Sachu John v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 620 of 2003 ( ) ------------------------------CRA.58/1995 of SESSIONS COURT,KOTTAYAM CC.418/1989 of J.M.F.C.,PALA** **REVISION PETITIONER(S)/APPELLANT/3RD ACCUSED:** **--------------------------------------------** **SACHU JOHN, S/O. JOHN, PLACKAPPALLIL VEETTIL, ELAMKULAM VILLAGE KOTHURUTHY KARA, ERNAKULAM.** **BY ADVS.SRI.BECHU KURIAN THOMAS SRI.PRAKASH PUTHIADAM** **COMPLAINANT(S)/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. JASMINE V.H.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J. ==================** ## **Crl.R.P. No. 620 of 2003** ## **========================= Dated this the 4[th] day of December, 2012** ## **ORDER** This revision petition is filed by the 3[rd] accused in C.C. No.418/1989 of Judicial First Class Magistrate, Pala. Charge sheet was laid against four accused persons alleging commission of offences under sections 365, 342, 506(ii) and 324 r/w 34 of IPC. Out of them A1 and A4 shown in the charge sheet were absconding. A2 and A3 faced trial. 2. The case of the prosecution can be stated thus: PW2 is the father of the 1[st] accused. A2 and A4 are the friends of A1. PW2 was having some property in his own name. He was not giving share of the property to A1. The allegation was that there were timber trees in the immovable property held by PW2. In order to see that PW2 did not object A1 and others enjoying that Crl.R.P.No.620/2003 : 2 : property by cutting and removing the trees, PW2 was abducted and wrongfully confined in a Mental Health Centre at Kozhikode for a few days. PW1 lodged the complaint stating that PW2 was wrongfully confined in the hospital at Kozhikode, based on which F.I.R. was registered. PW8 - the Head Constable and PW1 - the first informant went to the hospital at Kozhikode where PW2 was seen. After conducting investigation charge sheet was laid. There was also allegation that the two legs and hands of PW2 were tied and he was taken in a car by A1 and other accused persons and on the way they had also sprinkled chilly powder on the face of A1's father. 3. PW1 to PW9 were examined and Exts.P1 to P7 (a) were marked. M.O.1 was also identified and marked before the trial court. 4. After analysing the evidence, the learned Magistrate found that the prosecution could not prove the offences charged against them except the offence Crl.R.P.No.620/2003 : 3 : punishable under Sec.342 r/w 34 of IPC. Accordingly the petitioner was convicted and sentenced as mentioned above. The appeal filed by the petitioner was dismissed by the appellate court. 5. The learned counsel for the revision petitioner submits that a specific contention was raised by the petitioner before the appellate court that the trial court should have found that the act complained of, in the facts and circumstances of the case, only a mistake coming under Sec.79 of IPC and though the circumstances were also narrated in the appeal memorandum and though that fact was noticed by the learned Additional Sessions Judge also that plea was not properly adverted to at all in the judgments. Without considering the evidence on record, the learned appellate Judge simply dismissed the appeal, the learned counsel submits. 6. Sri.Enoch Davis, the learned counsel appearing for the petitioner has vehemently argued that the Crl.R.P.No.620/2003 : 4 : evidence on record would clearly show that PW2 was a psychic patient and there was also evidence to show that he had caused burn injuries to his wife and had also killed a cow because of his illness. So many other incidents were also brought out in evidence. But the courts below found that the petitioner could not prove that as on the date of commission of the offence, PW2 was a mentally challenged person. The evidence would show that PW2 was taken by A1 and three others including the petitioner herein in a car and was admitted in Santhi Clinic at Kozhikode. When PW8, accompanied by PW1 went to that hospital, PW2 alone was there. The room where PW2 was found was not locked. In other words, PW2 was not wrongfully confined; he was free to go anywhere. The only thing is that he was a patient and was under the direct supervision of the doctor attached to that hospital. That doctor could not be examined by the prosecution or by the accused because his presence could not be Crl.R.P.No.620/2003 : 5 : procured even after taking coercive steps. 7. The learned counsel for the petitioner submits that even if the accused failed to prove that he is entitled to the general exception coming under Sec.79 of IPC still there was a duty cast on the prosecution to prove its case beyond reasonable doubt and for that purpose the prosecution should have proved that the petitioner had the intention or at least the required knowledge to commit the offence. The petitioner accompanied his friend, the accused who is the son of PW2. There was no reason for the petitioner to believe that A1 was taking PW2 to the hospital with any oblique design or motive. As a friend he accompanied A1 to take PW2 to the hospital. 8. The evidence would clearly show that PW2 was having such psychic problems. Unlike in a case where the accused pleads general exception coming under Sec.84 of IPC, it is not a case where the accused herein was bound to prove that PW2 was a patient violent in Crl.R.P.No.620/2003 : 6 : nature when he was required to be taken to the hospital. Not only that, a psychic patient may not exhibit such symptoms at all times. It may be episodical. Admittedly, after PW2 was admitted at Santhi Clinic the petitioner left that clinic. Thereafter, he had no role in the detaining of or treatment of PW2 in that hospital. Since PW1 and PW8 also could find that PW2 was free and that he was not confined in any room, the contention that PW2 was wrongfully confined by the petitioner cannot be accepted at all, the learned counsel further submits. 9. The evidence would show that A1 took PW2 to the hospital and admitted him in that hospital as PW2 was having such ailments as mentioned above. It is not disputed that the doctor was treating PW2 as a patient. Unless there is anything to show that the doctor also had conspired with the accused persons, it cannot be said that there was a wrongful confinement as alleged by the prosecution. Crl.R.P.No.620/2003 : 7 : ## Sec. 79 of IPC reads: _**Act done by a person justified, or by mistake of fact believing himself justified, by law.** - Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it._ ## Sec.52 of IPC defines “Good faith” as: _**“Good faith”.-** Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention._ 10. The learned counsel for the petitioner submits that on a proper consideration of the evidence, it is crystal clear that A3 had only accompanied A1 who was the son of PW2 when PW2 was being taken to the hospital. The contention raised by the prosecution is that when PW2 was walking along the road he was forcibly taken in an ambasider car and then his hands and legs were tied and then taken to the hospital. The other parts of the evidence let in by the prosecution was disbelieved Crl.R.P.No.620/2003 : 8 : by the courts below. Only because PW2 was admitted in the hospital the court assumed that PW2 was wrongfully confined. It is also argued that PW1, who lodged the F.I.S also had an axe to grind in the matter since he wanted to purchase the property owned by PW2 for a throw away price and it was for that purpose he wanted to foist a case against A1, the petitioner and others. 11. The next question is whether the act alleged against the petitioner was done in good faith or whether it was done under a mistake of fact. The learned counsel submits that it is reasonable to hold that the petitioner helped A1 to take PW2 to the hospital by reason of a mistake of fact that PW2 was a mentally challenged person, especially because the evidence would show that PW2 had undergone treatment at Painkulam hospital, Thodupuzha for about 2½ months. 12. The learned counsel has also relied on the decision of Supreme Court in **State of Orissa v.** Crl.R.P.No.620/2003 : 9 : ## **Bhagaban Barik** (1987) 2 SCC 498 where it was held: Under this section, although an act may not be justified by law, yet if it is done under a mistake of fact, in the belief in good faith that it is justified by law it will not be an offence. Such cases are not uncommon where the courts in the facts and circumstances of the particular case have exonerated the accused under Section 79 on the ground of his having acted in good faith under the belief, owing to a mistake of fact that he was justified in doing the act which constituted an offence. As laid down in Section 52 of the Indian Penal Code, nothing is said to be done or believed in good faith which is done or believed without due care and attention. The question of good faith must be considered with reference to the position of the accused and the circumstances under which he acted. 'Good faith' requires not logical infallibility but due care and attention. The question of good faith is always a question of fact to be determined in accordance with the proved facts and circumstances of each case. ## The apex court also relied upon **Russel on Crime,** ## **vol. 1 p. 76.** It was observed by the apex court: _In the classical work Russel on Crime, vol.1, p. 76, the concept of mistake of fact is tersely stated thus:_ _When a person is ignorant of the existence of relevant facts, or mistaken as to them, his conduct may_ Crl.R.P.No.620/2003 : 10 : _produce harmful results which he neither intended nor foresaw._ _At p. 79, the law is stated in these words:_ _Mistake can be admitted as a defence provided (1) that the state of things believed to exist would, if true, have justified the act done, and (2) the mistake must be reasonable, and (3) that the mistake relates to fact and not to law._ 13. Therefore, the learned counsel for the petitioner submits that the petitioner under a bona fide belief that PW2 was being taken to the hospital for treatment. He only accompanied A1 (the son of PW2) when PW2 was taken to the hospital. That alone is the evidence on record. Therefore, there was reason for the petitioner to believe that the son (A1) was taking his father to the hospital for treating his mental illness. No evidence was adduced to show that the petitioner had shared any common intention so as to wrongfully confine PW2. In fact even as per the version of PW1 and PW8, PW2 was not in wrongful confinement. I find that the Crl.R.P.No.620/2003 : 11 : verdict of conviction concurrently given by the courts below against the petitioner for the offence punishable under Sec.342 r/w 34 of IPC cannot be sustained. 14. In the result this criminal revision petition is allowed. The conviction and sentence passed against the petitioner are set aside. Petitioner is found not guilty and is acquitted. He is set at liberty. The bail bond executed by him will stand cancelled. Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge