Saji vs State Of Kerala on 9 March, 2011

[Cites 16, Cited by 0]

Kerala High Court

Saji vs State Of Kerala on 9 March, 2011

The conviction and sentence ordered by the Trial Court awarding life imprisonment and imposing a fine of Rs.2 lakhs in respect of 'uxoricide' committed by the appellant attracting the offence under Section 302 IPC is the subject matter of challenge in this appeal. The ground for interference raised is Section 84 of the IPC, with reference to unsoundness of mind.

2. The prosecution case is that the appellant, on the fateful day i.e., on 23.02.2009, who was sleeping in the previous night with his wife in the bed room of their residential building, inflicted several stab injuries upon his wife Shiny with intention to cause death, at about 6.30 a.m. The stab injuries so inflicted on various parts of the body and in particular, to her neck with a rubber tapping knife were quite sufficient in the ordinary course to have caused death. Wife of the appellant succumbed to the injuries on the same day and the motive for causing death is the CRL.APPEAL No.1006 OF 2011 2 'doubted chastity' of the wife. The incident was reported to the police by the appellant himself at about 8.30 a.m. on the same day. Based on the information furnished and that he had kept the key of the room, (which was locked by the appellant after the incident) at a particular place in the house, the appellant was left in surveillance at the police station and authenticity of the information was got verified by the ASI. After confirming the position and after informing the higher authorities, he came back to the police station, arrested the accused and on questioning, it was stated that the appellant/accused had kept the knife on the top of the Almirah and that if he was taken to the house, he will retrieve it and hand over the same. Based on the information, the recovery was effected. The inquest and such other formalities were completed, the witnesses were questioned and after completing the investigation, final report was submitted before the Judl. First Class Magistrate's Court-II, Thamarassery. On committing the offence to the Sessions Court as per order dated 06.10.2010 in C.P. 22/2010 in terms of Section 207 of the Cr.P.C., the case was numbered and later, it was made over to the First Addl.Sessions Court, where the trial was conducted. CRL.APPEAL No.1006 OF 2011 3

3. The prosecution examined 20 witnesses as P.Ws. 1 to 20 and Exts.P1 to P20 were marked, besides producing M.Os 1 to 13 series. D.W.1 was examined from the part of the appellant/accused and 4 documents were produced and marked as Exts.D1 to D4. On conclusion of the trial, the Trial Court found the accused guilty under Section 302 IPC and was convicted and sentenced accordingly, as per the verdict passed on 09.03.2011. The Trial Court brushed aside the plea/defence of insanity, holding that there was nothing on record to show that the accused was suffering from insanity at the time of commission of the offence, to get the benefit of Section 84 of the IPC. After hearing the appellant/accused on the next day, on the question of sentence, the Trial Court spared 'death sentence' and inflicted punishment of 'imprisonment for life' and a fine of Rs.2 lakhs, in default of which, to have rigorous imprisonment for 'two years' under Section 302 IPC; simultaneously allowing set off under Section 428 of Cr.P.C. This is under challenge in this appeal.

4. Heard the learned counsel for the appellant and Smt. S. Ambika Devi, the learned Spl.Government Pleader/Public CRL.APPEAL No.1006 OF 2011 4 Prosecutor for offences against women and children, at length. Though there is no much dispute with regard to the evidence on record as to the involvement and commission of offence, but for claiming the benefit of Section 84 of the IPC, this Court finds it fit and proper to have all the materials on record subjected to scrutiny, it being a murder case.

5. As mentioned already, the case was registered 'suo motu' by the Police on coming to know about occurrence of the crime. P.W.1 is a neighbour by name Shaji, who deposed before the Court as to the occurrence of the incident on 23.02.2009 and that he knew the accused and his family very well. According to P.W.1, he was informed by the brother of the appellant at about 8.30 a.m., upon which he went to the residence of the appellant. It was found that one bed room was remaining locked from outside, reportedly locked by the appellant. When he and others attempted to break open the lock, the police came , who opened the door and it was closed immediately thereafter. According to P.W..1, he did not look into the room and had not actually seen the deceased lying there. The witness was declared as hostile and the prosecutor was permitted to put CRL.APPEAL No.1006 OF 2011 5 leading questions, which could be asked in cross examination in terms of Sec.154 of Cr.PC. Contradictory portion in the statement given to the police was marked as Ext.P1. P.W. 1 deposed that he knew the appellant right from the childhood and that he was a neighbour and further that he had heard the neighbours saying that the appellant was having doubt on the chastity of his wife. At the time of deposition, P.W.1 was residing about 4 Kms away from the residence of the appellant and that he had started residing near the residence of the appellant about one month prior to the date of occurrence. According to P.W.1, he was having no information that the accused was having any mental instability/disease.

6. PW.2 neighbour, by name Chacko, deposed as to the incident occurred on 23.02.2009. He came to know about the incident as told by the father of the accused/appellant . He was told that Saji and his wife had gone to bed on the previous night, that the bed room was lying locked from outside ; that Saji's wife was not responding on knocking the door and that the room had to be opened. On reaching the house of the appellant/accused, P.W.2 found the Police, taking a key from the top of the door CRL.APPEAL No.1006 OF 2011 6 and the room was opened, using the said key. He witnessed the deceased lying dead, on the floor beneath the cot, in a pool of blood. P.W.2 deposed that, besides the appellant/accused and his deceased wife, parents of the appellant/accused were also residing in the very same building and that the father of the appellant/accused was also a rubber tapper . In answer to the question put in the cross examination, P.W. 2 stated that he had not given any statement to the police that the appellant/accused was generally a 'reserved type' without much contact to others. The entry, to the contrary, in the CD statement was marked as Ext.D1. P.W. 3 is a witness as to the recovery of M.O. Knife and Ext.P2 Recovery Mahazar was marked through him. He deposed that the knife was recovered from the top of one almirah kept in a room and that the same was kept in a plastic bag, which was separately marked as M.O.2. He also stated that he was questioned by the police and that he knew the accused as well. Though he was subjected to detailed cross examination , nothing was elicited to discredit his version. On the other hand, the witness deposed that on M.O.1 knife, there were hairs and blood stains .

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7. Ext.P3 inquest report was marked through P.W.4 who deposed that he knew the appellant/accused as well as his wife Shiny very well and that the inquest was conducted in his presence, on the varanda of the building where Shiny was found dead. He identified the signature on Ext.P3. P.W.4 identified the signature on Ext.P4 Mahazar dated 23.02.2009 as to the recovery of the Shirt and Lunki worn by the appellant/accused . Ext.P5 arrest memo of the accused was also marked through him. He stated that he was questioned by the police. The father of the deceased Shiny was examined as P.W.6. He deposed that marriage between the deceased and the appellant/accused was in August, 2008; that the death of his daughter Shiny had occurred on 23.02.2009, that he had witnessed her lying dead in a pool of blood and that she was living with her husband/appellant in the very same building, where the parents of the appellant/accused were also residing. He also identified the accused/appellant.

8. P.W.7 is the elder sister of the deceased Shiny, who also identified the accused. She deposed that her sister had succumbed to the injuries inflicted by the rubber tapping knife on CRL.APPEAL No.1006 OF 2011 8 23.02.2009 and that she had seen her about one month back. According to PW.7, her deceased sister was of quite a 'mingling type' and that the deceased had told her that, because of such conduct/behaviour, the appellant/accused was having doubts on her. P.W.7 asserted that the doubt expressed in this regard was conveyed by her to the police as well, though she was not exactly aware of the reason for murder. Mother of the deceased was examined as P.W.8, who deposed before the Court that on the previous day, i.e. 22.02.2009, the deceased had come to her residence and that she was taken back by the husband/appellant/accused. P.W.8 also deposed that the deceased had told her as to the doubt cherished by the appellant/accused over her and as informed to her, the deceased was stabbed to death by the appellant/accused. During the cross examination, P.W.8 asserted that she did not know that the appellant/accused was having any ailments. The ASI, Kodencherry Police Station was on duty in the morning on 23.02.2009, who deposed the particulars revealed to him by the appellant/accused as to the death of his wife occurred on that day.

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9. Based on the statement given by the appellant/accused, that he had kept the knife concealed at a place in the room and that the room was locked and its key was kept over the grills on the varanda, P.W.9 proceeded to the spot in a police jeep ( along with other police constables) and on opening the room, after taking the key from the top of the grill of the varanda, the deceased was found lying supine on the floor, beneath the cot. After instructing the police constables to guard the scene, he informed the position to the Dy.S.P. and the C.I. having jurisdiction over the area and as instructed by the C.I., he returned to the police station and registered the Crime No.15 of 2009 under Section 302 IPC. Ext.P7 FIR was marked through him and he identified the signature thereon. PW.9 identified the accused as well. The said witness deposed that there was blood in the dress worn by the appellant/accused and that it was almost dry at that time. The witness further deposed that, before proceeding to the spot, he had put the accused/appellant, who was in the station, under surveillance of another ASI by name Raveendran, who was having the 'GD' charge. The reason for proceeding to the spot before registering the case was also CRL.APPEAL No.1006 OF 2011 10 explained by the said witness, stating that there were several instances of having played tricks with the Police by furnishing false information and hence he wanted to verify the position before registering the FIR, lest the higher authorities should take action, if the information was wrong. Nothing has been elicited in the cross examination to discredit his testimony.

10. P.W.11 is the father of the appellant/accused, who surrendered the ration card before the investigating officer as per Ext.P10 Mahazar , which contained his signature, as identified by him. He deposed that he came to know of the death of Shiny, on returning after completing his job as a rubber tapper in the morning on 23.02.2009. He further stated that, when he proceeded for the job by about 6.00 a.m., his son- appellant/accused and the deceased Shiny were inside the room. P.W.11 stated that the deceased was working as a helper in an 'Anganwadi' and that it was his son/accused who used to take the deceased Shiny to the 'Anganwadi' and bring her back. The said witness also asserted before the Court that he had informed the Police that his son/accused had killed the deceased Shiny because of his doubts on the deceased. P.W. 11 stated that, on CRL.APPEAL No.1006 OF 2011 11 reaching home, his wife, who was also residing there, had told him about a cry heard from the bed room, where the deceased and his son were sleeping; that his wife was not in a position to move about because of her ailments; that the room was subsequently locked from outside by his son Saji and hence it could not be opened. By the time he tried to break open the door, the Police reached the spot and they opened the room. In the cross examination, the witness said that he was not in a position to look into the room, as totally exhausted. The witness added that there was no estrangement between him and his son and that there was no property dispute in between. The witness asserted that he was having no information that his son/accused was suffering from any mental ailments.

11. The mother of the appellant was examined as P.W.12. She deposed that the appellant/accused was the husband of the deceased and that the deceased and her son were maintaining good relationship. Husband of PW.12 and the appellant/accused were stated as rubber tappers . P.W.12, because of ailments was not in a position to do any job and that she was lying down after availing treatment from a hospital for two days, prior to the date CRL.APPEAL No.1006 OF 2011 12 of occurrence. It is further deposed that the deceased had gone to her residence and that on the previous date of occurrence, her son/appellant/accused had gone and brought her back. She deposed before the Court that, on the date of occurrence, she heard her daughter-in- law crying after 6.00 a.m. from her bed room, screaming that she was being killed. Since P.W.12 was not in a position to move about, she had crawled and reached the front door of the bed room where the deceased was lying. It was locked from inside and light was put on. She trembled and fell down and was not in a position to speak. By about 8.00 a.m., when her husband returned after tapping works, she told him of the event, when her husband went out and called the elder son. P.W.12 deposed that the appellant had locked the room from outside and had left the place. She had witnessed the appellant going out and that the room was locked from outside at that point of time. PW.12 also deposed that the appellant had committed the murder, as he was having doubts on his wife Shiny and that P.W12 was aware of the same as told by Shiny (deceased). P.W.12 added that she had been questioned by the Police. During cross examination, P.W.12 submitted that she had CRL.APPEAL No.1006 OF 2011 13 lost consciousness on falling down near the door of the bed room, where the deceased was lying and that she regained her consciousness only on pouring water on her face by her husband. It was also deposed by her that the appellant/son was having love and affection to them and that she was not aware of any mental illness to Saji( her son/appellant). The cross examination has not yielded anything to discredit her testimony.

12. The Secretary of the Local Authority who prepared Ext.P11 ownership certificate of the building was examined as P.W.13. He identified the signature and office seal on the said certificate. P.W.14 is the Doctor, who conducted the Post Mortem examination of the body of the deceased and issued Ext.P12 Post Mortem certificate. The aspects noted by him after examining the body in general, the Anti Mortem injuries, other findings and opinion as to the cause of death were distinctly pointed out by the Doctor, when he was examined before the Court.

13. As many as '37 injuries' were noted and the injuries were fresh. The examination also revealed that the Uterus contained a foetus of 8 cm long. Ovaries showed follicles and CRL.APPEAL No.1006 OF 2011 14 tubes normal. The opinion as to the cause of death was stated as due to cut injury to neck and that there was evidence of severe blood loss. The witness deposed that injury No.8 (incised wound, boat shaped 3 x 2 cm with its angulation 0.5 cm each directed downwards transverse on front of neck 4 cm above root of neck; cutting the trachea underneath at a level 1.5 cm above vocal cords and involving 2/3rd the circumference of wind pipe) referred to in Ext.P12 was independently sufficient to cause death in the ordinary course of nature. It was added that he was questioned by the investigating officer, by showing M.O.1 knife. In the cross examination, the witness deposed that all the incise wounds and some other contusions referred to in Ext.P12 could be caused with M.O.1 knife and that the contusions in Ext.P12 could be caused with the handle of M.O.1 knife. In response to the question raised in the cross examination, the witness stated that the injuries 1 to 3 and 27 could be caused in a scuffle, however it was unlikely that the said injuries could be caused in a fall. The witness was more specific with reference to injury No.26 in Ext.P12, stating that it could be caused with M.O.1. Knife by stabbing and drawing out the knife. In response to the question CRL.APPEAL No.1006 OF 2011 15 whether the life of the deceased could have been saved, if immediate medical attention was given, the witness replied that 'injury No.8' referred to in Ext.P12 had produced cut injury involving 2/3rd circumference of the wind pipe and that there was aspirated blood in the lungs , leaving the air passages also containing blood. It was accordingly stated that there was instantaneous flowing out of blood and that the death was almost instantaneous. In response to the another pointed suggestion as to whether the pattern of injuries referred to in Ext.P12 could be caused only by an insane person, the witness asserted that he did not agree, adding that he had occasion to see several sane persons inflicting more injuries than referred to in Ext.P12 Post Mortem Certificate.

14. Ext.P13 site plan was marked through P.W.15 Village Assistant, who identified his signature and that of the Village Officer, besides the office seal affixed thereon. Nothing contrary to the said fact as deposed by the witness, was brought out in the cross examination.

15. The inquest was conducted by the Spl. Tahsildar, Land Acquisition, Kozhikode, who was examined as P.W.16. The CRL.APPEAL No.1006 OF 2011 16 witness stated that he had subscribed his signature to Ext.P3 and that the same was signed by other witnesses as well. In the cross examination, the witness stated that the inquest was done at the very place of occurrence, i.e. bed room where the deceased was lying and that it was done in the presence of the witnesses and also the police officials, besides a photographer, who took the photographs at that time. It was stated by P.W.17, Doctor that he had issued Ext.P14 accident register-cum-wound certificate and that he was questioned by the investigating officer, who recorded his statement. It was also pointed out in the cross examination, that the injuries referred to in Ext.P14 could be caused in a scuffle. In response to a Court question, the witness answered that the injuries in Ext.P14 could be caused with a weapon like M.O. 1 as well. The investigating officer was examined as P.W.18. He deposed that he took over the investigation on 23.02.2009 and that the inquest was conducted by P.W.16. The personal belongings recovered by P.W.16 and handed over to P.W.18 were marked through him as M.Os.3, 4, 5, 6, 7 and 8. The arrest memo and inspection memo, in relation to the accused, were also marked through the said CRL.APPEAL No.1006 OF 2011 17 witness as Ext.P5 and P6, whereas the property list was marked as Ext.P15. The witness stated that, on questioning the appellant/accused after his arrest, he had stated that the appellant/accused had concealed the knife at a place in the house and that if he was taken to the building, he will show the place, where it was concealed.

16. On the basis of the said statement, P.W.18 proceeded to the spot with the accused and recovered the knife, as taken and handed over by the appellant/accused, which was kept in a plastic cover. Ext.P2 Mahazar was prepared as to the recovery of M.O.1 knife and M.O.2 plastic cover and the relevant portion of the disclosure statement in Ext.P2 was separately marked as Ext.P2(a) . The witness identified the knife and added that there was blood stains and hair on the edge of the knife . The Shirt and Lunki worn by the appellant at the relevant time were recovered as per Ext.P4 Mahazar and the said items were identified as Ext.M.O.9 and M.O.10 respectively. It was deposed by the witness that M.O.1, M.Os. 3 to 5 and M.Os.9 and 10 were caused to be sent for chemical examination along with a forwarding note, marked as Ext.P16. The blood and hairs CRL.APPEAL No.1006 OF 2011 18 collected from the dead body by P.W.14 the Doctor, who conducted the Postmortem, were also stated as forwarded for chemical examination along with Ext.P16 forwarding Note. After Postmortem, P.W.14 had handed over three broken gold bangles, a broken ring and a pair of anklets collected from the dead body, which were recovered as per Ext.P17 Mahazar. The above material objects were marked as M.O.11 series, M.O. 12 and M.O. 13 series. It is stated that these items were also sent to the Court as per Ext.P15 property list. The witness identified his signature on Ext.P17 Mahazar. It was also deposed by him that he had questioned the witnesses and after three days of investigation, he was transferred and the remaining investigation was conducted by C.W.14- K.S. Shaji (P.W.20). It was also pointed out that the bangles, chain and ring were broken, as they were retrieved from the dead body after cutting the same. In the cross examination, the witness stated that, after arresting the accused he was sent for Medical examination and it was over by 6.45 p.m., on the same day. It was thereafter that the Shirt and Lunki worn by the accused were recovered ; that the accused was taken to the hospital (as the accused was also having some CRL.APPEAL No.1006 OF 2011 19 injuries) and further that the appellant /accused did not find any difficulty in talking when he was taken to the Doctor. In response to a pointed question, the witness answered that, in his investigation, nothing was brought to his knowledge to suggest that the appellant/accused was having any mental ailments.

17. The C.I. of Thamarassery Police Station, who conducted the investigation from 18.07.2009 was examined as P.W.19. The photographs (Ext.P19 series) produced by C.W.21 Mojin (not examined) were stated as recovered as per Ext.P18 Mahazar. The chemical analysis report (after examination of the material objects) was marked as Ext.P20. The witness deposed that in respect of item 1 to 8 of Ext.P20, presence of human blood of 'B' group was noted therein. In respect of item No.7, the hairs were found as 'human hairs' and that it was having similarity and identity with reference to the hairs noted already and that it was of same origin, as recorded in Ext.P20. Item No.8 of Ext.P20 was collar and hairs containing blood, taken and entrusted by P.W.14- Doctor who conducted the Postmortem. In the cross examination, the witness stated that he had not come across any instance of mental instability of the accused. CRL.APPEAL No.1006 OF 2011 20

18. The General Diary of Kodenchery Police Station, which contains the entries on 23.02.2009, was seized by P.W.20, while he was working as the C.I. of Thamarassery, on 05.03.200, as per Ext.P8 Seizure Mahazar. The General Diary (Ext.P9) was identified by him. The relevant entry referring to the incident occurred on 23.02.2009 was separately marked as Ext.P9(a). The witness added that there was a mistake in recording the date showing it as '23.02.2008', which actually was '23.02.2009'. In the cross examination, the witness stated he was not aware that the appellant/accused was having any mental ailments at that time or even before. In support of the defence case with reference to Section 84 of the IPC, the senior Consultant of the Govt. Mental Health Centre , Kozhikode was examined as D.W.1 from the part of the defence. The said witness deposed that the appellant/accused was treated as an inpatient in the hospital from 18.08.2002 to 10.10.2002 and thereafter from 11.04.2009 to 16.07.2010. The witness stated that as per the treatment records, the patient was suffering from Paranoid Schizophrenia; that the disease was under control when the patient was under treatment; that continuous medication was CRL.APPEAL No.1006 OF 2011 21 required; that during 2002, the patient was brought to the hospital by his father and elder brother; whereas in 2009, he was brought to the hospital by the escort police from the District Jail. The medical records were marked as Exts.D2 to D4. It was stated that the patient was attending the Out Patient Department of the hospital periodically after 18.08.2002. Initially he used to attend the O.P. once in a week and afterwards, once in four weeks and thereafter, once in two months, after 2002. The patient had attended the O.P. on 28.01.2009 and that the patient had shown much improvement on that day. It was also stated in the cross examination that the reduction in quantity of dosage of medicine indicated that the patient was showing improvement.

19. When the accused was questioned under Section 313 Cr.P.C., his response to various questions raised with reference to the evidence adduced was a case of total denial. The accused had also submitted a written submission that somebody else had committed the crime and that he was victimised. Thereafter, defence evidence was adduced and later, on asking him as to whether he wanted to say anything more with regard to punishment on 10.03.2011, he stated that he was having 'mental CRL.APPEAL No.1006 OF 2011 22 illness' and that he was still under treatment and hence pleaded for mercy.

20. We have re-appreciated the entire evidence on record . The discussion on the evidence, as mentioned above, clearly points to the guilt on the part of the appellant/accused and no other conclusion is possible. The medical evidence clearly supports the case of the Prosecution, proving the guilt of the appellant. There is absolutely no explanation for the appellant as to the circumstance under which the M.Os concerned were recovered on the basis of the disclosure statement given by him. Similarly, no explanation is forthcoming as to how the Shirt and Lunki, which were worn by him at the relevant time contained the blood of the deceased wife . Both the parents of the accused and his elder brother have deposed the relevant facts , pointing to the guilt of the accused/appellant. It is supported and corroborated by the deposition given by other witnesses including the mother and sister of the deceased, the neighbours and the official witnesses. The motive with regard to the doubt on the chastity of the wife, as to the reason for stabbing her to death is also established. It is also seen that the Trial Court was CRL.APPEAL No.1006 OF 2011 23 conscious and prudent enough in sieving and accepting only the acceptable portion of the statement given by the appellant/accused, especially with reference to Ext.P7-statement given by the appellant/accused himself, which formed the basis for initiating the investigation. The principle laid down by the Apex Court in Aghnoo Nagesia vs. State of Bihar (AIR 1966 SC 119) and that of this Court in Rajesh A.V. vs. State of Kerala (2007 (4) KHC 277) in this regard have also been adverted to, in relation to the conduct of the appellant/accused (under Section 8 of the Evidence Act) in going to the Police station informing the Police about the death of his wife and appreciation of evidence has been done by the Court below, meticulously. The circumstantial evidence available in the case stands corroborated by medical evidence as well. The chain of circumstances available is complete and closely connected together, leaving no ground to arrive at a conclusion as to the innocence of the accused. The evidence on record clearly rules out the chance of having committed the offence by any other person than the accused and as such, it can be safely inferred that it was none other than the appellant/accused, who CRL.APPEAL No.1006 OF 2011 24 committed the murder of his wife Shiny, stabbing her to death by M.O.1 knife at about 6.30 a.m. on 23.02.2009. The finding rendered by the court below is well founded and does not warrant any interference.

21. Coming to the case set up by the appellant for granting the benefit of Section 84 of the IPC, D.W.1-Doctor has deposed that the appellant/accused was having 'Paranoid Schizophrenia' and that he had availed treatment in the year 2002. As discussed already, regular check up was being conducted; illness was quite under control and the appellant was leading normal life. The Doctor also deposed that the reduced extent of medicines being administered was a sign of substantial improvement. The appellant was brought to the hospital only later on 11.04.2009 escorted by the Police, while he was in custody. The version given by the appellant/accused, that he was having doubts on the chastity of his wife, was stated as recorded in the medical records. Absolutely no instance of any aggravation or excess on the part of the appellant/accused was pointed out by any of the witnesses examined before this Court, including his parents, siblings or such other persons. It is CRL.APPEAL No.1006 OF 2011 25 brought out in evidence that the appellant/accused was leading a normal life, eking out his livelihood as a rubber tapper. It has also been brought on record that the appellant/ accused had constructed a house of his own in a nearby locality; that the marriage with the deceased was conducted a few months back; that he used to take the deceased to the nearby Anganwadi where she was working and to bring her back and that he himself had gone to the maternal residence of the deceased on the previous day, to bring her back.

22. The scope of Section 84 of the IPC has to be analysed and applied in the above background. Under Section 84 of the IPC nothing is an offence, which is done by a person, who, at the time of doing it, by reason of unsoundness of mind, was incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. 'Unsoundness of mind' is not defined in the IPC, which, in the course of time, as interpreted by the law courts, has been understood as something of insanity. What should be the grade of insanity has been discussed, explained and laid down, to extend the benefit under Section 84 of the IPC by the Apex Court, this Court and various CRL.APPEAL No.1006 OF 2011 26 other High Courts at different points of time.

23. 'Unsoundness of mind' means a state of mind where the accused is incapable of knowing the nature and consequence of his act or deeds or that he is incapable of knowing that he was doing something wrong or contrary to law. By virtue of settled position of law, the burden, of course, rests upon the person who raises the plea, ie., the accused. So as to invoke the defence of insanity under Section 84 of the IPC, it has to be clearly proved that at the time of committing the act, the accused was laboring under such a defect or reason because of the disease of mind, as to the nature of his acts or its consequences or that what he was doing was wrong. Mere abnormality of mind or partial dilution does not afford any protection under Section 84 IPC .

24. As a matter of fact, statutory recognition to the defence of insanity is brought about by virtue of Section 84 of the IPC, which was developed by the Common Law of England in a decision of the House of Lords rendered in R.vs. Daniel Mc Naughten ( 1843 RR 59 = 8 ER 718(HL)]. It was in the said case that the House of Lords had formulated the famous 'Mc Naughten Rules' on the basis of five questions referred to them CRL.APPEAL No.1006 OF 2011 27 with regard to the defence of insanity. The reference was pursuant to the case where Mc Naughten was charged with murder for shooting the Private Secretary of the then Prime Minister of England (Sir Robert Peel). Medical evidence was produced by the accused- Mc Naughtern to show that at the time of committing the act, he was not in a sound state of mind. The plea of insanity was accepted and Mc Naughten was found not guilty, on the ground of insanity. The verdict became the subject matter of debate in the House of Lords and opinion of all the judges on the law governing such cases was decided to be taken. Section 84 of the IPC virtually came to be moulded in terms of the answers given to the questions put to the House of Lords [See Ratanlal and Dhirajlal on Indian Penal Code, 33rd Edition published by Lexis Nexis]

25. It is brought out in defence evidence that the appellant/accused was treated for 'Paranoid Schizophrenia' in the year 2002 and was continuing on medicines. Characteristics of the disease, 'Paranoid Schizophrenia' have been explained in Modi's Medical Jurisprudence and Toxicology, 25th Edition in the following words:

CRL.APPEAL No.1006 OF 2011 28 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 later 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 money 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 often a source of danger to himself and to CRL.APPEAL No.1006 OF 2011 29 others.

Placing reliance on the verdicts passed by the Apex Court at different points of time, it was reiterated by the Apex Court in Shrikant Anandrao Bhosale vs. State of Maharashtra [(2002)7 SCC 748] that the burden of proving the existence of the circumstance bringing the case within the purview of Section 84 IPC lies upon the accused, and that by virtue of the mandate under Section 105 of the Indian Evidence Act, the Court shall presume absence of such circumstances. In Hari Singh Gond vs. State of M.P.[2008(3) KLT 969], the Apex Court made it clear that under Section 84 of the IPC, a Court is concerned only with 'legal insanity' and not 'medical insanity'. The crucial point of time for deciding whether the benefit of Section 84 should be given or not is the material time, when the offence takes place and such benefit will be available only if it is proved that at the time of committing the act, the accused was labouring under such infirmity. The burden of proof rests, as already held by the Apex Court, on the accused; which can be traced to Section 105 of the Indian Evidence Act, under which provision, the Court shall presume absence of such circumstance. It was CRL.APPEAL No.1006 OF 2011 30 also made clear by the Apex Court that, the mere fact that the accused was conceited/odd irascible or that his brain was not quite alright or that he was liable to recurring fits of insanity at short intervals cannot be sufficient to attract application of the provision. A person can be exonerated from the liability for doing an act on the ground of 'unsoundness of mind' under Section 84 IPC, only if he, at the time of doing the act, was either incapable of knowing (a) the nature of the act or (b) that he was doing what was either wrong or contrary to law. In Sudhakaran vs. State of Kerala [(2010)10 SCC 582] , the Apex Court reiterated that the burden of proof is to be discharged by the accused, to claim the benefit of Section 84 . The Apex Court held that the accused would have to prove that his cognitive faculties were so impaired at the time when the crime was committed, as not to know the nature of the act, incapable of understanding the nature of consequence of the act performed by him. It was also a case where the accused had murdered his wife, by assaulting her with a chopper on her neck in the bed room of the house, for allegedly cheating him. Based on the evidence adduced, the Court held that the Trial Court and the CRL.APPEAL No.1006 OF 2011 31 Appellate Court had correctly concluded that circumstances would lead only to the conclusion that the appellant had committed murder of his wife. The plea taken in the said case was also with reference to 'Paranoid Schizophrenia'. After referring to the nature of illness, the characteristics and the consequences with reference to the relevant features as explained in Modi's Medical Jurisprudence and Toxicology (25th edition), the Court explained the standard of proof required to be discharged by the party who seeks for the benefit of Section 84 of the IPC.

26. The Apex Court in Jagdish vs. State of MP (2009 KHC 5064) held that the benefit of Section 84 IPC will be available only to persons, who at the time when the act was done, was not capable of knowing the nature of his act/deeds or that, what he was doing was something wrong or contrary to law. So the mental condition of the accused on the date of the incident is the relevant factor. In the instant case, as discussed already, the appellant was leading a very normal life with his wife and near relatives, taking his wife to Anganwadi and bringing her back after the marriage solemnised about 8 months prior to the date of occurrence. The appellant had constructed a residential CRL.APPEAL No.1006 OF 2011 32 house of his own and was eking out his livelihood by working as a rubber tapper. It is also discernible from Ext.P12 Postmortem certificate issued by P.W.14 that a foetus of 8 cm long was developed in the uterus of the deceased, which is an indicator to the fact that the appellant was having a normal sexual life with his wife/deceased. Considering the question whether the act of the appellant was without having any idea as to the nature of the act or its consequences or that he was not in a position to know about the consequences as to whether such an act was wrong or contrary to law, it is to be noted that the appellant, after committing the crime, stabbing his wife to death inside the bed room, kept the M.O.1 knife in M.O. 2 plastic bag and concealed it on the top of an almirah kept in another room (on the western side) in the house, locked the room from outside and kept the key on the top of the grill of the varanda and thereafter proceeded to the police station and gave information. This by itself reveals that the appellant/accused at the relevant time was very much conscious and aware of his acts and deeds; that it was a wrongful act; that it was contrary to law; that he was liable to be proceeded against in accordance with law by the Police, after CRL.APPEAL No.1006 OF 2011 33 registering a case, which made him to go to the police station and report. He was not acting under instruction, persuasion or coercion of anybody else. This clearly indicates that the decision was taken by him consciously and as such, it cannot be said that the appellant was not in a sound state of mind at the time of occurrence, as to the nature of consequences of the act or that he was doing an act contrary to law, to come within the purview of Section 84 of the IPC. This Court is of definite view that the appellant is not entitled to get the benefit of Section 84 of the IPC. The finding rendered by the court below is perfectly within the four walls of law and is not assailable under any circumstance.

27. This Court finds that the court below heard the appellant/accused on the question of sentence as well. It has been noted that it was not a case coming within the 'rarest of rare' cases and hence the punishment of death was spared, while confining the sentence to imprisonment for life and fine of Rs.2 lakhs under section 302 IPC. There is proper analysis and appreciation of all the relevant facts, evidence, law and the precedents. This Court finds no ground to interdict the verdict CRL.APPEAL No.1006 OF 2011 34 passed by the court below. Appeal fails and it is dismissed accordingly.

P.R. RAMACHANDRA MENON, JUDGE A.HARIPRASAD, JUDGE lk

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