Kerala High Court
E.P.Paul @ Roy vs State Of Kerala on 11 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1317
Author: M.R. Anitha
Bench: A.Hariprasad, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942
CRL.A.No.1141 OF 2017
AGAINST THE ORDER/JUDGMENT IN CP 23/2008 OF JUDICIAL MAGISTRATE
OF FIRST CLASS, THIRUVALLA
AGAINST THE ORDER/JUDGMENT IN SC 396/2009 DATED 27-11-2017 OF
ADDITIONAL SESSIONS COURT - III, PATHANAMTHITTA
APPELLANT/ACCUSED:
E.P.PAUL @ ROY
AGED 60 YEARS, S/O.POULOSE, ELANJIMOOTTIL VEEDU,
KUTTOOR, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN-
689106.
BY ADVS.
SRI.DINESH MATHEW J.MURICKEN
SRI.K.A.ABHILASH
SMT.T.J.AMRUTHA
SRI.P.P.KURIEN
SMT.PRIYANKA VARGHESE
SRI.N.R.SANGEETHARAJ
SRI.VINOD S. PILLAI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,
THIRUVALLA POLICE STATION THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-
682031.
R1 BY SR.GOVERNMENT PLEADER SMT. SYLAJA S.L.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15-10-2020, THE COURT ON 11-11-2020 DELIVERED THE FOLLOWING:
Crl.A.No.1141 of 2017
2
C.R.
JUDGMENT
Dated : 11th November, 2020 M.R. Anitha, J.
1) Appellant is the sole accused in S.C.No.396/2009 on the files of Additional Sessions Judge-III, Pathanamthitta. By the impugned judgment, the learned Addl. Sessions Judge convicted the appellant/accused under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) in default to undergo rigorous imprisonment for six months.
2) Prosecution case can be summarized as follows:-
Deceased Anukuttan was the nephew of the appellant/accused. On the fateful day on 08.08.2005 at about 6.30 p.m while Anukuttan was going along with PW4, accused called him and took him by holding his hand After that he struck his head on the road by holding the leg. On the immediate next day at 4.50 am he succumbed to the injuries. Thereby, appellant committed the offence aforementioned.
3) Immediately after the incident he was taken in the autorickshaw of PW7 to Kuttoor taxi stand, thereafter to Crl.A.No.1141 of 2017 3 Pushpagiri Hospital. PW2 who was the Casualty Medical Officer at Pushpagiri Medical College, Thiruvalla examined him and issued Ext.P2 wound certificate. Thereafter, PW4 lodged the FIS which is marked as Ext.P4. PW10, the Assistant Professor of Forensic Medicine, Medical College Hospital, Kottayam conducted postmortem on the body of the deceased boy. PW11 took charge of the investigation on 08.08.2005 and arrested the accused on 25.08.2005. PW12 who is the successor of PW11, Circle Inspector, Thiruvalla continued the investigation from 22.09.2005 onwards and verified the records and filed the charge.
4) On the side of prosecution PWs 1 to 12 were examined and Exts.P1 to P20 were marked. MOs 1 to 6 were also identified and marked .
5) On questioning under Section 313(1)(b)Cr.P.C., appellant/accused denied all the incriminating facts and circumstances put to him. He also stated that for long time he had been suffering from mental illness and undergoing treatment at Medical College Hospital and he has no memory. DWs 1 to 10 examined and Exts.D1 to D4 marked on the side of defence. Thereafter, on hearing both sides, the court below found the appellant/accused guilty under Section 302 IPC and convicted and sentenced him thereunder.
6) Assailing the conviction and sentence passed by the court Crl.A.No.1141 of 2017 4 below appellant/accused came up before this court. The learned counsel for the accused Sri.Dinesh Mathew Murikkan fairly conceded the act committed by the accused. The challenge is on the rejection of plea of insanity under Section 84 IPC.
7) The evidence of PW2-the doctor, who examined the boy at Pushpagiri Medical College Hospital Casualty would prove that "the boy was brought in with the history of "fall from the hands of his paternal uncle at 6.15 p.m today". He noted multiple severe diffused head injury with multiple skull fracture with haemorrhage contusions and cerebral oedema. Seeing the condition as critical, he was referred to surgery and neuro surgery departments of the same hospital (Pushpagiri Medical College, Thiruvalla). Ext.P2 is the wound certificate issued by him. On the subsequent day the boy succumbed to the injuries.
8) PW10 was the Assistant Professor of Forensic Medicine, Government Medical College Hospital, Kottayam. He examined the body of the deceased and issued Ext.P10 postmortem certificate. Ante-morterm injuries noted therein are as follows:
"1) Lacerated wound 1x0.5cm bone deep on the middle of forehead 3.5cm above root of nose.
2) Multiple small abrasions over an area 4.5x2cm on the right side of forehead 1.5cm outer to midline and Crl.A.No.1141 of 2017 5 0.5cm above eyebrow.
3) Three lacerated wounds 0.5x0.3cm, 0.5x0.5cm and 1x0.5 cm bone deep. One below the other, almost in a straight line each 1.5cm apart on the left side of top of head, the lower one 6.5 cm above ear.
The scalp hair surrounding the wound was shaven.
On dissection the scalp tissue was contused 9x6x1cm corresponding to injury 1 and 2 and 10x8 cm involving its whole thickness corresponding to injury No.3. The left temporal and parietal bone showed comminuted fracture 8x6 cm, the fracture was seen extending to left middle cranial fossa for a length of 7 cm. The right anterior cranial fossa shows comminuted fracture 5x3 cm, and posterior cranial fossa 6x4cm. Dura was intact. The base of right frontal lobe of brain showed laceration 5.5x4x2cm. Brain was oedematous with bilateral subdural and subarachnoid haemorrhage.
4) Graze abrasion 6x4cm involving the right side of face and adjoining nose and angle of mouth.
5) Contusion 2x1x0.2cm on the inner aspect of right side of lower lip corresponding to incisor teeth.
6) Graze abrasion 8x1.5cm oblique directed downward on the right side of front of chest, its upper extent 8cm below collar bone and 5cm outer to midline.
7) Linear abrasions 0.5cm and 1cm long. 1.5 cm apart one below the other on the outer aspect of Crl.A.No.1141 of 2017 6 right upper arm 8cm below top of shoulder.
8) Abrasion 3x2 cm on the back of right elbow.
9) Multiple small abrasions over an area 4x3 cm on the back of right hand.
10) Multiple small abrasions over an area 2x1cm on the front of left fore-arm 1.5cm above wrist.
11) Contusion 0.2x0.1x0.1cm on the back of terminal phalanx of left thumb.
12) Multiple small abrasions 1x0.5cm each on the back of knuckles of left hand.
13) Graze abrasion 3x2.5cm on the inner aspect of right knee.
14) Abrasion 1.5x1cm inner aspect of right ankle 6cm above heel.
15) Contusion 2.5x1x0.5cm on the back of right heel.
16) Contusion 1x0.5x0.2cm on the left inguinal region 2cm outer to midline.
17) Abrasion 1x0.5cm on the front of left thigh 5cm below prominence of hipbone.
18) Abrasion 1x0.5cm on the outer aspect of left ankle.
9) PW10 stated the cause of death as head injury. During cross-examination he asserted that the injuries are not possible by fall on ground. The evidence of PWs 2 and 10 Crl.A.No.1141 of 2017 7 would conclusively prove that the death of the deceased boy was a homicide.
10) The evidence of PW4 would prove that while she was proceeding with the deceased and when she reached in front of the house of appellant/accused,(hereinafter be referred as accused) he came and took the deceased boy by holding his hand. Within a short-time, she heard an alarm of PW6, the mother of the deceased boy and saw PW6 taking the boy from the hands of the accused. The boy was found in a pool of blood in the hands of PW6.
11) The evidence of PW6, the mother of the deceased boy would prove that on hearing the cry of PW4 she rushed to the spot and found the accused striking the head of the deceased boy on the road by holding the leg and suddenly she took the boy from the hands of accused. PW7 the autorikshaw driver would state that at the request of PW6, the boy was taken in his autorikshaw immediately after the incident upto Kuttoor taxi stand.
12) PW5 the brothers' wife of the accused though cited to prove the incident, she was not prepared to admit the prosecution case and retracted from the version given to the police. The contradictory version given by her is marked as Exts.P5 to P8. So the evidence of PW4 and 6 would prove that accused struck the head of the deceased boy at the road by holding his leg. The evidence of PW2 the doctor at casualty Crl.A.No.1141 of 2017 8 and Ext.P2 wound certificate establish the corresponding injuries. Ext.P10 the post-mortem certificate and the evidence of PW10 also proves corresponding head injuries. PW10 doctor stated the cause of death as head injury. So the oral evidence of PW4 and 6 coupled with the medical evidence leaves no room for doubt to conclude that accused caused the death of the deceased boy by striking his head at the road. As stated earlier, that fact is not in dispute also.
13) Learned counsel for the accused would contend that for about one month prior to the incident the accused was not mentally sound. Family members were reluctant to take him for treatment fearing the future of his two daughters. The Vicar of the church was informed of the issue. One day the accused confined the family members in the house when people invited for attending prayers came to his house and the door was not opened. Further he would contend that the accused is very fond of the deceased child and had no motive to cause his death. The incident happened solely because of the unsoundness of the mind and his incapacity to know the nature of the act done by him. He would contend that, the facts and circumstances brought out through the prosecution evidence and the evidence adduced from the side of the defence prove in abundance the unsoundness of the mind of the accused during the relevant time. Investigating officer according to the learned counsel shirked from his responsibility in investigating about the Crl.A.No.1141 of 2017 9 soundness of the mind of the accused and that is a serious infirmity which vitiates the trial.
14) The learned Public Prosecutor Smt.Shylaja on the other hand would contend that the defence had not succeeded to prove that at the time of commission of the offence the accused was suffering from any mental illness. All the evidence adduced by the accused relates to mental condition subsequent to the incident and will not in anyway help the accused to claim the benefit under Section 84 IPC. She would also contend that DW1 to whom the accused alleged to have been taken initially for treatment did not produce any document with respect to the treatment undergone at his hospital. Dw1 admitted that he did not know whether at the time of occurrence the accused was insane or not. Further she would contend that DW2 the doctor attached to the Psychiatry Department, Medical College Hospital during 2005 through whom Ext.D2 discharge card was proved, could not identify the accused. DW5, the Professor and Head of Department, Medical College Hospital, Kottayam through whom Ext.D3 series have been proved, had not treated the accused. DW6 who treated the accused from 11.08.2005 onwards admitted during cross-examination that apart from killing the child, no other history showing criminal antecedence had been recorded by him. He also stated that the symptoms of each patient may be different. DW7 who was the Professor and Crl.A.No.1141 of 2017 10 Head of Department of Psychiatry, Medical College Hospital, Kottayam also stated that in Ext.D3 case sheet, there is no detailed examination findings of him recorded. DW7 also stated that he can only state the mental condition at the time of seeing the patient at the hospital. So according to the learned Public Prosecutor, the defence evidence is not sufficient to prove the unsoundness of mind at the time of commission of the act.
15) No doubt, the burden of proof in criminal jurisprudence is always upon the prosecution and that burden never shifts. In a case of plea of unsoundness of mind and consequent incapacity to know the consequences of the acts done by the accused, the burden is upon the accused. Section 84 of IPC (45 of 1860), provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. It is also well settled that the insanity referred therein is legal insanity and not medical insanity.
16) Section 105 of the Evidence Act,1872 provides that the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon the accused, and the Court shall presume the absence of such circumstances.
Crl.A.No.1141 of 2017 1117) In the context of Section 84 of IPC and burden of proof under Sections 101 and 105 and Section 4 of Evidence Act in a case of plea of insanity the learned counsel for the appellant drew our attention to Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563], paragraph No.6 quoting the textbook and the decisions it read as follows:
"The onus of establishing insanity is on the accused. The burden of proof upon him is no higher than which rests upon a party to civil proceedings."
Quoting Glanveille Williams in his book "Criminal Law", General Part, 2nd Edn., places the relevant aspect in the correct perspective thus, at p.516:
"As stated before, to find that the accused did not know the nature and quality of his act is, in part only another way of finding that he was ignorant as to some fact constituting an ingredient of the crime; and if the crime is one requiring intention or recklessness he must, on the view advanced in this book, be innocent of mens rea. Since the persuasive burden of proof of mens rea, is on the prosecution, no question of defence, or of disease of the mind, arises except in so far as the prisoner is called upon for his own safety to neutralise the evidence of the prosecution. No persuasive burden of proof rests on him, and if the jury are uncertain whether the allegation of mens rea is made out ... the benefit of the doubt must be given to the prisoner, for, in the words of Lord Reading in another context, "the Crown would then have failed to discharge the burden imposed on it by our law Crl.A.No.1141 of 2017 12 of satisfying the jury beyond reasonable doubt of the guilt of the prisoner."
Again quoted K.M. Nanavati v. State of Maharashtra, (1962) Supp (1) SCR 567 at pp.597, 598: (AIR 1962 SC 605 at p.617) wherein the court had to consider the question of burden of proof in the context of a defence based on the exception embodied in S.80 of the Indian Penal Code. In that context law is summarized thus:
"The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under S.105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statue may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see Ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception, if proved, affecting the proof of all or some of their ingredients of the offence. (see S.80 of the Indian Penal Code)... In the third case, though the burden lies on the accused to bring his case within the exception the facts proved may not discharge the said burden but may affect the proof of the ingredients of the offence."
18) In paragraph No.7 of the above judgment, the doctrine of Crl.A.No.1141 of 2017 13 burden of proof in the context of insanity has been stated, which reads as follows:
"7. 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."
19) The learned counsel also placed reliance on Vijayee Singh and Ors. v. State of U.P. [AIR 1990 SC 1459] wherein while dealing with Sections 105, 3, 101, 102, 103, 104 of the Evidence Act (1 of 1872) it has been held that burden to Crl.A.No.1141 of 2017 14 prove whether the case of the accused comes within the exception is upon the accused and it gets discharged if probability is proved or reasonable doubt about prosecution case is raised. It is relevant to extract paragraph No.29 where a quote of Lord Denning J. in Miller v. Minister of Pensions (1947) 2 All ER 372(373) has been extracted, which reads as follows:
"That degree is well-settled. It need not reach certainly but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the lest probable", the case is proved beyond reasonable doubt."
Regarding the concept of benefit of reasonable doubt Lord Du Paraq, J. in another context observed thus:
"All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth."
20) The learned counsel for the appellant also drew our attention to Kuttappan v. State of Kerala [1986 KLT 364] in Crl.A.No.1141 of 2017 15 the matter of burden of proof under Section 84 of IPC. In that decision while dealing with the matters to be considered while appreciating a case where benefit under Section 84 is claimed by the accused it has been held that Section 84 provides a defence of legal insanity as distinguished from medical insanity. A person is legally insane when he is incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. Incapacity of the person on account of insanity must be of the nature which attracts the operation of S.84. Under S.105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the exception contemplated under S.84 IPC lies on the accused and the court has to presume the absence of such circumstances. Under S.4 of the Evidence Act, court has to regard the absence of such circumstances proved, 'unless, after considering the matters before it, it believes that such circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. Accused has to rebut the presumption that such circumstances did not exist by placing material before court or relying on materials already before the court, sufficient to make it consider the existence of such circumstances so probable that a prudent man would act upon them. In order to decide this question, court has to examine the available material such as oral and documentary evidence and should Crl.A.No.1141 of 2017 16 have due regard to admissions, presumptions and even the prosecution evidence. The burden which rests on the accused is however not higher than that which rests upon a party in a civil litigation. Material so placed before the court may not sometimes be sufficient to discharge the burden under S.105 of the Evidence Act; however, it may raise a reasonable doubt in the mind of the court as regard one or the other of the necessary ingredients of offence itself, either actus reus or mens rea. If it raises a reasonable doubt in the mind of the court whether the accused had the mens rea 'required for the offence, accused would be entitled to the benefit of doubt. In such an event, prosecution must be taken to have failed to prove the guilt of the accused beyond reasonable doubt. The crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed. For this purpose, the state of his mind, both before and after the commission of the act, is also relevant. The court has to pay due regard to the circumstances which preceded, attended and followed the act. It would not be proper to assume that the investigating officer is to direct his attention only to the act but not to the mens rea. Of course, ordinarily attention of the investigator would be directed to the act, particularly in the absence of circumstances throwing any doubt on the sanity of the perpetrator of the act. But where the investigator comes across any suggestion or material throwing any such doubt, it would be Crl.A.No.1141 of 2017 17 his duty to investigate the mental condition of the accused also and place the material before court.
21) Bearing in mind the above settled principles the facts, circumstances and evidence adduced in this case has to be analyzed. To prove that the accused was having unsoundness of mind prior to the incident, the defence relies upon the evidence of prosecution witnesses as well as the medical evidence. PW4 is a neighbour of the family of the deceased .Accused took the child from her hand and moved away and shortly after that the incident happened. During cross-examination, on one occasion, she stated that she came to know from the church people that accused has got mental illness. But she was not prepared to admit the incident of confining the family members by the accused in his house one day.
22) PW5 is the brother's wife of the accused. She was declared as hostile and supported the defence version of mental illness of the accused. Being a hostile witness, the defence cannot bank upon her evidence to prove the case of insanity.
23) PW6 is the mother of the deceased boy. She was not prepared to deny the suggestions put to her that Vicar had been brought to the house of the accused before one month of the incident. She just pleaded ignorance about it. She also pleaded ignorance whether the wife of accused Crl.A.No.1141 of 2017 18 alarmed on attack by him and she called her for her help. Further, when a suggestive question was put that due to the unsoundness of mind accused was incapacitated of understanding things, she pleaded ignorance. It is also to be noted that during her cross-examination she admitted that her children used to go once in a while to the house of accused. She also admitted that being small kids the children are fond of accused. She also deposed that there was no previous ill will among the siblings. So the above evidence of PW6 would probabilise the defence versions that accused was very fond of the deceased boy and the siblings were living very cordially.
24) PW7 the auto driver in whose autorickshaw the child was taken to the bus stop immediately after the incident stated that on the previous Friday of the incident accused invited him for prayer and when he went to the house of accused it was found to be closed and in spite of their request the door was not opened. Wife of the accused while examined as DW10 also stated about that incident.
25) DW3, the Vicar of St. George Orthodox Church examined from the side of the defence deposed that about one month of the incident the wife of the accused (DW10) and his brother's wife came to him and told him that accused is having sleeplessness during night and is having some mental illness and he is full of fear always and requested him to pray for him. Thereafter he went to the house of Crl.A.No.1141 of 2017 19 accused, but the house was locked and he could not see the accused. On the next day, accused came to his house. Accused appeared to have some uneasiness and sleeplessness on sight. On talking to him it was found that he was having fear and had anxiety about the future of the daughters since his job had been lost. He further deposed that he talked to the wife of the accused and asked her to consult a doctor. The wife (DW10) informed that they have got difficulty since they have two daughters and it would become public. He further stated that accused used to come to the church with the deceased boy and they were living very cordially. During cross-examination also he stated that accused was having anxiety and had been seeing bad dreams.
26) Dw3 is the Vicar of the church. Nothing was brought out during his testimony to show that he has got any interest towards either party. Being a Vicar of the Church he need not come before a court of law and give false evidence. So more sanctity can be given to the evidence of Dw3. His evidence would show that accused was having some mental imbalance even prior to the incident.
27) DW4 was a social worker and had been the President of the Kuttoor Panchayat and Member of Block Panchayath and is a cousin of the accused also. He is in close contact with the family of the accused. He states about the prayers used to be conducted in every month in the house of the accused Crl.A.No.1141 of 2017 20 and once when they went there, the house of the accused was found to be closed. On the succeeding day on enquiring with the wife of the accused it was informed that everybody was present in the house and the accused confined his wife and wife of his brother and children in the house. He also stated that the wife (DW10) told him that for the last several days accused was having sleeplessness and had uneasy mood. He discussed with all the elder members of the family and the elderly people opined that since the accused is having two daughters they need not go for treatment immediately. According to him, the siblings of the accused were maintaining good relationship.
28) DW9 is a neighbour of the accused. She stated that after return from gulf the accused was very gloomy and lonely. According to her sometime before the incident while she went to paddy field for rearing the cattle, accused was lying in the paddy field in hot-sun and was murmuring and singing songs. When she called him he turned towards her to assault her and abused her. She informed the matter to the relatives of the accused and they informed that there is some problem to the accused but there is nothing to worry. She also states about the cordial relationship between accused and siblings.
29) Though DWs 3, 4 and 9 were cross-examined at length their evidence could not be discredited in material particulars with regard to the mental derangement of the accused. It Crl.A.No.1141 of 2017 21 has come out from the evidence of Dw10 that accused returned from gulf in the year 1998 and after return from gulf he had financial difficulties and was not having any social life and was living lonely. Before one week of the incident he was immersed in spiritual matters and was always having a fear that somebody is coming to kill him and administer poison to him. She also narrated about the attack upon her immediately before the incident. After the incident people brought the accused by tying his hands and legs with the dhothi worn by him and the people gathered there took him to Nakkada Hospital. The incident of confining the family members in the house was also narrated by her. During cross-examination it was brought out that accused used to go to the house of the deceased boy and was in close contact with them. So normally he may not be having any illwill against the deceased boy or family. So the evidence of DW10 when read in corroboration with the evidence of DWs 3, 4 & 9 it could be seen that accused was having some sort of mental derangement before the incident. Whether that illness is to the extent of incapable of understanding the nature of acts done by him or not is the moot question.
30) To establish the protection U/S 84 IPC, at the instance of the accused the doctors who treated him subsequent to the incident were examined. DW1 is the Doctor, conducting the Nakkada Medical Mission Hospital, Thiruvalla where the Crl.A.No.1141 of 2017 22 accused was taken immediately after the incident.
31) The learned Public Prosecutor contended that no records pertaining to the treatment undergone by the accused at that hospital has been produced. Dw1 stated that he cannot say whether the accused had any psychiatric disorder before he was brought to him. But on analyzing the evidence of DW1 it could be seen that initially he stated that he did not remember whether a person by name Roy was treated in his hospital. On seeing the accused in the dock,he admitted to have familiarity with the person present in the court. Further he categorically stated that he remember that when he treated this patient he had no touch with the realities. The patient was not tempered and had given answers not relating to the questions put to him and the said problem is acute psychosis. He stated that such persons may often turn violent and while doing the acts may not be knowing the nature of the acts done by them. He also categorically stated that patient was brought in a violent stage. He is a doctor having 25 - 35 years of practice and is M.D. in Psychiatry and his hospital is a specialty hospital for mental patients approved by Kerala State Mental Health Authority. During cross-examination he asserted that the patient was brought with a big episode and he still remember that. True that he cannot say whether the patient was psychic at the time of commission of the offence or not.
Crl.A.No.1141 of 2017 2332) DW6 was the doctor who had been working in Psychiatry Department in Medical College Hospital, Kottayam from 1985 to 2005 and thereafter from 2008 - 2009. He was also the Head of the Department from 2008 -2009. He deposed that from 11.08.2005 onwards he had treated E.P. Paul (accused) at Kottayam Medical College Psychiatry Wing. He was treated as per the reference of Dr.A.J. John (DW1), Nakkada Medical Mission Hospital. It is stated by him that at the time of his examination the patient was withdrawn and was murmuring, and was angry and sceptical. He told that all are enemies and they would mix poison in his food. He examined him in detail on 12.08.2005. He understood that for last one month there was symptoms and accused told him on 22.08.2005 that, he do not remember what had happened and known from others and he had regrets. The patient was very depressed and he examined him again on 25.08.2005. Then also he was very depressed. The Discharge Book issued from Kottayam Medical College Hospital Psychiatry Department on 30.07.2008 has been marked as Ext.D4 and diagnosis is bi-polar disorder. According to him on 11.08.2005 while admitting him in the hospital he was having severe depressive episode with psychotic features and it is a serious depressive ailment and if psychotic features comes, it will become grievous and his mental condition in such a stage is unpredictable and it cannot be said what would be done by the patient in such a situation. He also stated that on 30.07.2008 while he saw Crl.A.No.1141 of 2017 24 the patient he was having bi-polar disorder. He had been working in Government service from 1980 - 2009 and is the Secretary General of World Psychiatry Association, Geneva. At the time of examination he had been working as Professor and Head of the Department, Pushpagiri Medical College. During cross-examination he asserted that he came to a conclusion based on the clinical judgment which he arrived at from the matters collected from the patient and the examination of the patient. He also stated that the pretended illness could be identified by a doctor. He denied the suggestion that he cannot say whether E.P. Paul was having any mental illness at the time of commission of the offence and stated that as per clinical judgment he can give clear opinion. He also stated that a mental patient may not be having violent nature continuously.
33) DW7 was the Professor and Head of the Department, Medical College Hospital Psychiatry, Kottayam on 07.09.2005 and his evidence is that from 11.08.2005 to 01.03.2007 he had treated the accused on several times at Medical College Hospital, Psychiatry Department as inpatient and outpatient and he also stated that the first diagnosis while admitting the accused at hospital was depression with psychotic features. He explained that by psychotic features he meant that there would not be any reality in the action of the patient and he would be having hallucinations and delusions and unsoundness of mind. The Crl.A.No.1141 of 2017 25 patient was not knowing the act done by him and its consequences. During cross-examination he stated that it is difficult to pretend mental illness. He also stated that he can state only the state of affairs of the patient at the hospital.
34) DW2 was doing Post-graduation in Psychiatry at Medical College Hospital, Kottayam during 2005 through whom Ext.D2 discharge card of accused was proved and it was issued on 25.08.2005. He could not identify the accused. He stated that diagnosis was psychosis. He stated during cross-examination that pretension of psychic problem and real psychic problem can be differentiated. During re examination he stated that he cannot differentiate between pretended psychic problem and real psychic problem. Anyway he was only doing P.G. in Psychiatry at the time of treatment of accused.
35) DW8 is the Assistant Professor of Psychiatry Department, Medical College Hospital, Kottayam. He would state that he had treated the accused E.P. Paul from 26.02.2011 onwards on several occasions and has noted the facts in Ext.D4 and saw him before 5 -6 months finally. He stated that if a person pretends mental illness it is a bit difficult to identify whether actually he is a mental patient. But during re- examination he has categorically stated that strong medicines have been prescribed to this patient. If he has no illness he cannot bear with that medicines.
Crl.A.No.1141 of 2017 2636) So the medical evidence adduced from the side of the accused would prove that immediately after the incident accused had been taken to Nakkada Medical Mission Hospital, Thiruvalla and on the third day he was referred from that hospital to Medical College Hospital,Kottayam and was discharged on 25.08.2005 and it is after that he was arrested and produced before the court.
37) Evidence of the doctor is that he has been brought in a violent stage. No document from that hospital has been produced due to the inability of the defence to produce the same. DW1 stated that they used to keep the records only for five years. But his evidence would convincingly establish that while he treated the patient he was not having any touch with the realities and the patient was not tempered and he was having acute psychosis and such persons would become often violent and may not be knowing the nature of acts done by them. He also stated that the patient was brought with a big episode.
38) The evidence of DW6 would further establish that from 11.08.2005 onwards he had been undergoing treatment at Psychiatry Department at Medical College Hospital, Kottayam. Evidence of DW6 is that accused had symptoms for the last one month and the diagnosis was bi-polar disorder. The doctor also stated that he was having severe depressive episode with psychotic features and it is a serious depressive ailment and if psychotic features Crl.A.No.1141 of 2017 27 developed it will become very grievous and thinking of such a person is unpredictable and the patient would not be knowing the nature of the acts done by him.
39) DW6 is an experienced doctor of more than 29 years in Government service in Psychiatry wing and he is also the Secretary General of World Psychiatry Association, Geneva. During cross-examination he categorically stated that he came to the conclusion regarding the illness from the history collected from the patient and on examination he arrived at a clinical judgment. Though suggestion was put to him that he has been giving evidence to help the accused, there is nothing to infer any affinity to DW6 towards the accused apart from the fact that he was his patient. He is a doctor who had sufficient service,exposure and experience in the field. So his evidence can very well be accepted.
40) The learned counsel for the appellant also would vehemently contend that the learned Additional Sessions Judge has quoted a paragraph in Modi on Medical Jurisprudence and Toxicology and discarded the evidence of DW6 without putting any question to the doctor while he was examined before the court with respect to that. That according to him has been deprecated by the Apex court. In this context he would drew our attention to Bhagwan Das and Anr. v. State of Rajasthan [AIR 1957 SC 589] wherein it has been held while dealing with Sections 46 and 45 of the Crl.A.No.1141 of 2017 28 Indian Evidence Act that when the opinion of the authors were neither shown to have been given in regard to circumstances exactly similar to those in the particular case before the court nor were they put to the medical witness it is not a satisfactory way of disposing of the evidence of the witness to discredit it on the ground that the doctor was a comparatively young man and his statements did not accord with the opinions expressed in the books.
41) In the same context the learned counsel placed reliance on State of M.P. v. Sanjay Rai [AIR 2004 SC 2174] wherein while dealing with Section 45 of the Evidence Act it has been held that opinion of authors in text books may have persuasive value and cannot always be considered to be authoritatively binding. It is also held that such opinion cannot be elevated to or placed on higher pedestal than opinion of expert examined in court. Here also one of the reasons for discarding the evidence of DW6 is by a quote from Mody's Medical Jurisprudence. Obviously the quoted paragraph was not brought to the attention of DW6. Hence the approach made by the court below in that regard is against the settled principles of law and hence is erroneous.
42) When we read the medical evidence coupled with the oral evidence of the prosecution witnesses including the mother of the deceased that accused is fond of children, the children were fond of him and the vicar of the church-DW2 also stated that the deceased had come to the church along Crl.A.No.1141 of 2017 29 with the accused etc would leads to an inference that there had a good relationship between the deceased boy and accused. So, normally, he may not be having any motive to kill little boy and that may be the reason why the doctor DW6 stated that on 22.08.2005 accused told him that he did not remember what has happened and he came to know what had happened and he had regrets. Learned Additional sessions Judge found that motive is not established. The above factors probabilise the defence version that accused was incapable of knowing the nature of the acts due to the unsoundness of mind.
43) In this context, the learned counsel for the accused placed reliance on Shrikant Anandrao Bhosale v. State of Maharashtra [AIR 2002 SC 3399]. In that the relevant paragraphs in Dahyabhai Chhaganbhai Thakkar v State of Gujarat 1964 7SCR 361 has been quoted and the nature of burden that is required to be discharged by the accused to get benefit under Section 84 of IPC was taken to our attention. The relevant portion has been extracted in the previous paragraphs which says that 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 then the Court would Crl.A.No.1141 of 2017 30 be entitled to acquit the accused on the ground that the general burden of proof, resting on the prosecution was not discharged.
44) Mens rea of the accused has much relevance in a case when the benefit under Section 84 IPC has been pleaded by an accused. So when the prosecution in this case failed to prove any motive behind the incident it would also raise a reasonable doubt of mens rea in doing the act. So as per the proposition of law laid down above, it would be a fact which creates a reasonable doubt entitling the accused to get the benefit of the exception. In other words absence of proof of motive from the side of the prosecution creates a doubt in the mind of the court regarding the mens rea entitling the accused for an acquittal.
45) Though the contention of the learned counsel for the accused that medical evidence adduced from the side of the prosecution would not prove the unsoundness of mind at the time of the commission of the offence even if accepted the attending circumstances brought out during the oral evidence of the witnesses coupled with the medical evidence would create a reasonable suspicion about the soundness of the mind of the accused at the time of commission of the act. That also would enable the accused for benefit of doubt entitling for an acquittal on the ground that the general burden of proof resting on the prosecution is not discharged.
Crl.A.No.1141 of 2017 3146) The learned counsel further argued about the serious infirmity committed in the investigation of this case. He would contend that even though it has come to the notice of the investigating officer about the mental illness of the accused, no document in that regard has been collected. It was because of that the accused could not bring any records at Nakkada Medical Mission Hospital, Thiruvalla where he underwent treatment immediately after the incident. DW1 deposed that he used to keep the records only for five years. But he has been examined before the court only in the year 2017. So naturally the records of treatment during 2005 will not be there in the hospital. PW11 the Circle Inspector, Thiruvalla took charge of the investigation of this case on 09.08.2005. He stated that the arrest of accused was recorded on discharge from medical college Hospital on 25.08.2005. He filed Ext.P19 report to examine whether accused had been undergoing treatment for mental illness. He stated that after the incident accused had been undergoing treatment at Thiruvalla Nakkada Medical Mission Hospital up to 10.08.2005 and thereafter till 25.08.2005 up to 12 noon he had been undergoing treatment at Medical College Hospital, Psychiatry Wing. In Ext.p19 report he stated that accused has to be kept in observation at Mental Hospital, Thiruvananthapuram for 30 days and to be examined through Medical Board and obtain a certificate. But his successor, PW12 did not take any follow up action in this regard. So the report of PW11 Crl.A.No.1141 of 2017 32 would make it clear that the then investigating officer was well aware about the treatment undergone by the deceased at Medical College Hospital, Psychiatry Wing, Kottayam and also Nakkada Medical Mission Hospital. So that would indicate that the investigating officers were well aware that the accused was not mentally fit at least after the incident. But PW12 the successor of PW11 did not collect any material or made any investigation in that regard.
47) In this context, the decision cited by the learned counsel for the appellant in Joseph Mathai @ Jose v. State of Kerala [2019 KHC 934] is relevant to be quoted. In that case while dealing with Section 84 of IPC, 1860 it has been held that if previous history of insanity of accused is revealed during investigation, investigating officer has a duty to subject the accused to a medical examination and place that evidence before court and if it is not done, it creates a serious infirmity in prosecution case and benefit of doubt has to be given to accused.
48) The learned counsel further drew our attention to Kaliyappan v. State [Manu./TN/4649/2020] and Shibu v. State of Kerala [2013 KHC 393], in the aspect of the duty of the investigating officer to investigate into the mental state of a person will become inevitable, depending upon the facts and circumstances of each case. It is held that if during investigation, it comes to the knowledge of the investigating officer from any of the relatives or friends or Crl.A.No.1141 of 2017 33 neighbours etc., that there is something wrong with accused mentally, investigation officer shall necessarily conduct investigation into the mental condition of the accused.
49) The learned counsel for the appellant also placed reliance on Devidas Loka Rathod v. State of Maharashtra [AIR 2018 SC 3093] where accused allegedly assaulted the deceased and other injured persons with sickle. Accused had been undergoing treatment just after the incident and was taken to custody after two days of the incident. But medical examination of the accused was not conducted by the investigating officer just after the incident and that was held to be raising doubts about the mental condition of the accused. Medical report of the accused showed that he suffered from mental illness prior to the incident and taking anti-psychotic drugs continuously. The evidence of the mother and sister of accused revealed that he had to be tied up and was unable to take care of himself. While dealing with such a situation it has been held that when accused takes plea of insanity at the time of occurrence, the mere statement by injured witness that accused was not of unsound mind does not absolve prosecution to explain as to why the plea of insanity by accused is not tenable when reasonable doubt is created with regard to the mental state of accused.
50) In this case the evidence of DW10, the wife of the accused Crl.A.No.1141 of 2017 34 would show that immediately after the incident accused was brought to his house by tying his legs and hands with the dhothi worn by him. On the same day he had been taken to Nakkada medical Mission Hospital, Thiruvalla and he had undergone treatment there till 11.08.2007.
51) The evidence of DW6 would show that from 11.08.2005 onwards he had treated E.P.Paul (accused) and he was referred from Dr.A.J. John (DW1) from Nakkada Medical Mission Hospital, Thiruvalla. He would also state that at the time of admission accused was suffering from severe depressive episode with psychotic features and when psychotic features came, it would become more severe and behaviour of such person is unpredictable and person may not know the acts done by him.
52) The evidence of DW7 who was the Professor and Head of the Psychiatry Department, Medical College Hospital, Kottayam who treated the accused from 11.08.2005 to 01.03.2007 also shows that the accused was having depression with psychotic features and there would not be any reality in his acts and he will have hallucinations and delusions and unsoundness of mind. He stated that such patient will not be knowing the consequences of the acts done by him. Such a person has been arrested by PW11 on discharge from Medical College Hospital, Kottayam.
53) Only because of the inaction of the investigating officer that Crl.A.No.1141 of 2017 35 the treatment records at Nakkada Medical Mission Hospital, Thiruvalla could not be brought in evidence. The investigating officers are very well aware that he had been undergoing treatment at Nakkada Medical Mission Hospital and also Medical College Hospital, Kottayam, Psychiatry Wing. But no attempt was made from the side of the prosecution to probe into that matter and bring the materials with regard to the treatment undergone by the accused in the hospitals for his illness before the court. So that is a serious infirmity and benefit of doubt on that account as held in the above decision has to be given to the accused.
54) The learned counsel further would contend that none of the decisions cited in the judgment by the learned Additional Sessions Judge is applicable to the facts and circumstances of this case. Since we have already found that accused has discharged the burden of proving the existence of circumstance as required under Sec.105 of the Evidence Act for bringing his case within the exception under Sec.84 IPC, further discussion with respect to the decisions cited by the learned Additional Sessions Judge is not necessary.
55) It has been found already that accused caused the death of the deceased Anukuttan. The manner in which accused killed his nephew, a little boy, aged 3 ½ years towards whom he had no ill will and the conduct of the accused prior to one month of the incident are relevant factors.
Crl.A.No.1141 of 2017 36Immediately after the incident he was brought to the house by tying his legs and hands with the dhoti worn by him and immediately he was shifted to the Medical Mission hospital, Nakkada and subsequently to Medical College hospital, Kottayam. The evidence of the doctors that he was affected with bi-polar disorder with psychotic features and thinking of such patient is unpredictable and the patient would not be knowing the nature of the acts done by him would prove the unsoundness of mind of the accused. So having considered the facts and circumstances we hold that at the time of occurrence the accused was of unsound mind and due to that, he was incapable of knowing the nature of the acts done by him. Hence he is entitled for the benefit under Sec.84 IPC.
56) In the result, appeal allowed. The conviction and sentence passed against the appellant under Sec.302 IPC is set aside. As has been held in Joseph Mathai's case referred supra, we direct that the accused shall be kept in safe custody as provided under Sec.335 Cr.P.C. As per Sec.335(2), the order of detention shall be in accordance with the rules framed by the State Government under the Lunacy Act, 1912 (Act 4 of 1912). Since the Lunacy Act, 1912 has been repealed by the advent of Mental Healthcare Act, 2017, it would be applicable in the present case. Hence we direct the accused to be detained in one of the mental health establishments in the State in accordance with Rules, if any, framed by the Crl.A.No.1141 of 2017 37 State Government. It is open to the State Government to direct the accused to be delivered to any of his relatives or friends in accordance with law. Copy of the judgment shall be send to the Director General of Prisons and the Secretary, Home Department, Government of Kerala in terms of Sec.335(4) Cr.P.C for taking further actions in terms of Sec.338 and 339 of Cr.P.C. The authorities are directed to submit a report of action taken from time to time before the trial court within a period of three months from the date of receipt of a copy of this judgment. The learned Sessions Judge shall take follow up action and issue necessary orders in the interest of the accused in accordance with Chapter XXV of the Cr.P.C.
Sd/-
A. HARIPRASAD JUDGE Sd/-
M.R.ANITHA JUDGE shg/Mrcs Crl.A.No.1141 of 2017 38 APPENDIX APPELLANT'S ANNEXURES:-
ANNEXURE A 1: TRUE COPY OF THE DISCHARGE CARED ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM, DATED 13.10.2005 ANNEXURE A2 : TRUE COPY OF THE DISCHARGE CARD ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM DATED 1.3.2007 ANNEXURE A3 : TRUE COPY OF THE O.P. PATIENT TICKET ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM DATED 4.4.2007 ANNEXURE A4 : TRUE COPY OF THE O.P. PATIENT TICKET ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM DATED 24.10.2007 ANNEXURE A5 : TRUE COPY OF THE O.P. & DISCHARGE BOOK ISSUED FROM THE PSYCHIATRIC DEPARTMENT OF MEDICAL COLLEGE HOSPITAL, KOTTAYAM DATED 30.7.2008