Kerala High Court
Sharanya vs State Of Kerala on 21 February, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.1374 of 2018 1
2025:KER:15011
C.R
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
FRIDAY, THE 21ST DAY OF FEBRUARY 2025 / 2ND PHALGUNA, 1946
CRL.A NO. 1374 OF 2018
CRIME NO.941/2010 OF WADAKKANCHERY POLICE STATION, THRISSUR
AGAINST THE JUDGMENT DATED 08.11.2018 IN SC NO.460 OF
2011 OF ADDITIONAL SESSIONS COURT -IV, THRISSUR
APPELLANT/ACCUSED (IN CUSTODY):
SHARANYA
AGED 27 YEARS
W/O.NIJO, KUDILIL HOUSE, THEKKUMKARA VILLAGE AND
DESOM, THRISSUR DISTRICT.
BY ADV SRI.K.V.SABU
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY ADVS.
GOVERNMENT PLEADER
SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN & CHILDREN & WELFARE OF W & C
OTHER PRESENT:
SMT NEEMA T V, SR. PP.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.02.2025, THE COURT ON 21.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.1374 of 2018 2
2025:KER:15011
RAJA VIJAYARAGHAVAN V, CR
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
Crl.Appeal No.1374 of 2018
---------------------------------
Dated this the 21st day of February 2025
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the sole accused in SC No. 460/2011
on the files of the Additional Sessions Court-IV, Thrissur,
challenging her conviction and sentence imposed under Sections
302 & 309 IPC by that court.
2. The prosecution case is that, due to some mental
agony, which arose out of the marital life of the accused, on
1/12/2010 at about 10 pm the accused committed murder of
her son by name Sreehari aged about 3¾ months by
smothering him using her hands and thereafter attempted to
commit suicide by inflicting cut injuries on her body, by using a
steel blade. Hence, the prosecution alleged that the accused
has committed the offences punishable under Sections 302 and
2025:KER:15011
309 of IPC.
3. On filing of the final report, cognizance of the offences
was taken by the Sessions Court on 12/7/2011 and the case
was made over to the Additional Sessions Court-IV for trial and
disposal. On appearance of the accused, the trial court after
hearing both sides, framed charges against her under Sections
302 and 309 IPC.on 26/9/2015. Thereafter, from the side of the
prosecution, PW1 to PW15 were examined and Exhibits P1 to
P17 documents and MO1 to MO8 were marked. When the
accused was questioned under Section 313 Cr.P.C.,she denied
all the incriminating circumstances brought against her in
evidence and contended that she is innocent. She stated that
someone has trespassed into her house and has killed her son
and inflicted injuries upon her. From the side of the accused,
no evidence was adduced. The trial court on an appreciation of
the evidence on record and after hearing both sides, by
judgement dated 8.11.2018, found the accused guilty and
convicted her under Sections 302 and 309 IPC. The accused was
2025:KER:15011
sentenced to undergo imprisonment for life and to pay a fine of
Rs.5,000/- under Section 302 IPC.The accused was also
sentenced to undergo simple imprisonment for a period of six
months under Section 309 IPC. In case of non payment of fine,
the accused was ordered to undergo rigorous imprisonment for
a further period of six months.
4. The learned counsel for the appellant Adv. K.V.Sabu
assailed the impugned judgment by contending that no proper
appreciation of evidence was done by the trial court and that
even in the absence of evidence, the accused has been
convicted. He argued that all the material witnesses have turned
hostile and there is no evidence to show that the accused has
killed her child or that she has attempted to commit suicide. He
also argued that, it has come out in evidence that the kitchen
door was open at the relevant time and the prosecution has not
investigated and ruled out the possibility of another person
committing the acts. He further, by relying on the decision in
K.M.Sujith v. State of Kerala(Crl.Appeal No.1705 of 2005
2025:KER:15011
dated 21/10/2009), contended that the trial court had
wrongly placed the burden under Section 106 of the Evidence
Act upon the accused without even proving its case beyond
reasonable doubt. He submitted that the prosecution has not
produced the chemical examination report of the weapon
allegedly used in the crime and the medical evidence is not
conclusive. He also, by relying on the decision in Babu v. State
of Kerala [(2010) 9 SCC 189], argued that since the
prosecution has not proved the motive for the crime, the
conviction cannot be sustained. He further submitted that the
entire prosecution in this case has to fail in the light of Section
115 of the Mental Healthcare Act, 2017. Hence, he prayed that
this appeal may be allowed.
5. Per contra, the learned Public Prosecutor Adv.Neema
contended that the prosecution has proved its case beyond
reasonable doubt. It has proved that the accused was alone with
her baby inside her bedroom at the relevant time and hence,
the burden is upon the accused under Section 106 of the
2025:KER:15011
Evidence Act to explain as to what happened to the child and as
to how she sustained injuries. She further submitted that
Section 115 of the Mental Healthcare Act, 2017(hereinafter
referred to as 'the Act' for short) applies only in so far as it
relates to Section 309 IPC and there is no bar in conducting the
trial and punishing the accused under any other offences in IPC,
including Section 302 IPC.
6. As stated earlier, the accused has been convicted by the
trial court for committing murder of her child and also for
attempting to commit suicide. It is the prosecution case that
the accused had, after killing her child by smothering,
attempted to commit suicide, by inflicting cut injuries using a
blade on various parts of her body. The pivotal question, which
arises in this case, is the impact of Section 115 of the Act, which
came into effect on 7/7/2018 while trial was going on in the
present case. Section 115 of the Act reads as follows:
"115. Presumption of severe stress in case of
attempt to commit suicide.-- (1) Notwithstanding
2025:KER:15011
anything contained in Section 309 of the Indian Penal
Code (45 of 1860) any person who attempts to commit
suicide shall be presumed, unless proved otherwise, to
have severe stress and shall not be tried and punished
under the said Code.
(2) The appropriate Government shall have a duty to
provide care, treatment and rehabilitation to a person,
having severe stress and who attempted to commit
suicide, to reduce the risk of recurrence of attempt to
commit suicide."
(emphasis supplied)
7. Section 120 of the Act, which is extracted below, says
that the provisions of the Mental Healthcare Act, 2017 shall
have overriding effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force.
" 120. Act to have overriding effect.-- The
provisions of this Act shall have overriding effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in
force or in any instrument having effect by virtue
2025:KER:15011
of any law other than this Act."
Therefore, even if there are any provisions inconsistent with
Section 115 of the Act (with which we are concerned in the
present case) in any other law, the former will prevail over the
latter.
8. A plain reading of Section 115 of the Act goes to show
that notwithstanding anything in Section 309 IPC, a person
attempting to commit suicide shall be presumed to have severe
stress and unless it is proved otherwise, the person shall not be
tried and punished under the said Code. It is very pertinent to
note that the legislature has consciously avoided the words
such as "the said provision" or "the said section" and instead,
has specifically stated "the said Code", while enacting Section
115(1) of the Act. The terminology "the said Code" used in
Section 115(1) undoubtedly refers to Indian Penal Code, which
is referred to in the earlier part of the Section. If so, on a
literal interpretation of Section 115(1), it can be stated that any
person who attempts to commit suicide shall be presumed,
2025:KER:15011
unless proved otherwise, to have severe stress and cannot be
tried and punished for any offences under the IPC. In other
words, we may say that Section 115(1) of the Act, creates an
embargo in conducting trial and punishing a person, who has
attempted to commit suicide, not only for the offence under
Section 309 IPC but also for any other offences under IPC
committed in the course of the same transaction, unless it is
proved that the person accused is not having severe stress. The
afore conclusion reached by us is also fortified by sub section
(2) of Section 115, which clearly delineates the object and
purpose for providing an umbrella of protection to such a
person. Sub Section (2) of Section 115 reminds the Government
of its duty to provide care, treatment and rehabilitation to a
person, having severe stress and who attempted to commit
suicide, to reduce the risk of recurrence of attempt to commit
suicide. This mandate of the law to give care, protection and
rehabilitation to such a person having stress can never be
achieved, if he is convicted and sentenced to imprisonment for
2025:KER:15011
other offences under the Penal Code. In other words, it is sans
logic to convict and sentence an accused under the other
provisions of the IPC, when he has attempted to commit suicide
during the course of same transaction and has not been proved
not having severe stress.
9. At this juncture, we will also take note of a few
decisions of the Hon'ble Apex Court and this Court, wherein
Section 115 of the Mental Healthcare Act,2017 has been
considered and discussed. In the decision in Common Cause
(A Registered Society) v. Union of India & Anr [(2018) 5
SCC 1], the Hon'ble Apex Court while considering the question
of right to die had occasion to observe as follows:
"366.This Court's holding in Gian Kaur[Gian Kaur v.State
of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374] that the
right to life does not include the right to die in the context of
suicide may require to be revisited in future in view of
domestic and international developments ["Humanization
and Decriminalization of Attempt to Suicide", Law
Commission of India (Report No. 210, 2008); Rajeev Ranjan,
2025:KER:15011
et al, "(De-) Criminalization of Attempted Suicide in India : A
Review", Industrial Psychiatry Journal (2014), Vol. 23, Issue
1, at pp. 4-9.] pointing towards decriminalisation of suicide.
In India, the Mental Health Care Act, 2017 has created a
"presumption of severe stress in cases of attempt to commit
suicide". Section 115(1) provides thus:
"115. Presumption of severe stress in case of
attempt to commit suicide:- (1) Notwithstanding
anything contained in Section 309 of the Penal
Code, 1860 any person who attempts to commit
suicide shall be presumed, unless proved
otherwise, to have severe stress and shall not be
tried and punished under the said Code."
Under Section 115(2), the Act also mandates the Government
to provide care, treatment and rehabilitation to a person,
having severe stress and who attempted to commit suicide, to
reduce the risk of recurrence. Section 115 begins with a non
obstante provision, specifically with reference to Section 309 of
the Penal Code. It mandates (unless the contrary is proved by
the prosecution) that a person who attempts to commit suicide
is suffering from severe stress. Such a person shall not be tried
2025:KER:15011
and punished under the Penal Code. Section 115 removes the
element of culpability which attaches to an attempt to commit
suicide under Section 309. It regards a person who attempts
suicide as a victim of circumstances and not an offender, at
least in the absence of proof to the contrary, the burden of
which must lie on the prosecution. Section 115 marks a
pronounced change in our law about how society must treat an
attempt to commit suicide. It seeks to align Indian law with
emerging knowledge on suicide, by treating a person who
attempts suicide being in need of care, treatment and
rehabilitation rather than penal sanctions."
(emphasis supplied)
It can thus be seen from the afore discussion that the Apex
Court has opined that a person who attempts to commit suicide
is suffering severe stress (unless the contrary is proved) and he
shall not be tried and punished under the Penal Code. The Apex
Court regarded such a person as a victim of circumstances and
not an offender, in the absence of proof to the contrary. It also
held that Section 115 reflects a law as to how the society must
2025:KER:15011
treat such a person ie; by providing care, treatment and
rehabilitation rather than penal sanctions. The afore view was
also reiterated by the Hon'ble Apex Court in the decision in
Ravinder Kumar Dhariwal & Anr v. Union of India &
Others [(2023) 2 SCC 209].
10. This Court also had the occasion to delve into the
nuances of Section 115 of the Act in the decisions in Naveed
Raza v. State of Kerala(2024 6 KHC 534) and Leby
Sajeendran v. State of Kerala (2024 7 KHC 130), wherein
it was held that Section 115 creates a statutory presumption
that a person committing suicide is under a severe stress and
due to the stress, which he is presumed to have undergone, he
cannot be prosecuted under the Indian Penal Code. It was also
held that the Act, being a beneficial legislation, will have
retrospective operation and that from 2017 onwards the
presumption gets attracted and unless the prosecution proves
that the person was not under any stress, he is immune from
prosecution. In the afore cases, since the prosecution was only
2025:KER:15011
under Section 309 IPC, unlike the case in hand, the court dealt
with it and terminated the proceedings against the accused.
The afore decisions also thus leans in favour of the conclusion
reached by us and as narrated afore.
11. Coming to the facts of this case, at the sake of
repetition, we may say that as on the date when Section 115 of
the Act came into force, the trial in the case was going on. The
charge was framed in this case on 26/9/2015 and the
examination of the witnesses started on 20/11/2017. It is
thereafter, the impugned judgment came to be passed on
8/11/2018. If so, it has to be held that as and when the Mental
Healthcare Act 2017 came into force i.e, on 7/7/2018, the trial
court ought to have, in compliance with Section 115, desisted
from proceeding with the trial of the case and pronouncing the
judgement. It is to be taken note that, in the present case
admittedly no material has been adduced to show that the
accused is not having severe stress. If so, we are of the view
that all further proceedings in the trial court after 7/7/2018, till
2025:KER:15011
the passing of the impugned judgment are illegal, and are liable
to set aside. Hence, we find that the impugned judgment passed
against the appellant/accused convicting her under Sections 302
& 309 IPC cannot be sustained.
In the result, this appeal is allowed as follows:
The conviction and sentence rendered in SC No.460/2011
against the appellant/accused under Sections 302 and 309 IPC
by the Additional Sessions Court-IV, Thrissur are set aside and
the appellant/accused is set at liberty.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
dpk Judge
