IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.7.2006 C O R A M: THE HONOURABLE MR. JUSTICE R. BALASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE M. JEYAPAUL CRL.A.NO.401 OF 2004 Ramesh .. Appellant/Accused -Vs.- The State by: Inspector of Police Vaniyambadi. ..Respondent/Complainant Appeal against the judgment dated 23.12.2003 in S.C.No.355 of 2002 on the file of Principal Sessions Judge, Vellore. For Appellant : Mr.G.Natarajan For Respondent : Mr.N.R.Elango, APP --------- J U D G M E N T (Judgment of the Court was delivered by R. Balasubramanian, J) The appellant in this appeal stands convicted in S.C.No.355/2002 on the file of the Court of Sessions, Vellore, for offences under sections 302 and 324 I.P.C. For the former offence, he stands sentenced to undergo imprisonment for life and for the latter offence, he stands sentenced to undergo one year rigorous imprisonment. The sentences were directed to run concurrently. Hence the present appeal. Heard Mr.G.Natarajan, learned counsel appearing for the appellant and Mr.N.R.Elango, learned Additional Public Prosecutor appearing for the State. 2. The prosecution case is that, at about 4.00 p.m on 24.02.2002, the accused murdered his mother by stabbing her on her stomach with a knife indiscriminately, resulting in her death and in the course of the same transaction, he caused an injury on P.W.1 thereby punishable under sections 302 and 324 I.P.C. To substantiate their case, the prosecution examined P.Ws.1 to 10 https://hcservices.ecourts.gov.in/hcservices/ besides marking Exs.P.1 to P.15 and M.Os.1 to 6. The defence marked Exs.D.1 to D.3. A Doctor was examined as Court Witness No.1. Through the court witness, Exs.C.1 and C.2 came to be marked. P.W.1 is the daughter of the deceased and sister of the accused. Her parents were working in the Government Hospital at Vaniyambadi as scavengers. Her father retired two years prior to her mother, who is the deceased in this case. P.W.1 was living with her parents. P.W.2 was also living with them. On her mother retiring, her retirement benefits were settled. Out of that retirement benefits, she spent a sum of Rs.65,500/- in purchasing a house in the name of P.W.1, in which house only, she was living with her parents. The accused was not married. However, he used to come to P.W.1's house often and take money from his mother for his day-to-day expenses, including for food. P.W.1 and her mother used to give money. However, whenever they don't give money, the accused used to pick up a quarrel with them. The accused was also quarrelling with his mother for not giving him any share in the retirement benefits, which she got. At about 4.00 p.m on 24.02.2002 (occurrence day), P.W.1 was inside the house along with her mother (since deceased). The accused called his mother and on being told by P.W.1, her mother went out. Immediately, P.W.1 heard her mother crying, which made her run out of the house. At that time, she noticed the accused stabbing her mother with a knife in her stomach and in the back. Her mother started bleeding and fell down. When P.W.1 attempted to prevent the accused from further onslaught, she received an injury on her left hand. P.W.1 shouted, which attracted the attention of the neighbours. The accused, dropping the knife, ran away. M.O.1 is the knife used by the accused. P.W.1 took her mother to the Government Hospital at Vaniyambadi, where, the Doctor, on examination, pronounced her dead. Then she went to the police station, where she gave the complaint, in which she had put her signature. Ex.P.1 is the said complaint. 3. P.W.10 is the Inspector of Police in the Investigating Police Station, before whom, at about 5.30 p.m on the occurrence day, P.W.1 appeared and narrated the complaint, which he reduced into writing. After reading it over to her, he took her signature in it. Ex.P.1 is the said complaint, which he registered in his police station crime No.138/2002 for offences under sections 302 and 324 I.P.C. Ex.P.10 is the printed first information report. He sent the express records to the court as well as to the higher officials. P.W.10 sent P.W.1 with a police medical memo to the hospital for treatment. He reached the scene and in the presence of P.W.5 and another, prepared Ex.P.2, the observation mahazar and Ex.P.11, the rough sketch. From the scene of occurrence, in the presence of the same witnesses, he recovered blood stained earth and sample earth. At 9.30 p.m on the same day, he arrested the accused in the presence of P.W.6 and another and examined him. At https://hcservices.ecourts.gov.in/hcservices/ that time, the accused gave a voluntary confession statement, the admissible portion of which is Ex.P.4. Pursuant to Ex.P.4, M.O.1 came to be recovered at about 10.00 p.m in the presence of the same witnesses under a mahazar. Then the accused was sent for judicial remand. From 8.00 a.m till 10.00 a.m on 25.02.2002, he conducted inquest over the dead body and prepared Ex.P.12, the inquest report. During inquest, he examined P.Ws.1 to 4 and others and recorded their statements. After inquest, he sent the dead body with a requisition for post mortem through P.W.9. 4. P.W.9 accordingly accompanied the dead body with the requisition for post mortem to the hospital. After post mortem, he removed M.Os.2, 4, 5 and 6 from the dead body and handed over the same to the investigating officer along with his special report Ex.P.9. P.W.8 is the Doctor, who, on receipt of the dead body and the requisition for post mortem, did post mortem at 11.00 a.m on 25.02.2002. During post mortem, he found various symptoms as noted by him in Ex.P.8, the post mortem report. The symptoms noted are as hereunder: "External Injuries:- Punctured wound seen over the epigastrium in anterior abdomen wall 3.5 cm. Length into 1 c.m. Breadth into 8 c.m. depth, entering into the abdomen cavity. The shape of wound at the point of the entry is eliptical. 2. Punctured wound seen over the right hypochondrium area . Eliptical shape 3.0 c.m. X 1 c.m. X 4 c.m. 3. Incised wound over the right thigh in the mid 1/3 about 2 c.m. Length 1 c.m. Breadth. 4. Punctured wound seen over the medial aspect of right thigh about 1 x 1 x 1 c.m. (L x b x d). 5. Incised wound length 2 c.m. X 1 c.m. Breadth seen over the right lower limb below the knee in lateral aspect. 6. Incised wound seen over dorsum of hand over base of left thumb 2 x 1 x 0.5 c.m. 7. Incised wound over base of left index finger 1 c.m. X 0.5 c.m. X 0.5 c.m. https://hcservices.ecourts.gov.in/hcservices/ 8. Punctured wound seen on the left side of trunk over the left scapula 3 x 1 x 1.5 c.m. (L x b x d) 9. Punctured wound seen over the back of trunk in left inter-scapula area 3 c.m. x 1 c.m. x 6 c.m. length breadth, shape eliptical at point of entry. 10. Punctured wound seen over the left loin area 3 c.m. x 1 c.m. x 10 c.m. wound enter into the abdomen cavity. 11. Punctured wound seen over the left lion area 3 c.m. x 1 c.m. x 7 c.m. seen over the back of trunk over the right side lower chest wall. 12. Punctured wound 3 c.m. x 1 c.m. x 7 c.m. seen over the back of trunk over the right side lower chest wall. 13. Abrasion seen over the left knee. Internal Injuries:- Head and Skull : Intact, Brain and Meninges : Pale. Thorax Hyoid bone : Intact. Ribs : Intact, Heart Ventricles : Empty C/s Pale. Lungs : Right lungs lower lobe punctured wound seen. Left lung punctured wound seen in the posterior aspect of lung in lower lobe. Pleural cavity filled with blood. Abdomen – Stomach empty. Liver, Right lower lobe : punctured wound seen, Kidneys : Normal, Spleen : Normal, Peritoneal cavity filled with blood." The Doctor opined that death is due to damages to vital organs. According to him, a weapon like M.O.1 could have caused the injuries found on the dead body. All the injuries noted by him in Ex.P.8 would cause death instantaneously. 5. P.W.2 is the daughter-in-law of the deceased and the accused is her brother-in-law. She had deposed that the deceased out of her retirement benefits spent a sum of Rs.65,500/- for purchasing a house in the name of P.W.1 and that the accused was pestering the deceased for a share in the retirement benefits which she got. The accused also used to ask the deceased to give her money to meet his day-to-day expenses including food. Sometimes https://hcservices.ecourts.gov.in/hcservices/ P.W.1 used to give money and sometimes she won't. In the later occasion, the accused used to quarrel with P.W.1. P.W.2 is residing 50 feet on the west of P.W.1's house. On the occurrence day, when she was in the house, she heard a distress cry of her mother in law, which made her come out of her house along with her husband. At that time, she saw the accused stabbing his mother on the stomach and hand and her mother-in-law fell down with bleeding injuries. However she would admit that she cannot identify the weapon used by the assailant at that time, since she failed to notice it in the commotion. Then P.W.1 brought an Autorickshaw in which her injured mother-in-law was taken to the hospital. When P.W.1 intervened to save her mother from further onslaught by the accused, she also received an injury on her hand. P.W.3 is the son-in-law of the deceased and husband of P.W.1. His evidence about the entire family staying together; the deceased purchasing the house in the name of P.W.1 out of her retirement benefits; the accused pestering his mother for money and as to how the occurrence took place, is on the same lines as spoken to by P.W.1. P.W.4 is the father of the accused. His evidence also shows the manner in which the accused was conducting himself as spoken to by P.Ws.1 and 3 and the accused often picking up a quarrel with his mother whenever his demand for money was not met. According to him on the occurrence day evening, P.W.1 called him, which made him to come out of the house, at which point of time, he noticed the accused stabbing his mother leading to her fall on the ground. Then his injured wife was taken to the hospital and the accused ran away from the scene. He also fairly admitted that he could not identify the weapon used by the assailant at that time. P.W.5 is the son of the deceased and husband of P.W.2. His evidence also, on the entire episode, is as spoken to by the witnesses referred to earlier. He had also witnessed the occurrence. He identified M.O.1 as the weapon of offence used by the accused. He witnessed the preparation of Ex.P.1, the Observation Mahazar and recovery of M.Os.2 and 3 under Ex.P.3. P.W.6 witnessed the arrest of the accused; his examination and recording of his confession statement, the admissible portion of which is Ex.P.4, pursuant to which M.O.1 came to be recovered under Ex.P.5. P.W.7 is the Casualty Medical Officer in the Government Hospital at Vaniyambadi. On the occurrence day in the evening P.W.5 brought injured Kondammal, since deceased for treatment for injuries stated to have been sustained by her at about 4.00 p.m. on that evening at the hands of her son. When he examined her, he found her dead and accordingly pronounced her dead. Ex.P.6 is the report on her death. At about 7.05 p.m. on the same day P.W.1 appeared before him with a police head constable for treatment, for injuries stated to have been sustained by her at 4.00 p.m. on that evening in her house at the hands of a known person by the use of a knife. Ex.P.7 is the Accident Register issued by him for P.W.1, in which it is noted that the injured had suffered an incised wound on the left https://hcservices.ecourts.gov.in/hcservices/ forearm 2 cm x ½ cm x ½ cm and the injury was found to be simple. P.W.10 continued his investigation further by examining witnesses and recording their statements. M.Os.4 to 6 removed from the dead body after post-mortem by P.W.9 and handed over to P.W.10 with his special report Ex.P.9, were recovered by P.W.10 under form 95. The case properties were sent to the Court with a requisition Ex.P.13 to subject the same for chemical examination. Exs.P.14 and P.15 are the Chemical Examiner's Report and Serologist's Report respectively. After completing all the other legal formalities P.W.10 filed the final report in Court against the accused under Sections 302 and 324 I.P.C. 6. When the accused was questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to facts. He denied his involvement in toto. Exs.D.1 to D.3 came to be marked through him. Dr.Thiyagarajan was examined by the court as Court Witness No.1. His evidence is summarised as hereunder:- "I am now working in Government Hospital at Vellore; I am a post-graduate degree holder in Psychiatry; I examined Ramesh (the accused) sent to me pursuant to the court's order; Ramesh was admitted in the hospital on 18.6.2003 in the emergency ward and he was under observation till 7.7.2003; he was observed for any mental imbalance; his inpatient number is 22359; I found Ramesh having a mental sickness; he appeared to be suffering from schizophrenia; I found various symptoms on him; Ex.C.1 is the certificate issued by me and Ex.C.2 is the report given by me to the Dean of the Government Medical College Hospital. " We extract the contents of Ex.C.1 hereunder: "MEDICAL CERTIFICATE (See sections 18 and 19 Act IV of 1912) In the matter of Thiru S. Ramesh S/o. Samuel in the Town of Vaniyambadi (or the Sub-Division of Vellore) an alleged lunatic. I, the undersigned Dr.N. Thiyagarajan do hereby Certify as follows: I am (a Gazetted Officer) or a Medical Practitioner. https://hcservices.ecourts.gov.in/hcservices/ A holder of MD.DPM or declared by Government. Declared by Government to be a Medical Officer under Medical Practitioner Under Act IV of 1912 and I am in the actual practice of Act IV of 1912 The Medical Profession 2. On the 8th day of July, 2003 at Government Vellore Medical College Hospital in the TOWN of Vellore (or the Sub-division Village of in the district of ) (Separately from any other Practitioner) the said S.Ramesh I personally examined the said S. Ramesh and came to the conclusion that the said a lunatic and proper person to be taken charge of and detained under care and treatment. 3. I forward this conclusion on the following grounds viz: (a) Facts indicating insanity observed by myself viz. (b) Other facts (if any) indicating insanity communicated to be by others viz: PSYCHIATRIC CLINIC Sd./ Govt. Vellore Medical N. THIAGARAJAN, MD.DPM College Hospital, Civil Surgeon and Vellore-632 001. Psychiatric Specialist. A. Unkempt; Thin built, Quiet, withdrawn, talks less impulsive anger present, No hallucinatory behaviour express fear of being under black magic hence assault on mother with knife (to death) ; feels comfortable in prison; judgement reasoning impaired, mood of fear/sad concern on loss of mother; Sleep Normal; Appetite impaired. B. Quiet; talks less, Sleeps well, does not take care of personal hygiene; No violent behaviour." We extract the contents of Ex.C.2 heeunder:- https://hcservices.ecourts.gov.in/hcservices/ Mr. Ramesh, S/o. Samual, Sessions Case NO.355/2002, directed by you for obsrvation for any evidence of mental illness was admitted by Casualty Medical Officer on 18.6.2003. He was observed till 7.7.2003 as an inpatient No.22359. He shows evidence of mental illness (Split mind disorder – Schizophrenia) It is suggested to direct him for further management of mental illness under the care of Medical Superintendent, Institute of Mental Health, Kilpauk, Chennai-10." 7. Learned counsel appearing for the appellant would primarily contend that the evidence of C.W.1; Exs.C.1 and C.2 and Exs.D.1 to D.3 unerringly show that the appellant is suffering from split mind disorder namely, Schizophrenia and therefore when the occurrence is shown to have taken place, he was found to be suffering from the said mental disorder. If that is so, Section 84 of the Indian Penal Code would come to the rescue of the appellant and if the benefit of that section is extended to the appellant, then he cannot be punished for having committed any offence, including the offence of murder. Learned counsel by taking us through the evidence of P.W.1 when she was further cross examined on 4.12.2003 on being recalled, would submit that P.W.1 had denied any knowledge about the crime and also admitted that the accused was suffering from a mental ailment even on the date of occurrence. He would also take us through the evidence of P.W.4, which according to him, proves Exs.D.1 to D.3, to contend that the appellant was suffering from a mental disorder. Mr. N.R.Elango, learned Additional Public Prosecutor in meeting the points raised by the learned counsel for the appellant would contend that Exs.D.1 to D.3 cannot be taken to be proved, in the absence of the author of those three documents. In other words, formal proof before court is necessary before Exs. D.1 to D.3 could be admitted and evaluated in evidence. Learned Additional Public Prosecutor draws our attention to a statement made by the learned Sessions Judge in her judgement that the accused stated before her that he is mentally alright. Only in such circumstances, the learned Sessions Judge after referring the accused for medical examination regarding his mental ailment proceeded to continue the trial. From the evidence of C.W.1 and Exs.C.1 and C.2 it cannot be conclusively said that on the date of the crime, the accused was having a mental disorder. According to the learned Additional Public Prosecutor, to get the benefit of Section 84, it must be shown by the accused that on the https://hcservices.ecourts.gov.in/hcservices/ day, when the accused was shown to have committed the crime, due to mental unsoundness, he could not know what he was doing is either wrong or opposed to law. Of course it is open to the accused to show that prior to the day on which the crime was committed and subsequent to that day also he was afflicted with such mental disorder, so that the court would be in a position to evaluate his mental capacity. In this case, there is total absence of any medical evidence to support the defence of the accused built on section 84 of the Indian Penal Code. Then referring to the evidence of P.Ws.1 and 4, when they were recalled and further cross examined on 4.12.2003, learned Additional Public Prosecutor would state that those evidence have come on record after the examination of C.W.1 in court. Under these circumstances no credibility at all could be given to such evidence. 8. In the light of the submissions made by the learned counsel on either side, we went through the entire materials on record. Since much is said about the mental condition of the accused on the date of the crime, we decided to take up that issue first. Ex.D.1 had been issued by the Mental Health Centre, Christian Medical College, Vellore. It gives the name of one Ramesh. It indicates that the re-consultation fee is due on 18.4.2001. It does not contain any other detail. Exs.D.2 and D.3 are identical in their contents. Both are issued by Mental Health Centre of Christian Medical College, Vellore. In Exs.D.2 and D.3 we find the name of one Ramesh. The contents of Ex.D.2 are as hereunder:- "Your next appointment for E.C.T./Psychotherapy/Review Psychometry is on 1.3.2001 at 11.30 a.m./p.m." The words "Review" and "P.M." stand rounded off. This is dated 1.3.2001. Similar is the contents of Ex.D.3, except one change (i.e) the Psychometry test was fixed on 15.2.2001 at 11.45 a.m. P.W.4 is not a party to these three documents. He does not claim in his evidence that he took his son to the hospital when he was examined by the Doctor in the Christian Medical College Hospital and these three documents have come to be issued in his presence. In other words, from his evidence we do not find that he personally knows about it nor does he have any personal knowledge about the visit of the accused to the hospital. What all he states in his evidence at the end of the cross examination and further cross done on 4.12.2003 on being recalled respectively is as hereunder:- "It is true that my son was suffering from mental disorder since the last four years and taking treatment in the hospital at Baghayam; his O.P. ticket number is:- 090319.M" https://hcservices.ecourts.gov.in/hcservices/ " My son was taking treatment for mental ailment in Baghyam Hospital for four years; the out patient ticket issued at that time is shown to me i.e Exs.D.1; Exs.D.2 and D.3 show the treatment taken by him prior to that; even during the occurrence time the accused was having mental imbalance and therefore he was taking treatment; he was kept in the house duly tied." From the above evidence, it is not possible to conclude that P.W.4 knows anything personally about the treatment shown to have been given to his son. If at all Exs.D.2 and D.3 can be looked into, it would only show that the accused has to report at the hospital for some tests. We find that Exs.D.2 and D.3 indicate that the accused has to appear for Psychomentry test on 15.2.2001 (Ex.D.3) and on 1.3.2001(Ex.D.2). We went through Mosby's Medical Dictionary 2004 edition to find out what is meant by "Psychometry". The definition is at page 941 of that dictionary, which reads as hereunder: "Psychometrics: The development, administration or interpretation of psychologic and intelligence tests. Also called psychometry." Therefore going by the definition of "Psychometrics" which is also called "Psychometry", it appears that the accused was asked to appear on the respective dates for an intelligence test. It must be noted that the Psychometry tests were on 15.2.2001 and 1.3.2001. The occurrence was on 24.2.2002. There is nothing on record to show that the accused appeared on the respective dates in the hospital for the psychometry test. No doctor from the Christian Medical College Hospital, Vellore, who could have conducted the psychometry test on the accused on 15.2.2001 or 1.3.2001, had been examined. Not even a staff of the hospital had been examined. We have already noted that P.W.4 is not a party to Exs.D.1 to D.3. No Doctor or any staff connected with the hospital, which had issued Exs.D.1 to D.3 have been examined. In our considered opinion, Exs.D.1 to D.3 require formal proof. The accused had not even relied upon Exs.D.1 to D.3 when he was questioned under Section 313 of the Code of Criminal Procedure. We find from his answers during questioning that he has a clarity of mind and he was clear in his thoughts. He had not even taken any stand when he was questioned under Section 313 of the Code of Criminal Procedure that as he was suffering from a mental disorder, he committed the offence on 24.2.2002. Under the code of Criminal Procedure only certain documents can be proved without formal proof. If any document has to be marked without formal proof, then the requirement of Section 294 of the Code of Criminal Procedure ought to have been complied with. But that had not been complied with in this case. Under https://hcservices.ecourts.gov.in/hcservices/ Section 293 of the Code of Criminal Procedure only certain reports of scientific experts enumerated therein alone can be admitted in evidence, as a matter of course. Exs.D.1 to D.3 are not covered under Section 293 of the Code of Criminal Procedure. If any body from the hospital, which issued Exs.D.1 to D.3 had been examined, then the State would have had the opportunity to test