Raju Jacob v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 CRL.A.No. 1226 of 2004-C -----------------------SC.627/2003 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA .................... APPELLANT: ACCUSED: ------------------- RAJU JACOB, S/O. CHACKO, MARUPPEL HOUSE, CHIRAYIRAMPU, NEDUMPRAYAR MURI, THOTTAPPUZHASSERI VILLAGE. BY ADV. SRI.SAJJU.S RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ** ============================== ## **CRL.A. NO. 1226 OF 2004** ============================ ## **DATED THIS THE 5[th] DAY OF JUNE 2008** ## **JUDGMENT** ## **Balakrishnan Nair,J.** The appellant, aggrieved by the conviction and sentence imposed on him for the offence under Section 302 of the Indian Penal Code in S.C.No. 627/2003 on the file of the Additional District & Sessions Court-I, Pathanamthitta, has filed this criminal appeal. 2. The prosecution case is summarised as follows: The appellant is the son of the deceased. They were living together. Since the mother did not give the money demanded by him, he attacked her with a spade and inflicted fatal injuries on her head on 16-2-2002. She was hospitalised on the very same day. She succumbed to her injuries on 26-7-2002. Crime No. 151/2002 was registered by the police under Section 326, on receiving information from the hospital, where the injured was admitted. CRL.A.NO.1226/2004 -2- Later, on the death of the injured, the investigating officer filed a report, alleging the commission of the offence under Section 302 I.P.C. The accused appeared before the police on the date of the incident and he was arrested. The Circle Inspector of Police completed the investigation and laid the charge before the Judicial First Class Magistrate-II, Pathanamthitta. As per C.P.No. 65/2002, the learned Magistrate committed the case to the Sessions Court. 3. The accused pleaded not guilty to the charge framed against him under Section 302 I.P.C. From the side of the prosecution, Pws. 1 to 10 were examined and Exts.P1 to P16 were marked. MO.1, the spade was produced. The accused was questioned on the materials against him in the evidence, under Section 313 Cr.P.C. He denied the statement of the witnesses against him and added that the witnesses, who were inimical towards him, have falsely implicated him in the crime. From side of the defence, DW1, a Doctor of Mental Hospital, Thiruvananthapuram was examined and Ext.D1, the case sheet relating to his treatment was marked. The contention of the defence that the appellant was suffering from insanity and CRL.A.NO.1226/2004 -3- therefore, was entitled to get the benefit of Section 84 I.P.C. was considered and rejected by the learned Sessions Judge. 4. The learned Sessions Judge considered the evidence on record and found the appellant guilty of the charge under Section 302 I.P.C. and he was sentenced to undergo imprisonment for life. He was also sentenced to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for one year . 5. In this appeal, the only point canvassed before us is that the appellant is entitled to the benefit of Section 84 I.P.C. The said section says that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The point to be considered is whether the rejection by the trial Judge of the benefit of Section 84 to the appellant, is valid or not. The learned counsel for the appellant brought to our notice that the entry in Ext.P6 regarding the history of the injury is the “alleged assault by her mentally ill son on the left ausiculo – temporal region **e** shavel.” The learned counsel pointed out that in view of the said history of the injury, the investigating officer CRL.A.NO.1226/2004 -4- should have enquired into the matter and ascertained about the mental health of the accused. The prosecution should have proved that the accused was not a person of unsound mind. The learned counsel also relied on the statement of PW2 in his cross examination that he was having a slight doubt regarding the mental condition of the accused. PW2 further stated that the said doubt arose because of the statement of the mother of the accused. The learned counsel pointed out that PW10 (investigating officer), in his cross examination, when confronted with the history of the injury, has stated that there was no reason for further investigating on that point. In the light of the above materials on record, the learned counsel submitted that the appellant is entitled to get the benefit of Section 84 I.P.C., and, at any rate, he is entitled to get the benefit of doubt. In support of that submission, the learned counsel relied on the decisions in **Kuttappan v. State of Kerala, 1986 Crl.L.J.271, Daniel v. State, (1993)1 K.L.T. S.N.9 (Case No.11)** and **Bappu v. State of Rajasthan, 2007(4)KLT 63(SC)** . In **Kuttappan v. State of Kerala,** a Division Bench of this Court held as follows: CRL.A.NO.1226/2004 -5- “16. The crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed. For this purpose, the state of his mind, both before and after the commission of the act, is also relevant. The court has to pay due regard to the circumstances which preceded, attended and followed the act. It would not be proper to assume that the investigating officer is to direct his attention only to the act but not to the mens rea. Of course, ordinarily attention of the investigator would be directed to the act, particularly in the absence of circumstances throwing any doubts on the sanity of the perpetrator of the act. But where the investigator comes across any suggestion or material throwing any such doubt, it would be his duty to investigate the mental condition of the accused also and place the material before court.” ## In **Daniel v. State** , this Court held as follows: “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.” CRL.A.NO.1226/2004 -6- ## In **Bappu v. State of Rajasthan,(2007)4 K.L.T.63** , the Apex Court while dealing with the defence of insanity held as follows: “8. Under S.84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law,and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by CRL.A.NO.1226/2004 -7- evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts.” 6. Relying on the above pronouncements of this Court and that of the Apex Court, the learned counsel contended that the accused is liable to be acquitted. 7. The learned Public Prosecutor, on the other hand, pointed out that the entry in Ext.P6 regarding the history of the injury is of no consequence. In the cross examination of PW7, she stated that in column No.6 she had noted that the son was mentally ill, as told by a neighbour who brought the mother to the hospital. The neighbour, who brought her is noted as Sam in column 5 of Ext.P6. This person is none other than Samkutty, PW4. In the cross examination, PW4 has stated that the appellant was not a mental patient. He was a normal man. PW4 has also stated these facts to the Doctor,PW7. So,the prosecution pointed out that the entry made in Ext.P6 regarding the history of the injury is only a mistake and the same will not in any way help the appellant. It is also pointed out that all the witnesses in his CRL.A.NO.1226/2004 -8- neighbourhood have denied the suggestion made by the defence in their cross examination that the accused was mentally ill. 8. When the matter was pending before this Court, as per the direction of this Court, the Doctor who treated the accused and made the notings in Ext.D1, was examined as DW2. The said Doctor deposed that when the accused was examined in October 2002, he was found suffering from schizophrenia . On a suggestion by the defence, the Doctor also said that he may be suffering from the illness for quite sometime. But in the cross examination by the prosecution, he stated as follows: “There is no evidence as per records to show that the patient was suffering from schizophrenia 2 or 3 months prior to my examination”. 9. For getting the benefit of Section 84 I.P.C., a person must be legally insane. That means, he is in such a mental condition that he is unable to know the consequence of what he is doing or that his actions are wrong or contrary to law. In otherwords, he should be like a beast or an infant. In this case, as pointed out by the prosecution, none in his neighbourhood has spoken to about the history of his mental CRL.A.NO.1226/2004 -9- illness, except PW2, who stated that there was some doubt about that. But, going by Ext.D1, he has got a history of alcoholic abuse and cannabis abuse. So, if his mother has some doubt regarding his mental health and she told about it to PW2, it is quite natural. All the witnesses, as stated earlier, have denied the suggestion regarding the history of mental illness of the appellant. The incident happened in a village. Normally, if a person is having the history of mental illness, the same will be known to the neighbours also. Further, we notice that the learned Sessions Judge did not proceed under Section 328 Cr.P.C. on the ground that the accused was suffering from insanity. That means, he faced trial without showing any signs of unsoundness of mind. While he was questioned under Section 313, he gave intelligent and cogent answers. So, the circumstance that he was found to be suffering from schizophrenia for four months after the incident, will not in any way help the defence to plead that he was insane at the time of the incident. Even a person suffering from schizophrenia need not necessarily be an insane person always. During lucid intervals only he may be suffering from insanity **.** CRL.A.NO.1226/2004 -10- 10. The learned counsel for the appellant pointed out that the prosecution has failed to prove the motive. All the witnesses examined did not support the case of the prosecution that there were frequent quarrels between the accused and his mother. So, apparently,without any reason the accused murdered his mother and appeared before the police station. This is a circumstance, which would indicate that he was not a normal man. But, we think that the same is not sufficient to get the protection of Section 84 I.P.C. As mentioned earlier, three ingredients have to be proved, at least, by preponderance of probability. We notice that the accused/appellant has failed to prove the same. 11. The decisions relied on by the learned counsel for the appellant are distinguishable on facts. The entry in Ext.P6 that the mentally ill son caused the injury without anything more, does not obligate the investigating officer to embark on an enquiry to find out whether the said person is mentally ill **.** If the accused, on arrest, does not show any signs of insanity or abnormality, the prosecution may not probe further into that. Further, even assuming it was a flaw in the prosecution, the same is not sufficient to claim an acquittal, in view of the CRL.A.NO.1226/2004 -11- overwhelming evidence in this case, which will go against the claim of the appellant that he was a person of unsound mind at the time of the incident. The crime is proved by the evidence of the eye witnesses. So, the absence of proof of motive or the absence of investigation by the investigating officer regarding the mental illness etc.are of no consequence on the facts of this case. They are not sufficient to raise any doubt in the mind of the court regarding the innocence of the accused. Therefore, we hold that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt. He was found guilty under Section 302 I.P.C.and sentenced rightly for the said offence. In the result, the appeal fails and it is dismissed. ## **K. BALAKRISHNAN NAIR, JUDGE** ## **M.C. HARI RANI JUDGE** **ks.** CRL.A.NO.1226/2004 -12-