Kerala High Court
Ernakulam vs By Adv. Sri.M.S.Radhakrishnan Nair on 1 February, 2021
Author: M.R.Anitha
Bench: K.Vinod Chandran, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
CRL.A.No.815 OF 2020
SC 571/2015 DATED 25-02-2020 OF ADDITIONAL SESSIONS
COURT,MOOVATTUPUZHA
CRIME NO.173/2015 OF Kunnathunadu Police Station ,
Ernakulam
APPELLANT/ACCUSED
VARGHESE
AGED 77,
S/O.CHACKO,THURUTHUMMEL HOUSE,
NJARALLUR KARA,KIZHAKKAMBALAM VILLAGE.
BY ADV. SRI.M.S.RADHAKRISHNAN NAIR
RESPONDENTS/COMPLAINANT
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF
POLICE,KUNNATHUNADU POLICE STATION,THROUGH
THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM.
R1 BY SMT.AMBIKA DEVI S, SPL.GP (ATROCITIES
AGAINST WOMEN AND CHILDREN AND WELFARE OF
WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19-01-2021, THE COURT ON 1.2.2021 DELIVERED THE
FOLLOWING:
Crl.A.815/2020
2
JUDGMENT
Dated : 1st February, 2021 M.R.Anitha, J.
1.This appeal has been filed against the judgment in S.C. 571 /2015 on the file of Addl. Sessions Judge Muvattupuzha.
2.Prosecution case can be summarised as follows:- Accused was under mental stress since his wife was affected with Hepatitis B, a contagious disease and his daughter was physically challenged, deaf and dumb by birth and was incapable of taking care of herself. Due to the illness of the wife, none of the friends, relations and neighbours are turning up to their house also. Out of that desperation with intention and preparation to do away with the wife and daughter in between 12 midnight on 27.1.2015 and 2.30 am on Crl.A.815/2020 3 28.1.2015 accused intentionally caused the death of his wife at the bed room situated on the south eastern corner on the ground floor and the daughter was killed in the hall by smothering and strangulation using pillow and bath towel (MO2 and 3) and by clobbering them with the blunt edge of MO4 chopper and with MO1 spanner on the head and face. Both of them succumbed to the injures at the spot. Thereby accused committed offence under S.302 IPC.
3.Immediately after the incident accused informed the matter over land phone to PW2 the neighbour. PW2 in turn informed the matter to PW1 the nephew of the accused and he along with his brother and PW5 came to the house of Pw2 and all of them together went to the house of the accused and saw the accused and dead bodies inside the house. Thereafter Crl.A.815/2020 4 Pw1 went to the police station and lodged the FIS Ext.P1. PW 18 the SHO Kunnathunadu recorded the FIS of PW1 and registered Ext.P20 FIR. In the meantime the bodies of the deceased were taken to TD Medical College and PW10 and 12 conducted postmortem on the body of the deceased persons. PW20 the Inspector of Police Kunnathunadu took charge of the investigation. PW19 the Scientific Assistant visited the spot of incident and collected the blood stains from the floor near the head of the deceased persons and the wall. The report of the Scientific Assistant is marked as Ext.P21. Pw16 who was the CPO attached to the Kunnathunadu Police Station was on surveillance duty of the accused. PW5 was the SCPO attached to Kunnathunadu Police Station who went to the house of accused on getting information regarding the murder Crl.A.815/2020 5 while doing night patrol duty and saw the accused and the two dead bodies inside the house. PW17 was the Head Constable attached to Kunnathunadu Police Station who was a witness in Ext.P18 seizure mahazar of DVD. Ext.P19 is the seizure mahazar for seizing the photos-Ext.P14 and CD-Ext.P15.
4.PW11 was the Village Officer who prepared Ext. P11 site plan (ground floor) and Ext.P12 the first floor).Pw8 is the witness in Ext.P9, inquest carried out of Elizabeth, the deceased daughter of the accused. Ext.P6 is the inquest carried out of Annamma, the deceased wife of the accused. PW5 signed it as witness. Further PW20 questioned the witnesses, collected evidence and final report was filed before the JFCM Court, Kolencherry.
5.On the side of prosecution PW1 to 20 were Crl.A.815/2020 6 examined, Ext.P1 to P34 were marked and MO1 to 12 were identified and marked. Thereafter on questioning the accused, he denied all the incriminating facts and circumstance put to him and filed additional statement . DW1 and 2 were examined and Exts.D1 to D4 marked from the side of the accused. After hearing both sides court below found the appellant/accused guilty under Sec.302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.50000/- in default to undergo Rigorous Imprisonment for six months.
6.Assailing the conviction and sentence, appellant/accused came up in appeal before this court for various grounds stated in the memorandum of appeal.
7.Lower court records were called for and perused. Heard the learned counsel for the appellant and the learned Special Public Crl.A.815/2020 7 Prosecutor.
8.Though various grounds are raised in the Appeal memorandum assailing the conviction and sentence, the argument of the learned counsel for the appellant/accused (hereinafter be referred as accused) was on the plea of unsoundness of mind and claiming protection under Sec.84 IPC. However, before going to that aspect, it would be necessary to find about the correctness of the conviction passed by the learned Additional Sessions Judge.
9.In order to prove the cause of death, the prosecution relies on the evidence of the Doctors who conducted postmortem on the bodies of the deceased Annamma and Elizabeth. PW10 was the Associate Professor of Forensic Medicine and Deputy Police Surgeon, Government T.D Medical College, Alappuzha who Crl.A.815/2020 8 conducted postmortem on the body of Elizabeth, the daughter of the accused and he issued Ext.P10 postmortem certificate. The history revealed to the Doctor is "on 28.1.2015 between 12 am and 3 am father of the deceased person attacked her with a spanner and suffocated her by using pillow". The ante-mortem injuries noted read as follows :
1. Lacerated wound 3.1x0.6cm, bone deep on the right side of forehead, its lower inner end 5cm above the inner end of eyebrow.
2. Lacerated wound 2x0.5cm, bone deep on the right side of forehead 1.5cm above the eyebrow, 0.5cm outer to inner end of eyebrow.
3. Two lacerated wounds 1.5x0.3 and 1.3x0.2cm, bone deep 1cm apart on the forehead 2cm above the root of nose.
4. Lacerated wound 1.1x0.2cm, bone Crl.A.815/2020 9 deep on the bridge of nose 3cm above the tip with fracture of nasal bone underneath.
5. Abrasion 1x0.5cm on the outer end of right eyebrow.
6. Lacerated wound 1.5x0.5cm bone deep on the outer end of left eyebrow.
7. Abrasion 1x0.4cm on the left side of face, 1.5cm outer to outer angle of left eye.
8. Lacerated wound 2x0.5cm, bone deep on the back of head overlying the occiput.
9. Contusion 7x4x0.5cm on the right side of head just above the ear (seen after dissection of scalp).
10. Three lacerated wound 1.5x0.5cm, 2x0.5, 1.5x1cm bone deep over an area 5x3 cm on the right side of head 4cm above the top of ear.
Brain showed bilateral subdural and subarachnoid haemorrhages. Sulci were narrowed and gyri flattened.
11. Four abrasions varying in sizes from 0.3x0.3 cm to 0.5x0.4cm over an area 3.5x2.5cm on the right side of chin 2cm outer to midline.
Crl.A.815/202010
12. Abrasion 2.3x0.5cm on the right side of face, just outer end and just above the right angle of mouth.
13. Three abrasions varying in sizes from 0.1x0.1 to 0.3x0.2cm over an area 2x0.6cm on the right side of nose just above ala of nose.
14. Abrasion 0.5x0.3cm on the outer aspect of right side of upper lip 1.5cm outer to midline.
15. Six abrasions varying in sizes from 0.1x0.1cm to 0.3x0.3cm on the top of nose over an area 3x1cm, 1cm above the tip of nose.
16. Multiple small abrasions (twenty numbers) varying in sizes from 0.2x0.1 to 2x1cm over an area 10x6cm on the left side of face over the left ala of nose, adjacent part of upper part of lip and cheek.
17. Abrasion 1x0.3cm on the outer aspect of lower lip margin 2cm inner to left end.
18. Two abrasions 0.5x0.5cm, 0.6x0.5cm on the left side of lower lip margin, just outer to midline.
19. Two abrasions 0.5x0.3 and 0.3x0.1cm Crl.A.815/2020 11 on the right side of chin, 5.5.cm outer to midline, 4cm above the margin of jaw.
20. Abrasion 2x0.5cm on the back aspect of right forearm, 7cm above the wrist.
21. Contusion 1.5x1x0.5cm on the back of right hand over the knuckle of right little finger.
22. Multiple small abrasions over an area 9x8cm on the right side of back of chest, inner extent 2.5cm outer to midline and 5cm below top of shoulder.
10. The doctor also stated that death was caused due to the injury sustained to head and around the mouth and nostrils (smothering
- injury Nos 1 to 19). He would further state that injury Nos 1 to 10 are blunt injuries and all those injuries are possible of being caused with the blunt portion of MO4 chopper. According to him these injures are also possible with a forceful impact with MO1 spanner. It is also stated by him that injury Crl.A.815/2020 12 Nos.11 to 19 are suggestive of smothering. Though it was suggested during cross- examination that injury Nos.11 to 19 would not have been caused by smothering, he stoutly disagreed with the suggestion because injuries are suggestive of smothering. So in effect, nothing could be brought out to discredit the testimony of PW10 and Ext.P10 postmortem certificate of Elizabeth, the daughter of the accused.
11. PW12 was the Medical Officer of Forensic Medicine, Government T.D.Medical College, Alappuzha who conducted postmortem examination on the body of Annamma, wife of the accused and issued Ext.P13 postmortem certificate. The brief history stated to the doctor is "murdered by smothering, strangulation and by beating with a metal spanner on her head between 27.1.2015, 24 Crl.A.815/2020 13 hours, 3 am on 28.1.2015".
12. The ante-mortem injuries reads as follows :-
1. Contusion 3x4x.5 cm right side of head, 5cm above right ear, 9 cm outer to midline.
2. Contusion 3x2.5x.3cm right side of forehead 7cm outer to midline 3 cm above outer end of eyebrow.
3. Contusion 4x4x.3cm left side of forehead just outer to midline 5 cm above root of nose.
4. Contusion 1.5x2x.5cm left side of forehead 5.5cm outer to midline 1cm above eyebrow.
5. Contusion 7.5x5x.3cm involving both upper and lower eyelids, its inner extent just outer to midline.
6. Abrasion 1x.3cm, vertical right side of forehead .5 cm outer to midline, 1.5 cm above eyebrow.
7. Lacerated wound 1x.3cm, bone deep right side of head 4.5 cm outer to midline, 8cm above eyebrow.
8. Lacerated wound 2.5x3x.4cm right Crl.A.815/2020 14 side of face 6cm outer to midline just below the right angle of eyes.
9. Lacerated wound .8x.2x.3cm right side of face 13 cm outer to midline 1.5 cm below right ear.
10. Lacerated wound .6x.2x.2cm right side below angle of jaw 2cm below right ear, 15 cm outer to midline.
Brain (1114 gm) showed diffused subarachnoid haemorrhage over frontal, parietal, temporal and occipital regions of both hemispheres. Brain was congested and sulci were narrowed gyri flattened (sing of oedema).
11. Abrasion .8x2cm right side of face 10cm outer to midline just above the right angle of jaw.
12. Multiple abrasions varying in size from .4x.2 to 1.2x1.2cm on right side of face over an area 5x4cm just outer to midline and 4cm below eyebrow.
13. Two abrasions .8x.2, .5x.2cm on left side of nose and face 1cm apart 1.5 cm outer to midline, 4.5 cm below eyebrow.
14. Abraded contusion 1.5x2x.3cm on the outer angle of left eye.
15. Three abrasions varying in size from Crl.A.815/2020 15 0.1x2 to 0.2x0.2cm over an area 3x2.5 cm over right cheek.
16. Abrasions varying in size from 0.2x.2 to .5x1cm on right side of face over an area 2.5x3cm, 2.5cm outer to midline just below right angle of mouth.
17. Abraded contusion 4x1.2x.3cm on the upper lip across the midline, its left end 2cm outer to midline.
18. Abraded contusion 3.5x1x.3cm on the inner side of lower lip across the midline, its right end .5cm outer to midline.
19. Multiple small abrasions varying in size from .2x.2cm to .5x 4cm on the right side of neck 1.5cm outer to midline 5cm above inner end of clavicle.
20. Contusion 8x8x1cm on the right side of front of neck involving the muscles underneath.
Flap dissection of neck was done under bloodless filed. Subcutaneous tissue underneath the abrasions were infiltrated with blood there were contusion of the left sternocledo mastoid muscles in the middle one third, contusion involving whole of both lobes Crl.A.815/2020 16 of thyroid gland and fracture of the left side of greater horn of hyoid and left side of thyroid cartilage. Other neck structures including other muscles, bones, cartilages were found to be normal and intact.
21. Contusion 8x4x.5cm over the tip of left shoulder.
22. Contusion 2x2x.5cm left side of front of shoulder, 3cm below its tip 16 cm outer to midline.
23. Seven abrasions varying in size from .5x.3cm to 1.5x.5cm on the inner aspect of left upper arm over an area 13x5cm, its lower extent 3cm above elbow.
24. Linear interrupted abrasion 29x1cm on the back and inner aspect of left upper arm, elbow and forearm. Its upper extent 7cm below arm pit.
25. Contusion 8x1x.5cm, vertical on the left upper arm 8cm below tip of shoulder.
26. Contusion 3.5x1x.3cm front of right forearm 11cm above wrist.
27. Six small contusions varying in size from .5x.5x.2cm to 1x.5x.2cm over an area 8x7cm on the back of left hand, 2cm Crl.A.815/2020 17 below wrist.
28. Abrasion 3x1.5cm back of right elbow.
29. Two abrasions 3x.1cm and 3x.2cm, 3 cm apart on the back of right elbow.
30. Abrasion 3x3cm front, outer aspect of right leg, 2cm below knee.
31. Abraded 'C' shaped contusion 4x.5x.3cm on the front, outer aspect of right leg just below the previous injury.
32. Abrasion 2.5x3cm front, inner aspect of right leg 2cm below knee.
33. Abrasion 1x1.5cm front of let leg 5cm below knee.
34. Abraded contusion 3x6x.5cm horizontal back of top of right shoulder 7cm outer to midline, just below the top of shoulder.
13. The opinion as to cause of death - death due to injury sustained to head and face. Ext.P13 is the postmortem certificate issued by the Doctor. He would further state that injuries 1 to 9 can be caused by blunt force Crl.A.815/2020 18 with MO1 and injury Nos.10 to 19 abrasion can be caused by blunt force by MO4. Injury No.20 can be caused by blunt force over front forehead. It is further stated by him that if MO2-pillow is placed over the neck and force is applied over pillow, it can cause injury No.20.
14. During cross-examination of the Doctor nothing material was brought out to discredit his testimony. Exts.P31 and P32 are the chemical analysis reports of blood and vaginal swab with respect to the deceased Elizabeth and Annamma respectively. Reports would state that no poison was detected in the items. So the evidence of PW10 and PW12, Exts.P10 and P13 postmortem certificates, and Exts.P31 and P32 chemical reports will leave no room for doubt to conclude that the death of the deceased Annamma and Elizabeth were homicide. Crl.A.815/2020 19
15. The case was investigated based on circumstantial evidence since there was no eye witness to the incident. In a case based on circumstantial evidence the prosecution has to prove a chain of circumstances which would point only to the guilt of the accused.
16. Prosecution case is that brutal murder of wife and daughter was divulged to PW2 Kuriachan who is the immediate neighbour of the accused by himself and the evidence brought out through PW1 to 5 was mainly to prove the fact regarding the disclosure made by the accused to PW2 and their immediate visit to the house of the accused and having seen the corpse of Annamma and Elizabeth. Among them, PW2 was the neighbour to whom the accused, over telephone, confessed about his act of having murdered his wife and daughter. PW2, in turn informed PW1 and Crl.A.815/2020 20 subsequently PW3 and 5 were informed and all of them together went to the house of accused.
17. Presence of the accused in the house and the extra judicial confession made by him to PW2, PW1 and PW5 are the prime circumstances relied on by the prosecution. PW2 who is the immediate neighbour to whom accused confessed first about the incident is the most crucial witness. He would depose that on 28.1.2015 at about 2.15 am accused called him on his land phone and told him that he is totally upset and he killed his wife and child and consumed poison. PW2 informed the matter to PW1 and he in turn informed his brother and Panchayath Member George (PW5) and all the four of them, went to the house of accused. PW2 called the accused who was lying on the 'setty'. PW2 remained in the courtyard and did not enter Crl.A.815/2020 21 into the house. Three others, ie, PW1 , his brother and PW5 went inside the house. On peeping through the window from outside, he saw Elizabeth lying dead. He identified MO1- spanner, MO2-pillow, MO3-bath towel. Ext.P3 is the Sec.164 Cr.P.C statement given by him to the Police.
18. During his cross-examination it is very pertinent to note that no single question was put challenging his evidence regarding the extra judicial confession made by the accused to him. So in effect the evidence of PW2 as to the extra judicial confession made by the accused to him with regard to the commission of the murder of his wife and daughter stood unchallenged. No ill-will or animosity was attributed against him also.
19. PW1 the nephew of the accused deposed in corroboration with PW2 with regard to the Crl.A.815/2020 22 confession made by the accused to PW2 and he categorically stated that on hearing that he stood upset for a while and thereafter he informed his brother. Thereafter they went to the house of accused along with PW5 the Panchayat Member. When they reached there he called the accused. The accused asked him to enter the house and he saw the dead body of the wife and daughter. He stated about the presence of blood near the body and a spanner identical with that of MO1, though he could not identify MO2 pillow and MO3-bath towel. Further he stated that when he asked the accused as to what happened he told him that he is mentally upset due to his ailing wife and invalid daughter. A home nurse who was tending to them left two days earlier due to a quarrel with him. Since the wife was affected with Hepatitis B, friends, relatives Crl.A.815/2020 23 or neighbours were not coming to the house. Being mentally depressed as per the joint decision taken by them he killed the wife and daughter and consumed poison. Immediately PW1 informed the police and they went to the Police Station and gave Ext.P1 FIS. The 164 statement given to the Police is marked as P2.
20. PW5 is the Panchayat Member who had accompanied PW1 and 2 to the house of the deceased on the fateful day. He had seen the accused on that day inside the house and saw two persons lying dead. He also stated about the extra judicial confession made by the accused. He is also a witness in Ext.P6 inquest.
21. PW3 is the brother of deceased Annamma. He went to the house of the accused immediately on getting information regarding Crl.A.815/2020 24 the incident. He speaks about the presence of PW5, PW2, PW1, accused and also the brother of accused at the spot. Ext.P4 is his 164 statement given to the Magistrate.
22. PW4 is the wife of PW2. She speaks of having witnessed PW2 answering the telephone which immediately PW2 informed her was from the accused who confessed of the gruesome act. She pin pointed the conversation to be on 28.1.2015 at about 2¼ hours.
23. On evaluating the evidence of PW1 to 5 the factum of presence of accused inside the house and two dead bodies found inside the house have been established as stated earlier. The evidence of PW2 with regard to the alleged confession statement given by the accused also stands unchallenged. PW1 also refers about the extra judicial confession made by the accused. PW5 also stated about Crl.A.815/2020 25 the extra judicial confession made by the accused of causing the death of his wife and daughter. That portion with respect to PW5 is also marked as Ext.P5. During cross- examination there was no attempt on the part of the accused to challenge the extra judicial confession made by the accused. The extra judicial confession made by the accused to PW1, PW2 and PW5 are proved to be deliberate and voluntary confession of guilt and such confession are held to be the most effectual proof in law Chattar Singh & Another v. State of Haryana (2009 KHC 4308:
AIR 2009 SC 378). It is also relevant in this context to quote Silash Singh @ Kurid v.
State (2018 KHC 4660) wherein Calcutta High Court held that corroboration of extra judicial confession in all cases is a sine qua non; is neither just nor reasonable Crl.A.815/2020 26 preposition. If extra judicial confession is found to be unbiased untainted coming from evidence of trustworthy and reliable witness who has to test of cross-examination against whom there is no remote suggestion or allegation of enmical terms, same can be the basis for holding accused guilty.
24. In Ponnuswamy v. State of Tamil Nadu (2008 Crl.L.J 2563 [SC]) it has been held that extra judicial confession if found to be voluntary and medical report supported prosecution case conviction of the accused for murder is proper.
25. Another important circumstance is the presence of accused in the house and apart from him and the deceased persons nobody else was present in the house. Though questions were put to prosecution witnesses to establish that the rear door was opened and Crl.A.815/2020 27 there is possibility of anybody else doing the act, nothing suggestive of that could be brought out. Since the incident occurred within the four walls of his house there is a burden cast upon the accused to explain as to how the incident happened. When a specific question was put to him with regard to the extra judicial confession made by him to PW1 he just pleaded ignorance. About the statement given to PW2 apart from the fact that wife and daughter were lying dead and he was fully upset; he was not further prepared to admit that he had caused the death. So in effect no explanation is seen to have been offered by him. Though an additional statement has been filed at the time of his examination, apart from stating about his mental ailments and the medications in connection with the same; he only pleads that Crl.A.815/2020 28 he cannot kill his loving wife and daughter and somebody else might have done the act. No other plausible explanation is forthcoming from his statement. The extra judicial confession proves beyond doubt the presence of accused inside the house at the time of incident. The accused also does not deny his presence in the house and does not also speak of any others being present in the house, other than his wife and daughter.
26. In this context it is relevant to quote Trimukh Maroti Kirkan v. State of Maharashtra (2006 (10) SCC 681) That was a case of dowry death and the Apex Court considered the circumstance of the wife found dead inside the house and the implication of S.106 Evidence Act in such context. Paragraph 14 & 15 of the said decision are relevant in this context to be extracted which read thus : Crl.A.815/2020 29
"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (see Stirland v. Director of Public Prosecutions - quoted with approval by Arijit Pasayat J, in State of Punjab v. Karnail Singh ) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable Crl.A.815/2020 30 of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads : "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him"
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was Crl.A.815/2020 31 committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
27. Ratan Jani v. State of Orissa (2016 CrL.J 5046 = 2016 KHC 4628) is also relevant in this context . That was also a case of killing the wife and husband facing trial under S.498A and 302 IPC. Paragraph 12 of the said decision is relevant in this context which reads as follows :
"The provisions of Sec.106 of the Evidence Act are unambiguous and categoric in laying down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If he fails to offer any explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the Evidence Act.
When the accused fails to throw any Crl.A.815/2020 32 light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as additional link which completes the chain.
When the husband (appellant) and wife (deceased) were together in their house along with their small children and the deceased was found dead with a number of ante mortem injuries and the death was opined to be homicidal in nature, it is the appellant who was to explain as to under what circumstances, the deceased met her end and if he failed to discharge his burden of proof and failed to give a cogent, probable and satisfactory explanation, that itself would provide an additional link in the chain of circumstances. The incriminating links of facts were in the personal and exclusive knowledge of the appellant and he has failed to explain under what circumstances the death of his wife had occurred. The plea taken by the appellant that he was not present in the house when the offence took place is not at all acceptable in view of the overwhelming evidence regarding his presence in the spot house. Keeping in view the overall circumstances available on record and failure of the appellant to give any explanation, we are of the view that it is none else but the appellant who is the author of the crime."
28. In the present case as found earlier it Crl.A.815/2020 33 has come out in evidence that accused was very much present inside the house at the time when the incident occurred. That fact is proved by the subsequent conduct of extra judicial confession made by him to PW2 the immediate neighbour, which is also found to be very probable, natural and voluntary. Further the presence of the accused inside the house when Pw2, PW1, PW5 and the brother of PW1 came to his house also is clearly established. All of them deposed in corroboration that when they reached the house of the accused immediately after the telephone call made by the accused to PW2 they saw the accused inside the house. But accused could not offer any explanation during his examination or otherwise about the cause of death of his wife and daughter. So that would definitely form a link of Crl.A.815/2020 34 circumstance connecting the accused with the crime.
29. Motive behind the incident is of great significance in cases based on circumstantial evidence. Usually every criminal act would be perpetrated by a motive. The motive alleged in this case is the mental stress and strain alleged to have been undergone by the accused due to the ailment of his wife and also the permanent disablement of the daughter. It has come out in evidence that his wife was affected with Hepatitis B. It has also come out in evidence that accused told PW1 that since his wife was affected with Hepatitis B, friends, relatives or neighbours were not coming to the house and contacting them. PW3 the brother-in-law of accused also speaks that deceased Annamma was affected with Hepatitis B and he had made a Crl.A.815/2020 35 visit to the hospital. PW4 the wife of PW2 also stated that deceased Annamma was affected with Hepatitis and since it was a contagious disease she did not go to her house. PW5 the Panchayat Member also spoke about the disease with which Annamma was affected with. All of them also stated that the daughter, Elizabeth was a physically and mentally challenged woman. It has also come out that the only son of the accused who is in the U.S. is not turning up for assisting his parents. More over the accused categorically stated to PW1 his own nephew that it was that mental depression which led him to do this act. So the case of the prosecution that accused murdered his ailing wife and incapacitated daughter since there was nobody to look after them and nobody was aiding him and out of that mental stress he Crl.A.815/2020 36 has done the act, is rather established. So motive alleged by the prosecution has been proved to a great extent.
30. The other circumstances prosecution relies is the recovery of weapon, MO4 chopper. MO1 spanner has been seized and is described in the mahazar Ext.P7. PW20 the Investigating Officer deposed that after arresting the accused he questioned him on 4.2.2015 and he gave Ext.P8 (a) disclosure statement and as led by the accused the chopper was recovered from the slab of the store room of the house of the accused and that mahazar is marked as Ext.P8. Ext.P8(a) is the relevant portion of disclosure statement. MO4 is identified as the chopper so discovered. PW7 is the witness in Ext.P8 recovery mahazar. He states that accused has produced MO4 chopper kept on the slab in the Crl.A.815/2020 37 store room of the house of the accused. Though he was cross examined at length nothing could be brought out to discredit his testimony regarding the recovery of weapon at the instance of the accused. The evidence of PW10 the doctor who conducted postmortem on the body of Elizabeth would state that injury Nos 1 to 10 are blunt injuries and all these injuries are possible of having been caused with blunt portion of MO4. He also added that those injures could be caused with MO1 also.
31. PW12 the doctor who conducted postmortem on the body of Annamma stated that injury 10 to 19 are abrasions which can be caused by blunt force with blunt side of MO4. So the medical evidence corroborates the prosecution case with regard to infliction of injuries with MO4.
32. Apart from the above, prosecution further Crl.A.815/2020 38 adduced scientific evidence by forwarding the material objects involved in the case to the FSL laboratory. Ext.P22 is the forwarding list of items and Ext.P23 is the forwarding note. Ext.P29 is the property list with respect to MO4 chopper and Ext.P33 is the FSL report.
33. As per Ext.P33 the blood collected from the floor near the head portion of deceased Annamma and the blood stain collected from the west wall of the room where the body of Annamma was found and cotton gauze socked in blood collected from the place where the body of Elizabeth was found and the dress of Annamma and of Elizabeth and also of accused (MO5 and MO6) and MO1 the spanner were found to be containing blood of human origin. Presence of blood though detected in MO4- chopper the origin and group could not be Crl.A.815/2020 39 determined. It would also show that the blood group of Annamma was group 'A' and that of Elizabeth group 'B'. It also would prove that dress of accused which is MO5 and 6, also contained human blood. PW16 who was on surveillance duty of accused, seized the lunki and shirt (MO5 and 6) worn by him which were produced by Dr.Sreenivas to the Investigating Officer. The seizure was effected by Ext.P17 seizure mahazar; which contained its description too. PW16 is the witness in the mahazar. He identified MO5 and MO6 as the said lunki and shirt belonging to the accused. So FSL report proving the presence of human blood in the dress worn by the accused at the time of incident is a clinching circumstance connecting the accused with the offence. No plausible explanation was offered from his side in this regard even Crl.A.815/2020 40 though an additional statement was filed by him at the time of his examination under S.313 Cr.P.C.
34. The next aspect is with regard to the intention of the accused in doing the act. The extra judicial confession which we have already discussed would prove in abundance the intention of the accused to cause the death of the ailing wife and the incapacitated daughter. It is true that he has got a reason for doing the same and it is not out of any ill-will towards wife and daughter. The immediate reason obviously was the mental stress of the home nurse appointed to look after the daughter having left the service on the previous day and his wife having been affected with contagious disease. It has also come out in evidence that his son was not turning up in spite of his request. Crl.A.815/2020 41 So whether those reasons stated by him for doing the act would absolve the liability of the intentional killing of his wife and daughter is the question. First of all in this context we would like to point out the evidence of PW1, nephew of the accused who reached the house immediately after the incident. He would state that on enquiry with the accused about the incident he confessed that due to the ailing daughter and wife he is totally upset mentally. A home nurse who had been there was sent away before two days due to the quarrel with him. Since the wife was affected with Hepatitis B, friends, relatives and neighbours were not coming to the house. Hence they were mentally upset and as per the joint decision taken by them, he murdered the wife and daughter and consumed poison. So also PW2 the neighbour to whom Crl.A.815/2020 42 accused informed the matter over land phone would state that accused informed that he is mentally upset and killed his wife and daughter and he consumed poison. So there is no statement to PW 2 that they have jointly taken the decision and accordingly he killed the wife and daughter. The fact that immediately after the incident he informed over phone about the act to PW2 itself would prove that he was quite aware of the act done by him resulting in the death of his wife and daughter. The evidence of PW10 and 12 the doctors who conducted postmortem on the body of deceased persons which we have already discussed would prove that the injuries caused to deceased persons are possible to be caused with MO1 and MO4. So the intention of the accused to cause the death of the deceased persons is quite evident from the Crl.A.815/2020 43 facts and circumstances. Hence we find that prosecution could prove a chain of circumstances consistent only with the guilt of the accused.
35. As stated in the beginning the main argument of the learned counsel for the accused was based on S.84 IPC claiming exception on the ground of unsoundness of mind.
36. In a case of plea of unsoundness of mind and consequent incapacity to know the consequences of the acts done by the accused, the burden is upon the accused. Section 84 of IPC (45 of 1860), provides 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. It Crl.A.815/2020 44 is also well settled that the insanity referred therein is legal insanity and not medical insanity.
37. Section 105 of the Evidence Act,1872 provides that the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or with in any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances.
38. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563], paragraph No.5 of the judgment which quoted Sections 299, 84 IPC and Sections 105, 4, and 101 of the Indian Evidence Act is relevant to be Crl.A.815/2020 45 extracted :
Sec.105 - when a person is accused of any offence, the burden of providing the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or withing 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. Section 4- "Shall presume" : Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as proved unless and until it is disproved.
"Proved" : A fact is said to be "proved"
when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent main ought, under the circumstances of the particular case, to act upon the supposition that it exists.
"Disproved" ; A fact is said to be Crl.A.815/2020 46 disproved when, after considering the matters before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist, Section 101 : Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist, When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies, on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S.299 of the Indian Penal Code. This general burden never shifts Crl.A.815/2020 47 and it always rests on the prosecution. But S.84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that Act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case withing the same exception lies on the accused, and the court shall presume the absence of such circumstances. Under S.105 of the Evidence Act, read with the definition of "shall presume" in S.4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did Crl.A.815/2020 48 not exist, by placing material before the court sufficient to make it consider the existence of the same circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S.105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S.299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general Crl.A.815/2020 49 burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity."
39. The learned counsel for the appellant in this context relies upon Devidas Loka Rathod v. State of Maharashtra (2018 KHC 6471 [SC] = AIR 2018 SC 3093) and also E.P.Paul v. State of Kerala (LAWS (KER) 2020 11 29) to contend that the investigating officer has not made any effort to investigate about the soundness of the mind of accused in spite of the fact that at the time of committing the offence accused was of unsound mind. On going through the facts in Devidas Loka Rathod's case referred above, it is seen that it was a case in which appellant/accused in the morning alleged to have suddenly picked a sickle from the shop floor of the iron smith Crl.A.815/2020 50 and attempted to assault PW1, resulting in an injury on the jaw and cheek and gave a further blow on his shoulder. On the same day he later assaulted PW3 on his back and neck and rained blows on the back and stomach of the deceased when he tried to intervene. Thereafter he tried to flee throwing the sickle en-route when he was apprehended by the villagers and handed over to the police. From paragraph 15 of the judgment it is revealed that the trial records reflected several medical visits in prison even weekly and administering anti psychotic drugs with the impression recorded by the doctor that patient is psychotic and needs continuous treatment. During trial an application was also moved on behalf of the accused under chapter 25 of Cr.P.C stating that he is not fit to face trial. Then a fresh medical Crl.A.815/2020 51 report was called for and it was opined that the accused was a chronic patient of psychosis who has been evaluated time and again by the Mental Hospital Nagpur. That was the state of affairs of that case.
40. But the proceedings sheet in the present case, would not give any such single occasion to show that accused has been taken for treatment at any point of time during trial. So the fact situation in Devidas Loka Rathod's case is entirely different from the case in hand.
41. It is also pertinent to note that at the time of lodging Ext.P1 FIS, PW1, his nephew did not have any such case. It is true that while giving Ext.P2 statement which is after three months of the incident he has made a mention that accused is a person having mental derangement. That appears to be an Crl.A.815/2020 52 after thought. So also he did not state about any treatment alleged to have been undergone by the accused. During examination of PW20 the Investigating Officer he categorically stated that none of the witnesses has stated to him about the mental illness of the accused though he added that they have revealed about the mental agony of the accused. Though he deposed that PW8 has stated that accused was not a person having normal mental stability, PW8 admitted that after the wife of the accused was affected with Hepatitis B, the accused was in a mentally deranged condition. It was also deposed that he had made investigation regarding the treatment and the mental stability of the accused but no document was obtained and the son of the accused informed that there was no treatment given to the accused. Crl.A.815/2020 53
42. Further there was nothing in the conduct of the accused after the incident to motivate the Investigating Officer to carry out an investigation regarding the mental capacity of the accused, other than that carried out at the hospital to which he was taken immediately after the incident. There is nothing to show the accused having suffered mental illness, impairing his normal faculties, or any indication of he being under continuous medication. The composed conduct of the accused after the incident, of having called up his neighbour is also consistent with the prosecution case of the action of the accused being motivated by sheer frustration.
43. In E.P.Paul's case also the prosecution case was that accused killed his nephew aged 3½ years towards whom he had no ill will. So also umpteen evidence was adduced in that Crl.A.815/2020 54 case to prove that the accused in that case had been undergoing treatment. Immediately after the incident accused was taken to hospital for treatment and he was arrested only after two weeks of the incident. During trial also he had been undergoing treatment and doctors who treated him on various occasions have also been examined and it has come out in evidence that the accused was incapable of understanding the nature of acts done by him immediately before and after and at the time of the incident. It was in the above circumstances that it has been found that the accused is entitled for the benefit of Sec.84 and further that infirmity has been caused in the investigation since the investigating Officer did not take any measures to collect any evidence regarding the mental illness of the accused. Crl.A.815/2020 55
44. In this case PW14 was examined from the side of the prosecution and through whom Ext.P16 certificate issued by Dr.Sreenivasan who treated the accused at casualty on 28.1.2015 has been proved. On perusing Ext.P16 it is seen that he has been treated for attempt to commit suicide by consuming aluminum phosphate at around 12 30 am on 28.1.2015. It would not give any indication of psychiatric treatment.
45. At the instance of the accused DW1 and 2 were examined. DW1 is the doctor attached to Kusumagiri Mental Health Centre and Ext.D1 is the treatment chart produced by him. On examining the same what could be seen is that he had undergone treatment during 2004 and 2007. Dw1 stated that he has treated him for bipolar disorder, a mental illness. But his evidence is that at the time when he is Crl.A.815/2020 56 afflicted with the illness it would be reflected in his personality and clinical faculties. But the doctor was not prepared to admit that these type of patients would feel difficulty in facing strong mental pressures and according to him it is only a possibility. Doctor also stated that the father of the accused had psychiatric illness as per the history. Doctor was also not prepared to admit that this is an illness which required continued treatment. Further he stated that the final treatment was on 27.2.2007 and he had seen him on 22.4.2016 when he came for a medical certificate. During cross examination it has come out that he was never treated as inpatient and was not referred from any hospital. And on several occasion he came by himself. So the evidence of DW1 will not prove that he was of unsound Crl.A.815/2020 57 mind and was incapable of understanding the nature of acts done by him as being wrong or contrary to law at the time of incident or just before and after.
46. DW2 is the Professor of Psychiatry, MOSC Medical College, Kolenchery. Ext.D2 is the case sheet produced. He would state that on 28.1.2015 he was working at MOSE Medical College and accused was admitted in the general medicine department. He would also state the alleged history was suicide attempt by intake of aluminum phosphate and he had given treatment for the same and accused had psychiatric consultation when he was inpatient. Dr.Nisha, the Psychatrist made a diagnosis of bipolar disorder and he was prescribed medicine for current episode of severe depression with psychotropic symptoms and as per the discharge summary patient was Crl.A.815/2020 58 transferred to psychiatric ward but the bystanders were not willing for further management and hence patient was discharged. Doctor also stated that bipolar disorder is a mental disease and it requires continued treatment. Doctor stated that delusion may occur but it is not compulsory. Though the evidence of DW2 would go to show that on the fatefull day when he had treated the accused for attempt to commit suicide by consuming alumininium phosphate, psychiatric consultation was also given, the evidence of Doctor would not give an indication that the accused was suffering from any serious mental illness to infer that he was incapable of knowing the nature of his acts. That he was incapable of understanding that what he did was wrong and contrary to law.
47. It is relevant in this context to note Crl.A.815/2020 59 that in order to claim the benefit under S84 IPC, it must be proved that at the time of doing the act by reason of unsoundness of mind the accused is incapable of knowing the nature of act or he is incapable of understanding that, what he is doing is either wrong or contrary to law. It is to be noted that every mental illness is not ipso facto exempted from criminal responsibility. It is also well settled that there is a distinction between legal insanity and medical insanity. The learned Special Public Prosecutor in this context drew our attention Bapu @ Gajraj Singh v. State of Rajasthan (2007 3 KHC 103), an unreported decision Crl.A.1229 of 2008 dated 12 th April 2012 - Karim C. v. State of Kerala ) and Sudhakaran v. State of Kerala (2010 KHC 4816).
48. Para 7 in Bapu @ Gajraj Singh's case is Crl.A.815/2020 60 relevant in this context which reads as follows :
"S.84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in the IPC. Courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity. The burden of proof rests on an accused to prove his insanity, which arises by virtue of S.105 of the Indian Evidence Act, 1972 (in short the "Evidence Act') and is not so onerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding (See Crl.A.815/2020 61 Dahyabhai v. State of Gujaraj 1964 (70 SCR 361 : 1964 (2) CriLJ 472 : AIR 1964 SC 1563). In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intends and purposes, appears to be sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind."
49. Paragraph 19 of Sudhakaran's case is relevant in this context which reads as follows :
"It is also a settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of S.84 is the time when the offence is committed. We may notice here the observations made by this Court in the case of Ratan Lal v. State of Madhya Pradesh 1970 (3) SCC 533). In paragraph 2 of the aforesaid judgment, it is held as follows Crl.A.815/2020 62 : - "It is now well-settled that 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 appellant".
50. In Karim's case also the learned counsel for the appellant advanced an argument under S.84 IPC. A portion of paragraph 16 of the said judgment is relevant to be extracted which reads as follows.
".....................Unsoundness of mind has to be proved. Any and every aberration in mental health is insufficient to justify the claim for protection under S.84. The unsoundness of the mind must be proved. The unsoundness of the mind must be of such nature and intensity that it must render the indictee "incapable of knowing the nature of the act or that he is doing something which is either wrong or contrary to law. Precedents galore to suggest that the evidence of prior acts and subsequent acts as well as attendant acts will have to be taken into consideration to answer the Crl.A.815/2020 63 precise question whether at the time when the culpable Act was committed the indictee was by reason of unsoundness of mind incapable of knowing the nature of the act or that what he was doing is either wrong or contrary to law. The Mac Naughten Rule in the English Law has been imported into Indian Law by Section 84 of the IPC."
51. So bearing in mind the above settled positions of law the facts and circumstances in this case has to be analyzed. It has come out in evidence that immediately after the incident accused informed his act of committing murder of his wife and daughter to his close neighbour. Thereafter PW1-his nephew, PW2-the neighbour and PW-5 the Panchayat Member came to his house. To them also he confessed about the act committed by him. So the facts and circumstances would reveal that accused was quite aware of the act committed by him and there is nothing to Crl.A.815/2020 64 infer that by reason of unsoundness of mind he was incapable of knowing the nature of act or that he was not aware that he was doing something wrong or contrary to law, as contemplated under Sec.84 IPC. In fact Ext. D2 Case Record of the accused as issued from MOSC Medical College, where he was taken after the incident by the Police, records that though he reported Psychiatric illness for the past 15 years ; he was not on regular medicines. The narration of the incident by the accused to the Psychiatric Consultant as recorded by the Doctor is consistent with the extra judicial confession. He has spoken of the illness of his wife and daughter and the distress caused in looking after them and also the house hold affairs. He spoke of having asphyxiated his wife and daughter and having used the blunt end of a knife and a Crl.A.815/2020 65 spanner on them. He also spoke of he having felt guilty and trying to sleep and having failed, calling up his neighbour to inform him of the murder. The Doctor has also recorded that the accused has no history of psychotic substance abuse or psychotic symptoms. The accused was also depressed after the incident and had ideas of guilt which definitely points to he being aware of the wrong he committed. He was also apprehensive of how the Police will treat him if he is taken to jail which again is consistent with the inference that he knew the act he committed to be contrary to law.
52. It is relevant in this context to cite Elavarasan v State (AIR (2011) SC 2816) wherein in a murder trial while a plea of insanity was taken by the defence it has been held that appellant did not run away from the Crl.A.815/2020 66 place of occurrence or that he had attacked his wife mother and child without any reason did not establish that he was of unsound mind. And doctor also deposed in that case that he was not an insane person at the time of incident. In this case also the fact that accused remained in the house and did not make any attempt to flee away from the place of incident etc are not at all factors which could be relied on to infer about the unsoundness of mind.
53. On an evaluation of the facts, circumstances and the evidence adduced, we are of the considered view that the learned Addl.Sessions Judge has discussed the facts and circumstances and evidence adduced in the correct perspective and found the accused guilty. We find no reason whatsoever to interfere with the same.
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54. In the result, appeal is found to be devoid of any merit and hence dismissed, confirming the conviction and sentence passed against the accused/appellant.
Sd/-
K.VINOD CHANDRAN Judge Sd/ M.R.ANITHA Judge Mrcs/21.1.