State of Kerala v. Anandakumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936** ## **CRL.A.No. 1852 of 2009 ( )** **------------------------------------------AGAINST THE JUDGMENT IN SC 1175/2008 of ADDITIONAL SESSIONS COURT (FTC-I) (ADHOC), TRIVANDRUM DATED 07-03-2009** ## **APPELLANT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC POSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.K.K.RAJEEV, PUBLIC PROSECUTOR** **RESPONDENT/ACCUSED:** **---------------------------------------** **ANANDAKUMAR, S/O.SREEDHARAN NAIR, VADAKKUMKARA VEEDU, ELAKKARA, VATTAVILA, NEAR AMARAVILA POST OFFICE, KEEZHKOLLA DESOM, KOLLAYIL VILLAGE.** ## **R BY ADV. SRI.K.V.SABU** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** 'CR' THOTTATHIL B.RADHAKRISHNAN & P.B.SURESH KUMAR, JJ. ------------------------------------------------ Crl. Appeal No. 1852 of 2009 ------------------------------------------------ Dated this the 19[th] day of June, 2014 J U D G M E N T ## Thottathil B.Radhakrishnan, J. - 1.This appeal is presented by the Public Prosecutor on the direction of the State Government against an order of acquittal by a Court of Session. Respondent, the accused, was charged of having committed the offence of murder punishable under Section 302 of the Indian Penal Code; 'IPC', for short. - 2.Heard the learned counsel authorised by the public prosecutor and the learned counsel for the respondent/accused. - 3.In its gist, the allegation against the accused is: while he was soliciting alms (bhiksha) near a bus **2** _Crl.A.No.1852/09_ passengers' waiting shelter described in the relevant oral and documentary evidence, at about 7 a.m. on 16.10.2007, he solicited alms from the victim who is his relative, and, upon the victim refusing to extend alms, the accused took a granite stone piece and hit the victim with that, covering his left ear. Victim was taken to the local government hospital and later, to the Medical College Hospital, Thiruvananthapuram and from there to the Ananthapuri Hospital, from where he died on 23.10.2007, that is, on the seventh day following the alleged occurrence. The court below accepted the plea on behalf of the accused that the alleged act, if at all established, is no offence as it was an act by a person of unsound mind, covered by the terms of Section 84 of IPC. 4.On behalf of the prosecutor, it is argued that to attract Section 84, broken spells of unsound state of mind cannot be used to give the benefit of Section 84 IPC to an accused, and, in such cases, it has to be established by the accused, that the unsoundness of mind was such that such unsoundness was the state of mind of the accused at the time of the commission of **3** _Crl.A.No.1852/09_ the alleged offence. - 5.Per contra, the accused's learned counsel argued that the totality of the evidence on record does not inspire confidence to sustain the conviction for an offence punishable under Section 302 of IPC, notwithstanding the fact that before the trial court, the learned counsel for the accused had made a concession to the contrary; that too, unauthorizedly; and, contrary to available materials. He also sounded that he wondered as to whether the defence, by itself, was frugal, even in terms of crossexamination. - 6.We proceed to appreciate the entire material legal evidence on record. The injury suffered by the victim; the fact that the injury would have led to his death; the said injury was the cause of his death; due procedure, including appropriate post mortem examination; are fairly established by the prosecution with the legal evidence on record. The Assistant Director of Serology attached to the Forensic Science Laboratory, who examined MO1 and the **4** _Crl.A.No.1852/09_ dress worn by the deceased, furnished Ext.P15 report. He testified as PW13 that the dress of the deceased contained human blood, but, blood in MO1 granite piece was not sufficient to detect its origin. PW2 identified MO1, the piece of granite stone allegedly used as the weapon. When a piece of granite stone is used as the weapon of an offence of such a nature, it has also to be established that the said piece of stone or granite, if used as a weapon, could result in grievous injury. This is the law, which is trite in this regard. We emphasize this in the context of the fact that the forensic report referred to above is inconclusive as to the presence and origin of blood on MO1, the granite piece, allegedly used by the accused. - 7.In this appeal with leave, against an order of acquittal; as a superior appellate court called upon to interfere with an order of acquittal; balancing all salutary principles, we cannot but say that on the basis of the aforesaid materials, the acquitted accused was entitled to an order of acquittal, at least applying the doctrine of benefit of doubt. **5** _Crl.A.No.1852/09_ - 8.We now proceed focussing on the accused's plea under Section 84 IPC. Although the law presumes, in general, against insanity, yet where the fact of insanity has been shown, its continuance will be presumed; and the proof of a subsequent lucid interval lies on the party who asserts it. This approach in appreciating evidence, by drawing presumptions in that regard, is fairly well settled more than a century ago - See Best on Evidence (11[th] Edition - 1911) quoting Banks v. Goodfellow, L.Rep., 5 Q.B. 549, 570; Butl. Co. Litt. 246 b, n.(1); Gresl. Ev. in Eq. 368; Att.-Gen v. Parnther, 3 Bro.C.C.441. - 9.DW2 is a retired Superintendent of the Mental Health Centre, Thiruvananthapuram. Going by his testimony, after retiring from government service, he worked in J.J Hospital, Peroorkada. He deposed on the basis of medical records, that from 24.06.2005 to 08.01.2006, he treated the accused in J.J.Hospital and that the accused was suffering from 'schizophrenia with paranoid delusion'. In his cross-examination, he said that such situation may continue till the death of **6** _Crl.A.No.1852/09_ the patient, if he is not properly treated; to keep the situation under control. DW1, the Assistant Surgeon of the Mental Health Centre, Thiruvananthapuram, deposed that the accused, after his arrest and detention, was treated in that Health Centre from December, 2007 till he was discharged on 03.03.2008, as fit for trial. He testified that the accused was suffering from 'schizophrenia', 'which is a form of severe psychosis'. He described the different aspects of that situation and deposed that the accused was having the stage of 'third person type hallucination'. According to him, no duration can be fixed about the period of aggravation. The legal evidence is to the effect that the accused was treated for unsoundness of mind from 24.6.2005 to 8.1.2006 by DW2 and during December 2007 to 3.3.2008 by DW1. The occurrence attributed to the accused was on 16.10.2007. 10.Having regard to the testimony of DWs 1 and 2, the two doctors, it would only be reasonable and permissible to presume that the state of mind of the accused was the situation of 'third person type **7** _Crl.A.No.1852/09_ hallucination' and 'schizophrenia with paranoid delusion' and that the said state of mind of the accused continued at least from 24.6.2005 to 3.3.2008, i.e., inclusive of the period during which he is alleged to have committed the offence. On the basis of the medical evidence on record, including the opinion of the competent medical experts, namely, DWs 1 and 2, it is permissible for this Court to infer the existence of such facts relating to the state of mind of the accused, regard being had to the common course of natural events in relation to the facts of the particular case. 11.The aforesaid can also be fortified as one relatable to a permissive presumption demonstrated by Illustration (d) under Section 114 of the Evidence Act to the effect that the court may presume that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence. This is an eminently fit case where we ought to presume so. We fortify this reasoning further relying on precedents noted **8** _Crl.A.No.1852/09_ hereinafter. Where any derangement of state of mind of a person is proved to have existed at any particular period, it can be presumed to continue until the contrary is proved - See C.D.Field's Commentary on Law of Evidence 13[th] Edition at page 4957 making reference to Attorney-General v. Caruther, 3 Bro. C.C.443 and Banks v. Goodfellow, L.R. 5 Q.B. 549 at p.570. Where a person is found to be of unsound mind (a lunatic), the presumption is that he continues to be of unsound mind until the contrary is shown - See Amanchi Seshamma v. Amanchi Padmanabha Rao, 1916 Vol. XXXIII Indian Cases 578 Madras High Court, rendered following Snook v. Watts, 11 Beav. 105; Hill v. Clifford, (1907) 2 Ch. 236; and Van Grutten v. Foxwell, (1897) A.C.658; 66 L.J.Q.B 745. The result of the discussions in the aforesaid judgments is that once it is found that a person is of lunatic or one of unsound mind, such situation ought to be presumed to continue until the contrary could be found and that such question always depends upon the facts of each case and whether there is satisfactory evidence or not. **9** _Crl.A.No.1852/09_ - 12.In the case in hand, as already noted, the continuity as to the state of affairs of the accused can be easily deducible to be the same as between the period during which he was under the treatment of DW2 and the period when he was treated by DW1 later, that is to say, the period spreading from sometime in June 2005 till the early March 2008. The alleged offence was committed by him in the interregnum. The evidence of DWs 1 and 2 clearly establish that the unsoundness of mind of the accused was such that he was incapable of knowing the nature of his act. It cannot but also be inferred that his state of mind was such that he was incapable of knowing that he is doing what is either wrong or contrary to law. Such unsoundness of mind of the accused has been well established as prevailing while the alleged act was committed. Therefore, that act does not amount to an offence in view of Section 84 IPC. The acquittal of the accused applying Section 84 IPC, therefore, stands. - 13.For the aforesaid reasons, we cannot but hold that the reasoning of the court below that the accused, as on 16.10.2007, was entitled to protection under **10** _Crl.A.No.1852/09_ Section 84 of the IPC was legitimate, legal and inexcusable on the legal evidence on record. The acquittal of the accused applying Section 84 IPC, therefore, stands. We do not find any legal or factual infirmity in the impugned judgment, calling for its reversal in this appeal. In the result, this appeal is dismissed. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) (P.B.SURESH KUMAR, JUDGE) DG-Sha