മ റ യത.
See page 8 of his deposition). PW1 identified MO.1 as the brick he saw near
the dead body. In the cross-examination PW1 deposed that there are other
houses situated near the house of the deceased. He does not know whether
Crl.Appeal No.1347 of 2018
PW2 Sindhu had any enemies. After seeing Francis dead, he had rung up his
friend Rajeev. When PW1 was asked whether he could say with which
weapon Francis had been murdered, he replied that he had not seen the
incident. However, he had seen MO.1 near the dead body. PW1 to a question
whether during the time between 08:00 a.m. and 04:00 p.m. on the said day,
anybody else had come to the house of Francis, replied that to his
knowledge, nobody had come. PW1 denied the suggestion that the accused
had no connection with the death of Francis.
11.2. PW2 Sindhu, admitted that she had lived in the aforesaid house
for about four months with deceased Francis and his son, the accused.
According to her she and the accused were in very good terms.
(..........ഭ* ങ ള ന ഞന വളകര സനന%ന കടയ ണ
ത മസ ച ര നത..........See page 2 of her deposition). About a week
before the incident, she had gone to her house for treatment. She does not
know the reason for the death of Francis. Once the accused had kicked her
on her stomach. The accused did not like her cohabiting with his father.
PW2 admitted that there used to be quarrels between the father and the son.
The father and the son fell apart after she started residing with Francis. The
accused used to beat the deceased with his belt. (Franklin
Crl.Appeal No.1347 of 2018
ഭ* നസ സ നകറ ക6ലറ ഊര അട ക മ യ ര ന ........See page 3
of her deposition.). PW2 identified MO.2 to MO.4 as the dress of the
deceased. MO.5 is the phone of the deceased. MO.6 is her aadhaar card and
MO.7, the aadhaar card of the accused. In the cross-examination PW2
deposed that she lived with Francis for about nine months, during which
time her relatives had never visited them. The deceased was a contractor and
hence workers used to come to the house to meet the deceased. PW2 also
deposed that she considered the accused as her son and hence the reason
why she did not complain to the police in spite of the fact that the accused
had assaulted her.
11.3. PW3 Nitha, the first wife of Francis and mother of the accused,
deposed that during the time of the incident, she was residing along with
their two daughters away from her husband. Her husband was residing along
with PW2 and the accused in a rented house. She does not know whether
there were any quarrels between the father and the son. According to her the
accused was the favourite child of the deceased. (...............എനകറ
ര വ ന ഇഷമ ള മ ന യ ര ന Franklin...... See page 3 of her
deposition). She does not know whether her son was unhappy/upset as PW2
was living with his father. As PW3 did not support her statements to the
Crl.Appeal No.1347 of 2018
police, a request was made by the prosecutor under Section 154 Evidence
Act read with the 2nd Proviso to Section 162 Cr.P.C. to put questions as put
in the cross-examination, which request was allowed. On further
questioning, PW3 denied her statements to the police that the accused was
on inimical terms with his father as PW2 started living with his father and
hence the reason why the accused had murdered his father. The
contradiction has been marked as Ext.P2. PW3 admitted having made a call
to her husband on 12/07/2015 by about 12:00 noon. She had enquired about
her son and then her husband had told her that the former was with him. She
does not remember whether the call was made at 10:00 a.m. on the said day.
In the cross-examination PW3 again reiterated that on 12/07/2015, the
accused was with his father, the deceased. She admitted that she has no
direct knowledge about the same.
11.4. PW11, the brother of the accused, deposed that PW3, his
mother did not like his father's relationship with PW2 and hence the reason
why his father was staying separately along with the accused. PW11 admits
that he has only hearsay knowledge about the incident.
12. The testimony of PW1 would show that it was only the
deceased and the accused who were present in the house at the relevant time.
Crl.Appeal No.1347 of 2018
No materials have been brought on record to give any indication that any
other person(s) had come to the house on the said day. The fact that the
accused was at home is spoken to by PW3, his mother also. The accused,
when questioned under Section 313 Cr.P.C., submitted that he is innocent
and that he has absolutely no connection with the incident. On the date of
the incident, by 10:00 a.m., he had left home to play cricket. When he
returned home by 02:00 p.m., he saw a crowd in front of his house. PW1
was also present among the crowd. PW2 Sindhu's relatives did not like her
cohabitation with his father. Her relatives used to come to their house and
quarrel with his father. However, the accused had no such case when the
prosecution witnesses were examined. Not even a suggestion is seen put to
PW1 to the effect that the accused was not present in the house at the
relevant time or that some other person(s) had visited the deceased on the
relevant day. The accused has no case that PW1 has any reasons to depose
falsehood against him. Therefore, we find no reasons to discard or disbelieve
the testimony of PW1 to the effect that he had seen the deceased and the
accused in the house on the said day and that there used to be regular
quarrels between the father and the son and that there was a quarrel between
the father and the son on the relevant day also. PW1 has also deposed that to
Crl.Appeal No.1347 of 2018
his knowledge nobody had come to the house of the deceased between 08:00
a.m. and 04:00 p.m. on the relevant day. This shows that it was only the the
deceased and the accused who were present in the house on the said day.
Therefore, the accused did have a duty to explain how his father sustained
the injury to which he succumbed. Apart from a bare denial of the
prosecution case, the accused has not been able to bring in any material to
doubt the prosecution case.
13. According to the prosecution, the motive for the murder is
because the accused was angry/upset by the fact that his father had left his
mother and started residing with PW2. This is spoken to by PW2 also, to
whose testimony we have already referred to. This part of the testimony of
PW2 has also not been discredited. Therefore, the motive also stands
established.
14. It was pointed out by the learned defence counsel that several
houses are situated near the house where the deceased was residing. But
none of the said persons have been examined by the prosecution, which is a
reason to doubt the prosecution case. Examination of all the neighbours is
not necessary in the facts and circumstances of the present case as the
testimony of PW1 has not in any way been discredited. Evidence must be
Crl.Appeal No.1347 of 2018
weighed and not counted.
15. It was further pointed out that there is substantial delay in the
MOs, including MO.9 hammer, reaching the court after the alleged seizure.
Hence the recovery of MO.9 is doubtful, argues the learned counsel for the
accused. According to PW1 when he saw the dead body, he had seen MO.1
brick near the body. PW12 the investigating officer deposed that after he
arrested the accused and on questioning him, the latter gave Ext.P18(a)
disclosure statement based on which MO.9 hammer was recovered. PW5,
the surgeon who conducted the postmortem, the fatal injury, that is, injury
no.1 noted in Ext.P4 postmortem certificate, is sufficient in the ordinary
course of nature to cause death and that the said injury could have been
caused by MO9 hammer. Ext.P21 FSL report says that human blood had
been detected in item number 8, that is, MO.1 brick, as well as in item no.9,
that is, MO.9 hammer. Blood on MO.9 hammer was insufficient for
determining the origin and group. As far as MO.1 is concerned, the report
says that it contained human blood belonging to the group 'A'. It is true that
there is no evidence that the blood of the deceased also belonged to 'A'
group. However, the presence of human blood has been noted in both. The
prosecution case is that it was with MO.9 hammer, the accused had caused
Crl.Appeal No.1347 of 2018
the fatal injury resulting in the death of his father. As pointed out on behalf
of the accused, there is certainly a delay in the material objects reaching the
court. But PW12 was never asked the reason(s) for the delay. No evidence
or material(s) has been brought in to show that some tampering has been
done or that there was possibility of tampering with the material objects. The
materials before the court do not raise any suspicion or doubt about the
prosecution story. Now even assuming that the argument that the evidence
relating to recovery of MO.9 hammer is false and fabricated is true and the
argument is accepted, still the same cannot lead to a finding of acquittal, as
it is an established proposition of law that for convicting an accused
recovery of weapon used in the commission of the offence is not a sina qua
non. The mere non recovery of the weapon does not falsify the prosecution
case where there is ample unimpeachable ocular evidence. [Lakhan Sao v.
State of Bihar, (2000) 9 SCC 82; State of Rajasthan v. Arjun Singh,
(2011) 9 SCC 115; Yogesh Singh v. Mahabeer Singh, AIR 2016 SC 5160;
Rakesh v. State of U.P., AIR 2021 SC 3233 and State through the
Inspector of Police v. Laly alias Manikandan, AIR 2022 SC 5034].
16. In the case on hand it is true that there is no eyewitnesses to the
incident. The case is based on circumstantial evidence. The motive has
Crl.Appeal No.1347 of 2018
been established. The presence of the accused in the house with the
deceased is proved. Apart from the accused and the deceased there was
nobody else in the house. The fact that Francis died due to the fatal injury
sustained, has also been established. As the accused was the only person
present in the house with the deceased on the relevant day, the former has
certainly a duty to explain how his father died of the injuries sustained.
Except a bald denial, no explanation comes from the accused. The plea that
he was not present in the house is disproved by the testimony of PW1 and
PW3. Therefore we find that the prosecution has succeeded in establishing
the case.
17. An argument was also advanced that the accused is entitled to
the benefit of Section 84 IPC. The accused while in judicial custody was
sent to the mental health centre for treatment. It was pointed out that CW10,
Senior Consultant, Mental Health Centre, Thiruvananthapuram is the doctor
who had examined and treated the accused. The said doctor was cited as a
witness in the final report to prove the mental state of the accused. However,
the said witness was given up by the prosecution. Therefore, the argument is
that when the accused committed the act, by reason of unsoundness of mind
was incapable of knowing the nature of the act or that he is doing what is
Crl.Appeal No.1347 of 2018
either wrong or contrary to law.
18. Section 84 says 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. The settled position of law is that every man is
presumed to be sane and to possess a sufficient degree of reason to be
responsible for his acts unless the contrary is proved (State of M.P. v.
Ahmadulla, AIR 1961 SC 998).
18.1. Mere abnormality of mind or partial delusion, irresistible
impulse or compulsive behaviour of a psychopath affords no protection
under Section 84. Behaviour, antecedent, attendant, and after the event,
may be relevant in finding the mental condition of the accused at the time of
the event, but not that remote in time. It is difficult to prove the precise state
of the offender's mind at the time of the commission of the offence, but
some indication thereof is often furnished by the conduct of the offender
while committing it or immediately after the commission of the offence.
19. From the records we find that after the accused was arrested on
13/07/2015 at 08:00 PM, he was produced before the jurisdictional
magistrate on 14 /07/2015, on which day he was remanded to judicial
Crl.Appeal No.1347 of 2018
custody. The first remand period was till 27/07/2015. On 15/07/2015, the
Superintendent Sub jail, Mavelikara sought the permission of the court to
send the accused to the Mental Health centre, Thiruvananthapuram as
advised by the psychiatrist, District Hospital, Mavelikara. The said request
was granted by the magistrate on 16/07/2015. Along with the request
submitted by the Superintendent, a copy of the noting of the psychiatrist is
also seen attached. The psychiatrist has noted that the accused had been
brought to the hospital by the jail authorities with complaint of smiling to
self and muttering. It is further noted that the patient gave a history of
substance abuse - alcohol, tobacco, and cannabis. The last cannabis use was
3 days back. The patient needed detailed neuropsychiatric evaluation and
hence was referred to the Mental Health Centre, Thiruvananthapuram. We
are unable to decipher the rest of the writings in the note of the psychiatrist.
Based on the opinion of the psychiatrist, the accused was sent to the Mental
Health centre, Thiruvananthapuram for treatment. From the remand report it
is seen that the accused was not produced before the court on 27/07/2015,
that is, when the first remand period expired, as he was reported to be under
treatment in the Mental Health Centre. Thereafter, the accused is seen
produced before the court on 04/09/2015. The aforesaid material does not in
Crl.Appeal No.1347 of 2018
any way advance the case of legal insanity of the accused. On the other
hand, the accused seems to have behaved oddly in jail because of substance
abuse and not due to any unsoundness of mind. There is absolutely no
evidence to show that the accused was mentally unsound immediately
before or at the time of the incident or immediately thereafter. There is
nothing on record to show that 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. From the noting of the
psychiatrist, there is possibility that the accused committed the crime under
the influence of cannabis, as the former has recorded as stated by the
accused that the last cannabis use was 3 days back. The incident took place
on 12/07/2015. The accused was examined by the psychiatrist on
15/07/2015. The substance use here seems to have been voluntary and not a
case of the substance being administered to the accused without his
knowledge or against his will as contemplated under section 85 IPC.
20. Further, the accused had never a case of legal insanity when the
prosecution witnesses were examined. He also does not have such a case
when he was questioned under Section 313 Cr.P.C. It is true that civil law
rule of pleadings does not govern the rights of an accused in a criminal
Crl.Appeal No.1347 of 2018
crime. As held by the Apex Court in State of U.P. v. Ram Swarup, AIR
1974 SC 1570, unlike in a civil case, it is open to a criminal court to find in
favour of an accused on a plea not taken up by him, and by so doing the
court does not invite the charge that it has made out a new case for the
accused. Though the accused may not plead the benefit of the exceptions
contained in Chapter IV IPC, yet the court may find from the evidence of the
witnesses examined by the prosecution and the circumstances of the case
either that what would otherwise be an offence is not one because the
accused is entitled to the benefit of the exception contained under the
Chapter. Even in such cases the burden which rests on the prosecution to
establish its case beyond reasonable doubt, is neither neutralized nor shifted.
The prosecution has to discharge its initial traditional burden to establish the
complicity of the accused and not until it does so, can the question arise
whether the accused is entitled to the benefit of any of the exceptions.
Under Section 105 of the Evidence Act, when a person is accused of any
offence, the burden of proving the existence of circumstances bringing the
case within any of the general exceptions in the Chapter, is upon the accused
and the court shall presume the absence of such circumstances. The burden
which rests on the accused to prove that any of the general exception is
Crl.Appeal No.1347 of 2018
attracted, does not absolve the prosecution from discharging its initial
burden and truly, the primary burden never shifts save when a statute
displaces the presumption of innocence, indeed, the evidence, though
insufficient to establish the exceptions may be sufficient to negative one or
more of the ingredients of the offence, that is to say, an accused may fail to
establish affirmatively the existence of circumstances which would bring the
case within the general exceptions and yet the facts and circumstances
proved by him while discharging the burden under Section 105 of the
Evidence Act may be enough to cast a reasonable doubt on the case of the
prosecution, in which event he would be entitled to acquittal. The burden
which rests on the accused to prove the exceptions is not of the same rigour
as the burden of the prosecution to prove the charge beyond reasonable
doubt. It is enough for the accused to show as in a civil case that the
preponderance of probability is in favour of his plea. It is not necessary for
the accused to lead any evidence to prove his defence, because such proof
can be offered by relying on the evidence led by the prosecution, the
materials elicited by cross examining the prosecution witnesses and the
totality of the facts and circumstances emerging out of the evidence in the
case.
Crl.Appeal No.1347 of 2018
21. In the case on hand, it has not been brought out through the
cross examination of the prosecution witnesses or out of the facts and
circumstances emerging out of the evidence in the case that the accused was
at any point of time treated for unsoundness of mind. It is true that two days
after the incident, while the accused was in judicial custody he was taken to
the Mental Health Centre for treatment as he showed some signs of mental
disturbance. However, no evidence has been brought on record by the
accused to establish that his mental condition was such that he was
incapable of knowing the nature of the act, or that he was doing what was
either wrong or contrary to law. When the prosecution has proved its case,
then the burden to prove any of the exceptions falls on the accused under
Section 105 of the Evidence Act. As stated earlier, the accused neither
during trial, that is when the prosecution witnesses were examined nor when
he was questioned under Section 313 Cr.P.C., has a case that he was
mentally unsound at the time of the commission of the offence. The
argument now raised seems to be an after thought. As there is absolutely no
evidence to support the said argument of the accused, the same is liable to be
rejected.
22. The evidence on record shows that injury no.1 caused to the
Crl.Appeal No.1347 of 2018
deceased by the accused is sufficient in the ordinary course of nature to
cause death. Hence the act of the accused comes under '3rdly' of Section
300 IPC. Therefore, we find that the learned trial judge was right in
convicting the accused for the offence punishable under Section 302 IPC.
In the result, the appeal is found to be without any merits and
hence the same is dismissed.
Interlocutory application, if any pending, shall stand closed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
C.S.SUDHA
JUDGE
ami/ak/Jms
