JUDGMENT P. Lakshmana Reddy, J.
1. This appeal is filed against the conviction and sentence dated 01.03.2006 passed in Sessions Case No. 91 of 2005 on the file of the Principal Sessions Judge, Cuddapah.
2. The appellant is the sole accused in the above Sessions Case. Hence, for the sake of convenience, the appellant will be referred to hereinafter in this judgment as the accused.
3. The relevant facts, in brief, are as follows:
The Inspector of Police, Rajampet Rural Circle filed the charge sheet in Crime No. 79 of 2004 of Mannur Police Station before the Judicial Magistrate of First Class, Rajampet, against the accused, alleging that on 09.07.2004 at about 5.30 a.m. while the wife of the accused was sweeping in front of their house, the accused hacked her to death and when the son of the accused intervened, he was pushed aside by the accused and that the motive for the offence is that the deceased intended to go to Kuwait against the wishes of the accused and was making preparations for the same by securing passport etc. Thereby the accused committed an offence punishable under Section 302 IPC.
4. On the said allegations, the learned Magistrate took the case on file against the accused as P.R.C.No.26 of 2004 and after observing all formalities, duly committed the case to the Court of Session, Sessions Division, Cuddapah, against the accused, by virtue of a committal order passed under Section 209 Cr.P.C. The learned Principal Sessions Judge took the case on file as Sessions Case No. 91 of 2005
5. The learned Principal Sessions Judge, Cuddapah, after due hearing of both sides, framed a charge under Section 302 I.P.C. against the accused, read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.
6. During the trial, the prosecution examined 9 witnesses as PWs.1 to 9 and exhibited 14 documents as Exs.P-1 to P-14 and marked M.Os.1 to 8.
7. After closure of the prosecution evidence, the learned Principal Sessions Judge examined the accused under Section 313 Cr.P.C., wherein, the accused described the incriminating evidence found against him as false. The accused examined the Consultant Psychiatrist in Rayalaseema Hospitals, Tirupati as DW.1 and marked the out-patient record pertains to him as Ex.D1. The case of the accused is one of total denial.
8. Considering the evidence adduced on behalf of the prosecution and the total denial of the accused, the learned Principal Sessions Judge found the accused guilty of the offence punishable under Section 302 I.P.C. and convicted him for the said offence and sentenced him to undergo life imprisonment.
9. Aggrieved by the same, the appellant-accused preferred the present appeal contending that the judgment of the trial Court is contrary to law, weight of evidence and probabilities of the case, and that the learned trial Judge erred in convicting the appellant when there is abundant credible evidence to show that he has been a schizophrenic. The learned trial Judge ought to have considered the admitted fact the accused had been taking treatment for his mental illness in Rayalaseema Hospitals, Tirupati. The learned trial Judge ought to have accepted the evidence of DW.1, the medical expert, who diagnosed the accused as 'Paranoid schizophrenia' patient, which is a serious type of mental illness and amounts to unsoundness of mind. The learned trial Judge failed to consider the evidence that if medicines prescribed are not properly used, there is a possibility of severe symptoms relapse. The learned trial Judge erred in coming to the conclusion that the accused was aware of the consequences of his act just because there was no complaint from the Central Prison that the accused was violent towards his co-prisoners or anybody else at any point of time. The learned trial Judge ought to have considered the evidence of PW.4, that the accused had returned from Kuwait due to illness and that his parents and his paternal aunt went to Tirupati for the treatment of his father. The learned trial Judge failed to see that the appellant was sick and was taking treatment and was ill just before the incident. The learned trial Judge ought to have considered the case of the appellant under the general exceptions provided under Section 84 IPC and ought to have acquitted him, and therefore, the conviction and sentence imposed against the appellant-accused are liable to be set aside.
10. During the course of hearing of the appeal, learned Counsel appearing for the appellant-accused reiterated the contentions raised in the grounds of appeal. She submitted that it is the admitted case of prosecution that the accused returned from Kuwait on account of illness and the family members of the accused getting the accused treated in the hospital at Tirupati and even on a day prior to the incident also, the accused was taken to Tirupati for treatment and that the Psychiatrist, who is examined as DW.1, treated the appellant- accused since three years prior to the incident and that nothing was elicited in the cross-examination of DW.1 to discredit his testimony and that the accused is a Paranoid schizophrenia patient and such patients are likely to commit offences of this nature without knowing the consequences of their act and without knowing as to what they were doing at times. She further submitted that it is a fit case to acquit the accused under Section 84 I.P.C., and therefore, the conviction and sentence passed against the appellant-accused are liable to be set aside.
11. On the other hand, the learned Additional Public Prosecutor contended that the learned trial Judge framed a specific point whether the accused was suffering from unsoundness of mind at the time of the incident and has been incapable of knowing the nature of the act committed by him and that he is incapable of knowing as to what he has done was either wrong or contrary to law, and considered the evidence of DW.1 and other circumstances and answered the said point against the accused on the sound reasons, and therefore, there is no need for this Court to reconsider the evidence and to interfere with the conviction recorded by the learned trial Judge and pleaded for dismissal of the appeal.
12. The points that arise for determination in this appeal are:
1. Whether the prosecution succeeded to prove beyond reasonable doubt that the death of the deceased Subbalakshmma was homicidal death? If so, whether the prosecution succeeded to prove beyond reasonable doubt that the appellant- accused is responsible for the homicidal death of the deceased?
2. If so, whether the appellant-accused is entitled for acquittal in view of Section 84 I.P.C.?
3. Whether the conviction and sentence recorded against the appellant-accused by the trial Court are sustainable in law?
4. To what result?
13. Point No. 1:- PW.1, the father of the deceased; PW.2, the cousin of the accused; PW.3, the cousin's daughter of the accused; and PW.4, the son of the accused, have categorically stated that the deceased died on account of injuries found on her person. PW.7, the Medical Officer, Primary Health Centre, Obulavaripalli, who conducted autopsy over the deadbody of the deceased on 09.07.2004 at 2.45 p.m. and found as many as 13 ante-mortem injuries, opined that that the deceased would appear to have died of hemorrhage and shock due to multiple injuries and that the injuries found on the neck and head are sufficient to cause death in the ordinary course. His evidence is supported by the postmortem report-Ex.P9, and therefore, it can safely be concluded that the death of the deceased was a homicidal death.
14. Nextly, it has to be seen whether the accused is responsible for the injuries found on the deadbody of the deceased, which caused the death of the deceased. PW.1 the de facto complainant is not an eyewitness to the incident. PWs.2 and 3 were cited as eyewitnesses to the incident. They did not support the case of the prosecution. PW.2 is the cousin of the accused. PW.3 is the daughter of PW.2. PW.2 stated that at about 5.00 a.m. on that day he heard cries from the house of the accused and then himself and one Sadasivareddy went to the house of the accused and by that time the deceased was lying on the ground with bleeding injuries and that somebody hacked her neck and that the son of the deceased was sitting by the side of the deceased by weeping. PW.3 also stated that on hearing the weeping of PW.4, the son of the deceased, she went there and found the deceased was lying dead with bleeding injuries at about 5.30 or 6.00 a.m. Both of them stated that they have not seen who hacked the deceased, but both of them have consistently stated that PW.4 was present there near the body of the deceased. PW.4, the son of the accused and the deceased, stated that on that day at about 5.15 a.m. while he was sleeping he heard the cries of his mother from outside of their house. He witnessed his father-the accused hacking his mother on her neck with a knife. He stated that MO.1 is the knife with which his father hacked his wife. He further stated that when his father was hacking his mother, he tried to intervene and his father pushed him aside and again hacked his mother, and his mother died. Thereafter, PW.2, PW.3 and Sadasivareddy came there and the accused fled away from that place along with MO.1 knife. Nothing was elicited in the cross-examination of PW.4 to discredit his testimony. His presence is spoken to by PWs.2 and 3. There is absolutely no reason for PW.4 to speak false evidence against his own father. Therefore, we have no hesitation to hold that it was the accused and the accused alone is responsible for the homicidal death of the deceased. The prosecution succeeded to prove beyond reasonable doubt that the accused is responsible for the homicidal death of the deceased. Thus, this point is found in favour of the prosecution.
15. Point No. 2:- The contention of the learned Counsel for the appellant- accused is that the accused was not in a sound state of mind and that by reason of unsoundness of mind, the accused was incapable of knowing the nature of his act, and therefore, the act of killing the deceased by the accused does not amount to an offence in view of Section 84 IPC, which is a general exception.
16. In Oyami Ayatu v. State of M.P. the apex Court while dealing with the burden of proof regarding the applicability of Section 84 IPC observed as follows:
As regards the argument that the appellant was an insane person, we find that no case of insanity of the appellant was set up at the trial nor was any evidence or other material brought on record to show that he was not a sane person at the time of the commission of the offence. The burden, though not as heavy as upon the prosecution in a criminal case, was upon the accused to prove that he was of unsound mind at the time of the commission of the offence and as such, incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. In the absence of any evidence or material to discharge that burden, there is no escape from the conclusion that the conviction of the accused appellant is well founded.
The apex Court referred to its observations in the earlier case Dahyabhai Chhaganbhai Thakker v. State of Gujarat , wherein it is held that there is a rebuttable presumption that the accused was not insane when he committed the crime in the sense laid down by Section 84 Indian Penal Code and 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 which rests upon a party to civil proceedings. The apex Court further quoted the observations made in Bhikari v. State of Uttar Pradesh , wherein it is observed that every one is presumed to know the natural consequences of his act and everyone is presumed to know the law, and it is for this reason that Section 105 Indian Evidence Act places upon the accused person the burden of proving the exception on which he relies. From the above said decision, it is clear that the burden is on the accused to prove that Section 84 IPC is applicable to this case.
17. Though the burden is on the accused to prove that he was of unsound mind at the time of the incident, as seen from the material available on record, the accused did not plead at any stage of the trial that he was of unsound mind and he was incapable of knowing the nature of the act as to what he was doing by the date of death of the deceased. Even at the time of his examination under Section 313 Cr.P.C., the accused understood the questions and answered in an intelligent manner. He described only the incriminating evidence found against him as false. Further, the burden is on the accused to prove that he was not in a sound state of mind when he dealt blows on the deceased. The accused examined one witness as DW.1. DW.1 is a psychiatrist in S.V. Medical College, Tirupati. He stated that he was a consultant Psychiatrist in Rayalaseema Hospitals, Tirupati, and he treated the accused as an outpatient from 27.11.2000 to 27.09.2003 and that he diagnosed the accused as 'Paranoid Schizophrenia' patient and it is a serious type of mental illness and it amounts to unsoundness of mind. He further stated that the initial symptoms for which he was brought to him were: 1) Wandering aimlessly; 2) suspiciousness; 3) decreased sleep; 4) occasional weeping spells, and 5) setting fire to things. He stated that some of his acts would have been sudden and unpredictable and he would not have been aware of the consequences of his actions and there was possibility of his harming his wife as a result of his mental illness. During the cross-examination, he admits that the last prescription given by him is dated 27.09.2003. By that date, the accused was on maintenance medication. In the case of prescribing maintenance medication, the medicines will be reduced only when there is improvement in the condition of the patient. The incident in this case took place on 09.07.2004. DW.1 did not state that he examined the accused on any date subsequent to 27.09.2003. Of course, it is in the evidence that on 08.07.2004 the accused was taken to Rayalaseema Hospitals, Tirupati, but no record was available to show that on that day, the accused was taken for treatment for unsoundness of mind. According to PW.4 as his father was complaining headache and bodily pains, he was taken to Rayalaseema Hospitals, Tirupati, for treatment. It was not elicited from PWs.1 to 3 that on 08.07.2004 the accused was taken to Rayalseema Hospitals, Tirupati, on account of mental illness. Further, it is in the evidence that the accused alone returned from Tirupati to Rajampet and from Rajampet he telephoned to his wife's sister requesting her to send his wife to Rajampet. It is also in the evidence that after the deceased returned to Rajampet, while she was staying with the elder sister of the accused, the accused went to the house of his elder sister and brought back his wife and his son. These acts of the accused clearly go to show that he was fully aware of what he was doing. In the absence of any positive evidence to the effect that at the time of committing the offence, he was not mentally sound and he was incapable of knowing what he was doing. It cannot be said that the offence committed by the accused comes under Section 84 IPC. Further, after committing the offence, the accused ran away and absconded. If he was not capable of understanding his own acts, he would not have fled away and he would have remained there itself.
18. Further, according to the prosecution, the accused has got motive to kill his wife. The deceased intended to go to Kuwait against her husband's wishes and she obtained passport etc. without the knowledge of the accused and as the deceased was making preparations to go to Kuwait, in spite of objection taken by him, the accused wanted to do away with the deceased. It is in the evidence of PW.5, the sister of the accused, that the deceased had obtained passport-Ex.P4 and kept it in her house with an apprehension that the accused may not permit her to go to Kuwait if he sees the passport. PW.4, the son of the accused and deceased, also stated that his mother intended to go to Kuwait and she was making preparations to go there without the knowledge of his father. So, the prosecution established the motive for the accused to kill his wife. Further, during the trial, the learned Sessions Judge referred the accused to the mental hospital and obtained a report and only after satisfying about the mental condition of the accused that he is capable of understanding things, the learned Sessions Judge proceeded with the trial. In the absence of positive evidence that on the date of incident the accused was suffering from unsoundness of mind, it cannot be presumed that the accused was not of unsound mind at the time of committing the offence. The evidence of DW.1 is not sufficient to hold that the accused was of unsound mind at the time of hacking his wife. DW.1's evidence is only opinion evidence. Further, he did not speak to the state of mind of the accused subsequent to 27.09.2003 i.e. ten months prior to the date of offence. Merely because, the accused was treated by a Psychiatrist for a period of three years for his mental illness, it cannot be presumed that on the date of incident, he was incapable of understanding as to what he was doing and the consequences of his acts. The learned trial Judge elaborately discussed the evidence of DW.1 and the other circumstances available on record and came to the conclusion that the accused was not suffering from unsoundness of mind at the time of the incident and was not incapable of knowing the nature of act committed by him. The reasons given by the learned trial Judge are sound and therefore, we are also of the considered view that the accused failed to prove that he was of unsound mind at the time of committing the offence and he is entitled for the benefit of Section 84 IPC. Thus, this point is found in favour of the prosecution and against the appellant-accused.
19. Point No. 3:- In view of the findings on points 1 and 2, the conviction and sentence passed by the learned trial Judge are to be confirmed.
20. Point No. 4:- In the result, the appeal is dismissed and the conviction and sentence dated 01.03.2006 passed in Sessions Case No. 91 of 2005 on the file of the Principal Sessions Judge, Cuddapah, against the appellant-accused, are confirmed.