Kerala High Court
Vijayamma vs State Of Kerala on 17 October, 2024
Crl.A. No.797 of 2018 :1
: 2024:KER:76518
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
TH
THURSDAY, THE 17
DAY OF OCTOBER 2024 / 25TH ASWINA,
1946
CRL.A NO. 797 OF 2018
AGAINST
THE
JUDGMENT
IN
SC
NO.452
OF
2016
DT.10.05.2018 OF ADDITIONAL SESSIONS COURT - V, KOTTAYAM
APPELLANT
/ACCUSED:
IJAYAMMA,AGED 56 YEARS, W/O.K.V.RAJU,
V
KALATHIL HOUSE, KAREEMANDOM BHAGOM,
AYMANAM VILLAGE,KOTTAYAM(FLAT NO.17A/103,
THANE DISTRICT, VIHAR WEST.P.O,
BOMBAY UNITECH'S WEST END,MAHARASHTRA.
BY ADV SRI.NANDAGOPAL S.KURUP
RESPONDENT/
COMPLAINANT:
TATE OF KERALA, REP.BY PUBLIC PROSECUTOR,
S
HIGH COURT OF KERALA,ERNAKULAM-682031.
SMT. NEEMA T.V, SENIOR PUBLIC PROSECUTOR
HIS
T CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
17.10.2024, THE COURT
ON
THE
SAME
DAY DELIVERED THE
FOLLOWING:
Crl.A. No.797 of 2018 :2
: 2024:KER:76518
'CR'
J U D G M E N T
Raja Vijayaraghavan. J.
The appellant is the accused in S.C.No.452 of 2016 on the file of the AdditionalSessionsJudge-V,Kottayam. Intheaforesaidcase,shewascharged under Section 302 of the IPC for committing nepoticide. By judgment dated 10.05.2018, she was found guilty by the learned Sessions Judge and was convicted and sentenced to undergo imprisonment for life and to pay afineof Rs.1 lakh under Section 302 of theIPCwithadefaultclause. Challengingthe judgement, conviction and sentence, this appealispreferredunderSection374 of the Code of Criminal Procedure. The summary of the prosecution's version,asreflectedintherecords, is as follows: 2. Kamalakshi (PW1) and Raghavan (PW2) are octogenarians with fourchildren.Theireldestdaughter,Vijayamma,istheaccusedinthiscase.The nextchildisadaughternamedShyla,followedbyShaji(PW4),thefatherofthe deceased, Rahul, a bright 12-year-old boy. Their youngest son by name is Crl.A. No.797 of 2018 :3 : 2024:KER:76518 Suresh.Vijayammaworkedasanurseforoverthreedecades.Sheismarriedto Rajuandhasthreechildren,whoareallemployed.Shaji,agraphicdesigner,was working inDubaiandhehadastrainedrelationshipwithBindu(PW4),hiswife. Till January 2012, their son, Rahul, was with ShajiinDubai.However,hisVISA gotcancelledandhehadtoreturnbacktoIndia.Rahulwasaccordinglyenrolled in a school at Kaipuzha and had been under the care of his grandparents. 3. On 2/9/2013, at approximately 5 p.m., Vijayamma arrived from Bombay, where she was then working, at her parental home. She approached herfather,Raghavan,andrequestedRs.15lakhs.Raghavaninformedherthathe has already set apart properties for his two daughters and suggested that she was free to sell her share and secure the amount. Vijayamma had bought chocolates from the shop of Geetha (PW11) to give it to Rahul. That evening, she stayed in the room where the grandmother usually slept with Rahul,while Raghavan, aswashishabit,sleptonacotinthesit-out.Thedooroftheroom, where Vijayamma and Rahul slept, was locked from the inside by Rahul. 4. At around 3 a.m., whenKamalakshiwokeuptoquenchherthirst, she found that the lights were switched on and heard Vijayamma speaking to someone. When asked what had happened, Vijayamma stated that she had Crl.A. No.797 of 2018 :4 : 2024:KER:76518 murdered Rahul and was reporting the incident to the police. According to the prosecution,Vijayammastrangledtheboywithherpyjamastringwhileheslept. Though no specific motive is alleged in the court charge, the attempt of the prosecution by letting in evidencewastosetupamotivethattheaccusedwas veryclosetoShajiandshewasagainsthimreunitingwithBindu.Herfatherhad also acceded to the request of Bindu to build a house near the family house whilerefusingherrequestforaloan.ThismadehervengefultowardsBinduand she felt that if Rahul is eliminated, the prospects of Shaji and Bindu reuniting would be a remote possibility. Registration of the Crime: 5. The sequence ofeventsisthatimmediatelyafterstranglingRahul, Vijayammadialledthepoliceandinformedthemabouttheincidentaswellasthe location. The call was received byPW16,theGDincharge,oftheEttumanoor Police Station. He immediately informed PW3, who was on patrol duty. PW3 reachedtheplaceandfoundthatPW2waslyingoutside.PW2tooktheofficerin andhefoundVijayammalyingonthebedinapronepositionbythesideofthe boy. He locked the bedroom and posted Manoj Kumar (PW14), a Civil Police Officer,onguardduty.Thechildaswellastheaccusedweretakeninthejeepto Crl.A. No.797 of 2018 :5 : 2024:KER:76518 the Medical College Hospital, Kottayam. The child was examined by theDoctor and he was declared dead. Vijayamma was also examined by the Doctor. The DutyMedicalOfficerintheCasualtyDepartmentoftheMedicalCollegeexamined Vijayamma and thereafter, she was produced before the Gandhi Nagar Police StationalongwithExt.P1report.Onthebasisofthesaidreport,Ext.P9FIRwas registeredon03.09.2013at6a.m.byPW19,theSubInspectorofPolice,Gandhi Nagar Police Station as Crime No. 811 of 2013 under Section 302 of the IPC. Investigation: 6. The investigation was taken overbyPW20,theCircleInspectorof Police, Kottayam East Police Station. He arrested the accused at 9 a.m. on 03.09.2013 and she was keptundersurveillance. Heconductedtheinqueston thebodyandpreparedExt.P2inquestreport.Traceevidencewascollectedfrom the hands and the neck of the deceased using cellophane tapes. The clothes wornbythedeceasedandthebedsheetusedtocoverthebodywereseized. He went to theplaceofoccurrenceandinspectedtheroomwherethemurderwas committed. A pair of rubber sandals andaPyjamawithnostringwereseized. The officersoughttheassistanceoftheScientificexperttocollectsamples. He produced the accused before the court alongwithExt.P11medicalexamination Crl.A. No.797 of 2018 :6 : 2024:KER:76518 report. The samples seized were forwarded to the Forensic Science Lab and reportswereobtained.Theaccusedwastakeninpolicecustodyfrom12.30p.m. on 09.09.2013 till 12.30 p.m on 11.09.2013 and she was interrogated. 7. Whileshewasinjudicialcustody,thehusbandoftheaccusedfiled an application before the learned Magistrate requesting that she be provided medicine for her mental ailments. However, no medicines were found in the personal belongings of the accused nor did the husband produce any records showingthattheaccusedwasundergoingtreatmentformentalailmentssoasto raise a defence of legal insanity. In thebailapplicationfiledbytheaccused,a contentionwastakenthattheaccusedwassufferingfrommentalailmentsfrom 1985 onwards. Under the said circumstances, Ext.P15 application was filed on 15.10.2013 seeking to obtain a report as regards the mental status of the accused from the Psychiatry Department of the Medical College Hospital, Kottayam. The said application was allowed by the learned Magistrate. The accused was monitored in the Psychiatry Department of the Medical College Hospital by PW15, the Associate Professor, PsychiatryDepartment,Government Medical CollegeHospital,Kottayam. TheHeadoftheDepartmentofPsychiatry, MCHKottayam,wasexaminedasDW1. InthereportsubmittedbyPW15,after Crl.A. No.797 of 2018 :7 : 2024:KER:76518 observingandevaluatingtheaccusedfrom28.10.2013to5.11.2013asimpatient and after interacting with her husband, Raju, it is stated that the accusedwas notsufferingfromanypsychoticdisorderandthatsheisfittostandtrial. After completing the investigation, the final report was laid before the Judicial Magistrate of the First Class, Ettumanoor. Committal: 8. Afterfollowingtheprocedure,thecasewascommittedtotheCourt of Session. The case was later made over to the Additional Sessions Judgefor trial and disposal. The evidence let in: 9. The prosecution examined PWs 1 to 20 to prove its case and throughthem,Exts.P1toP17wereexhibitedandmarked.MaterialObjectswere produced andidentifiedasMOs1to7series.Afterthecloseoftheprosecution evidence,theincriminatingmaterialswereputtotheaccusedunderSection313 of the Cr.P.C. She denied the circumstances brought out against her and maintained her innocence. Exts.D1 to D7(a) Case Diary contradictions were broughtoutfromtheevidenceoftheprosecutionwitnesses. Onfindingthatthe Crl.A. No.797 of 2018 :8 : 2024:KER:76518 accused could not beacquittedunderSection232oftheCr.P.C.,shewascalled upon to enter her defence. On her side, DWs 1 to 5 were examined. The findings of the Trial Court: 10. The learned Sessions Judge, after evaluating the entire evidence, came to the conclusion that the prosecution has successfully proved by examining PWs 1 and 2 that Rahul was sleeping with Vijayamma in a locked room before he was found dead. The evidence of PWs1to3,16,19,and20 wasalsoreliedupontoconcludethatVijayammaherselfhadinformedthepolice of thefactthatshehadputanendtothelifeofthechild. Theuncontroverted testimony of PWs 1 and 7 were also relied upon to hold that Vijayamma had confessed in their presence that it was at her hands that the deceased was murdered. MO1 string found beneath the cot on which the accused and the deceased were lying was foundtobetakenoutfromthePyjamaownedbythe accused and which was seized as part of MO6 series. Ext.P13reportfromthe ForensicScienceLabwasrelieduponasitstatedinunmistakabletermsthatthe fibers of MO1 string are identical to the fibers collected from the neck of the deceased and the palms of the accused. It was held that the above circumstances conclusively proved thatitwastheaccusedwhohadperpetrated Crl.A. No.797 of 2018 :9 : 2024:KER:76518 themurderofthechildandnoneelse. TheevidenceofPWs4and5andthatof the parents were relied upon to conclude that the prosecution successfully discharged to prove the mens rea on the part of the accusedtoputanendto thelifeofthechild. Thedefenceofinsanitytakenbytheaccusedwasheldnot sufficiently proven. Though the medicalrecordsandthetestimoniesofDWs3, 4,and5suggestedthattheaccusedhadsymptomsofdepression,thecourtheld thattherewerenomaterialstosuggestthattheaccusedwassufferingfromany seriousmentaldisorderthatshroudedherreasoningandthatshewascapableof understanding the consequence of her actions. Submissions on behalf of the appellant: 11. Sri. Nandagopal S. Kurup, the learned counsel appearing for the appellant, raised the following contentions: a) Thefailureoftheprosecutiontoproveanymotiveisfatal. Noneof thewitnesseshaveanycasethattheaccusedhadanygrudgeoranimosityeither towards the child or to any other person to commit the murder. In a case wherein, the plea of insanity has been taken and the victim is a near relative, motive assumes importance. Crl.A. No.797 of 2018 :1 0: 2024:KER:76518 b) It is argued that it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following thecrime. The fact that the accused herself intimated the police andmadenoattemptto hide herself or to destroy the evidence and thefactthatshedidnotmakeany attempttofleefromthescenearealltelltalesignstoconcludethattheaccused wasincapableofunderstandingthenatureofheractionsduetounsoundnessof mind. Tosubstantiatehiscontention,relianceisplacedonSurendraMishrav. State of Jharkhand1. c) The evidence let in by DWs 3 to 5 and Exts.D15, 17, and 19 medical records indicated thatVijayammahadsymptomsofdepressionandshe was prescribed medications which are typically used forpatientswithpsychotic disorders. d) The evidence let inbyPW3revealsthattheaccusedwastakento the Medical College hospital and was seen by a Doctor immediately after the incident. Thereafter, the report issued by the Doctor was producedalongwith Ext.P1 report before the Station House Officer of the Gandhi Nagar Police Station. However, the Medical certificate has not been produced by the 1 [(2011) 11 SCC 495] Crl.A. No.797 of 2018 :1 1: 2024:KER:76518 investigatingagencyalongwiththefinalreport.Thesuppressionoftheaforesaid document by the investigating agency is fatal. e) Relying on the principles of law laid down in Reji Thomas @ Vayalar v. State of Kerala2, it is argued that though a special burden iscast upon the accused to make out his defence of insanity if the materials placed beforethecourtintheformoforalanddocumentaryevidencesatisfiesthetest of a prudent man,theaccusedwillhavetobetreatedashavingdischargedhis burden. Submissions on behalf of State: 12. Smt. Neema K.V., the learned Senior Public Prosecutor submitted thattheassailantwastheaccusedandnoneotherhasbeenconvincinglyproved by the evidence of PWs 1 and2andExt.P17Forensicreport. Areadingofthe testimony of the witnesses in its entirety would reveal that though the motive maynotbeveryapparent,thefactremainsthattheactionsoftheaccusedwere drivenbyacalculateddesiretopreventherbrotherShajifromreunitingwithhis wife Bindu. IthascomeoutfromtheevidencethatVijayammadespisedBindu 2 [2023 KHC 556] Crl.A. No.797 of 2018 :1 2: 2024:KER:76518 forvariousreasons. ItisfurthersubmittedthatthebehaviourofVijayammawas rational before and after the incident and all thewitnessesstatedthatshehad behaved in a normal manner and engaged in normal conversations. She also pointed out that the appellant has not adduced any evidencetoshowthatshe was indeed suffering from any mental disorder of such a nature that she was incapable of knowing the nature of the act by reasonofunsoundnessofmind. RelyingontheprincipleslaiddowninRejiThomas(supra),itisurgedthatitis only unsoundness of mind which naturally impairs thecognitivefacultiesofthe mindcanbereckonedasagroundforexemptionfromcriminalresponsibility. It is further urged that the mere absence of a motive for the commission of a crime,howeveratrociousitmaybe,cannotintheabsenceofapleaandproofof legal insanity, bring the case within the exception under Section84oftheIPC. Much reliance is placed on the observations in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat3 and in Riyas v. State of Kerala4 to substantiate her contentions. Our Evaluation: 13. Was the death of Rahul, a case of homicide by strangulation? 3 [ AIR 1964 SC 1563] 4 [2024:KER:6052] Crl.A. No.797 of 2018 :1 3: 2024:KER:76518 Ext.P8 is the postmortem report prepared by PW18, the Assistant Police Surgeon in the Department of Forensic Medicine, Medical College Hospital, Kottayam. Henotedapressureabrasion29.5cmslightlyobliqueallaroundthe neck at the level of thyroid cartilage. He also noted 5 other abrasions on the body of the deceased. He opined that the cause of death was due to strangulation. Thisfindingisnotdisputedbythedefence. Hence,itcanbeheld without any manner of doubt that Rahul had died of strangulation. 14. Whether the prosecution has proved that it was the accusedwho had committed the murder of Rahul by strangulation? 14.1. Itwouldbeworthwhiletomentionatthisjuncturethattheaccused does not dispute that the death of Rahul may have happened at her hands. However, her primary contention is that, at the time of the commission of the abominable act, she was unable to understandthenatureofheractionsorthe consequences thereof due to unsoundness ofmind.Inordertoproperlyassess this defence, we are of the view that it is crucial to evaluate the testimony of certain prosecution witnesses to ascertain the circumstancesthatmayhaveled the accused to commit the crime. Moreover, a properappraisaloftheevidence will aid in determining whethertheclaimofunsoundnessofmindraisedbythe Crl.A. No.797 of 2018 :1 4: 2024:KER:76518 accused can be legally sustained. 14.2. PW1, the mother of the accused, wasagedabout85yearsatthe timeoftenderingevidence.Shestatedthatherdaughter,theaccused,hadbeen adutifulandresponsibleindividualfromaveryyoungage.Evenasasmallchild, she took care of her siblings in the absence of their parents and helped her mother with household chores. According to PW1, the accused was overly affectionatetowardshersiblings,andtheparentsbelievedthatherlife'smission was to ensure her younger siblings were well-educated and reached good positionsinlife.Afterherprimaryeducation,theaccusedwenttoDelhiwithher friends to pursue nursing studiesand,aftercompletinghercourse,remainedin Delhi, after securing employment at a hospital. She subsequently brought her youngersisterandbrotherstoDelhiandensuredthattheyalsocompletedtheir education.PW1statedthatitwasaftermuchreluctancethattheaccusedagreed tomarryRaju,arelative.Theeffortsoftheaccusedborefruitandherbrothers, after completing their education, secured employment in the Middle East. 14.3. In the meanwhile, the accused gave birth to three children. PW1 emphasised that Vijayamma was veryparticularthatShajimarryasuitablegirl. Bindu was working as a Staff Nurse at the Medical College Hospital when the Crl.A. No.797 of 2018 :1 5: 2024:KER:76518 proposalforhermarriagetoShajiwasinitiated.ThemarriagebetweenShajiand Bindu was solemnised on 14th November 2000, and a week later, Shaji went abroad. Subsequently, Bindu also joined him. On 8th March 2002, their child, Rahul, was born while Shaji was still abroad. Later,whileShajiandBinduwere abroad, Bindu allegedly attempted suicide. Immediately after this incident, she returnedtohernativeplace.AfterBindu'sreturn,VijayammajoinedShajiabroad and stayed together until 2011. Atthattime,Shaji'svisawascancelled,andhe had to return to India. PW1 asserted that Vijayamma had no mental health issuesandwasnotonanymedication.ShedescribedVijayammaasveryloving, particularly towards Shaji and Rahul. 14.4. Referring to the incident, PW1 testified that on 2nd September 2013, at about 5:00 p.m., Vijayammaarrivedatherhouseinanauto-rickshaw. Rahulwasplayingoutsidewhenshecame.Vijayammagavehimachocolateand behaved lovingly towards the child. Later in the evening, PW1's husband, Raghavan, went to sleep in the sit-out. Vijayamma asked her father for some money to cover her son's educational expenses. Her father responded that he hadnomoneytospareandtoldherthatshewasfreetodisposeoftheproperty set apart to his daughters which included the accused. The child, in the Crl.A. No.797 of 2018 :1 6: 2024:KER:76518 meanwhile, had expressed his desire to sleep with Vijayamma. 14.5. PW1statedthatshewatchedTVwithRahulwhileVijayammawent to sleep in the eastern room. Throughout the evening,Vijayammawouldcome out intermittently, asking Rahul about the TV programs they were watching. However, Rahul told her that PW1 may not understand English and continued watching the program. Eventually, Rahul joined Vijayamma in the bedroom where PW1 usually slept with him, and they locked the door from the inside. 14.6. At around 3:00 a.m., PW1 wokeuptofindthelightsinthedining room and bedroom switched on and overheard Vijayammatalkingtosomeone. When PW1 inquired, Vijayamma said she was going to the Ettumanoor Court. PW1, finding this unusual, asked why shewasmakingsuchoddstatements,to which Vijayamma replied that she was not crazyandthatshehadkilledRahul. VijayammarepeatedthatshehadkilledRahul.Shocked,PW1rushedtocheckon Rahulandfoundhimlyingface-upwithhiseyesopen.Sheimmediatelyinformed PW2,whohadbeensleepinginthesit-out.ThoughPW1wascertainthatRahul was no longer alive, Raghavan insisted on taking the child to the hospital and went to call his nephew, who lived nearby. Shethenspokeaboutthearrivalof the police and the things that had transpired thereafter. Crl.A. No.797 of 2018 :1 7: 2024:KER:76518 14.7. PW2, Raghavan, deposed that he became aware of the incident only when PW1cametothesit-outandinformedhimoftheincident.Hefound Vijayammalyingonthebed,facedownwithherheadcoveredbyasheet.PW2 also stated that it was Vijayamma who had called the policetoinformthemof the crime. He mentioned that he did not know what had led Vijayamma to commitsuchaheinousact.PW2furthertestifiedthatVijayammahadaskedhim foraloanofRs.15lakhs,butherefusedandtoldhershecouldselltheproperty allotted to her. He also mentioned that Bindu had soughthispermissiontolive near his house and he had advised her to build a separate residence on the property allocated to them, situated near the family property. He added that Vijayamma was aware of this offer made by him to Bindu. 14.8. PW3 is the Additional Sub Inspector of Police Ettumanoor Police Station. He stated that on 2.9.2013, he was on emergency duty. On being informedabouttheincidentbytheGDchargeatabout3.40pm,hereachedthe residenceofPW1and2andenquiredaboutVijayamma,whohadmadethecall to the police station.PW2wassittingoutsideandhetooktheofficerinside.He foundtheboylyingfaceuponthebed.Theaccusedwasalsolyingfacedownon the same bed. When the officercalledher,shestoodupandinformedthatshe Crl.A. No.797 of 2018 :1 8: 2024:KER:76518 had called the police and that she had murdered the child. By the time PW3 arrived, several neighbours had gathered at the house. The boy's body was takentothehospital,andwiththeassistanceofPW7Preethi,PW3escortedthe accusedtoboardthepolicejeep.HethenlockedtheroomandpostedPW14,a Civil Police Officer,onguarddutyatthescene.Theaccusedwassubjectedtoa medicalexaminationatthecasualtydepartmentoftheMedicalCollegeHospital, Kottayam, and later produced at the Gandhinagar police station. During cross-examination, PW3 stated that he had the accused undergo a medical examinationtoassessherphysicalandmentalconditionbeforeproducingherat the Gandhinagar police station. The defence has a contention that though an assessment was made by the Casualty Medical Officer and the said reportwas submittedalongwithExt.P1reportbeforethePoliceStation,nosuchreporthas been placed along with the final report. This issue can be dealt withatalater stage. 14.9. PW4 is the mother of the Child. She would narrate the entire sequence of events from her marriage to the minor disputes between her and herhusbandleadingtotheirstayingseparateaftertheincidentwhichtookplace in2009.ShestatedthatoncompletionoftheIVstandard,thechildwasbrought Crl.A. No.797 of 2018 :1 9: 2024:KER:76518 toIndiaandadmissionwassecuredinaSchoolneartotheparentalhomeofthe father. She stated that one month prior to the incident she hadoccasiontogo andmeettheChild.ShealsostatedthatPW2offeredtopermithertoconstruct a homeneartohisproperty.Shestatedthattheaccusedwasoverlypossessive towards her husband and she did not like the offer made by herfather-in-law. She also stated that Vijayamma was not quite happywithherforinsistingthat PW4 be granted herrightsinthefamily.ShestatedthatVijayammafearedthat she would miss out on financial help from Shaji and her parents if Shaji and Binduweretolivetogether.Whenhercasediarystatementswereputtoherand she was asked whether such a statement was made, she stated thatshedoes notremember.ThoseportionsweremarkedasExhibitD1toD4. Weareofthe view that nothing turns out of those statements. 14.10. PW5 is Shaji, the father of the deceased Rahul. After speakingaboutthemarriagebetweenhimandBindu,hesaidthatthechildwas with him in Dubai till 12 January 2012. His VISA got cancelled and he had to return back to India. Rahul Joined a School at Kaipuzha. He stated that the accusedhadworkedasanurseintheAllIndiaInstituteofMedicalSciencesand in Saudi Arabia. She had also worked in Mumbai. She had stayed with PW1 in Crl.A. No.797 of 2018 :2 0: 2024:KER:76518 Dubai till 2011. Though initially he felt that the relationship between his sister and Bindu was cordial, in the year 2011, he realised that Vijayamma nursed some grievances against his wife. Though he had some issues with hiswife,it was not so serious. Vijayamma had told him that she felt bad as Shaji was stayingalone.HealsofeltthatVijayammadidnotliketheprospectsofhimand hiswifestayingtogether.Accordingtohim,hefeltthatVijayammawashavinga professionaljealousytowardshiswife,andthathadpromptedhertocommitthe grievous crime. Vijayamma had three children, out of which one was aDoctor, theotheranEngineerandthethirdwasworkinginMumbaiaftercompletinghis Degree. In cross-examination, he stated that he hadsettledallhisissueswith his wife and they were staying together. Exts. D5 to D7 contradictions were brought out while cross-examining PW5. When a specific question was put to Shaji as to whether Vijayamma was suffering from any mental ailments, he denied the same. 14.11. PW7isaneighbourandarelativeofPW2. Shewaspresent when the police had arrived at the spot. It was with her assistance that the accused was taken from the sceneofoccurrence.Shewasinitiallytakentothe hospitalandthentothepolicestation.PW7overheardVijayammastatingtothe Crl.A. No.797 of 2018 :2 1: 2024:KER:76518 police that it was she who had killed the boy. 14.12. PW10 is the autorickshaw driver, who took the accused to thehouseandPW11isashopowner,fromwhoseshopchocolatewaspurchased by the accused. PW13 is the Scientific Assistant who collected cellophane pressings from the palms of the accused andMO1 pyjamastring.PW16isthe Associate Professor, Psychiatry Department, Government Medical College, Kottayam. He had examined the accused as per the order of the Court and issued Ext.P6 report stating that the accused was not suffering from any psychotic disorder as on the date of report and that she was fit to stand trial. PW18 is the Police Surgeon who conducted autopsy and issued Ext.P8 Postmortem Certificate. PW19 is the officer who recorded the FIRandPW20is the officer who conducted the investigation. 14.13. On an evaluation of the evidence of the prosecution witnesses,itcanverywellbeseenthatthefactthatRahulhaddiedatthehands oftheaccusedwhiletheyweresleepinginthesameroomhasbeensuccessfully proven by the prosecution. PWs1 and 7 had stated that the accused had confessed in their presence that it was she who had committed the murder. Ext.P13 report reveals that the fibre of MO1 string is identical to the fibres Crl.A. No.797 of 2018 :2 2: 2024:KER:76518 collectedfromtheneckofthedeceasedandfromthepalmsoftheaccused.We areintheabovecircumstancesconvincedthatnoneofthecontentionsadvanced bytheappellantwillcreateanydoubtinthecaseoftheprosecutionthatitwas the accused who had committed the murder of the deceased. 15. Whether the failure oftheprosecutiontoascribeadefinitemotive is fatal? 15.1 The cross-examination of PWs1,2,4and5wouldrevealthatthe attempt of the defence was to bring out that the accused did not have any motive to take out the life of her nephew. According to them, it can only be deducedthatonlyapersonwhoissufferingfromunsoundnessofmindwillcarry outsuchagruesomecrime.ItwouldbeprofitabletobearinmindthattheApex Court in Bapu Alias Gujraj Singh v. State of Rajasthan5 byrelyingonthe principles laid down in SheralliWaliMohammedv.StateofMaharashtra6 had held that a mere absence of motive for a crime, howeveratrociousitmay be, cannot in the absence of plea and proof of legal insanity, bring the case within Section 84 of the IPC. 5 (2007) 8 SCC 66 6 (1973) 4 SCC 79 Crl.A. No.797 of 2018 :2 3: 2024:KER:76518 15.2. The learnedSessionsJudge,afterappreciatingtheentireevidence and the demeanor of the witnesses and the accused, has observed that the accused,whoresidesinBombay,cametoherparentalhomeforthepurposeof securing her father's assent to sell some shares and to amass a sum of Rs.15 lakhsfortheneedsofherchildren.TheevidenceofPWs1and2revealsthatthe accused spoke with her father and he declined giving his own reasons. He suggestedthathehadnoobjectiontotheappellantsellingthepropertythathad been set apart for her share. This conversation had occurred prior to the members of the household going to bed withthechild.Itcanbededucedthat theaccusedcouldnothavebeenverymuchpleasedwithherfatherforrefusing herrequest.IthascomeoutfromtheevidenceofPWs1,2,4,and5thatwhen his daughter-in-law had requested to stay near the school where her son was pursuinghiseducation,PW2suggestedthatshecouldconstructahousenearhis propertyandlivethere.Thewitnessesstatedthattheaccusedwasawareofthis assurance given by PW2 to live in a house to be builtonhisproperty,closeto the family home. It has come out from the evidence of PW5 that the accused had professional jealousy towards Bindu and that she had on more than one occasionsuggestedtohimtoseverthetie.WhileBinduwasnotaround,shehad Crl.A. No.797 of 2018 :2 4: 2024:KER:76518 even stayed abroad with PW5 and the child overseas. It isthusquiteprobable that on being refused financial assistance by PW2, and on being aware of the willingness of her father to provide property tohisdaughter-in-law,withwhom theaccusedhadastrainedrelationship,shefeltbetrayed.Thefeelingofbetrayal would have weighed down on her particularly when PW4haddonenothingfor the family whereas the accused being a responsible daughter had spent her wholelifeforthewelfareofherfamilybytakingcareofhersiblingssothatthey reach a good position in life. As rightly held by the learned Sessions Judge, though such an allegation has not been raised in the charge suchfeelingsand responses can be inferred from the circumstances, as they are in tune with rational human behaviour. Upon analysing these events, it becomes apparent thatbeforegoingtobed,theaccusedwaslikelyexperiencingconsiderablestress duetotheseconflictingemotions.Thesecircumstancescouldhavecontributedto forming the alleged motive in the accused's mind--that eliminating the child might prevent its mother from tryingtoresidenearthefamilypropertyorfrom reunitingwithherhusband,orthattheaccusedcouldcontinuereceivingfinancial assistance from her brother and father without interferencefromthechildwho was having a pride of place in the minds of the aged grandparents. Crl.A. No.797 of 2018 :2 5: 2024:KER:76518 16. Whetherthedefenceoflegalinsanityraisedbytheaccusedcanbe accepted to relieve her from criminal liability? 16.1 Now we come to the defence of insanity pleaded by the accused beforeus.AsheldinSudhakaranv.StateofKerala7,thedefenceofinsanity has been well-known in the English legal system for many centuries. In the earliertimes,itwasusuallyadvancedasajustificationforseekingpardon.Over a period of time, it was used as a complete defence to criminal liability in offencesinvolvingmensrea.Itisalsoacceptedthatinsanityinmedicaltermsis distinguishablefromlegalinsanity.Section84ofthePenalCode,1860recognises the defence of insanity. It says that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove that by reason of unsoundness of mind, she was incapable of knowing the nature of the act committed by her. In the alternatecase,shewouldhavetoprovethatshewas incapable of knowing that he was doing what is either wrong or contrary to law. 7 (2010) 10 SCC 582 Crl.A. No.797 of 2018 :2 6: 2024:KER:76518 16.2. The accused relies on the evidence of PW15 and DWs 1 to 5, to substantiate her contention that she is suffering from unsoundness of mind. 16.3 Beforewedealwiththeevidenceofthemedicalwitnessesandthe findings arrived at by the Trial Court, it would be appropriate to notice the relevantaspectsofthelawofthepleaofinsanity.TheApexCourtinDahyabhai Chhaganbhai Thakkar v. State of Gujarat8, the much cited judgement on the subject, after referring to Section 299 and Section 84 of theIndian Penal Code, 1860, Sections 4, 101, and 105 of the Indian Evidence Act, had lucidly elucidated the principles by holding as under: 5..................It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, theburdenliesontheprosecutiontoprovetheguiltofthe accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accusedcauseddeathwiththerequisiteintentiondescribedinSection 299 of theIndianPenalCode.Thisgeneralburdennevershiftsandit alwaysrestsontheprosecution.But,asSection84oftheIndianPenal Codeprovidesthatnothingisanoffenceiftheaccusedatthetimeof doing that act, by reason of unsoundness of mind was incapable of 8 1964 SCC OnLine SC 20 Crl.A. No.797 of 2018 :2 7: 2024:KER:76518 knowingthenatureofhisactorwhathewasdoingwaseitherwrong or contrary to law.Thisbeinganexception,underSection105ofthe Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it,itbelievesthatsaidcircumstancesexistedortheirexistence wassoprobablethataprudentmanought,underthecircumstancesof theparticularcase,toactuponthesuppositionthattheydidexist.To put it in other words,theaccusedwillhavetorebutthepresumption that such circumstances did not exist, by placing material beforethe court sufficient to make it consider the existence of the said circumstances so probable that aprudentmanwouldactuponthem. 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,admissionsoreventheprosecutionevidence, satisfies the test of "prudent man", the accused will have discharged hisburden.Theevidencesoplacedmaynotbesufficienttodischarge the burden under Section 105oftheEvidenceAct,butitmayraisea reasonabledoubtinthemindofajudgeasregardsoneorotherofthe necessaryingredientsoftheoffenceitself.Itmay,forinstance,raisea reasonable doubt in the mind of the judge whether theaccusedhad the requisite intention laid down in Section 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 Crl.A. No.797 of 2018 :2 8: 2024:KER:76518 conclusivelytheguiltoftheaccused.Thereisnoconflictbetweenthe general burden, which is always on the prosecution andwhichnever shifts, and the special burden that rests on theaccusedtomakeout his defence of insanity. xxxxxxx xxxx xxxxx 7.Thedoctrineofburdenofproofinthecontextofthepleaof insanity may be stated in the following propositions : (1) The prosecutionmustprovebeyondreasonabledoubtthattheaccusedhad committedtheoffencewiththerequisitemensrea,andtheburdenof provingthatalwaysrestsontheprosecutionfromthebeginningtothe endofthetrial.(2)Thereisarebuttablepresumptionthattheaccused wasnotinsane,whenhecommittedthecrime,inthesenselaiddown by Section84oftheIndianPenalCode:theaccusedmayrebutitby placingbeforethecourtalltherelevantevidenceoral,documentaryor circumstantial,buttheburdenofproofuponhimisnohigherthanthat restsuponapartytocivilproceedings.(3)Eveniftheaccusedwasnot able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, includingmensreaoftheaccusedandinthatcasethecourt wouldbeentitledtoacquittheaccusedonthegroundthatthegeneral burden of proof resting on the prosecution was not discharged. Crl.A. No.797 of 2018 :2 9: 2024:KER:76518 16.4. InPrakashNayiv.StateofGoa9,theApexCourt,afterreferring to the past precedents, had laid down the principles as under: 3. ........................Section 84 IPC recognises only an act whichcouldnotbetermedasanoffence.Itstartswiththewords "nothing is an offence". The saidwordsareaclearindicationof the intendment behindthislaudableprovision.Suchanactshall emanate from an unsound mind. Therefore,theexistenceofan unsound mind is a sine qua non to the applicability of the provision.Amereunsoundmindpersewouldnotsuffice,andit should be to the extent of not knowing the nature of the act. Suchapersonisincapableofknowingthenatureofthesaidact. Similarly, he does not stand to reason as to whether an act committed is eitherwrongorcontrarytolaw.Needlesstostate, the element of incapacityemergingfromanunsoundmindshall be present at the time of commission. 4. The provision speaks about the act of a person of unsound mind. It is a very broad provision relatabletotheincapacity,as aforesaid. The test is from the point of viewofaprudentman. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is oneoflegalinsanitytoattractthemandate of Section 84IPC. There must be an inability of a person in 9 [(2023) 5 SCC 673] Crl.A. No.797 of 2018 :3 0: 2024:KER:76518 knowing the nature of the act or to understand it to be either wrong or contrary to the law. 5. The aforesaid provision is founded on the maxim, actus non reum facit nisi mens sit rea i.e. an actdoesnotconstituteguilt unless done with aguiltyintention.Itisafundamentalprinciple of criminal law that there has to be an element ofmensreain forming guilt with intention. Apersonofanunsoundmind,who is incapable of knowing the consequence of an act, does not knowthatsuchanactisrightorwrong.Hemaynotevenknow that he has committed that act. When such is the position, he cannotbemadetosufferpunishment.Thisactcannotbetermed as amentalrebellionconstitutingadeviantbehaviourleadingto a crime against society. He stands as a victim in need of help, and therefore, cannot be charged and tried for an offence. His position is that of a child not knowing either his action or the consequence of it. 16.5. TheprincipleslaiddownbytheApexCourtcanbeencapsulatedas under: It is for the prosecution to prove beyond a reasonable doubt that the accused committed the crime with the requisite mens rea and this burden remains with the prosecution from the start to the end of the Crl.A. No.797 of 2018 :3 1: 2024:KER:76518 trial.Inacaseofhomicide,itisfortheprosecutiontoestablishbeyond reasonable doubt that the accused hadtheintentiontocausedeathas defined under Section 299 of the Indian Penal Code (IPC). The law would assume that the accused is sane at the time of committing the offence unless proven otherwise. It would be open to the accused to place relevant evidence-oral,documentaryorcircumstantial-torebut this presumption before court. The burden ofproofontheaccusedto establish the plea of insanity would be lower than that of the prosecution. The accused is requiredtoprovethathewasnon-compos mentis on the balance of probabilities and not beyond a reasonable doubt.Section84oftheIPCprovidesforanexceptionandtheaccused would be exempted from criminal liability if, at the time of committing theoffence,he/shewassufferingfromunsoundnessofmindtosuchan extentthathe/shewasincapableofunderstandingthenatureofhis/her act, or that what he/she was doing was wrong or contrary to law. Section 105 of the Indian Evidence Act would come into play which providesthattheburdenofprovingthisexceptionlieswiththeaccused. The court presumes the absence of such circumstances unless the Crl.A. No.797 of 2018 :3 2: 2024:KER:76518 accused provides sufficient evidencetocreateareasonabledoubt.Ina case where the plea of insanity is raised, the accused is required to satisfythecourt,onthebalanceofprobabilities,thatatthetimeofthe act,he/shewasofunsoundmind.Thiscanbedoneevenbypresenting evidence such as the conduct of the accused before, during, andafter the offence. If the court, based on the evidence letinbytheaccused, entertains a reasonable doubt about the intention of the accused to commit the act due to unsoundnessofmind,theaccusedisentitledto anacquittal.Thoughtheprosecutionhasthegeneralburdenofproving the offence, the accused can rebut the presumption of sanity by providing evidence of unsoundness of mind or by raising a reasonable doubtabouthis/hermentalstateatthetimeofthecrime.Legalinsanity is to be distinguished from medical insanity. The burdentoprovelegal insanityissquarelyontheaccused. Theconductoftheaccusedbefore, during,andafterthecommissionoftheactiscrucialindeterminingthe mentalconditionoftheaccused.Anyevidenceshowingthattheaccused hasputinanefforttodeliberate,prepareandconcealthecommissionof the crime or thereafter will indicate that the accused was eminently Crl.A. No.797 of 2018 :3 3: 2024:KER:76518 aware of his/her actions andthiswouldnegatethedefenceofinsanity. It is for the accused to demonstrate that he was suffering from unsoundness of mind to the extent that he/she was incapable of understandingthenatureofhis/heractions. Theburdencastuponthe accused to substantiate the same is not as stringent as that on the prosecution and it would be on a preponderance of probabilities. Though Section 84 of the IPC provides for an exception, it would not automatically apply in all cases of mental illness. There should be evidence of the mentalstateoftheaccusedatthetimeoftheoffence, basedonhis/herbehaviourbefore,during,andafterthecommissionof the act. It should be borne in mind that it is notmedicalinsanitybut legalinsanitythatmustbeproven.Itwouldnotbeenoughtoshowthat the accused wassufferingfromsomementalillnesstoclaimexemption fromliability. Ontheotherhand,thematerialsshouldsuggestthatthe accused was incapable of knowing the nature of his/her act or that it was wrong orcontrarytolaw.Ifahistoryofinsanityisrevealedduring the investigation, it is the responsibility of the investigating officer to subjecttheaccusedtoamedicalexaminationandprovidethatevidence Crl.A. No.797 of 2018 :3 4: 2024:KER:76518 tothecourt.Failuretodosowouldweakenthecaseoftheprosecution innosmallmeasure.Iftheconductoftheaccusedrevealsanawareness of guilt, it would undermine the defence of insanity. If the materials presented by the accused raises areasonabledoubtinthemindofthe court about his/hermensrea,theaccusedisentitledtoanacquittalon the ground that the prosecution has failed to discharge its burden of proof. 16.6. With the above principles in mind, we shall evaluate the medical evidence. While tendering evidence, PW20, the investigatingofficer,statedthat in the bail application dated 9.10.2013 submitted by the accused, acontention was raised that she was having mental issues. Based on the said information, Ext.P15applicationwasfiledbeforethelearnedMagistratetoassessthemental conditionoftheaccused. Thecourtallowedtheapplication. PW15(Dr.Saji)the Associate Professor of Psychiatry, Government Medical College Hospital, Kottayam evaluated the appellantfrom28.10.2013to5.11.2013asaninpatient intheDepartmentofPsychiatry,MCH,Kottayam. TheHeadoftheDepartmentis Dr. V. Satheesh (DW1). Dr. Saji collected history from the appellant and her husbandRaju. HenotedthattheappellanthadworkedforthreeyearsatAIIMS, Crl.A. No.797 of 2018 :3 5: 2024:KER:76518 Delhi when shewas24yearsofageandshehadreportedhistoryofPsychiatry Consultation for features suggestive of depressive disorder. She was also prescribedimipramine,anantidepressantmedication.Attheageof26years,she went abroad and worked in Saudi Arabia for a period of five years. Later, she workedinDubaifrom2008to2012.Whenshehadreached27yearsofage,she got married. She had Psychiatric consultations in Kerala and in Mumbai in the years2012and2013.HenotedthatherhistorysuggestedSchizoidandParanoid Personalitytraitsandanimpulsivenature.TheDoctor'sassessmentwasthatthe appellant was cooperative and communicative, and was in touch with the surroundings and reality. Her talk was found to be normal with no abnormal emotional changes. Her thought process contains delusions, and she has preoccupyinghomicidalthoughts.TheDoctorwasnotabletoelicitanypsychotic or depressive features.Shealsodidnothaveanyhallucinatoryexperiencesand nocognitiveimpairmentwasnoticed.ThePsychiatristconductedapsychological evaluation for personality assessment and psychometry was performedandthe findingsweresimilartothefindingsinexaminationofmentalstatus.Thedoctor found an impression that the appellant was not suffering from any psychotic disorder as of now. He noted that the history was also suggestive ofrecurrent Crl.A. No.797 of 2018 :3 6: 2024:KER:76518 depressive disorder with poor treatment adherence. He stated that though the appellantdidnotqualifyforadiagnosisofpsychiatricdisorder,criteria-wise,she needsandmaybenefitfromregularpsychiatricfollow-ups.Incross-examination, suggestive questions wereposedregardingpatientswithseveredepressionand the likelihood of their experiencing delusions and hallucinations. He also mentioned that on his examination, the appellant was found to havehomicidal thoughts. He explained that preoccupying homicidal thoughts are thoughts repeatedlycomingtoone'smindandoccupyingone'sthoughts.Accordingtothe Doctor, the said fact is distressing because the patient knows that it is not a normalact.However,indelusion,suchdoubtinthepatientwillnotbethere,as the patient is sure that what she is thinking is right. 17. DW1isDr.V.Satheesh,theHeadoftheDepartmentofPsychiatry, Govt.MedicalCollegeHospital,Kottayam.HewassummonedtoproducetheO.P. Ticket and other details relating to the appellant. He stated that the records reveal that the appellant was prescribed Sodium Valproate, Quetiapine, and Risperidone, which are mood stabilisers, and those drugs are given to patients with Bipolar Disorder as well. DW1 had not seen the patient. 17.1. DW2 is the Superintendent of the District Jail, Kottayam. He Crl.A. No.797 of 2018 :3 7: 2024:KER:76518 produced before the court the records showing the treatment imparted to the appellant.Accordingtohim,on08.09.2013,thepatientwasprescribedthedrug Depsonil by the Doctors of the District Hospital, Kottayam. 17.2. DW3 is the Chief Medical Superintendent at Western Railway Hospital. He stated that from 2009 to February 2018, he had been workingas Medical Director intheJagjivanRamRailwayHospital,MumbaiCentral.Ext.D15 document was shown to him. The Doctor admitted that, though the signature seen in the document belonged to him, the document was notwrittenbyhim. Hestatedthatnormallyentriesweremadebystudentsoftheinstitution.Asper the O.P.Ticket, the patient was suffering from complaints of sadness in mood, suicidal ideation, and a past history of depression from 1985. The patient had also reported that she had been taking medicinesirregularly.Hestatedthaton inquiry, he found that further treatment records were not available in the hospital. While cross-examining the witness, it was brought out by the prosecutionthattheaddressofthepatientwasnotmentionedintheOPDCard, and there were also over-writings and scoring of certain words. 17.3. DW4 is the Consultant Psychiatrist of Swami Vivekanand Medical Mission Sanjivani Hospital, Maharashtra. He admitted his signature in Ext.D17 Crl.A. No.797 of 2018 :3 8: 2024:KER:76518 OPD card. 17.4. DW5, is a Professor of Psychiatry and working at the Jubilee MissionMedicalCollegeandResearchInstitute,Thrissur.Ext.D18isanoutpatient prescription issued from JubileeMissionHospitaltotheaccused,andExt.D19is thecasesheet. Heproducedtheinformationcollectedfromthepatientandher husband during consultations in 2017 and 2018. DW5 deposed that Ext.D19 shows that the accused and her husband informed the Doctor that he had treated her while he was working atAIIMSandthattheyhadconsultedhimat hisresidenceinKuttanalloorin1997-1998.Herecalledthistobetruebutstated that he did not have any records from that time. He was unable to make a definitive diagnosisbutsuspectedparanoidpsychosis,depressionwithpsychotic features, or paranoid schizophrenia. He stated that a conclusive diagnosis of mental disorder typically requires observing the patient over a period ranging from10-30days,andinthecaseoftheaccused,nosuchextendedobservation had been conducted. The accused first visited him on 23.12.2017, and he had advisedareviewaftertwomonths,butshereturnedonlyon09.03.2018.During cross-examination, it was suggested by the prosecution that the accused approached him after several years of the murder of the child to create a Crl.A. No.797 of 2018 :3 9: 2024:KER:76518 defence of insanity. 17.5. An evaluation of the evidence of the medical witnesses would reveal that the appellant was not suffering from anymentalailmentsofsucha naturethatshewasnotintouchwiththesurroundingsandreality.Hertalkwas found to be normal with no abnormal emotional changes. PW15, who had evaluated the appellant for an extended period after getting input from her as wellasherhusbandhadstatedinunmistakabletermsthattheappellantwasnot sufferingfromanypsychoticordepressivefeatures.Therewasalsonohistoryof any hallucinatory experiences and the doctor has also not noted any cognitive impairment. PW15 had conducted a psychological evaluation for personality assessmentandpsychometrywasperformedandthefindingsweresimilartothe findings in the examination of mental status. The doctor formed animpression that the appellant was not suffering from any psychoticdisorderasofnow.He noted that thehistorywasalsosuggestiveofrecurrentdepressivedisorderwith poor treatment adherence. DWs 1 to 5 have also not stated thattheappellant was suffering from a serious form ofmentaldisorderwhichimpairedherability tounderstandtheconsequenceofheractionsortodistinguishrightfromwrong. DW3hadonlystatedthattherecordrevealsthattheappellantdisplayedsadness Crl.A. No.797 of 2018 :4 0: 2024:KER:76518 in mood, suicidal ideation, and past history of depression. DW5 had examined the patient years after the incident. However, he was not able to come to a definitediagnosis.ItcannotbeforgottenthattheappellanthadbeenaNursefor over 30 years and if there were any treatment records, she could have easily produced it. We are of the view that recurrent depressive disorder with poor treatment adherence, will not qualify the appellant to enable her to meet the legal threshold for insanity. There is no material to show that the mental depression thattheappellantwassufferinghadsignificantlyimpairedherability to understand the nature of their actions or distinguish right from wrong. 17.6. As held in Dahyabhai (supra), there is a rebuttable presumption that the appellant wasnotinsane,whenshecommittedthecrime,inthesense laid down by Section 84ofthePenalCode.Itisfortheappellanttorebutitby placing before the court all the relevant evidence -- oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. The evidenceletinbytheappellantwillonly go to show that she was suffering fromdepressionduringphasesandthatshe hadundergonetreatmentforthesame.Shehadbeenlivingthelifeofanormal lady and was employed all through her life. None of the family members have Crl.A. No.797 of 2018 :4 1: 2024:KER:76518 stated that they have noticed anything abnormal about the appellant. Though the appellant has three grownup children and a husband, none of them have mounted the box to state that they are aware that theappellantwassuffering fromunsoundnessofmindandthattheyhadexperiencedanysuchbehaviourat any point of time. No evidence has been letin,eitheroralordocumentary,to substantiatethattheappellantwassufferingfromanyunsoundnessofmindand thatshewaseitherincapableofknowingthenatureoftheactcommittedbyher orthatshewasincapableofknowingthatwhatshewasdoingwaseitherwrong or contrary to law. The appellant hasnotbeenabletoevenraiseanydoubtas regardsoneormoreoftheingredientsoftheoffenceincludingmensreaofthe appellant. On the dayoftheincident,theappellanthadtravelledfromMumbai, interacted normally with her parents and others, and displayed no signs of mentalorcognitiveimpairment.Itisasettledpropositionoflawthatthecrucial point of time for ascertaining the existence of circumstances bringing the case withinthepurviewofSection84isthetimewhentheoffencewascommittedas held inRatan Lal v. State of M.P.10 10 [(1970) 3 SCC 533 Crl.A. No.797 of 2018 :4 2: 2024:KER:76518 Our Conclusion: 18. We are of the opinion that the appellant though suffered from a mental ailment like depression and schizoid features even before and after the incident but from that, one cannot infer on a balance of preponderance of probabilities that theappellantatthetimeofthecommissionoftheoffencedid not know the nature of her act; that it waseitherwrongorcontrarytolaw.In our opinion, the plea of the appellant does not come within the exception contemplated under Section 84 of the Indian Penal Code. 19. In view of the discussion above, the finding of the Trial Court convictingtheappellantoftheoffenceofmurderpunishableunderSection302is not liable to be interfered with. This appeal is dismissed, confirming the judgment rendered by the Trial Court. Sd/- RAJA VIJAYARAGHAVAN V, JUDGE d/- S G. GIRISH, PS/30/9/24 JUDGE