Kerala High Court
Muhammed Rasheed vs State Of Kerala on 26 November, 2019
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941
CRL.A.No.774 OF 2015
[AGAINST THE JUDGMENT IN SC 1633/2010 DATED 10-06-2015 OF ADDITIONAL
DISTRICT COURT (ADHOC)-II, TRIVANDRUM
AGAINST THE ORDER IN CP 70/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-II,TRIVANDRUM
CRIME NO.39/2009 OF Poonthura Police Station, Thiruvananthapuram]
APPELLANT:
MUHAMMED RASHEED
S/O ABDUL RASSAK, SWARNAGIRI, SWARNACODE, KOTTOOR
MURI, MANNOORKARA VILLAGE, NOW RESIDING AT MUNEER
NIVAS, T.C.4/2242, VEDANVILAKOM, SASTHAMKONAM, NEAR
ENGINEERING COLLEGE, CHERUVAKKAL VILLAGE,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.G.RANJU MOHAN
SMT.M.SANTHI (K/868/2011)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
SRI.AJEESH K.SASI
SRI.V.C.SARATH
SMT.POOJA PANKAJ
SRI.THOMAS J.ANAKKALLUNKAL
SRUTHY N. BHAT
RESPONDENT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
R1 SR.PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12-11-2019, THE COURT ON 26-11-2019 DELIVERED THE FOLLOWING:
Crl.A.No.774 of 2015
:-2-:
J U D G M E N T
[Dated this the 26th day of November,2019] N.ANIL KUMAR,J:
Appellant is the accused in
S.C.No.1633/2010 on the file of the Additional
Sessions Court-II, Thiruvananthapuram in Crime No.
39/2009 of Poonthura Police Station for the offence punishable under Section 302 of the Indian Penal Code,1860 (for short 'IPC'). By judgment dated 10.6.2015, the learned Additional Sessions Judge convicted and sentenced the accused to undergo imprisonment for life and to pay fine of Rs.2,00,000/-, in default of payment of fine, the accused shall undergo imprisonment for one year more for the offence punishable under Section 302 of IPC.
2. The prosecution case in brief is that on 3.2.2009 at 11.50 hrs., the appellant/accused caused stab injuries on the body of one Ameer Hamsa, while the latter was sitting on the ground near a window for offering prayers in the tomb in 'Beemapalli' at Thiruvananthapuram. The appellant applied force and caught hold of Ameer Hamsa and as a result of the Crl.A.No.774 of 2015 :-3-:
force, the victim fell down and while so, the appellant stabbed directly in the mouth of the victim with MO4 knife. The victim succumbed to the injuries later. It was alleged that the appellant stabbed the victim with an intention of murdering the victim and knowing fully well that the injuries inflicted were sufficient to cause death of the victim.
3. 'Beemapalli Dargah Shareef' is a famous mosque in Thiruvananthapuram city. People from all places come to offer prayers at Beemapalli. The tomb of Beema Beevi, the lady with miraculous powers, who is believed to belong to Prophet Mohammed's family, is the main attraction at this mosque. The Beemapalli 'urus' at the mosque lasting for ten days is one of the most colourful events.
4. On the ill-fated day at 13.30 hours, PW12- the Sub Inspector of Police, Poonthura Police Station recorded Ext.P1 First Information Statement of PW1 and registered Ext.P2 FIR for the offence punishable under Section 302 of IPC. Pursuant thereto, he proceeded to the place of occurrence and prepared Ext.P3 scene mahazar in the presence of PW6. Crl.A.No.774 of 2015
:-4-:
While so, PW12 recovered blood stained clothes and other material objects from the scene of occurrence and forwarded the same to the court by Ext.P12.
5. PW16 the Circle Inspector of Police, Poonthura Police Station took up the investigation in this case on the very date of crime i.e. 03.02.2009.
He conducted inquest on the body of the victim in the presence of PW7, relatives and Office bearers of the Panchayath and prepared Ext.P4 inquest report. At the time of preparing Ext.P4 inquest report, a knife was seen in situ his mouth exposing the wooden handle of the knife and adjacent part of its blade with the blunt edge towards lower lip and sharp cutting edge towards upper lip. After conducting inquest, PW16 forwarded the dead body with a requisition for conducting postmortem examination and report. The deadbody was in charge of PW11. PW13 conducted postmortem examination at 3.55pm on 3.2.2009 and concluded at 5.15 pm on the same day. The body was sent for postmortem examination along with the knife inside the mouth of the deceased exposing the wooden handle. After conducting the postmortem examination, Crl.A.No.774 of 2015 :-5-:
PW13 removed the knife from the mouth of the deceased and entrusted to PW11, who identified it as that of the deceased and entrusted it to PW16. PW16 seized MO4 and prepared Ext.P10 seizure mahazar.
6. Immediately after the occurrence, the Office bearers of the mosque and the local people restrained the accused from leaving the place of occurrence. The police rushed to the scene of occurrence and secured the presence of the accused.
The accused was brought to the Police Station and kept under police surveillance. By Ext.P16 arrest memo, PW16 recorded the arrest of the accused. PW16 conducted body search of the accused and seized the bloodstained T-shirt and a mobile phone from the accused by Ext.P7 mahazar. On investigation, PW16 received reliable information that the accused came to the mosque in his motor cycle bearing Regn.No.KL- 01/1603. The aforesaid motor cycle was seized from the mosque premises by Ext.P22 mahazar. The accused was produced before the jurisdictional Magistrate and the learned Magistrate remanded the accused to judicial custody.
Crl.A.No.774 of 2015
:-6-:
7. During investigation, it was disclosed that the accused filed a complaint before PW14 against the deceased and PW5 Sainudheen Musaliyar, alleging that they prevented the accused from entering the mosque and also assaulted him. Consequently, PW14 forwarded Ext.P13 complaint to the Station House Officer, Poonthura Police Station within whose jurisdiction the occurrence took place. On request, the Station House Officer, Poonthura Police Station produced the said complaint before PW16. PW16 seized Ext.P13 complaint as per Ext.P25 document list.
Material Objects were caused to be sent for medical examination. Ext.P5 Scene Plan was prepared by PW8- the Village Officer. Other witnesses were questioned and the final report was presented before court.
8. On the basis of the materials on record, the trial court framed charge against the appellant under Section 302 of IPC to which he pleaded not guilty and claimed to be tried. In essence, the accused pleaded innocence and false implication. Nevertheless, he stated in his statement under Section 313(1)(b) of Cr.P.C. that he had raised a complaint Crl.A.No.774 of 2015 :-7-:
against the office bearers of the mosque committee alleging misappropriation on their part in collecting amount for the food offered in the mosque. According to him, he was implicated in this case out of prior enmity towards him by the Office bearers of the mosque committee.
9. During the trial, prosecution examined PWs.1 to 16 and marked Exts.P1 to P33 and MOs.1 to 13. Exts.D1 and D2 contradictions were marked.
10. The learned Sessions Judge, who conducted the trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused was therefore called upon to enter on his defence and adduce evidence which he might have in support thereof. On behalf of the defence, Exts.D3 to D5 were marked. Exts.D3 and D4 are the case sheets of the Mental Health Centre, Thiruvananthapuram to prove whether at the time of the occurrence, the appellant was a person of unsound mind. Ext.D5 is a letter issued by Dr.S.V.Satheesh Kumar, Psychiatrist to the Superintendent, Central Prison, Thiruvananthapuram to prove that immediately Crl.A.No.774 of 2015 :-8-:
after the occurrence, the accused was a person of unsound mind.
11. On conclusion of the trial,on the basis of the oral and documentary evidence brought on record, the trial court found that the prosecution had been able to prove its case beyond reasonable doubt and rejected the defence set up under Section 84 of IPC. The trial court convicted and sentenced the appellant as stated supra.
12. Heard Sri.P.Vijayabhanu, the learned Senior counsel for the appellant and the Learned Senior Public Prosecutor Sri.Alex.M.Thombra.
13. Without prejudice to challenge the findings recorded by the learned trial Judge, the learned Senior Counsel Sri.P.Vijaya Bhanu appearing on behalf of the appellant, submitted that it was the appellant who inflicted serious injuries to the victim and killed him on 3.2.2009 at 11.50 hrs. at Beemapalli in Thiruvananthapuram city. The learned Senior counsel pointed out various important aspects which were not considered by the trial court. Elaborating on his submission, the learned Senior Crl.A.No.774 of 2015 :-9-:
Counsel highlighted cross-examination of the prosecution witnesses and the nature of evidence let in by them to establish that before and at the time of occurrence, the appellant was a person of unsound mind. The learned Senior counsel submitted that the crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed and for this purpose, the state of mind, both before and after commission of the act is a relevant fact. It was thus argued that the trial court was obliged to consider the circumstances which preceded, attended and followed the act. To put it differently, the learned Senior counsel submitted that in the case of murder, when the conduct of the accused demonstrates abnormality, it is the duty of the prosecution to subject the accused to a medical examination immediately, especially when during investigation, the circumstances would indicate that the accused was suffering from mental disorders periodically. The learned Senior counsel added that it is the duty of the prosecution to place before the court all the evidence that could be made available to Crl.A.No.774 of 2015 :-10-:
show that the accused was in a proper state of mind when he committed the alleged offence so as to rule out the plea of mental disease or insanity that may be raised at the trial. It is further submitted that failure of the prosecution to do so creates serious infirmity in a murder case when plea of insanity is raised by the accused at the trial and raises a doubt whether the alleged acts of violence were committed with the intention of committing the offence. According to the learned Senior Counsel, the circumstances would lead to the only conclusion that the appellant has committed the act without knowing the nature of the act and the consequence thereof on the date of the alleged incident bringing the case within the purview of Section 84 of the I.P.C.
14. Per contra, the learned Senior Public Prosecutor Sri.Alex.M.Thombra submitted that it is not his duty to maintain a conviction in appeal by hook or crook. The learned Public Prosecutor submitted that the allegation of murder is proved on cogent and convincing evidence. Heavy reliance is placed on the postmortem certificate and the evidence of eye Crl.A.No.774 of 2015 :-11-:
witnesses. According to the learned Public Prosecutor, the purpose of a criminal trial is not to canvass conviction of the accused at all costs, but to determine the guilt or innocence of the accused in accordance with law.
15. Before dealing with the rival contentions of the parties, it is advantageous to go through the opinion of the Doctor, who conducted the postmortem examination of the deceased and all the available eye witnesses before court.
16. PW13 Dr.Sivasudhan, Professor in Forensic Medicine and Police Surgeon, Medical College, Thiruvananthapuram conducted postmortem examination on the body of the deceased and issued Ext.P14 postmortem certificate. He identified MO4 knife which was seen in situ at the mouth of the deceased exposing the wooden handle at the time of autopsy. The details of ante mortem injuries noted by him are narrated in paragraph 42 of the judgment under challenge. PW13 stated that injury Nos.2 and 13 are independently sufficient to cause death. To understand the nature of injuries sustained by the deceased, we think, it is just and Crl.A.No.774 of 2015 :-12-:
proper to narrate injury Nos.2 and 13 as hereunder:-
"INJURIES (ANTE MORTEM):
1. xxxxxx xxxxxxx
2. Incised penetrating wound (with knife insitu)3.4x0.4 cm involving the left wall of larynx cutting through the left lamina of thyroid cartilage and thyroid gland through the tissue plane ended by making a cut 1x0.4x1 cm on the left side of body of the 6th cervical vertibra. The soft tissues of posterior pharyngeal wall was infiltrated with blood. Air passages contained fluid blood aspirated to smaller divisions of bronchi. The wound tract was directed downwards and backwards for a depth of 6.5 cm. The upper medial incisors were fractured, the left one was lost.
xxxxxxxxx xxxxxxxxxx xxxxxx
13. Incised penetrating wound 2.5x0.5 cm oblique on left side of chest, the upper inner split end 11cm to left of midline and 10cm below the collar bone. Cutting through the structures of the 4th inter costal space and 4th costal cartilage, penetrated the left chest cavity, and ended by making a cut 1x0.4x1 cm on front of heart, severing across the anterior descending branch of left coronary artery at its middle. The pericardial cavity contained 140 ml of fluid blood. Left chest cavity contained 280 ml.of blood with clots. The wound track was directed upwards, backwards and to right for a depth of 5.5cm."
17. In support of the evidence let in by PW13, PW15-the Scientific Expert, Forensic Science Laboratory, Thiruvanathapuram deposed that he had examined MOs.1 to 13 and detected human blood of the deceased to be of Group 'A'. The shirt worn by the Crl.A.No.774 of 2015 :-13-:
accused at the time of occurrence recovered by PW16 by way of Ext.P17 mahazar also contained blood which is in Group 'A'.
18. PW1 stated that he was present at the time of occurrence. According to him, the Mosque Committee authorised PW1 to receive offerings from the devotees at the Bava Mosque of Beema Mosque and while so, the deceased had also worked along with him. Usually, the deceased would be available inside the Bava Mosque between 6.15 am and 8 pm. He further stated that the Bava Mosque is having 6 windows and two doors out of which one door is earmarked for the employees. The other door is usually opened only during 'urus' festival. He stated that public are not permitted to enter the Bava Mosque. According to him, just before the date of occurrence, the accused came to the Bava Mosque and demanded for his entry. Ameer Hamsa, the victim who was physically present there, prevented the act of the accused and as a result of which there was a scuffle between them. On the date of occurrence, around 9 a.m., the accused brought a he-lamb as an offering and entrusted the same to PW1. Crl.A.No.774 of 2015
:-14-:
PW1 entrusted the he-lamb to the mosque's authorities. On that day, he allowed the accused to enter the Bava Mosque along with a stranger. Thereafter, he straight away went to the bathroom and while he was washing his hands and feet, he heard a hue and cry from the Bava mosque. Soon he rushed to the scene where he could find the accused sitting on the stomach of Ameer Hamsa, who was lying inside the Bava Mosque. Then, the accused stabbed in the mouth of Ameer Hamsa with MO4 knife, resulting in bleeding injuries on the body of the deceased. He further stated that after stabbing Ameer Hamsa, only the handle of MO4 knife was outside his mouth. PW1 supported the contents in Ext.P11 First Information Statement in full. He identified MO1 shirt and MO2 dhothi worn by the deceased, at the time of occurrence.
19. The occurrence was spoken to by PWs.2 and 3 and the previous conduct of the accused by PW5 in detail. PW2, who was the Imam of Mosque at Prasanthi Nagar testified that he was a frequent visitor to the mosque especially during crisis in life. Hence, both the accused and PW2 got acquaintance Crl.A.No.774 of 2015 :-15-:
with each other and they became friends. While so, the accused borrowed an amount of Rs.15,000/- from him and later left the mosque without paying the same. Despite various requests to the accused, the amount was not paid as agreed. On 3.2.2009, he received a call from the accused that he would be coming to the mosque at 2 p.m. After some time, he telephoned again and requested him to purchase a he-lamb for him. Accordingly, PW2 went to Attakkulangara and purchased a he-lamb for an amount of Rs.3,000/- from one Shamsudhin of Attakulangara. According to him, although he paid an amount of Rs.3000/-, Shamsudhin returned back Rs.100/- to him. When he reached the mosque along with he-lamb, the accused was there. Accordingly, he handed over the he-lamb to the accused, who in turn gave the same to the mosque. PW2 stated that suddenly, the accused entered inside the Bava mosque through the door on the right side though visitors were not usually permitted inside the Bava Mosque. He stated that when both of them were inside, the accused murmured something and stabbed on the mouth of the deceased. The court below relied on the Crl.A.No.774 of 2015 :-16-:
first part of the evidence tendered by PW2. However, the court below refused to believe the version of PW2 that he had witnessed the overt act alleged to have committed by the accused since PW2 failed to state the same before the Magistrate, who recorded his statement under Section 164 of Cr.P.C.
20. PW3, who was the President of the Jama- ath, deposed that he saw the accused sitting on the stomach of the deceased and stabbing in his mouth. He also stated that the assailant was kept under surveillance by local people and the victim was taken to the Medical College Hospital for treatment. The victim died later.
21. Prosecution examined PW5 to prove that the previous conduct of the accused was bad. In a criminal case, the fact that the accused person has a bad character, is irrelevant unless evidence has been given that he has a good character. According to PW5, the accused contacted him and requested to arrange a good marriage for him. Considering the character of the accused, PW5 did not extend any help to him. Infuriated by the above said reason, it is Crl.A.No.774 of 2015 :-17-:
stated that the accused made an attempt to assault him for which he filed a complaint before the Police. He also stated that the accused filed Ext.P13 complaint vexatiously before the Station House Officer, Poonthura Police Station against him and the deceased. On a perusal of the evidence let in by PW5, it is clear that the accused was short-tempered and made an attempt to assault PW5 with a chopper.
22. Going by the entire evidence in detail, the learned Sessions Judge convicted and sentenced the accused for the offence under Section 302 of IPC. The evidence tendered by PWs.1 to 5 coupled with the medical opinion of PW13, who conducted the postmortem examination on the body of the deceased and the evidence of PW15- scientific expert, we have no hesitation to hold that the evidence is probable, natural, cogent and trustworthy. Therefore, the learned Session Judge was perfectly justified in accepting the evidence tendered by the prosecution that the accused stabbed the victim and the victim was killed by the accused in the manner spoken to by the witnesses.
Crl.A.No.774 of 2015
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23. Learned senior counsel for the appellant submitted that the materials placed on record by the prosecution would sufficiently prove the plea of mental illness set up by the appellant during the trial. Reliance was mainly placed on the oral evidence of DWs.1 and 2 and Exts.D3 to D5. DW1-the Director of Mental Health Centre,Thiruvananthapuram produced Exts.D3 and D4 case sheets pertaining to the accused. Thereafter, DW2 was examined to prove the contents of Exts.D3 and D4. DW2 stated that the accused was admitted in the mental hospital, Thiruvananthapuram on 6.2.2009. His identification marks are also available in Ext.D3. On 6.2.2009, the accused was admitted at 2 p.m. Ext.D3 would show that he was brought from Central Prison, Thiruvananthapuram with complaints of abnormal behaviour, increased psychomoto activities, increased talk, aggressive behaviour, suspiciousness, and possession disorder. DW2 stated that the history of the patient was also noted in the very same page wherein it is noted that he is in the habit of suspecting others that others want to harm him. As on 6.2.2009, the findings recorded touching the mental Crl.A.No.774 of 2015 :-19-:
condition of the accused are attentive, co-operative, increased psychomoto activity, increased talk, irritable mood and delusion of persecution. Elaborating on the meaning of the term 'persecution', DW2 opined that the patient is guided by some other spiritual force. DW2 further opined that his diagnosis as per the record is paranoid schizophrenia. He noted that the patient was having psychotic symptoms like suspiciousness, delusional behaviour, disorganised behaviour and emotional blunting. DW2 clarified that emotional blunting connotes emotional response of the patient, which may not be proper to the situations or to the questions asked. DW2 concluded that these symptoms are typical for the patients having paranoid schizophrenia.
24. On 5.9.2009, DW2 issued a certificate to the Superintendent, Central Prison, Thiruvananthapuram certifying that the above mentioned patient Sri.Muhammed Rasheed, 32 years, U.T.NO.6557 has been under treatment for mental illness namely schizophrenia. He further stated that he had noticed the patient having features of mental illness like Crl.A.No.774 of 2015 :-20-:
increased psychomoto activities, poor rapport, delusion of persecution, impaired judgment and no insight.
25. As per Ext.D4, the patient underwent treatment at the Mental Health Centre, Thiruvananthapuram from 5.7.2001. Address of the patient and identification marks are clearly stated in Ext.D4. The symptoms noted are increased psychomoto activities, mood anxious etc. The initial diagnosis was generalised as anxiety disorder. However, after detailed evaluation of the patient and family history, it was noted in Ext.D4 that the patient was suffering from schizophrenia. DW2 further stated that second diagnosis was obsessive compulsive personality disorder. He would further state that patient underwent treatment during 2012 also. As per records,according to him,the patient was admitted with complaints of decreased sleep.
26. On cross-examination, DW2 stated that he had seen the patient only on 5.4.2009 and he had no occasion to see the patient before the said date.
Going by the records, according to him, the patient Crl.A.No.774 of 2015 :-21-:
came for consultation on 13.7.2007,15.7.2007 and 9.11.2012 respectively. He also confirmed that paranoid schizophrenia is not curable.
27. The law presumes that every person committing an offence is legally sane and is liable for the natural and probable consequence of his own acts, though in specified circumstances it may be rebuttable. Under Section 105 of the Indian Evidence Act, when a plea of insanity is raised by the accused, the burden is on the accused to substantiate the plea.
To put it differently, the accused setting up the defence of insanity should plead and prove that at the time of committing the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of his act or that what he was doing either wrong or contrary to law.
28. On a consideration of the above legal principle, it is clear that the burden to prove an exception, is cast upon the accused but the court shall presume the absence of circumstances which may bring his case within any of the general exceptions in the Indian Penal Code. The principles governing burden Crl.A.No.774 of 2015 :-22-:
of proof in cases where the accused pleads an exception are discussed in the decision in Dahyabhai Chhaganbhai Thakker v. State Of Gujarat [1964 SCR (7) 361], which read as follows:-
"The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:-
(1)The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by s.84 of the Indian Penal Code:
the accused may rebut it by 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.
(3) Even if the accused was not 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, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."Crl.A.No.774 of 2015
:-23-:
29. The dictum laid down in Dahyabhai Chhaganbhai Thakker's case(supra) requires to be examined in the light of the dictum laid down by the Supreme Court in State of U.P. v. Ram Swarup and another [AIR 1974 SC 1570], wherein the Supreme Court has settled the legal proposition on the subject as follows:-
"...............The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea."
Thus, the accused has only to establish his defence on a preponderance of probability as observed in Elavarasan v.State represented by Inspector of Police [(2011)7 SCC 110] and Surendra Mishra v. State of Jharkhand [(2011)11 SCC 495], after which the onus shall shift to the prosecution to establish the inapplicability of the exception. But it is not every and any plea of unsoundness of mind that will be sufficient to attract the exception. The practical test to be applied shall be of legal insanity and not medical insanity as observed in State of Rajasthan v. Crl.A.No.774 of 2015
:-24-:
Shera Ram alias Vishnu Dutta [(2012)1 SCC 602].
30. We have been taken through the entire documents oral and documentary evidence adduced by the prosecution and the accused at length.
31. Evidently, the accused was taken into custody on 3.2.2009. Final report was submitted before the jurisdictional Magistrate on 6.7.2010. The case was committed to the court of Session on 12.11.2010. The trial had commenced on 4.7.2014. The trial court records reflect several medical visits from the prison to the Mental Health Centre between the period from 3.2.2009 to 6.5.2009. During the period, the Doctor administered anti-psychotic drugs to the accused. It is clearly stated in the case sheet that the patient needed continuous treatment and his disease is diagnosed as schizophrenia. It is also evident from the records that the Doctor who administered medicine to the patient addressed a letter to the Superintendent of Central Prison by Ext.D5 dated.5.4.2009. The identity of the patient is not disputed. The patient is none other than the accused. On going through the oral and documentary Crl.A.No.774 of 2015 :-25-:
evidence adduced by DW2, the following facts are clear.
(1) The accused has been suffering from mental illness since unknown duration. (2) He has been treated and examined by several psychiatrists attached to the Mental Hospital, Thiruvananthapuram since 2001.
(3) The accused showed increased psychomoto activities, poor rapport, delusion of persecution and impaired judgment. (4) He was treated with various antipsychotic drugs since 2001 for schizophrenia.
(5) Schizophrenia is an incurable mental
disease, but can be controlled by
administering medicines and continuous
treatment.
32. In Srikant Anandrao Bhosale v. State of Maharashtra, [(2002)7 SCC 748], the Supreme Court had occasion to consider a similar issue in detail. In the above decision, reference was made from Modi's Medical Jurisprudence and Toxicology, 22nd Edition, Crl.A.No.774 of 2015 :-26-:
and the relevant paragraphs 10 and 11 are quoted hereinbelow:-
"10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but afterwards change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is Crl.A.No.774 of 2015 :-27-:
often a source of danger to himself and to others. (Modi's Medical Jurisprudence and Toxicology, 22nd Edn.)
11. Further, according to Modi, the cause of schizophrenia is still not known but heredity plays a part. The irritation and excitement are effects of illness. On delusion affecting the behaviour of a patient, he is a source of danger to himself and to others."
33. On going through the proceedings of this case,it is clear that the accused developed thinking according to his own private rules of logic. In a case of murder, when the conduct of the accused demonstrates abnormality, it is difficult for us to believe that in the course of investigation, in which the office bearers of the mosque and close relatives of the appellant were questioned, PW16 did not get any information touching the background of the appellant's mental illness. The facts in the present case persuade us to think that the prosecution has deliberately withheld relevant evidence with regard to the appellant's mental illness. PW16 ought to have conducted an investigation touching the mental condition of the accused immediately before and after the occurrence requiring hospitalisation of the Crl.A.No.774 of 2015 :-28-:
accused during the first remand itself and the evidence of the doctor, who treated the accused. The failure of the prosecution to do so creates serious infirmity in the prosecution case of murder when plea of insanity is raised by the accused at the trial and raises a doubt whether the alleged acts of violence were committed with the requisite intention of committing the offence and consequently, entitling the accused the benefit of doubt. In Bapu@Gujraj Singh v. State of Rajasthan [(2007)8 SCC 66], the Supreme Court held that it was the duty of an honest investigator to subject the accused to medical examination immediately and place the evidence before court and if this is not done, it creates a serious infirmity in the prosecution case and benefit of doubt has to be given to the accused. The very same legal principle was considered by this Court in Kuttappan v. State of Kerala [1986 KLT 364 (DB)] and Shibu v. State of Kerala [2013 (4) KLT 323 (DB)]. Thus, the prosecution cannot take advantage of the failure of the investigating machinery in this behalf.
34. The evidence placed before the court Crl.A.No.774 of 2015 :-29-:
below by the prosecution also raised a reasonable doubt in our mind as regards one or more of the ingredients of the offence including the mens rea of the appellant. The evidence tendered by PWs.1 to 3 and 5 would irresistibly lead to the inference that the appellant was behaving disorderly inside the mosque. PW5 adduced evidence to show that the accused assaulted him without any provocation for which he underwent treatment in the hospital. The trial Judge though put necessary questions by way of court questions to DW2 with regard to the hospitalisation of the appellant immediately after the occurrence and touching on the seriousness of the disease namely schizophrenia, no earnest attempt was made to analyse the evidence in the right perspective.
35. In the background of the medical evidence placed before the court, it is necessary to analyse the manner in which the appellant assaulted the deceased. The victim was taken to the hospital along with a knife in situ in his mouth exposing the wooden handle visible and adjacent part of its blade with blunt edge towards lower lip and sharp cutting Crl.A.No.774 of 2015 :-30-:
edge towards upper lip. No doubt, the act was brutal. However, the act of the accused should be taken along with the medical evidence and the general tendency of a patient suffering from schizophrenia. Blunting of emotions and other primary emotional disturbances might be responsible for the violence on his part. It includes homicide as well. In this case, after the occurrence, the accused was very much available at the place of occurrence. According to the prosecution, people prevented him from going away from the spot. However, it is very clear that he was present at the place of occurrence and he was arrested by the Police immediately from the place of occurrence. There was no attempt on the part of the appellant to remove MO4 knife from the mouth of the victim after inflicting injuries on him. The victim was taken to the hospital along with the knife. This is one of the circumstances to show that the behaviour of the accused was abnormal immediately after the occurrence.
36. Applying the principles of law laid down under Section 84 of IPC into the facts of this case, including the evidence of eye witnesses, and the Crl.A.No.774 of 2015 :-31-:
defence evidence we have already adverted to, we are of the view that the appellant is entitled to the benefit of exception under Section 84 of the IPC since the requisite element of mens rea was lacking on the part of the appellant at the time of committing the offence and the appellant had acted on account of unsoundness of mind of which he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The evidence of DW2 would show that the appellant was suffering from unsoundness of mind prior to the occurrence as well. In view of the facts and circumstances narrated above, we are of the view that the conviction and sentence of the appellant for the offence under Section 302 of the IPC cannot be maintained and the appellant is liable to be acquitted. Nevertheless, on the basis of the evidence on record, we are obliged to record a finding that the appellant had committed the act in question namely, the assault on the deceased with MO4 knife resulting in his death, but for the case of the appellant falling under Section 84 of the I.P.C., the said acts Crl.A.No.774 of 2015 :-32-:
would have been an offence of murder.
37. Judged by the provisions contemplated under Sections 335 and 338 of the Code of Criminal Procedure, we are of the view that the appellant is to be detained in safe custody in terms of Section 335(1)
(a) of the Code of Criminal Procedure. Considering the fact that paranoid schizophrenia is a dangerous mental illness, we are of the further view that at this stage, it is not in the interest of justice to deliver the appellant for the time being to any relative or friend of the appellant as provided under Section 335(1)(b) of the Cr.P.C.
38. Section 335 of the Cr.P.C. gives two options to the Magistrate or court before whom or which the trial had been held to deal with such person in accordance with clauses(a) and (b) to sub- section(1) under which such person is ordered to be detained in safe custody in such place and manner as the Magistrate or court thinks fit, or he may be ordered to be delivered to any relative or friend of such person. Sub-section(4) of Section 335 provides that the Magistrate or court shall report to the Crl.A.No.774 of 2015 :-33-:
State Government, the action taken under subsection (1). Section 336 of Cr.P.C. gives the power to the State Government to empower the officer in charge of the jail in which a person is confined under the provisions of Section 330 or 335 to discharge all or any of the functions of the Inspector General of Prisons under Section 337 or Section 338 of the Code.
Section 338 deals with the procedure where the prisoner with mental illness is detained under the provisions of sub-section (2) of Section 330 or Section 335 and such Inspector General or visitors shall certify that, in his or their judgment,he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody or to be transferred to a public lunatic asylum (at present Mental Health Establishment) if he has not been already sent to such an asylum; and, in case it orders him to be transferred to an asylum, may appoint a commission, consisting of a judicial and two medical Officers. Sub-section (2) provides that such commission shall make a formal inquiry into the Crl.A.No.774 of 2015 :-34-:
state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit. Section 339(1) of Code provides that whenever any relative or friend of any person detained under the provisions of section 330 or section 335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of the State Government, that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person; be produced for the inspection of such officer, and at such times and places, as the State Government may direct.
In the result, we set aside the conviction and sentence entered against the appellant under Section 302 of IPC. We find that the appellant has committed the act of stabbing the deceased with MO4 knife resulting in his death for the foregoing reasons stated in this judgment. We, therefore, acquit the appellant on the ground that, at the time at which he Crl.A.No.774 of 2015 :-35-:
is alleged to have committed the offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged, or that it was contrary to law. Considering the nature and extent of his mental illness, we are of the view that the appellant shall be kept away from society. We therefore direct that the appellant shall be kept in safe custody for the present as provided under Section 335 of the Cr.P.C. Sub-section(2) of Section 335 provides that the order for detention shall be in accordance with the rules framed by the State Government under the Lunacy Act, 1912. As the Lunacy Act, 1912 is not in force at present and it has been repealed and the relevant Act in force is the Mental Healthcare Act,2017, we find that the latter law will be applicable in this case. We therefore direct that the appellant is to be detained in one of the mental health establishments in the State in accordance with the rules, framed by the State Government in this regard. It is open to the State Government to direct the appellant to be delivered to any of his relatives or friends in accordance with law. A copy of this Crl.A.No.774 of 2015 :-36-:
judgment shall also be sent to the Director General of Prisons and the Secretary, Home Department, Government of Kerala in terms of Section 335(4) for taking further action in terms of Sections 338 and 339 of the Cr.P.C. The said authorities are directed to submit a report of action taken by them from time to time before the trial court within three months from the date of receipt of a copy of this judgment. The court below is directed to take further follow up action and issue necessary orders in the best interest of the appellant in accordance with Chapter XXV of the Cr.P.C.
The Criminal Appeal is allowed. The conviction and sentence imposed against the appellant by the trial court for the offence punishable under Section 302 IPC stand set aside. The accused stands acquitted subject to Section 335(1)(a) of the Cr.P.C. as stated above.
Sd/-
A.HARIPRASAD, Judge sd/-
N.ANIL KUMAR, Judge MBS/ Crl.A.No.774 of 2015 :-37-: