IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.9.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL Criminal Appeal No. 731 of 2008 Ramesh alias Ramesh Babu .. Appellant/Accused Vs. State, represented by Inspector of Police, St. Thomas Mount Police Station Chennai. (Crime No.846/2006) .. Respondent/Complainant Prayer : Appeal filed under Section 374(2) of Crl.Procedure Code against the Judgment, dated 30.9.2008, passed in Sessions Case No.285 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court-I, Chengalpattu. For Appellant :: Mr. S.Ashok Kumar Senior Counsel for Mr.G.Saravana Kumar For Respondent :: Mr.Hassan Mohamed Jinnah Additional Public Prosecutor J U D G M E N T C. NAGAPPAN, J. Appellant Ramesh @ Ramesh Babu is the sole accused in Sessions Case No.285 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court-I, Chengalpattu, and he has preferred this appeal challenging the conviction and sentence imposed on him by judgment dated 30.9.2008 in the case. For the sake of convenience, in this Judgment, the appellant will be referred to as accused. https://hcservices.ecourts.gov.in/hcservices/ 2. The learned Additional District and Sessions Judge found the accused guilty of the charge under Section 302 IPC and convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo one month Rigorous Imprisonment. 3. To prove its case, the prosecution examined P.Ws.1 to 11 and marked Exs.P.1 to P.19 and M.Os.1. to 9. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows. P.W.1 Gilbert Mohan is a Salesman and P.W.2 Lily Mary is the Book-shopper of the Book Stall in the Church situated in St.Thomas Mount. P.W.3 Adaikalasamy is the school van driver of the Church. The deceased Jacob alias Jacob Fernando was the Manager of the Church. On 26.11.2006, at 4.45 p.m., P.W.1 Gilbert Mohan and P.W.2 Lily Mary were in the Book Stall and Manager Jacob came there and told them that the Father wanted the Bible and while P.W.1 Gilbert Mohan was taking the Bible, the accused Ramesh @ Ramesh Babu with a beard, hippie hair style and a cloth tied on the head came there with a leather bag and asked for the Manager and on seeing Jacob, asked him as to whether the Mount can be given or not and Manager Jacob told him to go and meet the Father. Immediately, the accused Ramesh @ Ramesh Babu took M.O.1 Chopper knife and threw away its cover and cut Jacob Fernando on the left shoulder. Jacob ran towards Manager room and the accused Ramesh Babu chased and caught hold of him and cut him on his head, neck, ear and all over the body indiscriminately with M.O.1 Chopper knife and Manager Jacob fell down with bleeding injuries. The accused Ramesh Babu took the oozing blood and put the same on his forehead as 'Thilak' and ran away from the place. P.W.3 Adaikalasamy also witnessed the occurrence. P.W.1 Gilbert Mohan and P.W.2 Lily Mary went and informed the Father and injured Jacob Fernando was taken in a car to Sri Ramachandra Medical College Hospital and P.W.1 Gilbert Mohan also went there. Dr. Bala Murugan examined Jacob Fernando at 4.45 p.m. on 26.11.2006 in Sri Ramachandra Hospital and found the following injuries - "1. Triangular shaped lax laceration 25 x 12 x 5 cm with base extending from left ear running through the mid-axilla up to angle of mouth from there extending below till upper 3rd of neck exposing the bones, muscles, vessels with diffuse gushing of blood. https://hcservices.ecourts.gov.in/hcservices/ 2. Triangular shaped lax laceration 8 x 4 x 2 cm with base over upper neck extending up to chin, exposing the base and muscles. 3. Penetrating wound over left shoulder 2 x 1 cm. 4. Fully cut and severed lower end of left fore arm hanging by the skin of the radial side. 5. L/W right palm 4 x 1 x 1cm. 6. Linear abrasion 30 x 1cm over left side of chest." Ex.P6 is the Accident Register issued by him. Jacob Fernando died in the hospital. P.W.1 Gilbert Mohan went to St. Thomas Mount Police Station at 7.15 p.m. on 26.11.2006 and gave Ex.P1 Complaint and P.W.11 Inspector D. Arockiya Raveendran received the same and registered a case in Crime No. 846/2006 under Section 302 IPC and prepared Ex.P11 Printed First Information Report and despatched the same to the Court. He went to the occurrence place and prepared Ex.P12 Observation Mahazar in the presence of Charles and Samidurai and Ex.P13 is the Rough sketch drawn by him. He seized M.O.8-series Blood stained earth and Sample earth under Ex.P14 Mahazar in the presence of the same witnesses. He examined P.W.1 Gilbert Mohan, P.W.2 Lily Mary, P.W.3 Adaikalasamy and some other witnesses and recorded their statements. He went to S.R.M.C. Hospital and took M.O.9-series Photographs of the body through Photographer Panneer Selvam. On 27.11.2006, he conducted inquest on the body in the presence of panchayatars and prepared Ex.P15 Inquest Report. He sent the body to Government Hospital, Tambaram, for post-mortem through Head constable Thiagarajan by giving requisition. P.W.8 Dr. Leena conducted autopsy on the body at 2.00 p.m. on 27.11.2006 and found the following - " 1. Large lacerated injury of size 25 cm x 3 cm over the left side face, mandible and maxillary region exposing the muscles and bone. The injury extends backward up to the back of the head – occipital region with the ear lobe. 2. Cut injury parallel to the previous injury of size 15 cm x 3 cm – located over the upper aspect of the neck on the left side – exposing – https://hcservices.ecourts.gov.in/hcservices/ the muscles and bone extending backward. 3. Fractured earlobe – cut into two. 4. Inverted 'U' shaped lacerated injury of size over the upper aspect of the right side of neck exposing the underlying muscles. 5. Penetrating injury (up to the bone) of size 5 cm x 1 cm over the left shoulder joint. 6. Superficial (skin deep) cut injury over the back of left shoulder 13 x 1cm. 7. Fully cut injury over the distal end of left forearm resulting in the extremity being severed completely except being attacked by the skin. Both bones of left fore-arm fractured. 8. Cut injury fore-arm 5 x 2 cm. Distal to the previous one. (left fore-arm). 9. Cut injury over the medial aspect of the left palm, metacarpal bones. 10. Cut injury over the distal aspect of the left palm 8 cm left. 11. Cut injury involving middle of the right palm. Appearance: Eyes closed. Mouth partially open, Tongue inside mouth, clotted blood around here and herewith. Chest: Cut injury Superficial – skin deep on the left side chest below the axilla (4 cm) Rib cage: Fractured ribs 2, 3, 4 on the left side. Fractured ribs 3, 4, 5 on the right side. Hyoid Intact. Trachea free. Heart Pale, empty. Lung : Pale. 2cm laceration with frothy haemorrhage on the left side lung. Stomach: Pale contains 350 gms of partly digested food. Intestine, Liver, Spleen-pale, Kidney-pale. Bladder-empty. Skull bones intact. Membranes intact. Brain Pale. Base of skull intact. https://hcservices.ecourts.gov.in/hcservices/ Viscera, Stomach and content, Liver, Kidney, Spleen – sent for chemical analysis. Blood could not be collected as there wasn't any blood or blood clots." She expressed opinion that the deceased would appear to have died due to haemorrhage shock due to injury to vital structures. Ex.P7 is Post-mortem Certificate issued by her. P.W.11 Inspector D. Arockiya Raveendran arrested the accused Ramesh Babu at 11.30 a.m. on 27.11.2006 in the junction of Ponniamman Koil Street and Pudupet at Alandur and enquired him in the presence of P.W.5 Sugumaran and another and recorded the confession statement given by him in the presence of the said witnesses. Ex.P2 is the Admissible portion. The accused Ramesh Babu produced M.O.4 SUZUKI Motor cycle, M.O.7 Knife with a cover and the cloth tied on the head and P.W.11 Inspector D. Arockiya Raveendran recovered them under Ex.P4 Mahazar in the presence of the said witnesses. The accused Ramesh Babu took them to his house bearing Door No.26, 8th Street, New Colony, Adambakkam, and produced M.O.1 Blood stained Chopper Knife, M.O.2-series Clothes worn by him at the time of occurrence, M.O.5-series Passports and the Letter written by him and M.O.6-series Knives and P.W.11 Inspector D. Arockiya Raveendran recovered them at 1.40 p.m. under Ex.P3 Mahazar in the presence of the same witnesses. P.W.11 Inspector D. Arockiya Raveendran examined P.W.4 Mohideen, who stitched the covers for the knives on consideration paid by the accused Ramesh Babu, and recorded his statement. He sent the accused Ramesh Babu for judicial remand. He seized M.O.3-series clothes of the deceased taken from the body and produced before him under Ex.P16 Form 95. He obtained sample hand- writing of the accused Ramesh Babu and sent the properties to the Court on 28.11.2006. On 30.11.2006, he gave requisition for conducting Identification Parade for the witnesses and as per the Order of the Chief Judicial Magistrate, P.W.6 Judicial Magistrate Ravindran conducted the Identification Parade on 7.12.2006 for P.W.1 Gilbert Mohan, P.W.2 Lily Mary and two other witnesses. Ex.P5- series is the Report of the Proceedings. P.W.11 Inspector D. Arockiya Raveendran gave Ex.P17 Requisition for sending the documents for comparison to the hand-writing Expert. P.W.10 Thamarai Selvan, Scientific Assistant Gr.I and Document Expert, compared the hand- writings and issued Ex.P10 Report. The properties were sent for Chemical Examination and Ex.P10 Chemical Examination Report and Ex.P18 Serology Report were received in the Court. As per the Order of the learned Judicial Magistrate, Alandur, P.W.11 Inspector D. Arockiya Raveendran sent the accused Ramesh Babu to the Mental https://hcservices.ecourts.gov.in/hcservices/ Hospital at Kilpauk, Chennai 10, and Ex.P19 is the O.P. Chit issued by them. He completed the investigation on 29.12.2006 and filed the Final Report against the accused. 5. The accused was examined under Section 313 CrPC and he denied complicity. D.Ws.1 to 3 were examined and Exs.D.1 to D.7 were marked on their side. 6. The trial Court found the first accused guilty of the charge of murder and sentenced him as stated earlier. Challenging the same, he has preferred the present appeal. 7. The prosecution case is that the accused Ramesh alias Ramesh Babu indiscriminately cut Jacob alias Jacob Fernando with M.O.1-Chopper Knife, resulting in his death, at the time of occurrence P.Ws.1 to 3 have been examined as having witnessed the occurrence. PW.1 Gilbert Mohan is the Salesman of the Book Stall in the Church situated in St.Thomas Mount and PW.2 Lily Mary is the Book-shopper. P.W.3 Adaikalasamy is the school van driver of the Church. Jacob alias Jacob Fernando was the Manager of the Church. According to P.Ws.1 and 2, on 26.11.2006 at 4.45 pm, they were in the Book Stall and Manager Jacob came there and told them that the Father wanted the Bible and while P.W.1.Gilbert Mohan was taking the Bible, the accused Ramesh Babu with a beard, hippie hair style and a cloth tied on the head came there with a leather bag and asked for the Manager and on seeing Jacob, asked him as to whether the Mountain can be given or not and Jacob told him to go and meet the Father and immediately the accused Ramesh Babu took out M.O.1 Chopper Knife and threw away its cover and cut Jacob on the left shoulder and Jacob ran towards Manager room and the accused chased and caught hold of him and cut him indiscriminately with M.O.1 Chopper Knife on his head, neck, ear and other parts of the body and Jacob fell down with bleeding injuries and the accused took the oozing blood and put the same on his forehead as 'Thilak' and ran away with weapon and they took Jacob to Sri Ramachandra Medical College Hospital and he died there and PW.1 Gilbert Mohan lodged Ex.P1 Complaint in St.Thomas Mount Police Station. P.W.3 Adaikalasamy has also testified that while he was talking with Alamelu in front of the Church, he saw injured Jacob running to Manager room, chased and attacked by the accused with Chopper knife. 8. P.W.1 Gilbert Mohan and PW.2 Lily Mary are the employees of the Book Stall in the Church and PW.3 Adaikalasamy is the school van driver of the Church and their presence in the occurrence place is natural and they have testified about the attack made by the https://hcservices.ecourts.gov.in/hcservices/ accused with Chopper Knife on their Manager Jacob resulting in bleeding injuries. P.Ws.1 and 2 have also identified the accused in the Identification Parade. P.W.6 Judicial Magistrate Mr.Ravindran conducted Identification Parade on 7.12.2006 for four witnesses and P.Ws.1 and 2 identified the accused Ramesh Babu in all the formations. Ex.P5 (series) is the Report of the Proceedings of the Identification Parade. It is relevant to note that the Identification Parade was held on the eleventh day from the occurrence and P.Ws.1 and 2 have pointed out the accused correctly. This corroborates their testimony in Court. The testimonies of ocular witnesses are natural, cogent and convincing besides being trustworthy and deserve acceptance. 9. It has to be seen as to whether Jacob died of injuries sustained. Immediately after the occurrence, Jacob was taken to S.R.M.C. Hospital and Dr.Balamurugan examined him. Dr.Balamurugan had gone abroad and P.W.7 Dr.Sheban knew his signature and he has testified on his behalf. Dr.Balamurugan found laceration with base extending from left ear till upper 3rd of neck exposing bones, muscles, vessels with diffuse gushing of blood; another laceration over upper neck extending upto chin; a penetrating wound over left shoulder; cut and severed lower end of left forearm hanging and injuries on right palm and left side of chest. Ex.P6 is the Accident Register issued by him stating that the injuries are life threatening. According to P.Ws.1 to 3, Jacob died in the same hospital. P.W.8 Dr.Leena had conducted autopsy on the body and the doctor has testified that she saw a large lacerated injury over the left side face extending upto back of the head – occipital region; cut injury parallel to the previous injury on the left side of the neck; fractured earlobe; another lacerated injury over the right side of neck; Penetrating injury over the left shoulder joint; cut injuries over the back of left shoulder, over the left forearm; and cut injuries over the left palm and right palm and on the internal examination, found ribs on both sides of the lungs fractured with frothy haemorrhage. She expressed opinion that the deceased would appear to have died due to haemorrhage shock due to injuries to vital structures and issued Ex.P7 Post-mortem Certificate. From the medical evidence, it is established that Jacob died of homicidal violence. 10. The accused is said to have given information leading to recovery of weapon of offence. The Investigation Officer PW.11 Arockiya Raveendran deposed that he arrested the accused Ramesh Babu at 11.30 am on 27.11.2006 in the junction of Ponniamman Koil Street and Pudupet at Alandur and enquired him in the presence of P.W.5 Sugumaran and another and recorded the confession statement, containing Ex.P2 admissible portion, given by him and the accused took them to his house and took and produced M.O.1 Blood stained Chopper Knife along with other material objects and he recovered them https://hcservices.ecourts.gov.in/hcservices/ under Ex.P3 mahazar in the presence of same witnesses. The mahazar witness P.W.5 Sugumaran has confirmed in his testimony that the accused gave information in his presence and took and produced M.O.1 Chopper Knife along with other material objects from his house and they were recovered in his presence. M.O.1 Blood stained Chopper Knife was sent to chemical examination along with other material objects and human 'B' group bood was detected in M.O.3 (series) clothes of the deceased and the same human 'B' group bood was detected in M.O.1 Chopper Knife as evident from Ex.P8 Chemical examiner report and Ex.P18 Serologist report. MO.1 Chopper Knife has been identified by PW.1 Gilbert Mohan as having been used by the accused Ramesh Babu to attack Jacob. Hence it is clear that MO.1 Chopper Knife is the weapon of offence. 11. The ocular evidence of the eye-witnesses about the attack made by the accused on Jacob is corroborated by medical evidence also. In fact, Mr.S.Ashok Kumar, learned Senior Counsel appearing for the appellant, did not seriously dispute the occurrence. 12. The only contention of Mr.Ashok Kumar, learned Senior Counsel appearing for the appellant, is that the appellant was suffering from Paranoid Schizophrenia, a major mental illness and the appellant has established the same by examining doctors, producing medical record and the circumstances which preceded, attendant and followed the crime and he was suffering from insanity and he was not fully aware of his activities and its consequences and he is entitled to the benefit of general exception contained in Section 84 IPC and the conviction and sentence imposed on him cannot be sustained. He placed reliance on the following decisions of the Supreme Court. 13. The first decision relied on is DAHYABHAI CHHAGANBHAI THAKKAR V. STATE OF GUJARAT [AIR 1964 Supreme Court 1563] and Their Lordships of the Apex Court laid down the following propositions with regard to the burden of proof on the plea of insanity: "Para 7. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code: the https://hcservices.ecourts.gov.in/hcservices/ 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 rests upon a party to civil proceedings. (3) 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 or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged." 14. In the next decision in RATAN LAL V. THE STATE OF MADHYA PRADESH [1970 (3) Supreme Court Cases 533], the Supreme Court while dealing with the plea of unsoundness of mind raised by the accused in a charge relating to mischief by fire, held that the accused had discharged the burden by examining the defence witnesses. The relevant portions in the above decision are extracted below: "Para 10. The High Court thought that the evidence of the two defence witnesses only suggested an irrational behaviour on the part of the accused. The High Court failed to note that, according to D.W.2, the appellant used to set fire to his own clothes and house, and this could hardly be called irrational; it is more like verging on insanity. Para 11. The High Court also felt it rather unsafe to rely on the testimony of the two defence witnesses because such evidence could always be procured. ....... Para 12. ...... Para 13. We are inclined to agree with the conclusion arrived at by the learned Magistrate. We hold that the appellant has discharged the burden. There is no reason why the evidence of Shyam Lal, D.W.1, and Than Singh, D.W.2, should not be believed. ............ Para 14. We accordingly allow the appeal and acquit the appellant of the offence under Section 435, I.P.C., because at the time of the incident he was a person of unsound mind within the meaning of Section 84 of the Indian Penal Code." https://hcservices.ecourts.gov.in/hcservices/ 15. Mr.Ashok Kumar, learned Senior Counsel appearing for the appellant, strongly relied on the decision of the Supreme Court in SHRIKANT ANANDRAO BHOSALE V. STATE OF MAHARASHTRA [AIR 2002 SUPREME COURT 3399]. For better appreciation, the relevant paragraphs are extracted as under: "Para 19. The circumstances that stand proved in the case in hand are these: 1. The appellant has a family history – his father was suffering from psychiatric illness. 2. Cause of ailment not known hereditary plays a part. 3. Appellant was being treated for unsoundness of mind since 1992 – Diagnosed as suffering from paranoid schizophrenia. 4. Within a short span, soon after the incident from 27th June to 5th December, 1994, he had to be taken for treatment of ailment 25 times to hospital. 5. Appellant was under regular treatment for the mental ailment. 6. The weak motive of killing of wife – being that she was opposing the idea of the appellant resigning the job of a Police Constable. 7. Killing in day light – no attempt to hide or run away. Para 20. .......... In the present case, however, it is not only the aforesaid facts but it is the totality of the circumstances seen in the light of the evidence on record to prove that the appellant was suffering from paranoid schizophrenia. The unsoundness of mind before and after incident is a relevant fact. From the circumstances of the case clearly an inference can be reasonably drawn that the appellant was under a delusion at the relevant time. He was under an attack of the ailment. The anger theory on which reliance has been placed is not ruled out under schizophrenia attack. Having regard to the nature of burden on the appellant, we are of the view that the appellant has proved the existence of circumstances as required by Section 105 of the Evidence Act so as to get benefit of Section 84 IPC. We are unable to hold that the crime was committed as a result of extreme fit of anger. There is a reasonable https://hcservices.ecourts.gov.in/hcservices/ doubt that at the time of commission of the crime, the appellant was incapable of knowing the nature of the act by reason of unsoundness of mind and, thus, he is entitled to the benefit of Section 84 IPC. Hence, the conviction and sentence of the appellant cannot be sustained." 16. Per contra, Mr.Hassan Mohamed Jinnah, learned Additional Public Prosecutor submitted that there are no medical record produced to show the appellant/accused was suffering from mental illness during the period from 29.6.2005 to 3.2.2007 and the state of mind of the accused at the time of commission of offence has to be proved by the accused so as to get the benefit of the exception and the accused had failed to prove the same and the accused purchased cover for the Chopper Knife and came to the occurrence place concealing the same in the leather bag and after meeting Jacob, took it out and attacked Jacob indiscriminately and ran away with the Chopper Knife and he is capable of understanding the nature of his act and knew what he was doing was wrong and the legal insanity is not proved and the protection under Section 84 IPC cannot be applied to the present case and supported the judgment of conviction. In support of his submission, he relied on the recent decisions of the Apex Court mentioned below. "1) BAPU ALIAS GUJRAJ SINGH V. STATE OF RAJASTHAN [(2007) 3 SCC (Crl) 509]. 2) HARI SINGH GOND V. STATE OF M.P. [2008 (12) SCALE 102]. 3) SIDHAPAL KAMALA YADAV V. STATE OF MAHARASHTRA [(2009) 1 SCC (Cri) 471]." 17. In all the decisions, His Lordship, Dr.Arijit Pasayat, J., spoke for the Bench and the law laid down in the first decision is verbatim reproduced in the subsequent two decisions. 18. Their Lordships