Kerala High Court
Karim vs State Of Kerala on 12 April, 2012
Author: R. Basant
Bench: R.Basant, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934
CRL.A.No. 1229 of 2008 ( )
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SC.414/2006 of SPL. COURT (NDPS ACT CASES), THODUPUZHA
CP.5/2006 of J.M.F.C.-I(FOREST OFFENCES),TPA
APPELLANT:
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KARIM,C.NO.2444,
CENTRAL PRISON, THIRUVANANTHAPURAM.
BY ADV. SHEELA DEVI .I [STATE BRIEF]
RESPONDENT(S):
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STATE OF KERALA,REP.BY PUBLIC PROSECUTOR
PUBLIC PROSECUTOR.
BY PUBLIC PROSECUTOR SRI. ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-04-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R. BASANT & K. VINOD CHANDRAN, JJ
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Crl.Appeal No.1229 of 2008
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Dated this the 12th day of April, 2012
J U D G M E N T
R. Basant, J i. Did the Court below err in accepting and acting upon the oral evidence of PW2 and 3.
ii. Is the appellant/accused entitled to succeed in his plea for protection of the general exception of insanity under S. 84 of the Indian Penal Code.
iii. whether the appellant is entitled for any reasonable doubt.
These questions are raised for our consideration by Sheela Devi, the learned counsel appointed under Rule 183 of the Kerala High Court Rules to defend the appellant.
2. The appellant, a man aged 48 years at the time of the occurrence has been found guilty, convicted and sentenced under S. 302 and 307 IPC. He is alleged to have caused the death of his wife Jameela and caused serious injuries to his daughter PW2; with the intention of causing her death. The Crl.Appeal No. 1229 of 2008 : 2 : alleged incident took place at about 2.30 a.m on 15.9.2004 in the house where the appellant was residing along with his wife and children. The appellant is alleged to have inflicted the injuries with MO1, a wooden log.
3. Investigation commenced with the registration of Ext.P6 FIR on the basis of Ext.P1 FI Statement lodged by PW1, a next door neighbour. Investigation was completed and the final report/charge sheet was filed by PW15. The learned Magistrate after observing all legal formalities committed the case to the court of session. The court of session took cognizance of the offence alleged against the appellant. The appellant denied the charges framed against him by the learned Sessions Judge. Thereupon the prosecution examined PWs1 to 15 and proved Exts.P1 to P12. MOs 1 to MO11 (a) were also marked.
4. In the course of cross-examination of prosecution witnesses and when examined under section 313 Cr.PC the accused took up a defence of total denial. He suggested that the culpable overt act may have been committed by some miscreants who gained access into the house for the purpose Crl.Appeal No. 1229 of 2008 : 3 : of committing theft/robbery. However, he advanced another plea parallelly that he was protected by the defence of legal insanity under S.84 IPC. On his side he examined DWs 1 to 4 and proved Exts.D1 to D7. We do further note that a case sheet of the accused was called for by the Court from the Medical College Kottayam. The same was available before Court. It was not formally marked or proved.
5. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that the prosecution has succeeded in proving that the injuries suffered by the deceased and PW2 were suffered by them at the hands of the appellant with MO1. Learned Judge further proceeded to hold that the defence of legal insanity under Section 84 IPC is not available to the appellant. Accordingly the learned Judge proceeded to pass the impugned judgment.
6. Before us the learned counsel for the appellant and the learned prosecutor have advanced their arguments. The learned counsel for the appellant submits that the Court below erred in accepting and acting upon the oral evidence of PW2 and 3, the daughter and son respectively of the appellant. The Crl.Appeal No. 1229 of 2008 : 4 : court below further had gone wrong in placing the reliance on PWs 1 and 4-son and mother, occupying the neighbouring house to draw inspiration for the oral evidence of PWs2 and 3. The learned counsel further submits that the court below did not advert to the plea of legal insanity in the proper perspective. At any rate, the appellant is entitled for the benefit of doubt, argues the learned counsel for the appellant.
7. The learned Prosecutor on the other hand contends that the court below was absolutely justified in accepting and acting upon the oral evidence of PWs1 to 4. The plea of legal insanity has not been shown to be probable at all. The burden on the accused under S.105 of the Evidence Act stands undischarged, contends the learned Prosecutor. In any view of the matter the appellant is not entitled to the benefit of any reasonable doubt submits the learned Prosecutor.
8. We have considered all the relevant inputs. This appellate judgment is intended to be read and must be read in continuation of the impugned judgment of the trial court. In that view of the matter we do not think it necessary to attempt a re narration of the oral and documentary evidence relied on Crl.Appeal No. 1229 of 2008 : 5 : by the contestants. Suffice it to say that the learned counsel have taken us in detail through the oral evidence of PWs1 to 15 and DWs 1 to 4. We have also been taken through the contents of Exts.P1 to P12 and Exts.D1 to D7. We have also been taken through a case sheet that was produced from the Govt. Medical College, Kottayam(to which we have already referred), which has not been formally proved or marked. We have also been taken through the charges framed by the Court below against the appellant and the answers given by the appellant in the course of his examination under section 313 Cr.PC.
9. That deceased Jameela and her daughter PW2 Sumayya suffered serious injuries and the deceased succumbed to such injuries suffered, is proved beyond any doubt. On this aspect we have the evidence of PW13 doctor who issued Ext.P10 postmortem certificate to prove the injuries on the deceased. To prove the injuries suffered by PW2 in addition to her own evidence, we have the evidence of DW1 who issued Ext.D3 certificate as also PW6 Doctor who later treated her and issued Ext.P2 discharge certificate. Crl.Appeal No. 1229 of 2008 : 6 : There is not a semblance of doubt possible on the question that deceased had suffered the injuries described in Ext.P10 and had succumbed to the same. There is also not a trace of doubt on the question that PW2 had suffered the injuries described in Exts.D3 and P2. The first question is thus concluded authentically beyond any doubt in favour of the prosecution.
10. The evidence of those medical experts suggest that the injuries suffered by PW2 and the deceased could have been inflicted on them with a weapon like MO1. MO1 is found to be blood stained also. PWs 2 and 3 had given evidence that the said weapon was available inside their house. We do in these circumstances find it absolutely safe to conclude that the injuries suffered by the deceased and PW2 were inflicted on them with a weapon like MO1 inside their house on the night of 14.9.2004.
11. It is the case of the prosecution that deceased and PW2 had suffered the injuries at the hands of the appellant. On this, dispute is raised in the course of cross-examination and in the course of arguments before us. We have been Crl.Appeal No. 1229 of 2008 : 7 : taken through the evidence of PWs 2 and 3 meticulously. They are the daughter and son respectively of the appellant. A careful reading of their evidence eminently reveals that they have no interest whatsoever against the appellant. It is true that PW 2 had suffered injury and her mother was killed in the incident. But the evidence of PWs 2 and 3 suggest that they have tendered evidence truthfully without any rancour towards the appellant and wherever possible they have been non committal against the appellant in respect of his culpability. We do note that PWs 2 and 3 had only obliged the appellant in the course of their evidence. The evidence tendered by them do commend themselves for acceptance.
12. There is nothing to indicate that any other person had gained access into the house. The theory that some other person who intended to commit robbery/theft may have gained access into the house and may have caused death of the deceased and injury to PW2 is a theory which has no legs to stand on. It is artificial and absolutely untenable. That theory rebels against reason, logic and commonsense. Evidence of PWs 1 and 4, neighbours from the neighbouring house does Crl.Appeal No. 1229 of 2008 : 8 : also eminently corroborate the oral evidence of PWs 2 and 3. The contents of the very prompt Ext.P1 F.I statement lodged at 7.30 a.m on 15.9.2004 afford convincing assurance for the version of PWs 1 to 4 in Court. It is true that PWs 2 and 3 in Court had not specifically stated that they have seen infliction of injuries by the appellant on the deceased and PW2. But the fact remains that there was no other person available in the house. The spouses with their 3 children alone were available in the house. The appellant was seen standing with blood stained MO1 inside the room in which the deceased and injured were found. The totality of circumstances convincingly persuade us to concur with the conclusion of the court below that the deceased and PW2 had suffered injuries found on their person at the hands of the appellant, with MO1.
13. The nature of injuries suffered by PW2 and the deceased and the nature of weapon with which the injuries were caused must eloquently convey to the Court that the intention of the appellant was to cause the death of the deceased and PW2. Under Clause firstly of Section 300 the offence of murder defined under section 300 IPC is clearly Crl.Appeal No. 1229 of 2008 : 9 : revealed.
14. We now come to the question of motive. We remind ourselves that motive is not an ingredient of the offence of murder under S.300 IPC. But in a criminal indictment where evidence of motive is available, that goes a long way to assure the court about the acceptability of the oral evidence. In this case we have the evidence of PWs 1 to 4 that the appellant did not use to go for any work. Even he admits the same in his 313 examination. He had some physical ailments for which he was undergoing treatment by DW2 in a local private hospital. Indications are plenty to show that he was an alcoholic. We have evidence of PWs 1 to 4 to show that he used to demand money from his employed wife(deceased) and daughter (PW2) aged about 18 years. When they refused to give money he used to turn violent and assault and attack them. On the day previous to the incident also such a quarrel had ensued. According to the prosecution it is the dissatisfaction of the appellant consequent to refusal of his deceased wife and PW2 to give him money that prompted him to commit the offence. Motive is also thus convincingly established. Crl.Appeal No. 1229 of 2008 : 10 :
15. We are in these circumstances satisfied that unless the defence of legal insanity under S 84 is accepted or unless the appellant is entitled to the benefit of any reasonable doubt, conviction under S. 302 and 307 IPC is perfectly justified and the same do not warrant appellate interference at all.
16. We now come to the more serious question raised as to whether the appellant is entitled to the protection of the defence of legal insanity under S. 84 of the IPC. We shall at the outset extract S.84 IPC:-
84. Act of a person of unsound mind:- 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.
The position of law is well settled. 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 Crl.Appeal No. 1229 of 2008 : 11 : 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 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.
17. The learned counsel for the appellant first of all points out that in the earliest document Ext.D3, there is a statement of the alleged cause to the doctor as to how PW2 had suffered the injuries at the hands of her father 'who is a mental person'. From this it is argued that the appellant was a mental patient.
18. We do not have any satisfactory evidence as to who had given this statement. Though it is attributed to PW1, the bystander who had taken PW2 to the hospital, according to Crl.Appeal No. 1229 of 2008 : 12 : PW1 he has not made such a statement. We do take note of the entry in the earliest document Ext.P3 but we must hold that authentic sufficient proof of that entry is not available.
19. We then take note of Ext.D4 series case sheets showing the treatment that was given to the appellant for his heart ailment. This does not at all threw light on his state of mind at the relevant time;. However, we have the evidence of DW2 and Ext.D4 series which do not even remotely indicate that he was suffering from any mental ailment. Ext.D4 series and the evidence of DW2 reveal that he was an inpatient from 13.6.2004 to 22.6.02004 for such heart ailment. There is nothing to indicate that he was afflicted with any mental ailment during that period. Evidence of DW2 is eloquent to this aspect. His children PWs 2 and 3 and the neighbours PWs 1 and 4 though they speak of cruel and culpable behaviour on the part of the appellant have not supported the defence case that he was suffering from any mental ailment. There is nothing to indicate that prior to the incident the appellant had undergone any treatment for mental ailment. There is evidence of course to show that the appellant was Crl.Appeal No. 1229 of 2008 : 13 : taken to a 'Thangal'(religious person). According to PWs2 and 3 he was so taken to the Thangal to persuade him to lead an orderly, disciplined and peaceful life. There is absolutely nothing to indicate that the appellant prior to the date of the accident was suffering from any mental ailment or aberration, much less unsoundness of mind. The evidence of DW 2 and Ext.D4 series reveal that the appellant had continued treatment for his heart ailments from 13.6.2004 to 22.6.2004 as an inpatient and had continued treatment till 7.09.2004(the incident having taken place on 14.9.2004). The doctor who treated him had not perceived that the appellant had any mental ailment. The noting in the relevant medical records that he is an alcoholic is in this context of crucial and vital relevance.
20. We now come to his conduct on the date of the occurrence and immediately prior to the same. The evidence of PW2 suggests that the appellant had kept MO1 weapon and a pickaxe in the house. PW2 suspected that the appellant may mis-utilise the same. She therefore took away the pickaxe and kept it elsewhere. The fact that the appellant had Crl.Appeal No. 1229 of 2008 : 14 : got himself armed is certainly an indication to suggest that he knew the nature and consequences of his act. That prior conduct throws light on the the state of mind of the appellant immediately prior to the occurrence.
21.We come to his conduct at the time of the occurrence. His wife and child were lying with injuries. They were rendered unconscious. His sons were available in the house. They were crying out. This attracted the attention of the neighbours who came to the scene of the occurrence. The appellant went away from the scene of the occurrence. The evidence indicates that he shouted at those who had come to the scene of occurrence. We do not perceive any conduct on his part which can remotely suggest that he did not know the nature of the act or that what he was doing was either wrong or contrary to law. His moving away from the scene of the crime when others assembled at the scene of the crime is also another indication about his awareness of the nature of his act and its consequences.
22. Reliance have been placed on the oral evidence of PW4 and Ext.D7 case sheet to suggest that from 25.6.2005 to Crl.Appeal No. 1229 of 2008 : 15 : 24.7.2005 the appellant had undergone treatment as an inpatient at the Mental Health Centre. PW4 had treated him. We cannot omit to note such admission was on 25.6.2005-the incident having taken place on 15.9.2004. The evidence of DW4 suggests that a person, under similar circumstances as the appellant, may react to the stress. He was facing indictment for murder/attempt to murder of his wife and daughter. He was undergoing imprisonment. Such circumstances can certainly induce mental stress and strain. That he had undergone treatment for psychosis from 25.6.2005 to 24.7.2005 according to us does not offer any crucial indications in favour of the appellant.
23. The learned counsel for the accused attempts to build up an argument with the help of an unmarked case sheet which was got produced from the Medical College Hospital, Kottayam. He relies on the evidence of DW3 Superintendent of the Jail as also the entries in that unmarked document. They suggest, assuming that we can look into to it and consider the same; that he attempted to commit suicide after the incident in this case. That conduct again even if Crl.Appeal No. 1229 of 2008 : 16 : accepted does not at all suggest that the appellant did not know the nature of his act or that what he was doing was either wrong or contrary to law. There is absolutely nothing to indicate that on the date of the accident he was suffering from any mental ailments. He was taken to the hospital at 1.22 p.m on 15.9.2004; alcoholic intoxication is the suspected ailment. There is nothing to indicate that the appellant was suffering from any unsoundness of mind even if we go by the case sheet. After having procured the case sheet it has not been marked by the appellant and that again according to us is of crucial and vital relevance.
24. The learned counsel for the appellant contends that even if the appellant may not have succeeded in discharging his burden under Section 105 of the Evidence Act, the appellant is entitled to the benefit of doubt consequent to the failure/inability of the prosecution to prove mens rea. The state of mind contemplated under Section 299/300 IPC has to be established by the prosecution. Where the prosecution fails in that duty, notwithstanding the inability of the indictee to prove his defence under Section 84 of the IPC the Crl.Appeal No. 1229 of 2008 : 17 : prosecution must fail for the reason that the prosecution has not established beyond doubt the culpable state of mind of the indictee. This must in turn lead to acquittal of the accused on the ground that he is entitled to the benefit of doubt.
25. We have no hesitation to agree with the position of the law canvassed by the learned counsel for the appellant. The burden rests squarely on the shoulders of the prosecution always to prove the charge beyond doubt, whatever be the nature of the evidence relied on by the prosecution and whatever be the defence taken up by the accused. The fact that the defence took up the plea of legal insanity under S. 84 of the IPC shall not in any way absolve or lessen the burden of prosecution to prove the culpable mental state beyond doubt. If there be any reasonable doubt on the question whether the indictee was having the culpable state of mind contemplated under S.299/300 IPC, definitely the appellant is entitled to claim the benefit of doubt. But in the instant case we have already adverted to various events suggesting that the appellant had a motive against his wife and daughter and that his conduct antecedent, attendant and subsequent, do all Crl.Appeal No. 1229 of 2008 : 18 : point to the appellant entertaining the requisite culpable mental state. According to us the appellant is not entitled to any benefit of doubt on that question - about the existence of culpable state of mind on the part of the indictee whose physical acts are proved. The totality of inputs convince us that there is not a semblance of doubt on the question that the appellant was having culpable state of mind when he indulged in the objectionable conduct against his deceased wife and daughter PW2. The appellant, we hold, is not entitled to succeed in his defence under Section 84. Nor is he entitled to the benefit of any reasonable doubt on any ingredient of the offence-mental or physical.
26. We are in these circumstances satisfied that the conclusions of the court below that the appellant is guilty of the offence punishable under Section 302 IPC in respect of his wife and 307 IPC in respect of his daughter is absolutely correct and the same do not warrant any interference. The sentence imposed also is fair, just and reasonable and the same does not warrant interference.
27. In the result Crl.Appeal No. 1229 of 2008 : 19 : a. this appeal is dismissed.
b. The impugned judgment is upheld in all respects.
Sd/-
R. BASANT (Judge) Sd/-
K. VINOD CHANDRAN (Judge) jma // true copy // P.A to Judge