Shaijan s/o Cheriyan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934 CRL.A.No. 670 of 2008 ( ) ------------------------SESSIONS CASE NO.666/2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE-I, PALAKKAD. APPELLANT : ---------------- SHAIJAN,S/O.CHERIYAN,C.NO.5856, CENTRAL JAIL, KANNUR. BY ADV. JAYAPRASAD M.R.[STATE BRIEF] RESPONDENT : -------------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2013, THE COURT ON 28.2.2013 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Crl. Appeal No.670 of 2008 ----------------------------------------------Dated 28[th] February, 2013. J U D G M E N T** ## **Joseph Francis, J.** This jail appeal is filed by the accused (Shaijan) in S.C.No.666 of 2006 on the file of the Additional Sessions CourtI, Palakkad. The accused was charge sheeted by the Circle Inspector of Police, Agali under Sections 452 and 302 of the Indian Penal Code (for short, 'the I.P.C.'). 2. The prosecution case is briefly as follows : The accused with intention to commit murder of his father, PW3 (Cherian), on account of enmity towards him, on 17.9.2005 at about 10.30 p.m., trespassed into the house of PW1 Sunny, the elder brother of accused in search of PW3, by cutting open the door of the house with a chopper and when Reena, the wife of PW1 informed that PW3 was not there, the accused inflicted cut injuries on her neck by using the chopper and thereby committed murder of Reena. 3. On the side of the prosecution, PW1 to PW9 were examined and Exts.P1 to P10 were marked and MO1 to MO6 were identified. On the defence side, DW1 and DW2 were 2 Crl. Appeal No.670 of 2008 examined and Exts.D1, D2, X1 and X2 were marked. The learned Additional Sessions Judge, on considering the evidence on record found that the accused trespassed into the house of PW1 and committed murder of Reena and the accused was convicted under Sections 452 and 302 of the I.P.C. and he was sentenced to undergo imprisonment for life under Section 302 of the I.P.C. and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of `5,000/-, in default to undergo simple imprisonment for six months under Section 452 of the I.P.C. Against that conviction and sentence, the accused filed this appeal. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The only argument advanced by the learned counsel for the appellant is that the appellant/accused was a mentally ill person at the time of commission of the offence and therefore, he is entitled to get the benefit under Section 84 of the I.P.C. The learned Public Prosecutor supported the judgment of the court below. 3 Crl. Appeal No.670 of 2008 6. PW1 Sunny is the elder brother of the accused. PW1 deposed that on 17.9.2005 at about 10.30 p.m., while himself, his wife Reena and their children were about to sleep in their house, the accused came to that house and enquired whether his father was there. Then Reena got up and lighted a kerosene lamp. Reena told the accused that his father was not there in the house. Then the accused demanded a torch and Reena gave MO1 torch to the accused. Thereafter, the accused entered the veranda of the house and cut open the front door of the house which was made of reeds, by using MO2 chopper. After that the accused struck on the neck and other parts of the body of Reena by using MO2 chopper. PW1 and the children ran out of the house. The accused came out of the house and ran away. When PW1 returned to the house, Reena had died. He further stated that his brother Jose informed the Police regarding the occurrence. Police came to his house afterwards and recorded Ext.P1 statement given by him. He further stated that the accused is his younger brother. PW3 (Cherian) is the father of the accused and PW1. He stated that himself, Shaijan 4 Crl. Appeal No.670 of 2008 and two other sons were living in the family house together. On the day of occurrence, Shaijan took up quarrel with him demanding ration card. Ration card was given to Shaijan. Thereafter, the accused demanded money. When accused came to attack him, he gave `15/- to Shaijan. On that day, he went to his daughter's house and stayed there. Regarding the occurrence, he has only hearsay knowledge. 7. PW5 Jose is the elder brother of the accused and PW1. He is residing in a house on the eastern side of their tharavad house. On the day of occurrence, in the night, he heard the cry of PW1 and the children. He rushed to the house of PW1. When he came near to the house of PW1, he saw Shaijan coming with a chopper in his hand. After the accused had gone away, he went to the house of PW1. He saw Reena lying dead on the floor. He informed the neighbours. He telephoned to the police station. Police party came to the house of PW1. When they returned, PW5 was also taken in the police jeep to enquire about Shaijan. They saw Shaijan at Agali. Shaijan was holding a chopper in his hand. He was taken to the Crl. Appeal No.670 of 2008 5 police station and chopper was seized by the police from his possession. Police prepared a mahazar with regard to the chopper. PW5 is an attester to Ext.P4 mahazar for taking MO2 chopper into custody. PW6 is Baby who is conducting a provision shop at Kallamala. He deposed that at about 4.00 P.M. on 17.9.2005 accused came over to his shop and took away MO2 chopper without paying its price. 8. PW8 Francis was the Sub Inspector of Police, Agali. According to him, on 17.9.2005 in the night, he got telephonic information that one woman was murdered at Kallamala and he along with police party went to Kallamala and when they reached the house of PW1, they saw the dead body of Reena lying inside the house. The statement of PW1, who was present there was recorded at 12.15 a.m. on 18.9.2005. He deputed two police constables on guard duty. He returned to the police station. The brother of PW1 accompanied him. On their way to police station, the accused was seen near the bus stop at Agali. The brother of PW1 identified the accused. The accused was taken to the police station. His arrest was 6 Crl. Appeal No.670 of 2008 recorded at 1.45 a.m. MO2 chopper carried by the accused was taken into custody by preparing Ext.P4 mahazar. He had registered Crime No.289 of 2005 on the basis of Ext.P1 F.I. Statement for the offences punishable under Section 452 and 302 of the I.P.C. Ext.P6 is the First Information Report. The registration of crime was intimated to the higher authorities. First Information report was forwarded to the Court. MO1 torch along with MO4 shirt and MO5 lunki worn by the accused were taken into custody under a mahazar (Ext.P7). The rest of the investigation was done by the Circle Inspector of Police. 9. PW14, the Deputy Police Surgeon conducted post mortem examination on the body of deceased Reena and prepared Ext.P3 post mortem certificate. The following antemortem injuries were noted by him in Ext.P3:- “(i) Incised wound 18x4.5x3.5 C.M. involving right side of face and pinna of right ear horizontally placed with its front end touching the right angle of mouth. The ramus of mandible was clearly cut and the wound was communicating with the mouth cavity. The pinna of right ear was found out cleanly 3 C.M. below its top. - (ii) Incised wound 11.5 x 4 x 5 C.M. horizontal on the Crl. Appeal No.670 of 2008 7 back and back of right side of neck with its left end 3 C.M. outer to midline and right end 1.5 C.M. back to right ear. The wound had cut all the muscles of back of neck and body of 2[nd] cervical vertebra. The vertebral artery was found cleanly severed under this injury. (iii) Incised wound 12x5x7 C.M. on the back of shoulder and chest horizontally placed with its left end 4 C.M. outer to midline and 3 C.M. below the root of neck. The wound was muscle deep. There was tailing 6 C.M. from the right end of this injury. (iv) Skin deep incised wound 3.5 x 2 C.M. on the left side of upper part of back of chest vertically placed with its lower end 2 C.M. left to injury No.3. (v) Incised wound 3 x 1 C.M. subcutaneous deep on the top of contour of right shoulder. (vi) Incised wound 4.5 x 2.5 x 0.5 C.M. on the outer aspect of right upper arm 2 C.M. back to injury No.5. (vii) Incised wound 4.5x1.5x2 C.M. on the back of right upper arm 2.5 C.M. back to injury No.6. (viii) Incised gaping wound 13x6x6 C.M. on the front and left side of neck horizontally placed with its front end 1 C.M. right to mid line. The wound had cut the trachea, oesophagus, carotid artery. Internal jugular vein and vagus nerve clearly. All the muscles of the neck were found cut under this injury. The body of the 7[th] cervical vertebra was found cut and the spinal cord was found exposed. (ix) Skin deep incised wound 4 x 2 C.M. on the left side 8 Crl. Appeal No.670 of 2008 of back of shoulder vertically placed with its upper end 1 C.M. outer to root of neck. (x) Linear abrasion 1.5x0.2 C.M. on the right side of front of chin oblique with its lower end 0.5 C.M. outer to mid line. - (xi) Linear abrasion 0.6x0.4 C.M. on the left cheek 1 - C.M. outer to the left angle of mouth. (xii) Linear abrasion 2 x 0.4 C.M. on the right side of front of neck with its upper end 4 C.M. below jaw margin. (xiii) Abrasion 2 x 0.4 C.M. on the medical aspect of right elbow.” PW14 opined that injury Nos.1, 2 and 8 mentioned in Ext.P3 post-mortem certificate are independently sufficient in the ordinary course of nature to cause death. 10. When the accused was questioned under Section 313 of the Criminal Procedure Code, he admitted that he inflicted cut injuries on the body of Reena with MO2 chopper. Since the testimony of PW1 is corroborated by the medical evidence and the admission of the accused, we are of the view that the prosecution has succeeded in proving that the accused caused the death of Reena by inflicting cut injuries, using MO2 chopper. 9 Crl. Appeal No.670 of 2008 11. The main defence set up by the appellant is that the appellant is entitled to get the benefit under Section 84 of the I.P.C. Section 84 of the I.P.C. reads as follows: “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.” 12. In Ext.P1 F.I. statement given by PW1, it was stated that the accused was suffering from mental illness. PW2 Kurian deposed that the accused had mental illness and that he had undergone treatment for that disease. DW1 was the Psychiatrist in Kusumagiri Hospital, Kakkanad. He produced Ext.X1 treatment records of the accused for the period from January, 1999 to July, 2003. DW1 deposed that the accused was suffering from severe psychosis with paranoid delusions and he was aggressive. DW1 deposed that the accused was admitted in the hospital twice, in 1999 and in 2000. The accused was again admitted twice in that hospital and when his condition improved, he was discharged. DW1 deposed that he could not say whether the accused was working under 10 Crl. Appeal No.670 of 2008 ## delusions at the time of commission of the offence. 13. DW2 was working as Psychiatrist in Government Mental Health Centre, Thrissur. DW2 produced Ext.X2 treatment records of the accused. DW2 deposed that the accused was admitted in the hospital on 3.8.2004 and was discharged on 31.8.2004 and he was suffering from psychosis. DW2 deposed that the accused was admitted in the hospital on several occasions. He was again admitted on 4.5.2005 and he absconded on 26.6.2005 and thereafter, the accused was brought to the hospital on 3.10.2005. DW2 opined that the accused was a psychotic person with multiple delusions. In cross examination, DW2 deposed that a person with delusions will be away from reality and that the accused was showing unusual behaviour when he was admitted on 4.5.2005. 14. In the decision reported in **Sheralli Wali Mohammed v. The State of Maharashtra** (1973 (4) SCC 79), it was held that: “ To establish that the acts done are not offences under Section 84 of the Indian Penal Code, it must be 11 Crl. Appeal No.670 of 2008 proved clearly that, at the time of commission of the acts, the accused by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. On this question the state of his mind before and after the commission of the offence is relevant. The mere fact that no motive has been proved why the accused murdered his wife and children or the fact that he made no attempt to run away when the door was broke open, would not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence.” ## 15. In the decision reported in **Kuttappan v. State of Kerala** (1986 CRL.L.J 271 Kerala) it was held that: “An accused is presumed to be innocent till the contrary is proved beyond reasonable doubt. So also, there is a presumption of sanity though the presumption is rebuttable. Prosecution is ordinarily not required to establish that a person who strikes another with a deadly weapon is capable of knowing the nature of the act or what he was doing was either wrong or contrary to law. A person is legally insane when he is incapable of knowing the nature of the act or that what he was dong 12 Crl. Appeal No.670 of 2008 was wrong or contrary to law. Incapacity of the person on account of insanity must be of the nature which attracts the operation of S.84, IPC. Under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception contemplated under S.84 IPC lies on the accused and the court has to presume the absence of such circumstances. Accused has to rebut the presumption that such circumstances did not exist by placing material before court or relying on materials already before the court, sufficient to make it consider the existence of such circumstances so probable that a prudent man would act upon them. The burden which rests on the accused is however not higher than that which rests upon a party in a civil litigation. If the material placed before the court raises a reasonable doubt in the mind of the court whether the accused had the men rea required for the offence, accused would be entitled to the benefit of doubt. In such an event, prosecution must be taken to have failed to prove the guilt of the accused beyond reasonable doubt. 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 13 Crl. Appeal No.670 of 2008 act. Where in prosecution for murder of his wife, from the doctor's evidence it could be said that the accused was suffering from mental illness which developed into paranoid psychosis and later into paranoid scizophrenia which is not properly treated would persist and even aggravate, in background of this medical evidence and from the facts that the accused had disappeared from the village for about two years and had returned only two months prior to the occurrence, it could be said that at the time of the occurrence the accused was a person of unsound mind and by reason of such disease he was incapable of knowing the nature of his act. He was, therefore, entitled to acquittal by virtue of S.84, Penal Code.” 16. The crucial point of time for deciding whether the benefit of Section 84 of the I.P.C. should be given to the accused is the material time when the occurrence took place. In Ext.P1 F.I. statement given by PW1, it was stated that the accused had mental illness at the time of commission of the crime. It has come out in evidence that after the occurrence, the accused was walking through the road carrying MO1 torch and MO2 chopper. It is also clear from the evidence that there 14 Crl. Appeal No.670 of 2008 was no cause for inflicting cut injuries on deceased Reena. The evidence on record would show that the accused was suffering from mental illness before and after the occurrence. On considering the circumstances preceding, attendant and following the occurrence in the light of the medical evidence available, we hold that at the time of occurrence, the appellant/accused was a person of unsound mind and by reason of such disease, he was incapable of knowing the nature of his act. The appellant/accused is therefore, entitled to acquittal by virtue of Section 84 of the I.P.C. 17. Accordingly, this appeal is allowed and the appellant/ accused is found not guilty of the charges of murder and criminal trespass punishable under Sections 302 and 452 of the I.P.C. and he is acquitted of those offences. The appellant, however, is not entitled to be set at liberty since the mental illness is not completely cured. The appellant shall be detained in safe custody in the Mental Health Centre, Thrissur until he can be ordered to be delivered to any of his relatives or friends in the manner provided under Section 335(3) of the Criminal 15 Crl. Appeal No.670 of 2008 Procedure Code. The said power can be exercised by the trial court. The trial court shall also report to the State Government, the fact of detention of the appellant in Mental Health Centre, enjoined by sub Section (4) of Section 335 of the Criminal Procedure Code. The Registry is directed to communicate this judgment to the jail authorities concerned. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)