Antappan @ Antony v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 31ST DAY OF MAY, 2019 / 10TH JYAISHTA, 1941** **CRL.A.No. 504 of 2014** **AGAINST THE ORDER/JUDGMENT IN CP 10/2011 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, CHERTHALA** **AGAINST THE ORDER/JUDGMENT IN SC 859/2011 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, ALAPPUZHA DATED 29-03-2014** **CRIME NO. 197/2009 OF Arthunkal Police Station , Alappuzha** **APPELLANT/ACCUSED:** **ANTAPPAN @ ANTHONY AGED 45 YEARS S/O.MARSAL, ARASSERI VEEDU, MARARIKULAM NORTH, PANCHAYATH WARD-1, ALAPPUZHA NOW IMPRISONED IN CENTRAL PRISON, POOJAPURA.** **BY ADV. SMT.SARITHA THOMAS** ## **RESPONDENT/STATE:** **STATE OF KERALA THROUGH THE STATION HOUSE OFFICER,ARTHUNKAL POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** By SR.PUBLIC PROSECUTOR SRI.ALEXM.THOMBRA **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019,** **THE COURT ON 31.05.2019 DELIVERED THE FOLLOWING:** Crl.A.No.504 of 2014 :-2-: ## **JUDGMENT** ## **N.Anil Kumar, J.** Antappan @ Antony, the appellant, who was the sole accused in S.C.No.859/2011 of the court of the Additional Sessions Judge-II, Alappuzha, challenges the conviction entered and sentence passed against him for the offence punishable under Section 302 of the Indian Penal Code. 2. The prosecution case in brief is that on 29.8.2009 at 12.15 noon at a place near Phoenix Arts and Sports Club, bearing Reg.No.434/09, on the road leading from Panayoor Junction to Koottungal Bhagam, situated about 350 metres east of Panayoor Junction in Alappuzha-Cherthala Coastal road, the accused forcibly stabbed Ponnachan with MO1 knife, which was in his possession on the left side of chest, below nipple, with an intention to commit murder, causing deadly injury on left side of his chest and right hand. Ponnachan succumbed to the injuries while he was taken for treatment to K.V.M. Hospital, Cherthala. On reaching the hospital, the Doctor, after examining the deceased, pronounced him dead. It is further alleged that the accused, due to his previous enmity towards deceased Ponnachan, murdered the deceased in connection with some Crl.A.No.504 of 2014 :-3-: ## property dispute between the parties. 3. Ext.P1 First Information Statement was given by PW1 Thilakappan, an independent eye witness residing about 30 metres southwest of the house of one K.C.Pavithran. The accused is residing in the property adjacent to the northern side of the property owned by K.C.Ponnachan on the northern side of the property owned by the said Pavithran. PW1 lodged Ext.P1 FIS to PW12- the Sub Inspector of Police, Arthunkal Police Station on 29.8.2009 at about 2 p.m. He recorded statement of PW1 and registered a case for the offence punishable under Section 302 of IPC. Resultantly, Ext.P9 FIR was registered on the strength of Ext.P1 statement. PW14, who was the Circle Inspector of Police, Mararikulam commenced the investigation on 29.8.2009 itself. On that day, he prepared Ext.P2 inquest report in the presence of witnesses. By verifying the clothes removed from the dead body of the deceased, he prepared Ext.P8 seizure mahazar at 6.30 p.m. on the same day and the above articles were taken into custody to which he was a signatory. The next day i.e., on 30.8.2009, he visited the place of occurrence and conducted the investigation. He prepared the scene mahazar and took custody of the blood stained sand, footwear, spectacles etc. as per Ext.P10 scene mahazar Crl.A.No.504 of 2014 :-4-: which contained his signature. Subsequently, he recorded statements of witnesses. On getting information that the accused in this case was kept in the Police station in connection with the crime, he went to the Police Station, questioned the accused, and arrested him in accordance with law. Thereafter, he had recorded the confession statement of the accused. The accused confessed that he kept the knife under the television stand in his house and that he would take and give the same if they took him to his house. After recording the statement as contained in Ext.P7(a), they went to the Alassery House bearing Door No.1/488 of Mararikulam North Panchayath as led by the accused and the accused took the knife from the bottom rack of the television stand placed at the northwestern side of the southern room of the above house. MO1 knife was taken into custody in the presence of witnesses, as per Ext.P7 mahazar, in which PW14 and witnesses put their signature. After conducting preliminary investigation, the accused was subjected to medical examination and produced the accused before the Judicial First Class Magistrate Court-II, Cherthala on 31.8.2009 along with Ext.P13 remand report. On conducting investigation, it was disclosed that the correct time of occurrence was 12.15 p.m. on 29.8.2009. Accordingly, Crl.A.No.504 of 2014 :-5-: Ext.P15 report was filed before the court correcting the time of occurrence as 12.15 instead of 12.30 recorded in the first information report by mistake. The learned Magistrate remanded the accused to judicial custody. 4. PW14 completed investigation in this case and laid charge sheet against the accused before the Judicial First Class Magistrate Court-II,Cherthala where the case was taken on file as C.P.No.10/2011 and committed the case to the Sessions Court, Alappuzha as per order dated 24.8.2011 after complying with the usual formalities. The learned Sessions Judge took cognizance of the offence under Section 302 of IPC and registered the case as SC NO.859/2011 from where the case was made over to the Additional Sessions Court-II, Alappuzha for trial and disposal. 5. During trial, the accused was in judicial custody for a considerable period of time, i.e.,from 5.10.2012 till 2.9.2013 in the Central Prison, Thiruvananthapuram and while so, the accused was sent to Mental Health Centre, Thiruvananthapuram for treatment. By letter dated 1.5.2013, Dr.Indu.V.Nair, Superintendent, Mental Health Centre, Thiruvnanathapurm informed that the accused was fit to stand trial. Accordingly, the trial court summoned Dr.Indu.V.Nair and examined as CW1. The Doctor stated Crl.A.No.504 of 2014 :-6-: that she had examined the accused in this case and diagnosed that the accused was suffering from bypolar mood disorder and depression with psychotic symptoms. She further stated that he had improved with medications and was in partial remission. He was fit to stand for trial and hence, she issued Ext.C1 certificate discharging the accused with effect from 1.5.2013. According to her, she advised the accused to continue medication in jail with periodical follow-up. The learned Sessions Judge, who was satisfied that the accused was fit to stand trial, proceeded with the trial. 6. The accused entered appearance before the Sessions Court through a counsel of his choice. He was later enlarged on bail. Charge was framed against the accused on 15.6.2013 for an offence punishable under Section 302 IPC. The accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of his case. 7. The prosecution altogether examined PWs.1 to 14 and got marked Exts.P1 to P17 and ten material objects as MOs.1 to 10. 8. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing Crl.A.No.504 of 2014 :-7-: against him in the evidence for the prosecution. His defence is one of total denial. His Advocate filed a separate statement stating that the accused is totally innocent. According to him, the fencing on the southern side of the property owned by the accused was destroyed by Ponnachan with a knife and while so, there was an altercation and scuffle among Subhan, Babu, Ponnachan, accused and his mother. In the scuffle, the deceased Ponnachan sustained injuries and succumbed to the same. 9. The learned Sessions Judge, who conducted the trial, did not deem fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused was therefore called upon to enter on his defence and to adduce evidence which he might have in support thereof. The accused examined DW1,a fisherman by profession, who was grazing his cow at the field on the northern side of the house of the accused on the fateful day. The accused also examined DW2, the Chairperson of the Medical Board, Medical College Hospital, Alappuzha to prove Ext.D5 certificate issued to the accused. Ext.D5 certificate was issued by the Medical Board consisting of Dr.Rekha Mathew, Dr.Nesseema Bhai and Dr.Faisal Ali. DW2 stated that Dr.Rekha Mathew is the best person to say about the mental condition of the accused on the date of issuance of Crl.A.No.504 of 2014 :-8-: the certificate. Ext.D5 would show that the accused was having 60% moderate mental impairment and functional limitation. After conclusion of the trial, the learned Additional Sessions Judge as per judgment dated 29.3.2014, found the accused guilty for the offence punishable under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/- and in default, to undergo imprisonment for a further period of six months. Aggrieved by the conviction and sentence passed by the trial court, the appellant is before this Court. 10. We heard Smt.Saritha Thomas, learned counsel for the appellant and Sri.Alex.M.Thombra, learned Senior Public Prosecutor, who defended the State. 11. The following points arise for consideration in this appeal. - i) Whether the prosecution has succeeded in proving that Ponnachan died as a result of sustaining homicidal injuries on 29.8.2009 at 12.15 p.m. at a place near Phoenix Arts and Sports Club? - ii) Whether the prosecution has succeeded in proving that the accused intentionally and knowingly caused the death of Ponnachan by stabbing him to death? If so, has he committed the offence of murder punishable under Section 302 of IPC? Crl.A.No.504 of 2014 :-9-: iii) Are the conviction entered and sentence imposed against the appellant sustainable? 12. The fact that Ponnachan died as a result of homicidal stab injury sustained by him in the noon of 29.8.2009 at 12.15 p.m. is not in dispute. PWs.1 to 5, who were the eye witnesses to the occurrence, had deposed before court that the accused stabbed the deceased with MO1 knife on 29.8.2009 at 12.15 p.m.at a place near phoenix arts and sports club situated at about 350 metres east of Panackal Junction at Alappuzha-Cherthala coastal road. 13. Evidence of PWs. 1 to 5 would show that the deceased, who was taken to K.V.M. Hospital, Cherthala, was pronounced “ _brought dead_ ” by the Doctor who examined him. 14. As indicated earlier, Ext.P2 inquest report was prepared by PW14 Circle Inspector of Police, Mararikulam on 29.8.2009 itself. In Ext.P2 inquest report, in column No.7 and 8a, PW14 noted the fatal injury on the chest of the deceased. Column No.11 in Ext.P2 is pertaining to the apparent cause of death. PW14 noted that the deceased died as a result of the stab injury inflicted by the deceased with a knife. 15. PW7 Dr.Renju Raveendran, Asst. Professor of Forensic Medicine, Medical College Hospital, Alappuzha Crl.A.No.504 of 2014 :-10-: conducted autopsy on the body of the deceased and prepared Ext.P3 Post Mortem Certificate. PW7 noted three ante mortem injuries on the body of the deceased. 16. The ante mortem injuries and other findings recorded in Ext.P3 are the following:- ## “ **B.Injuries (Antemortem)** 1. Incised penetrating wound 8x1.5.cm obliquely placed on left side of front of chest, with its upper inner sharply cut end, 2 cm.outer to mid line and 19 cm. below level of collar bone, lower outer end was rounded. The wound track was seen directed upwards, backwards and to the right, for a total minimum depth of 7 cms., which was seen puncturing through 5[th] inter-costal space and terminating by puncturing through full thickness of front wall of right ventricle of heart (350 gms.) over an area of 3x0.7 cm. The pericardial cavity contained 400 ml. of fluid blood and clots, the media-stinum was seen infiltrated, with clotted blood. 2. Incised wound 6x1x0.3 cm. obliquely placed on the front of right forearm with its upper inner end 4 cm. below the elbow, seen raising a flap of tissue outwards. 3. Multiple linear abrasions of length varying from 1 to 2.5 cms., placed one above the other, obliquely over an area of 4x3 cms. on the front of Crl.A.No.504 of 2014 :-11-: right forearm 9 cms. above wrist. ## **C. Other findings.** The brain (950 gm) was pale. Air passages pale and contained blood stained fluid. Lungs (right 550 gm. and left 500 gm.) were pale. Stomach (400 gm.) contained unidentifiable food particles in a brownish semi solid medium having no unusual smell, its mucosa was normal. Liver (1500 gm) showed fatty changes. Urinary bladder was empty. All other internal organs were pale. Otherwise appeared normal. Blood group of the deceased was determined at blood bank, medical college hospital, Alappuzha and found out to be Rh positive.” 17. PW7 stated before the trial court that the deceased died as a result of the injuries sustained to his chest. When examined before court, PW7 opined that the injury No.1 cited supra could be caused with a weapon like MO1 and the injury is fatal and sufficient to cause death in the ordinary course of nature. Thus, it is clear that Ponnachan died as a result of sustaining fatal stab injuries on 29.8.2009 at 12.15 noon. 18. PW1 is one of the independent witnesses examined in this case. He stated that the accused is residing in the property adjacent to the northern side of the property of the deceased on the northern side of the property of Crl.A.No.504 of 2014 :-12-: one Pavithran. He further stated that he is residing about 30 metres south west of the house of Pavithran. On hearing that someone had come for measuring the property, he went there. When he reached at the western side of the house of Pavithran, he saw PW4 coming to measure out the property and deceased K.C.Ponnachan, who was coming towards south through the property of Pavithran. He came to the property taken for construction of road while talking to four persons, i.e., Babu, younger brother of deceased K.C.Ponnachan, Subhan, who came for purchasing the property, his father Damodaran and Rajendran, who is the younger brother of Subhan. Damodaran went away towards west direction along with Rajendran on a motorbike. When himself, Babu and Subhan were turning towards west after a brief talk, they heard a female voice ' _eda eda_ ' and when they looked by turning east, they saw the accused running towards south with MO1 knife through the property of Pavithran. PW1 would say that while so, the deceased was standing outside the south-eastern fence of the house of Pavithran near his bike. On seeing the accused coming with MO1 knife, Subhan and PW4, who also came for measuring the property, ran towards west and south respectively. PW1 further stated that on hearing the voice requesting the deceased to run away, the latter Crl.A.No.504 of 2014 :-13-: turned towards west. However, the accused with MO1 knife in his possession forcibly stabbed on the left side chest of the deceased. Although the deceased tried to ward off the attack with his right hand, MO1 knife struck on his body and caused injury on his chest and right hand. Before PW1 reached there, the accused pulled out the knife and went away towards north through the eastern side of Phoenix Club by jumping towards the canal at the eastern side. 19. PW2 reiterated the version of PW1. PW2 Babu is none other than the younger brother of deceased Ponnachan. He stated that his brother had some debt to his credit and in order to settle the same, his brother decided to sell the property on the eastern side of Panackal Junction. He further stated that the accused was residing in the 10 cents of property given to him by them. According to him, they informed the accused about their decision to sell the property and they have no objection to sell it to him if he wanted the same. As the accused had no money for purchasing the property, they decided to sell the property to one Subhan and measurement was fixed. On measuring the property, the accused demanded a pathway through the southern side of the property. Since the deceased did not agree to the proposal made by the accused, the accused Crl.A.No.504 of 2014 :-14-: went to his house, took a knife and pierced the left side of the chest of the deceased after causing injury to his right hand. PWs.1 and 2 took Ponnachan to the K.V.M.Hospital, Cherthala where the doctor examined the deceased and pronounced that he was 'brought dead'. PWs.3 to 5 also supported the evidence tendered by PWs. 1 and 2. PWs.1 to 3 and 5 are immediate neighbours of the accused. They deposed that the accused wanted to get a pathway through the southern side of the property, which was refused by the deceased. Immediately thereafter, the accused abruptly went inside his house, took MO1 knife, ran towards the deceased and inflicted a severe injury on his chest and hand. The witnesses categorically deposed that the accused was of sound mind as on the date of occurrence. Immediately after the occurrence, the accused was arrested on 30.8.2009 at 3 p.m. Thereafter, PW14 recorded the confession statement of the accused as per Ext.P7(a). There is no doubt whatsoever the recovery of MO1 would not be enough and sufficient to connect the appellant with the crime unless it is established that the said MO1 has been used by the appellant for commission of the offence. Nevertheless, it is an admitted fact that the recovery of the said article is a fact discovered at the instance of the appellant. PW7, the Assistant Crl.A.No.504 of 2014 :-15-: Professor of Forensic Medicine at Medical College Hospital, Alappuzha stated that the injuries found on the deceased could be caused with MO1. The oral evidence let in by PWs.1 to 4 inter alia would show that the appellant was carrying a knife with an intent to stab the deceased. The sequence of events and the materials available on record would further establish that MO1 was used for stabbing the deceased. The recovery made under Section 27 of the Evidence Act by PW14 from the house of the appellant would show that the process of recovery was effected by PW14 based upon the statement of the appellant made to PW14 in accordance with Section 27 of the Evidence Act. Further, after conducting preliminary investigation, the appellant was subjected to medical examination in accordance with law and produced before the jurisdictional Magistrate on 31.8.2009 along with Ext.P13 remand report. There is nothing on record to show that the appellant was suffering from legal insanity on the date of occurrence. 20. PW6 is a witness to the inquest report prepared by PW14 at the mortuary of KVM Hospital, Alappuzha. PW8 is the Assistant Director, Biology in RFSL Thrissur. According to her, while she was working as Scientific Assistant Biology at FSL, Thiruvananthapuram, she had received three sealed packets in connection with Crime Crl.A.No.504 of 2014 :-16-: No.197/2007 of Arthunkal Police Station on 1.10.2009. All seven items contained in the packet were examined and found human blood of group B applying gel diffusion test and the grouping was done by absorption, elution and microscopic extraction methods. She also stated that MO1,MO3, MO4, MO8, MO9 and MO10 shown to her were examined by her. PW9 was the Village Officer of Mararikulam South Panchayat on 25.11.2009. He prepared Ext.P6 Scene Plan. PW10 is a witness to Ext.P7 recovery mahazar prepared by PW14. He stated that he was present at the time of recovering MO1 knife by the Police and he put his signature in Ext.P7 mahazar. PW11 is a witness to Ext.P8 recovery mahazar of the clothings worn by deceased Ponnachan, prepared by the Police at KVM Hospital, Cherthala. PW12 was the Sub Inspector of Police, Arthunkal Police Station on 29.8.2009. He stated that he was engaged in law and order duty in front of SN College Cherthala on 29.8.2009. On getting information that Ponnachan sustained injury, he visited the place of occurrence. He recorded the statement of PW1 and registered a case as Crime No.197/2009 for the offence punishable under Section 302 of IPC. 21. We have been taken through the entire documents oral and documentary evidence adduced by the prosecution Crl.A.No.504 of 2014 :-17-: and the accused at length. Challenging the appreciation of evidence and finding recorded by the learned trial judge, the learned counsel appearing on behalf of the appellant highlighted various aspects, which were relied on by the trial court for basing its judgment of conviction and order on sentence. 22. On a careful consideration of the entire evidence on record, the learned trial judge finally rejected the plea of insanity and found the appellant guilty of the charges framed against him and sentenced him to undergo life imprisonment for committing the offence under Section 302 IPC. 23. Learned counsel for the appellant submitted that the materials on record sufficiently prove the plea of insanity set up by the appellant during trial. Reliance was mainly placed on the oral evidence of DW2 and Ext.D5 Certificate of Disability issued. 24. On the other hand, the learned Senior Public Prosecutor contended that there was no credible evidence to establish the legal insanity at the time of commission of the offence so as to entitle the appellant to the benefit of Section 84 of the IPC. 25. The law presumes that every person committing an offence is legally sane and is liable for his natural and Crl.A.No.504 of 2014 :-18-: probable consequence of his own acts, though in specified circumstances it may be rebuttable. Under Section 105 of the Indian Evidence Act, when a plea of insanity is raised by the accused, the burden is on the accused to substantiate the plea. Meaning thereby is that the accused setting up the defence of insanity should plead and prove that at the time of committing the offence, the accused, by reason of unsoundness of mind was incapable of knowing the nature of his act or that what he was doing either wrong or contrary to law. But, what is important is that the burden of bringing his case under Section 84 of the Indian Penal Code lies exclusively upon the person claiming the benefit of that provision. In this connection, it is appropriate to extract Section 105 of the Indian Evidence Act, 1872. **“105. Burden of proving that case of accused comes within exceptions** When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in Indian Penal Code, 1860(45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” 26. On a consideration of the above legal principle, it is clear that the burden to prove an exception cast upon the accused but the court shall presume the absence of circumstances which may bring his case within any of the general exceptions in the Indian Penal Code. The Crl.A.No.504 of 2014 :-19-: principles governing burden of proof in cases where the accused pleads an exception are discussed in the decision in **Dahyabhai Chhaganbhai Thakker** v. **State Of Gujarat** [1964 SCR (7) 361], which read as follows:- “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 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 Crl.A.No.504 of 2014 :-20-: burden of proof resting on the prosecution was not discharged.” 27. The dictum laid down in **Dahyabhai Chhaganbhai Thakker's case** requires to be examined in the light of the dictum laid down by the Supreme Court in **State of UP** v. **Ram Swarup and another** [AIR 1974 SC 1570], wherein the Supreme Court has settled the legal proposition on the subject as follows:- “ ............... _The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea.”_ Thus, the accused has only to establish his defence on a preponderance of probability as observed in **Elavarasan** v. **State represented by Inspector of Police** [(2011)7 SCC 110] and **Surendra Mishra** v. **State of Jharkhand** [(2011)11 SCC 495], after which the onus shall shift to the prosecution to establish the inapplicability of the exception. But it is not every and any plea of unsoundness of mind that will be sufficient to attract the exception. The practical test to be applied shall be of legal insanity and not medical insanity as observed in **State of Rajasthan** v. **Shera Ram alias Vishnu Dutta** Crl.A.No.504 of 2014 :-21-: [(2012)1 SCC 602]. In the said decision, para 19 reads as follows:- “19...................... Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.” 28. Viewed in the above background, the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused as observed in **Ratan Lal** v. **State of Madhya Pradesh** [(1970) 3 SCC 533]. 29. DW2, the Chairperson of Medical Board, Medical College Hospital, Alappuzha deposed before the trial court that Ext.D5 disability certificate was issued 4 years after the occurrence. On being questioned under Section 313 of the Cr.P.C., the plea of insanity was not set up as a defence nor did the learned counsel for the accused, who filed a statement before the trial court for and on behalf of the appellant, specifically plead insanity as a defence. It is a fact that during the course of trial, while the accused was in judicial custody, the accused was sent to Mental Health Centre, Thiruvananthapuram for Crl.A.No.504 of 2014 :-22-: treatment on the request of the jail authorities. CW1, the Consultant in Psychiatry, Mental Health Centre, Thiruvananthapuram was examined by the trial court and entered a finding that the accused was fit to stand trial. This itself is not a sufficient indication to infer that the accused was suffering from mental illness on the date of occurrence. No probable circumstances are made out to infer such a possibility. It is true that unsoundness of mind before and after the incident is a relevant factor. From the circumstances of the case and conduct of the accused during trial, an inference can be drawn that the appellant was perfectly normal at the time of occurrence. Having regard to the nature of burden on the appellant, we are of the view that the appellant has not proved the probable circumstances as required by Section 105 of the Evidence Act to get benefit under Section 84 of the Indian Penal Code. We are unable to hold that the crime was actually committed by the accused as a result of mental illness and the evidence let in is not sufficient to create a 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 to claim the benefit under Section 84 of the Indian Penal Code. Further, the prosecution has succeeded in proving the Crl.A.No.504 of 2014 :-23-: motive to commit the crime on account of severe dispute between the parties over a pathway. 30. The proved circumstances in this case are the following:- - 1) The accused committed the act of stabbing with a definite motive. - 2) After committing murder on the deceased, the appellant escaped from the scene of occurrence. - 3)The conduct of the appellant on the fateful day would indicate that he went inside the house, took MO1 knife, came out and ran towards the deceased and inflicted fatal injury on his chest with MO1. - 4) Pws.1 to 5 stated that the appellant was present at the occurrence place. - 5) PW7 stated that the injury found on the deceased was ante mortem and is sufficient to cause death. - 6)Pws.1 and 2 took the deceased to the hospital. On - the other hand, the appellant left the place immediately after the occurrence. - 7) The appellant brought MO1 knife from the house with a design to cause the death of the deceased. - 8) The appellant had no mental illness on the date of occurrence or before that. - 9)PWs.1 to 5 stated in clear terms touching the Crl.A.No.504 of 2014 :-24-: sequence of events linking the accused with the commission of murder. 10)During the examination under Section 313 Cr.P.C., the accused answered most of the questions logically. 11)No prima facie evidence was adduced by the accused to show that he underwent previous medical treatment for mental illness. 12) Evidence tendered by Dws.1 and 2 are not sufficient to infer that the accused was suffering from mental illness on the date of occurrence. 31. In the light of the above circumstances, we are of the view that the appellant is not entitled to the benefit under Section 84 of the Indian Penal Code and the evidence tendered does not reveal any mental problem to the appellant on the date of occurrence or before the date of occurrence. 32. The contention next raised is that the appellant has no intention to cause death because he did not intend to cause injuries to the vital part of the body of the deceased. According to the learned counsel for the appellant, the injury was sustained to the deceased as a result of a scuffle, which occurred when the deceased and his men demolished the fence separating the property of Crl.A.No.504 of 2014 :-25-: the appellant and the deceased. To prove the same, DW1 was examined. On going through the evidence of DW1, it is quite clear that he was not even aware of the place of occurrence. He was admittedly residing 3 kms. away from the place of occurrence. His version that he did not see the appellant on the date of occurrence along with the deceased and others is difficult to believe or accept. 33. The facts established during trial would not bring the case within clause (3) of Section 300 of IPC. From the nature of the occurrence narrated by the witnesses, it is clear that the appellant, who was a kudikidappukaran of the deceased, wanted a pathway towards south for which there was a dispute between the parties in connection with measurement of the property on the date of occurrence. The measurement was done by PW4, a retired Deputy Tahsildar. He stated specifically that after measuring 13.5 cents of property, one cent of property was demarcated as a pathway separately at the north western corner of the property for going towards northwest. Thereafter, the accused demanded way towards south. The proposal was not agreeable to the deceased as he was in dire need of money to clear the debt. He wanted to sell the property immediately and offered to sell the same to the appellant. The appellant became violent, went to his Crl.A.No.504 of 2014 :-26-: house, came out with MO1, ran towards the deceased and inflicted fatal injury on his chest with MO1. The evidence would inter alia show that the bodily injuries found on the deceased were intentionally inflicted by the appellant and the evidence tendered by the prosecution witnesses would further show that the injury was sufficient to cause death in the ordinary course of nature. To put it shortly, the prosecution succeeded in proving that the bodily injury was present,that the nature of injury was fatal, that the injury was inflicted by the accused on the chest, that the injury was not accidental or unintentional or that the accused intended to inflict some other kind of injury and that the injury of the type sustained by the deceased is sufficient to cause death in the ordinary course of nature. 34. In the decision reported in **Muthu** v. **State** [2007(4) KLT 982 (SC)], the Apex Court held that the observation made in the decision in **Pulicherla Nagaraju @ Nagaraja Reddy** v. **State of AP** [(2006)11 SCC 444] that “ _it is for the courts to ensure that the cases of murder punishable under Section 302 IPC are not converted into offences punishable under Section 304 Part I/II_ ” cannot be understood to mean that the court should somehow try to find out some way of treating the offence to be under Crl.A.No.504 of 2014 :-27-: Section 302 of IPC. In our view , the facts are different in this case. This is a clear case of pre-meditated attack with intention to cause death. We are satisfied from the evidence, that the deceased was attacked by the appellant with an intention to murder the deceased. The act of complete destruction of most vital parts of the body in the manner indicated in the postmortem report could never be termed as intending to cause bodily injury alone and rather it was an act to cause bodily injuries with an intention to cause death. Since the injury was caused in such a brutal manner, there is no scope for discussing the case from the point of having committed the offence due to the lack of knowledge on the part of the appellant or its consequences. This case does not fall under any of the exceptions mentioned in Section 300 IPC nor has any such exception being proved by the appellant during the trial. Judged by the above standards, we are of the view that the act of the accused would squarely fall within the first category of Section 300 of IPC as the act was done with the intention of causing death. In this connection, the fact that the victim succumbed to the injury within a short time is a relevant fact. 35. In view of the conclusions and findings based on the prosecution evidence with regard to the appellant, Crl.A.No.504 of 2014 :-28-: there are no valid grounds to alter the conviction of the appellant from one under Section 302 to that under Section 304 Part II of the IPC. In our opinion, the judgment and order of conviction passed by the trial court contained positive proof, credible evidence, sequence of events and factual proof linking the accused with the commission of murder. The prosecution has succeeded in proving the offence under Section 302 of IPC beyond reasonable shadow of doubt. Consequently, we uphold the judgment of conviction and order of sentence passed by the court below for the several reasons stated supra. This Criminal Appeal is dismissed. The appellant will suffer the remaining sentence imposed by the trial court. sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/