IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 CRL.A.No. 564 of 2007(A) ------------------------------------ [SC.NO.154/2003 OF ADDITIONAL SESSIONS COURT (ADHOC)-I, KOTTAYAM] .................... APPELLANT: ------------------- THANKACHAN, C.NO.1096, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.SAJEEV.T.P, (STATE BRIEF). RESPONDENT: ---------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- Crl.A.No.564 of 2007 ---------------------------------------------------- Dated this the 11th day of April, 2011 Judgment Balakrishnan, J. The appellant was convicted by the Additional Sessions Judge (Adhoc)-I, Kottayam for offence punishable under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and also to pay fine of Rs.1000/- and in default to undergo rigorous imprisonment for one year. This appeal is directed against the said conviction and sentence. 2. Brief facts necessary for the case are stated thus: On 27.9.2002 at about 7.30 P.M the accused and P.W.2, P.W.3, P.W.4 and deceased Chandran were travelling in a bus by name 'Punnaram' bound for Pathambuzha. The deceased was standing in the bus in such a way that his body was leaning towards and touching the body of the accused. The accused became irritated and questioned the same. Thereupon altercation took place between the accused and the deceased. P.W.4, the bus conductor, intervened. The dispute was resolved Crl.A.564/07 2 by taking the deceased to the rear seat of the bus. When the bus was stopped at Theyilappura at about 8 P.M., the accused and the deceased and also P.Ws.2, 3, 4 and 6 got down from the bus. Again the accused asked deceased Chandran why he leaned on his body while he (accused) was sitting and immediately, he took out a knife from his waist and stabbed the deceased. The deceased fell down and then the accused stabbed on the chest of the deceased. Thereafter, the accused left the scene. The injured Chandran was immediately taken to Government Hospital, Pala. After giving first aid, he was removed to Medical College Hospital, Kottayam. While undergoing treatment, the victim Chandran succumbed to the injuries and breathed his last at 3 AM on 6.10.2002. The First Information Statement was given by P.W.1, a near relative at 8 AM on 28.9.2002 based on which P.W.15, the S.I. of Police, Erattupetta registered the F.I.R, Ext.P1(a). P.W.16, the Circle Inspector of Police, Erattupetta conducted investigation and laid the charge sheet against the accused. When the charge was framed and read over to the accused, he pleaded not guilty. 3. P.Ws.1 to P.Ws.17 were examined and Exts.P1 to P11 were marked. Material Objects, M.O.1, M.O.1(a) and M.O.2 series Crl.A.564/07 3 were also identified. 4. When the accused was examined under Section 313 Cr.P.C., he contended that he was falsely implicated in this case. He further stated that he was mentally ill at the relevant time. Dr.Subhash, a doctor attached to the Mental Health Centre, Trivandrum was examined as D.W.1. Exts.D1 certificate and X2 series, treatment records were proved through him. Ext.X1 is the record showing the treatment given to the deceased. 5. The court below after analysing the evidence found that the prosecution could prove that the accused caused the death of deceased Chandran by stabbing with M.O.1 knife. The plea of insanity raised by the defence, claiming protection under Section 84 of the I.P.C. was negatived by the court below and thus the appellant-accused was convicted and sentenced as mentioned above. 6. The accused-appellant contends that the court below has not appreciated the evidence correctly. There is no legal evidence to find the accused guilty. The evidence given by D.W.1, the doctor and Ext.X2 series and Ext.D1 should have been relied upon to hold that the accused by reason of unsoundness of mind Crl.A.564/07 4 was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law and thus, the learned counsel for the appellant would submit that the appellant is entitled to the protection under Section 84 of I.P.C. 7. The points for consideration are: 1. What was the cause of death of deceased Chandran? 2. Whether it was the accused who caused the death of deceased Chandran? 3. Whether the accused at the time of doing the act complained of was by reason of unsoundness of mind incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law? Point No.1: 8. P.W.11 was the doctor who was working as Assistant Surgeon , Taluk Headquarters Hospital, Pala. Ext.P5 is the wound certificate issued by him. It was certified by him that on 27.9.2002 at 8.45 PM he had examined Chandran, the deceased in this case. The injuries found on the body of Chandran were mentioned in Ext.P5. It was stated by him that the injuries noted in Ext.P5 could be caused by stabbing with M.O.1 knife. It was Crl.A.564/07 5 also stated by him that those injuries were sufficient in the ordinary course of nature to cause the death of the victim. P.W.13 is the doctor who issued Ext.P7, the postmortem certificate. It was stated by P.W.13 that injury Nos.14,19, 20 and 21 were serious injuries, sufficient enough to cause the death of the victim in the ordinary course. Though a contention was raised by the defence that if properly treated the deceased could have been saved, that suggestion was denied by P.W.13. That apart, explanation 2 to Section 299 I.P.C. says that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. In the light of the evidence given by P.Ws.11 and 13, we have no hesitation to hold that deceased Chandran had a homicidal death due to the stab injuries sustained by him and that those injuries were caused by stabbing with M.O.1 or a weapon like M.O.1. Point No.2: 9. Ext.P1, the First Information Statement was given by P.W.1 at 8 AM on 28.9.2002. P.W.1 is stated to be a near Crl.A.564/07 6 relative of deceased Chandran. He was not an eye witness to the incident. According to him, he lodged Ext.P1 based on the information he had received. The evidence given by P.Ws.2 and 3, the eye witnesses and P.W.4, the conductor of the bus would show that P.Ws.2 and 3 and the accused as well as deceased Chandran were passengers in the bus of which P.W.4 was the conductor. The fact that the accused had picked up quarrel with the deceased complaining that the deceased had leaned on the body of the accused who was sitting and that thereafter the deceased was taken to the rear seat is discernible from the evidence given by the aforesaid witnesses. There is also evidence to show that when the bus reached Theyilapura bus stop the accused and the deceased and also P.Ws.2 and 3 got down from the bus. P.W.2 has stated that after getting down from the bus, the accused again asked the deceased why he stood near him while he (deceased) was sitting in the seat and leaned towards him. P.W.2 has deposed that the accused immediately took M.O.1 knife from his waist and stabbed deceased Chandran. P.W.3 was at that time passing urine by standing by the side of the wall and immediately he went to the house of P.W.5 for Crl.A.564/07 7 getting a torch. When P.W.3 came back with a torch, the accused was seen sitting on the body of Chandran who was lying supine on the road. The accused was seen stabbing on the chest of Chandran. P.W.5 also reached there after two-three minutes. P.W.3 and others rushed to the junction to bring others. When they reached there, the accused left the scene. It was stated by P.W.2 that there was electric light from the bulb which was fixed by the side of a nearby house called 'Mulangassery House'. P.W.5 has stated that he had also put on the lights fitted on the side wall of his house. It was further stated that when P.W.3 reached there with the torch light from the house of P.W.5, the accused was sitting on the body of Chandran and stabbing Chandran with M.O.1 knife. In the light of the evidence given by P.Ws.2 and 3, we have no hesitation to hold that the accused inflicted the stab injuries on the body of deceased Chandran with M.O.1 knife which was identified by P.Ws.2 and 3. 10. P.W.5 has corroborated the evidence given by P.W.3 that he (P.W.3) had gone to the house of P.W.5 and told that an incident as stated above was taking place and that P.W.3 had requested for a torch and accordingly a torch was given and he Crl.A.564/07 8 also reached the scene of occurrence within two-three minutes. Therefore, the evidence given by P.Ws.2 and 3 gets corroboration to that extent from P.W.5 also. P.Ws.2 and 3 are totally dis-interested witnesses. They could see the incident as they happened to get down from the bus at that particular time and place. Their evidence is that a quarrel took place from inside the bus on a silly reason as mentioned above. That was corroborated by P.W.4, the bus conductor also. Therefore, we find that the court below was justified in placing reliance on the evidence of the aforesaid witnesses to come to the conclusion that it was the accused who caused fatal stab injuries on the body of the deceased with M.O.1 knife. 11. It was sworn by P.W.16 that the accused was arrested by him at 7 PM on 28.9.2002 from the house of the accused. It was stated by P.W.16 that when the accused was questioned, he gave a disclosure statement as to the place where he had concealed M.O.1. According to him, the accused told him that he had concealed the knife beneath the jute bag and from that place he took out M.O.1 which was inside M.O.1(a) cover. Ext.P3 is the mahazar prepared for the seizure of M.O.1 and M.O.1(a). Ext.P3 Crl.A.564/07 9 (a) is the relevant portion of the statement alleged to have been given by the accused which distinctly related to the discovery of the factum of concealment of the knife beneath the jute bag. As stated earlier, the eye witnesses have identified M.O.1 as the knife which was used by the accused to inflict the fatal injuries on the body of deceased Chandran. Ext.P11, the report received from the Scientific Assistant attached to the FSL, Trivandrum shows that human blood was detected on M.O.1 knife. In the light of the unimpeachable ocular testimonies of P.Ws.2 and 3 which is corroborated in material particulars by the evidence given by P.Ws.4 and 5, further strengthened by Exts.P3(a) and P11, we have no hesitation to hold that the court below was justified in holding that it was the accused who caused the fatal injuries on the body of deceased Chandran and that Chandran later succumbed to those injuries. Since the injuries were sufficient in the ordinary course of nature to cause the death and since those injuries were caused by the accused without any justifiable reason, if the plea raised by the defence claiming protection under Section 84 of the I.P.C. is not available to the appellant, then certainly the offence would fall under Section 300 Crl.A.564/07 10 I.P.C. punishable under Section 302 I.P.C. Point No.3: 12. The crucial point for consideration is whether the appellant was at the time of inflicting the stab injuries, by reason of unsoundness of mind, incapable of knowing the nature of the act. In this connection, the evidence given by D.W.1, the doctor attached to the Mental Health Centre, Trivandrum is relied upon by the learned counsel for the appellant. The prosecution would contend that there is no evidence to show that the appellant had at any point of time prior to the incident treatment for the alleged mental illness. The accused was arrested from his house on 28.9.2002, i.e., on the next day of the incident. Since then he was in judicial custody. It is pointed out by the learned Public Prosecutor that for the first time the accused exhibited some sort of mental illness only on 17.9.2003; about a year after the incident. He was then taken to the Mental Health Centre, Trivandrum. 13. It is also pointed out by the learned Public Prosecutor that the charge sheet in this case was filed in July, 2003 since the records would show that the warrant was sent to the Crl.A.564/07 11 Superintendent of Jail to produce the accused in August, 2003. Therefore, according to the learned Public Prosecutor the mental ailment was exhibited by the accused or rather he pretended to be so after the charge sheet was laid only to escape from the criminal liability. It is also contended that P.Ws.2, 5 and 7 to 10 who are persons belonging to the locality where the accused is also residing did not say that there was any abnormal conduct or behaviour on the part of the accused. Therefore, according to the learned Public Prosecutor, the accused was not having any sort of mental illness at the time of the incident. The very fact that he showed the symptoms of illness only about one year after the incident would give room for doubt regarding the case of illness pleaded by the appellant. 14. Learned counsel for the appellant would submit that there are circumstances indicating the abnormal behaviour of the accused. It is pointed out that though the incident took place on the night of 27.9.2002, till 7 PM on the next day the accused did not abscond from that place. But that contention is stoutly resisted by the learned Public Prosecutor pointing out that the people of that locality on coming to know about his brutal attack Crl.A.564/07 12 on deceased Chandran, surrounded the house of the accused and some of them tried to attack the accused. It is stated that one of them happened to hit the accused with a stick as a result of which the accused had sustained injuries on his eye in respect of which a crime was also registered by P.W.16. Therefore, according to the prosecution, the accused was apprehending attack at the hands of the neighbouring people and so there was no alternative for him but to remain inside the house itself. The contention that had the accused been in a normal condition, he would not have stayed in his house without food or water is also assailed by the prosecution stating that the accused was staying in his own house and so there was no difficulty for him to prepare and take food and water. The evidence would show that the accused was staying alone in that house. It was also revealed in evidence that the accused was addicted to liquor and ganja. But no witness stated that the accused had exhibited any abnormal behaviour so as to suggest that he was under psychic disorder. 15. D.W.1, the doctor attached to the Mental Health Centre, Trivandrum has proved Ext.D1, the certificate which was issued by him on 17.9.2003. Ext.X2 series would show the treatment Crl.A.564/07 13 given to the accused. It was stated that the accused was given treatment for the mental disease 'paranoid psychosis' and that the accused was having delusion, hallucination, impaired judgment and inappropriate affect. He could not say when the disease must have developed in the accused. But he has stated that at the time of examination the accused had definite signs and symptoms of the mental illness- 'paranoid psychosis'. It was also stated by him that such patients are usually fearful and suspicious and they have usually delusion hallucination. D.W.1 would further say that in the early stages of such illness, the patient may be able to function normally in some area of their life. He has statesd that when such a patient comes into contact with a person against whom he has got delusion, the patient may become irritable and assaultive. The evidence given by D.W.1 that he could diagnose it as paranoid psychosis cannot be doubted at all. It was sworn by him that if proper treatment is not given, such illness can recur. It was contended by the prosecution that a long period of incarceration may develop psychotic disorder or illness. D.W.1 has stated that confinement in jail would only develop depression and it will not develop into Crl.A.564/07 14 psychosis. It was also stated by D.W.1 that consumption of alcohol and/or ganja may develop mental derangement and that 'psychosis' is a form of mental derangement. The learned Public Prosecutor would submit that the evidence would show that the accused was addicted to ganja and liquor and as such, since the accused happened to be in jail for a period of more than 11 months after his arrest, as there was no possibility for him to get liquor or ganja, the alcohol withdrawal symptoms must have developed in him and it must have aggravated the depression and thus it must have resulted in psychosis also. Since the accused exhibited the illness only long after the incident in this case, the subsequent treatment evidenced by Ext.X2 series, cannot come to the rescue of the accused to claim exception under Section 84 of the IPC. 16. D.W.1 could not state about the history of illness since nothing of that sort was furnished to him. Therefore, what emerges from the evidence given by D.W.1 is that on 17.9.2003 the accused was admitted at Mental Health Centre, Trivandrum and he underwent treatment for nearly two years. It is also proved that the accused was then having the mental illness Crl.A.564/07 15 'paranoid psychosis'. But the prosecution would contend that unless there is evidence to show that the accused was afflicted by such illness so as to deprive his cognitive faculty to know the nature of the act he was doing, he cannot claim the protection under Section 84 of the IPC. 17. It is also pertinent to note that the investigating officer could not find any personality disorder or abnormal behaviour on the part of the accused so as to doubt the cognitive faculty of the accused. Had the accused any such psychic disorder, the neighbours or friends or close associates of the accused would have told him about the same. It is also important to note that the accused was produced before the Magistrate several times before the case was committed to the court of sessions. The learned Magistrate also did not notice any abnormality in the behaviour of the accused so as to suggest that the accused was having such an ailment. 18.Section 84 of the IPC and Section 105 read with Section 4 of the Evidence Act place the burden on the accused to claim the exemption under Section 84 of the I.P.C. Every man is presumed to be sane and to possess sufficient degree of reason to Crl.A.564/07 16 be responsible for his acts unless the contrary is proved. The burden to prove that the mental condition of the accused at the crucial point of time, namely, at the time of commission of the offence, was such as defined in Section 84 IPC, lies on him. The mere fact that the accused/appellant did not abscond after commission of the crime will not lead to the conclusion that he was non compos mentis at the time of commission of offence. What is germane for consideration is whether the accused was at the time of commission of the offence incapable of knowing the nature of the act. The alleged insanity-antecedent and subsequent-may be relevant to prove his mental stage at the time of commission of the offence, but his actual state of mind at the time of commission of the offence is directly relevant. There is no evidence to show that the accused had, at any point of time prior to the commission of the offence, any mental illness. On the other hand, what is discernible is that he was addicted to liquor and ganja. 19. The learned counsel for the accused would submit that in the case of a patient afflicted with paranoid psychosis, the ordinary test of lucid interval as applicable in the case of patients Crl.A.564/07 17 with other kinds of unsoundness of mind cannot be applied. The defence counsel would argue that paranoid psychosis is likely to cause sudden bouts of impulsive feats due to which he would temporarily become completely incapable of understanding the implication of his activities and such sudden bouts may disappear within a very short time. So far as the case on hand is concerned, there is no evidence or circumstance to hold that the accused completely lost his sense of understanding. In this connection, the learned Public Prosecutor would submit that though there was wordy altercation when the accused and the deceased were travelling in the bus, it was only when they got down from the bus when it reached Theyilapura bus stop the accused attacked the deceased. No provocation whatsoever was caused by the deceased, whereas the accused picked up quarrel with the deceased and immediately took out M.O.1 knife from his waist and stabbed the deceased. The evidence would show that M.O.1 was within M.O.2 sheath. The fact that accused used to carry knife keeping it in his waist would indicate that he was having such a criminal tendency. That would, according to the learned Public Prosecutor, run counter to the case advanced by Crl.A.564/07 18 the defence that the cognitive faculty of the appellant was impaired and the incident did take place in a sudden bout. In this context the answers given by the accused when he was questioned under Section 313 Cr.P.C. also assume relevance. When questions regarding the incident which took place from inside the bus and what transpired thereafter till the actual commission of the offence were confronted to the accused separately, pointing to each of those instances, the accused gave distinct and separate answers to suit his case. The learned Public Prosecutor would submit that the answers given by the accused were found to be of a sound and intelligent man. It can never be the answers of a person whose mental faculties were afflicted due to the alleged illness. To question No.14 put to the accused suggesting that he and the deceased got down from the bus when it was stopped at Theyilappura bus stop, he gave a definite answer that he got down from the bus but he does not know whether others also got down at that place. That plea of ignorance was made by him to deny the incident alleged by the prosecution. 20. It was held by the Apex Court in State of M.P. v. Crl.A.564/07 19 Ahmadull (AIR 1961 SC 998) that the burden of proof that the mental condition of the accused was, at the crucial point of time, lies on the accused who claims the benefit of exemption under Section 84 of I.P.C. 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. Learned counsel for the appellant would submit that 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 would raise a reasonable doubt in the mind of the court as regards one or more ingredients of the offence to be proved by the prosecution to bring home the guilt under Section 302 I.P.C including 'mens rea' and if so the accused would be entitled