Madras High Court
Muthuraj vs State Rep. By on 2 January, 2023
CRLA(MD)No.379 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.01.2023
CORAM
THE HON'BLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR.JUSTICE SUNDER MOHAN
CRL.A.(MD)No.379 of 2020
Muthuraj .. Appellant/Sole Accused
Vs.
State rep. by
The Inspector of Police,
Seethaparpanallur Police Station,
Thenkasi District.
(Crime No.91 of 2016) .. Respondents/ Complainant
PRAYER: Appeal filed under Section 378 of the Criminal Procedure Code,
to call for the records and set aside the order and judgment of conviction
dated 20.02.2020 passed in S.C.No.41/2018 by the learned Additional
District and Sessions Judge(FTC), Thenkasi, and that the accused to be
acquitted.
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For Appellant : Mr.T.R.Subramanian
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
ORDER
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
The appeal has been filed by the sole accused convicted by the
learned Additional District and Sessions Judge, Thenkasi, for the offence
under Section 302 IPC and sentenced to undergo Life Imprisonment and to
pay a fine of Rs.2,000/-, in default, to undergo two years Simple
Imprisonment.
2.The case of the prosecution is that on 09.09.2016 at about 5.00 a.m,
at the house of the appellant, when the appellant demanded money from the
deceased, who is his wife to buy alcohol, the deceased refused and enraged
by that, the appellant caused the death of the deceased by holding the neck
of the deceased, closed her mouth with a towel and thereafter severed her
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head with aruval, and walked out of the house with the severed head and
aruval.
3. The prosecution had examined 15 witnesses and marked Ex.P1 to
Ex.P23. P.W.1 to P.W.4 are eyewitnesses to the occurrence. P.W.1 and P.W.2
are daughters of the deceased, P.W.3 is the son of the deceased and P.W.4 is
the mother of the accused. P.W.5 is the neighbour, who saw the accused
walking along with the head of the deceased and aruval in his hand. P.W.6 is
the scientific expert and P.W.7 is the observation mahazer witness. P.W.8 is
the postmortem doctor and P.W.9 is the witness to the arrest.
P.W.10, Grade-I Police Constable, who handed over the FIR to the Court.
P.W.11, Head Constable, who received the complaint and registered the FIR.
P.W.12 and P.W.13 are the officials of the Electricity Board, who speak
about the fact that there was no electricity at the time of the occurrence.
P.W.15 is the investigating officer, who conducted investigation and filed
the final report.
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4. It is the case of the prosecution that P.W-1 gave the complaint after
the occurrence to P.W-11, who registered the FIR. The accused was arrested
at 10.00 a.m, on the same day and on his confession, the severed head and
the aruval were recovered. The learned Sessions Judge found that the
prosecution had established its case that the deceased died due to the act of
the accused, convicted the appellant for the offence under Section 302 IPC
and sentenced him to undergo Life Imprisonment.
5(i). The learned counsel for the appellant submitted that the evidence
of witnesses cannot be believed. P.W.2 is not mentally sound and therefore,
her evidence cannot be believed. P.W.1, the daughter of the deceased was
then a minor, whose version appears to be tutored and hence her evidence
cannot be believed. P.W.3 and P.W.4 also cannot be believed since P.W.4,
mother of the accused says that she saw the occurrence after hearing the
sound and she being an old lady did not have good eye sight and therefore,
her evidence is highly doubtful. The learned counsel would further submit
that the evidence of P.W.5, the neighbour who had seen the accused taking
the head of the deceased outside the house is highly artificial and his
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evidence also cannot be believed.
5(ii). The learned counsel thereafter made a plea that since the
accused was intoxicated, it has to be presumed that he had no intention and
knowledge to cause the death of the deceased and therefore, his act would
be at best culpable homicide not amounting to murder. The learned counsel
relied upon Sections 85 and 86 of IPC to impress upon us that the accused
did not have the requisite intention to cause the death of the deceased.
6(i). The learned Additional Public Prosecutor submitted that P.W.1 to
P.W.4 are natural witnesses and the occurrence took place in the house of
the accused. P.W.4 is the mother of the accused and he further added that
under normal circumstances, she would have given evidence in favour of
the accused, however, she stuck to truth and supported the case of the
prosecution. There is no doubt that P.W.1 was minor at the time of the
occurrence, but there is no bar, and there is no reason, to disbelieve her
evidence. There is nothing to show that P.W.2 was mentally unsound. Even
assuming that the evidence of P.W.2 has to be discarded, the prosecution
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case is supported by the evidence of P.W.1, P.W.3, P.W.4 and P.W.5.
Their evidence has not been dislodged by the defence in the cross
examination The prosecution has also established that the head of the
deceased which was recovered on the confession of the appellant, belonged
to that of the deceased and has established the corpus delicti.
6(ii). The learned Additional Public Prosecutor further submitted that
Sections 85 and 86 of IPC relied upon by the learned counsel for the
appellant is to bring the appellant's case as one under culpable homicide not
amounting to murder cannot be accepted. It is not the case of the defence
that he was intoxicated against his knowledge or against his will by any
third party. Section 86 of IPC in fact makes the position very clear that
where intoxication is voluntarily done by the accused, he cannot plead that
the act was committed without knowledge. This provision has been
incorporated only to prevent such type of defences by intoxicated persons
committing crimes. Therefore, the learned Additional Public Prosecutor
submitted that Sections 85 and 86 will not come to the aid of the appellant
to bring his case under culpable homicide not amounting to murder.
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7. Heard Mr.T.R.Subramanian, learned counsel for the appellant and
Mr.A.Thiruvadikumar, learned Additional Public Prosecutor appearing for
the State.
8. We find that the occurrence has taken place at 5.00 a.m., on
09.09.2016. The occurrence took place in the house, where the deceased and
the accused lived along with their children P.W.1 to P.W.3 and mother of
the accused P.W.4. All these witnesses are natural witnesses to the
occurrence. The witnesses P.W.1 to P.W.3, the children of the accused and
the deceased, have given cogent evidence as to how the occurrence took
place. Further, on a reading of the evidence of P.W.2, we find that her
evidence also is cogent. She had only taken psychiatric treatment which no
way affects her testimony. From the case of the prosecution, it is seen that it
would have taken considerable time for the accused to severe the head of
the deceased. Therefore, it is not as if that the witnesses heard the sound and
came and saw the accused and the deceased. All the three children, namely,
P.W.1 to P.W.3 clearly state that they saw the accused cutting the neck of
the deceased with an aruval. Further, the deposition of P.W.4, who is the
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mother of the accused, has to be appreciated in that context. Under normal
circumstances, as rightly pointed out by the learned Additional Public
Prosecutor, no mother would come and depose falsely against her own son.
She fairly stuck to truth and stated very cogently about the occurrence and
the manner in which the deceased had severed the head of the deceased. The
evidence of the scientific export establishes that the head recovered by the
respondent belongs to that of the deceased.
9. Therefore, it is clear that the occurrence had taken place only due
to the act of the accused and nothing has been elicited through the cross-
examination of P.W.1 to P.W.4 to disbelieve them. That apart, it is the case
of the prosecution that the appellant ran out of the home with the head of the
deceased and the aruval at 05.10 hours in the morning. Further we see from
the evidence of P.W.5, neighbour, that he saw the accused holding the
severed head and aruval coming out of the home and it has been
corroborated by the recovery of the severed head and aruval on the
confession made by the accused. The admissible portion of the confession is
marked as Ex.P16 and the recovery mahazar is marked as Ex.P8.
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10. The learned counsel for the appellant submitted that the towel,
which is said to have been used by the accused, has not been recovered. In
our view, that cannot affect the prosecution case in any manner. At best, it is
an infirmity in the investigation, and not a ground for disbelieving the
prosecution case.
11. The next submission made by the learned counsel for the
appellant is that the appellant's case would fall within Sections 85 and 86 of
IPC and that since the appellant was intoxicated mens rea to cause murder
cannot be imputed. His acts would constitute only an offence of culpable
homicide not amounting to murder. This submission made by the learned
counsel for the appellant is misconceived both on facts and law. In the
instant case, there is no evidence to suggest that the appellant was
intoxicated. Even assuming that the appellant was intoxicated, there is no
evidence to suggest that the appellant was administered alcohol without his
knowledge or will. The learned counsel's reliance on the Section 86, is
again misconceived. Section 86 though falls under the Chapter General
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exception is in the nature of proviso to Section 85 of the Penal Code. The
framers were conscious of the fact that a person who is intoxicated on his
own volition, may plead that due to the intoxication, he did not have the
requisite mens rea for committing the offence. It is to clarify and counter
such defences this provision has been enacted.
12. Sections 85 and 86 of IPC is extracted hereunder for better
understanding:
“85. Act of a person incapable of judgment by
reason of intoxication caused against his will.—Nothing
is an offence which is done by a person who, at the time
of doing it, is, by reason of intoxication, incapable of
knowing the nature of the act, or that he is doing what is
either wrong, or contrary to law; provided that the thing
which intoxicated him was administered to him without
his knowledge or against his will.
86. Offence requiring a particular intent or
knowledge committed by one who is intoxicated.—In
cases where an act done is not an offence unless done
with a particular knowledge or intent, a person who
does the act in a state of intoxication shall be liable to
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be dealt with as if he had the same knowledge as he
would have had if he had not been intoxicated, unless
the thing which intoxicated him was administered to him
without his knowledge or against his will.”
13. It is not the case of the appellant that he was intoxicated and the
thing which intoxicated has been administered without his knowledge or
against his will. Hence, Section 85 IPC has no application to the facts of the
case. Section 86 IPC makes it very clear that where an act done is not an
offence unless done with a particular knowledge or intent, a person who
does the act in a state of intoxication shall be liable to be dealt with as if he
had the same knowledge as he would have had if he had not been
intoxicated. Though the first part of Section 86 IPC deals with offence
which requires knowledge and intent, the second part states that knowledge
has to be presumed, as if he had not intoxicated. The Section does not
provide for presumption of requisite intention. However, in a case of
murder, as in the instant case, the mental states required is either intention
or knowledge. Even assuming that intention cannot be inferred one can infer
knowledge with the aid of Section 86 IPC, which is also a mental state for
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murder under Section 300 IPC. That apart, in the instant case, the conduct
of the accused is that after the occurrence, he had taken the head of the
deceased after severing it, to another place to hide it along with weapon
used by him. The conduct herein would show that he also intended the
natural consequences of his acts.
14. The law relating to Section 86 of the Indian Penal Code was dealt
with by the Hon'ble Apex Court in Basdev vs. State of Pepsu reported in
AIR 1956 SC 488. The relevant observation of the Hon'ble Supreme Court
is as follows:-
"4.It is no doubt true that while the first part of
the section speaks of intent or knowledge, the latter
part deals only with knowledge and a certain element
of doubt in interpretation may possibly be felt by
reason of this omission. If in voluntary drunkenness
knowledge is to be presumed in the same manner as if
there was no drunkenness, what about those cases
where mens rea is required.
Are we at liberty to place intent on the same
footing, and if so, why has the section omitted intent in
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its latter part? This is not the first time that the
question comes up for consideration. It has been
discussed at length in many decisions and the result
may be briefly summarized as follows:-
5.So far as knowledge is concerned, we must
attribute to the intoxicated man the same knowledge as
if he was quite sober. But so far as intent or intention is
concerned, we must gather it from the attending
general circumstances of the case paying due regard to
the degree of intoxication. Was the man beside his
mind altogether for the time being?
If so it would not be possible to fix him with the
requisite intention. But if he had not gone so deep in
drinking, and from the facts it could be found that he
knew what he was about, we can apply the rule that a
man is presumed to intend the natural consequences of
his act or acts.
6.Of course, we have to distinguish between
motive, intention and knowledge. Motive is something
which prompts a man to form an intention and
knowledge is an awareness of the consequences of the
Act. In many cases intention and knowledge merge into
each other and means the same thing more or less and
intention can be presumed from knowledge. The
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demarcating line between knowledge and intention is
no doubt thin but it is not difficult to perceive that they
connote different things. Even in some English
decisions, the three ideas are used interchangeably and
this has led to a certain amount of confusion."
15. The above passage of the Hon'ble Apex Court is often quoted and
followed by the Hon'ble Apex Court in a series of decisions subsequently as
well. The Apex Court quoted the above observation with approval in
(2007)9 SCC 360 (Shankar Jaiswara vs. State of West Bengal) and in
(2020)3 SCC 115 (Paul vs. State of Kerala).
16. The principles relating to application of section 85 and 86 of the
Indian Penal Code can be summed up as follows:
a) Intoxication is a defence under Section 85 IPC provided the
person committing the act is incapable of knowing the nature
of the act or that he is doing what is wrong or contrary to law
due to intoxication and the intoxication was administered to
him without his knowledge or against his will.
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b) Section 86 IPC is in the nature of a proviso to Section 85 IPC.
The provision begins by laying down that in all cases where a
particular knowledge or intent is the ingredient of the offence, a
person who is intoxicated voluntarily shall be dealt with as if
he had the same knowledge as he would have had if he had not
been intoxicated. Though the first part deals with knowledge
and intent, the second part permits presumption of knowledge
alone.
c) Where the mens rea for the offence includes both intention and
knowledge, the offender can be presumed to have had
knowledge by virtue of Section 86 IPC and it would be no
defence for him to say that he was intoxicated and therefore, he
did not have the requisite knowledge.
d) Even where intention is the only mental state provided for the
offence, the presumption is that the offender intended the
natural consequences of his act. It is for the offender to
establish that by virtue of the intoxication he was deprived of
knowing the nature of the act and as to whether it was wrong
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and contrary to law. In cases of murder and other offences
where both intention and knowledge are the culpable mental
states, even in the absence of intention, knowledge can be
presumed under section 86 and voluntary intoxication cannot
come to the aid of the offender.
17. From the above principles, it would be clear that even if a person
is intoxicated, knowledge can be presumed as if the accused had committed
the act without the influence of intoxication. So far as the intention is
concerned, it is to be presumed that the man intended the natural
consequences of his acts. In order to dislodge this presumption, the accused
must be able to show that his intoxication was to such an extent that he was
incapable of understanding the nature and effect of the act. However, in the
instant case, that question is academic since the appellant had not
established that in the first place that he was intoxicated which had affected
his sense of understanding the nature and consequences of his act. In any
event, since the offence involved is murder, knowledge can be presumed
under Section 86 IPC, which is in the nature of proviso or exception to
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Section 85 IPC. The framers had consciously incorporated this provision
only to counter defences by perpetrators of crime by voluntary intoxication.
18. For the aforesaid reasons, we see that there is no reason to
interfere on the finding of the trial Court and the conviction and sentence
imposed against the appellant.
19. In the result, this Criminal Appeal stands dismissed and the order
and judgment dated 20.02.2020 passed in S.C.No.41/2018 by the learned
Additional District and Sessions Judge(FTC), Thenkasi, is hereby
confirmed.
[G.J.,J.] & [S.M.,J.]
02.01.2023
Index: Yes/No
Internet:Yes/No
PJL
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To
1.The Additional District and Sessions Judge(FTC),
Thenkasi.
2.The Inspector of Police,
Seethaparpanallur Police Station,
Thenkasi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
PJL
CRL.A.(MD)No.379 of 2020
02.01.2023
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