IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 CRL.A.No. 93 of 2005(A) ----------------------- SC.130/2004 of ADDL.SESSIONS JUDGE, FAST TRACK NO.1(AD HOC), MANJERI. CP.2/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PERINTHALMANNA .................... APPELLANT: ----------- HUSSAIN, S/O. ABDULLA, CONVICT NO.1613, CENTRAL PRISON, KANNUR. BY ADV. ADV.JOHN S.RALPH(STATE BRIEF) RESPONDENTS: ------------- THE STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KULATHUR, CR.NO.108 OF 2003, KOLLAM POLICE STATION BY PUBLIC PROSECUTOR SHRI JAI GEORGE & SR.GOVT.PLEADER SHRI BENJAMIN PAUL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.A.No.93 OF 2005 ----------------------------------------------------- DATED THIS THE 6th DAY OF AUGUST, 2008 J U D G M E N T Balakrishnan Nair, J. The appellant, aggrieved by his conviction and sentence in S.C.No.134/2004 passed by the Additional Sessions Judge, Fast Track No.I (Ad hoc), Manjeri under Sections 302 and 404 of the IPC has preferred this appeal. 2. Brief facts of the case are the following: The appellant's mother Ayisha was staying with him occasionally. When she is not staying with the appellant, she used to stay with her daughter. From her daughter's residence, Ayisha came to the appellant's house on 3.8.2003. Later, she was found missing. Upon enquiry, persons in the neighbourhood found her dead body under a heap of firewood in the appellant's compound. The police was informed. The appellant closed the doors of his house and remained inside it. Live electrical wires were drawn across the front door to prevent persons from entering into the house. The police came and asked the appellant to come out. He came out through a hole in the wall of the house near the ceiling. The dead body was removed to the nearby hospital for inquest and postmortem examination. The accused was arrested and soon thereafter he was sent CRL.A.No.93/05 -2- for treatment for mental illness. The Circle Inspector of Police, Perinthalmanna completed the investigation and laid the charge before the Judicial First Class Magistrate's Court, Perinthalmanna against the appellant for the offence under Section 302 and 404 IPC. The case was committed to the Sessions Judge, Manjeri and it was made over to the Additional Sessions Judge, Fast Track No.I, (Adhoc), Manjeri for trial. The accused pleaded not guilty to the charges framed against him. From the side of the prosecution, PWs 1 to 3 were examined and Exhibits P1 to P13 were marked. MOs 1 to 12 were also marked. The accused was questioned under Section 313 Cr.P.C. Thereafter, DW1 was examined from the side of the defence and Exhibits D1 to D3 were marked. The learned Sessions Judge found the appellant guilty and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.2,000/- and in default to suffer simple imprisonment for one year for the offence under Section 302 IPC. No separate punishment was awarded for the offence under Section 404 IPC, even though he was found guilty of that offence also. 3. In this appeal, the main contention raised by the appellant was that he is entitled to get the benefit of Section 84 of the IPC and therefore he should have been acquitted. He was suffering from legal insanity and therefore he was not aware of what he was doing. He did not know what he was doing was wrong or contrary to law, it is submitted. 4. The learned counsel for the appellant brought to our notice the following circumstances in support of his claim for the benefit of Section 84 of CRL.A.No.93/05 -3- the IPC. The learned counsel pointed out that the conduct of the accused immediately after the commission of the offence would show that he is an insane person. He covered the body after packing it in a gunny bag by placing firewood over it. But, both the legs were protruding. If he is a normal man trying to conceal the dead body, the same would have been completely covered. Further, he did not try to escape after committing the homicide. He shut himself inside the house. He has put a board on the fencing of his compound reading “no one shall enter inside the compound.” Further, he drew live electrical wires across the front door of his residential building. When the police came and asked him to come out, according to the prosecution, the accused stated that “if I come out, I will be killed by the people”. When he was told that it was the police who were calling him, he came out without opening the doors of his building, but through the hole in the upper portion of the wall near to the ceiling. He was found to be insane and soon after his arrest on 3.8.2003, he was sent for medical treatment on 7.8.2003. He was in the hospital upto 20.12.2003. No motive has been proved against the accused. In view of the above, it can safely be inferred that the accused/appellant was an insane person. He was suffering from legal insanity and therefore entitled to acquittal, it is submitted. 5. The learned Public Prosecutor supported the judgment of the learned Sessions Judge and prayed for sustaining the conviction. 6. First, we will refer to the evidence on record concerning the above contention urged by the learned counsel for the appellant. PW1 who is the CRL.A.No.93/05 -4- Assistant Surgeon of Mental Health Centre, Kozhikode submitted that it was he who admitted the accused in the said hospital on 7.8.2003. The patient was discharged on 20.12.2003. Even thereafter, he was undergoing treatment as an out-patient. He was suffering from mood disorder mania. On examination he was found fit to stand trial on 7.7.2004. PW2 is the sister of the accused. She has stated that the accused was undergoing treatment for mental illness. Their father died about four years back and thereafter he was afflicted with mental illness on two occasions. She said, she was not aware of the details of the treatment. PW4 is a person residing in the neighbourhood. In his cross-examination, he has stated that the accused was undergoing treatment for mental illness. The witness has seen the accused being taken to the hospital. While he is taken to the hospital, he makes a hue and cry. His relatives used to take him to the hospital. Off and on he will be afflicted by the illness. PW8 who is a relative of the accused has also spoken to about the mental illness of the accused. He has stated that the accused has become violent on several occasions owing to mental illness. He has been treated in many hospitals. The witness has taken him to the hospital on several occasions. 7. DW1 is the Medical Officer of Korambayil Hospital, Manjeri. He has deposed before the court that he has treated the accused between 29.6.1999 and 1.7.1999 as inpatient and again as inpatient from 6.1.2001 to 9.1.2001. Again the accused was treated as inpatient from 9.7.2002 to 13.7.2002. He suffers from Neuro Psychosis. Ext.D3 series are the discharge CRL.A.No.93/05 -5- summary issued by the witness in relation to the accused for the above said periods. The witness asserts that he is an expert in Psychiatry. There were lucid intervals between the attacks of the illness. Though he was cross- examined by the prosecution, nothing has been brought out to discredit his version. 8. The point to be decided is whether the above evidence is sufficient to hold that the accused was suffering from legal insanity and therefore he is entitled to get the protection of Section 84 of the I.P.C. The burden is on the accused to show that he was insane at the relevant time. But, for that there may not be any direct evidence. But, the facts and circumstances proved in the case can be relied on by him to show that he was insane at the time of occurrence. Going by the principles laid down by the Apex Court in Ratan Lal v. State of Madhya Pradesh [AIR 1971 SC 778], we feel that from the above circumstances noticed by us we can safely draw the inference that the accused was suffering from insanity on the date of occurrence. Immediately after his arrest on 3.8.2003, after completing the usual formalities, the police caused him to be admitted in the mental hospital on 7.8.2003. So, if he was mentally ill on 7.8.2003, it can be safely presumed that the said condition was prevailing from some time earlier also. The conduct of the accused on the date of occurrence which we have noticed would show that he was not aware of the consequences of what he was doing. All his actions were not that of a sane man. So, we feel that it can be rightly inferred that on the date of occurrence CRL.A.No.93/05 -6- the accused was insane. 9. In the result, we hold that the case of the appellant is covered by the exemption under Section 84 of I.P.C. and he is acquitted. The conviction and sentence imposed on him by the Additional District and Sessions Judge, Fast Track Court No.I(Ad hoc), Manjeri in S.C.No.130/2004 are set aside. He shall be transferred to the Mental Health Hospital, Kozhikode, forthwith. If motion is made on behalf of the appellant by his relatives or friends before the competent authority or the Government under Sections 338 or 339 of the Cr.P.C, the said authority or Government will be free to pass appropriate orders regarding the release or custody of the appellant. 10. If the appellant is certified to be normal, the fixed deposit receipt, Ext.MO(II), shall be released to him by the trial court. The Criminal Appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) dsn