Kerala High Court
Sajith vs State Of Kerala on 25 February, 2020
Equivalent citations: AIRONLINE 2020 KER 1305
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941
CRL.A.No.880 OF 2015
AGAINST THE JUDGMENT IN SC 57/2011 OF ADDITIONAL DISTRICT &
SESSIONS COURT, ERNAKULAM
AGAINST THE ORDER/JUDGMENT IN CP 6/2010 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I, ALUVA
CRIME NO.2681/2008 OF Aluva Police Station, Ernakulam
APPELLANT/ACCUSED:
SAJITH
AGED 47 YEARS
S/O.ANJELO, PUNNAKKATTUSSERY HOUSE, 2ND CONVENT
ROAD, THOTTAKKATTU KARA, ALUVA WEST VILLAGE,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.SHAIJAN C.GEORGE
SRI.M.T.AJITH
SMT.S.REKHA KUMARI
SRI.C.K.SAJEEV
SMT.SAJITHA GEORGE
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682031
R1 BY ADV. SMT.AMBIKA DEVI S SPL.PP ATROCITIES
AGAINST WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-09-
2019, THE COURT ON 25-02-2020 DELIVERED THE FOLLOWING:
Crl.Appeal No.880/15
-:2:-
JUDGMENT
Dated this the 25th day of February, 2020 Shaffique, J.
The appeal is filed by the accused in SC No. 57/2011 of the Sessions Court, Ernakulam, challenging judgment dated 6/8/2015, by which he was convicted for offence under Section 302 and sentenced to undergo imprisonment for life and to pay a fine of `10,000/- for the offence under Section 302 of IPC and 6 months imprisonment for offence under Section 309 of IPC.
2. Prosecution alleged that the accused murdered his mother Mary, wife Shimmi and daughter Greeshma, by inflicting injuries with a knife and attempted to commit suicide. The incident happened on 20/10/2008 at 12 noon in the house of accused, where he was living with his mother, wife and daughter.
3. To prove the case, prosecution relied upon the oral testimony of PW1 to PW28, marked Exts.P1 to P25 and identified MO1 to MO8.
4. Learned counsel for the accused contended that the evidence available in the case is not enough to arrive at a Crl.Appeal No.880/15 -:3:- conclusion that the accused had committed the murder. Even assuming that the accused had committed the crime, he cannot be punished as he is entitled for the benefit of exception under Section 84 of IPC, as he was suffering from mental disorder at the relevant time and he was unaware of the consequences.
5. On the other hand, learned Public Prosecutor would argue that the trial court had carefully considered the evidence and had arrived at a finding of guilt of the accused and there is no reason to interfere with the said finding. The claim under Section 84 of IPC has not been proved by the defence and hence, such a contention is not available.
6. The fact that the three of the deceased and the accused were lying injured inside the house of the accused is proved by the testimony of PW18, PW26, PW27, PW11, PW15 and PW16. There is no reason to doubt their evidence in that regard.
7. PW26 was the Sub Inspector of Police of Aluva Police Station during the relevant time. He recorded the statement of PW18 and registered the FIR, Ext.P8(a). He deposed that by about 12 noon, he got information about the incident and proceeded to the place of occurrence. He found a girl lying injured in the floor Crl.Appeal No.880/15 -:4:- of a room and accused lying injured on the cot. He also found two women injured in kitchen of the same house. He arranged scene guard and made arrangements to take the two injured woman to Karothukuzhy Hospital. He took the accused and the girl to Najath Hospital. The girl was declared dead. PW11, a Civil Police Officer during the relevant time had accompanied the accused to Najath Hospital on 20.10.2008, as requested by the Sub Inspector of Police. From Najath Hospital, the accused was referred to Medical Trust Hospital, Ernakulam. PW16, who was the driver of Aluva Police Station, had accompanied the Sub Inspector and deposed of having seen the injured in the said house and having taken the accused and the girl to Najath Hospital. PW10 had guarded the scene at the instance of Sub Inspector of Police and left the place after the scene was inspected by the CI of Police in the presence of Scientific Assistant.
8. PW27, the Circle Inspector of Police, Aluva deposed that he also got information about the crime at about 12 noon. He went to the scene with the police party and found the two women, the girl and the accused lying injured inside the house. Along with the Sub Inspector of Police, they took them to the Crl.Appeal No.880/15 -:5:- Hospital. In the hospital, the two women were declared dead. In the Najath Hospital, the child was declared dead. The accused was admitted in the Intensive Care Unit (ICU) of Najath Hospital. He took over investigation, prepared scene mahazar and recovered two knives as MO1 and MO2 from the bed room. The accused was discharged on 31.10.2008 and he was arrested on the same day. PW15, who was the Head Constable of Circle Inspector's Office had accompanied the C.I. of Police on 20.10.2008 and saw the very same incident along with the CI of Police, and took two of the injured women to Karothukuzhy Hospital in the police jeep.
9. PW9 was the Scientific Assistant (Documents) of Forensic Science Laboratory. She had collected dark brown stains from the bedroom and kitchen of the house, packed, sealed, labelled and those were handed over to the investigating officer. She had also seen the knives in the bedroom, which she identified.
10. PW6, who was the Casuality Medical Officer of Najath Hospital, deposed that the Sajith aged 40 years (accused) was brought to the Hospital with self inflicted injuries on 20.10.2008 Crl.Appeal No.880/15 -:6:- and he was referred to Medical Trust Hospital, Ernakulam. Ext P4 certificate had been issued by him regarding the said fact.
11. PW7, was the Casuality Medical Officer of Medical Trust Hospital, Ernakulam. He deposed that Sajith, aged 42 years (accused) was brought to the Hospital with history of self stabbing from Najath Hospital, Aluva, on 20/10/2008 at 3.45 pm. He was having 18 incised wounds all over his body. He was discharged on 30/10/2008. He also deposed that those injuries could be caused by MO1 and MO2 knives, and those injuries were sufficient enough to cause death.
12. PW17 conducted the inquest of the 6 year old girl Greeshma, PW26 conducted the inquest of Shimi, wife of the accused and PW27 conducted the inquest of Mary, mother of the accused. Exts.P1 to P3 are the inquest reports. PW1, PW3 and PW4 were the respective witnesses to those reports.
13. Autopsy of the deceased were conducted by PW25, Assistant Professor of Forensic Medicine, Medical College, Alappuzha. He deposed that Shimi suffered 19 incised injuries of which injury numbers 1 to 5 in Ext.P15 certificate were penetrative injuries on the chest and abdomen which is the cause Crl.Appeal No.880/15 -:7:- of death. Greeshma the minor girl suffered 11 incised wounds and death was due to the penetrative wounds, described as 1 to 4 on the chest. Ext. P16 is the certificate issued by him. Mary had 7 injuries of which 6 were incised wounds. Injury numbers 2 to 5 on the chest and abdomen was the cause of death. He also deposed that the injuries on the victims could be caused with MO1 and MO2 weapons.
14. From the evidence adduced by the prosecution, it is rather clear that death of the three victims who died in the incident was a homicide. All the three were in the house along with the accused.
15. PW18 is a neighbour of the accused. He deposed that, on 20/10/2008, by about 12 noon, his son who had gone out to the mill came back and informed him that several persons had gathered in the house of accused. He proceeded to the house of accused. The kitchen door was open. When he looked inside, he saw mother of the accused and another lady lying injured and they were bleeding. People in the locality told that the lady was wife of the accused. A few persons went inside the house stating that some other persons are lying inside the house. He also went Crl.Appeal No.880/15 -:8:- inside the house. Accused was lying in the cot. He was also injured and bleeding. After sometime, Sub Inspector of Police and others came. They opened the front door and police had taken the injured to hospital. The evidence of PW26, PW27, PW11, PW15 and PW16 also confirms the fact that all the injured were lying in the house at the relevant time. The accused was taken to the hospital and what happened thereafter was spoken to by PW6 and PW7. PW6 deposed that a person by name Sajith was brought with a history of suicide attempt. He had multiple wounds. On examination, it was found that those were self inflicted wounds. He referred the accused to Medical Trust Hospital. When PW7 examined the patient at Medical Trust Hospital, the patient was conscious. He had 18 incised wounds. Ext.P5 is his report. He deposed that the information given was that it was self inflicted wounds with a knife which is recorded in Ext.P5 also. That apart, this is a case in which accused was living in the house with his mother, wife and daughter. At the relevant time, no one else was in their house to indicate any external influence in the cause of injuries to the deceased and accused. That apart, at the time when the accused was taken to the Crl.Appeal No.880/15 -:9:- hospital, he was conscious and had stated that those were self inflicted injuries. From the available materials, it is clear that the crime was committed by none other than the accused.
16. The main defence taken by the appellant is that he was suffering from mental disorder at the time when the alleged offence was committed and was incapable of knowing the consequences of his action. In order to establish that the accused was suffering from insanity during the relevant time, the accused relied upon the evidence of DW1 to DW3 and relied upon Exts.D2 to D4, X1 and X2.
17. DW1 is the mother of Shimi and wife of the accused. She supported the appellant's case that he is mentally ill.
18. DW2 is Dr.T.R.John, who is a Psychiatrist. He deposed that he had examined the accused in January 2015 on the request of the defence counsel. He deposed that the accused was suffering from severe depressive episode with psychosis at the time of alleged incident.
19. DW3 is Dr.Ramachandran Kutty, who had examined father and father's brother of the accused. He deposed that both of them had showed symptoms of mental disorder. DW3 has Crl.Appeal No.880/15 -:10:- examined father of the accused, after the above incident. Exts.D3 and D4 are the certificates issued by DW3.
20. Learned counsel for the appellant placed reliance upon the following judgments of the Apex Court:-
(i) Shrikant Anandrao Bhosale v. State of Maharashtra [(2002) 7 SCC 748]. Paragraphs 7, 10 and 11 are relevant, which reads thus:-
"7. On the other hand, learned counsel for the appellant to establish the plea of unsoundness of mind, drew our attention to the depositions of Dr Arun (DW 2) and Dr Pramod (DW 3). The case history and other proved medical record shows that the appellant was suffering from paranoid schizophrenia. He was an indoor patient at a government hospital from 28-10-1993 to 5-11-1993 for getting treatment for the said ailment. It further stands established that he was suffering from this disease at least from 20-4-1992. He was examined by DW 3 on 20-4-1992 having visited the said doctor with his wife. It also stands established that 25 times he was taken to hospital for treatment of his mental ailment from 27-6-1994 to 5-12- 1994. DW 2 deposed that the appellant was examined by him on 27-10-1993. He suffered from suspicious ideas, persecutory delusions, loss of sleep and excitement and was diagnosed as paranoid schizophrenic. The appellant was intermittently becoming apprehensive and excited. DW 3 deposed that on 20-4-1992, he examined the appellant brought by his wife. There was a history of psychiatric illness in his father at the age of 65 years and in 1989 his Crl.Appeal No.880/15 -:11:- father ran away from the house. People used to take advantage of his mental condition and cheat him. After marriage, his mental condition worsened. On examination, he was found suffering from paranoid schizophrenia. The patient had visual hallucinations (seeing images of wife and children). He was brought to hospital 25 times as above. Paranoid schizophrenia is a mental disease. It can recur. When a person is under paranoid delusion, he is not fully aware of his activities and its consequences".
"10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but afterwards change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations, which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from persecutory to the grandiose type. He Crl.Appeal No.880/15 -:12:- entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his memory and orientation and does not show signs of insanity, until the conversation is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others. (Modi's Medical Jurisprudence and Toxicology, 22nd Edn.)
11. Further, according to Modi, the cause of schizophrenia is still not known but heredity plays a part. The irritation and excitement are effects of illness. On delusion affecting the behaviour of a patient, he is a source of danger to himself and to others".
(ii) State of Rajasthan v. Shera Ram alias Vishnu Dutta [(2012) 1 SCC 602]. Paragraphs 19 and 20 reads thus:
"19. From the abovestated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.
20. Epileptic psychosis is a progressing disease and its Crl.Appeal No.880/15 -:13:- effects have appropriately been described in the textbook of Medical Jurisprudence and Toxicology by Modi, 24th Edn., 2011 where it states as follows:
"Epileptic psychosis.--Epilepsy usually occurs from early infancy, though it may occur at any period of life. Individuals, who have had epileptic fits for years, do not necessarily show any mental aberration, but quite a few of them suffer from mental deterioration. Religiosity is a marked feature in the commencement, but the feeling is only superficial. Such patients are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest cause.
The disease is generally characterised by short transitory fits of uncontrollable mania followed by complete recovery. The attacks, however, become more frequent. There is a general impairment of the mental faculties, with loss of memory and self-control. At the same time, hallucinations of sight and hearing occur and are followed by delusions of a persecuting nature. They are deprived of all moral sensibility, are given to the lowest forms of vice and sexual excesses, and are sometimes dangerous to themselves as well as to others. In many long-standing cases, there is a progressive dementia or mental deficiency. True epileptic psychosis is that which is associated with epileptic fits. This may occur before or after the fits, or may replace them, and is known as pre-epileptic, post- epileptic and masked or psychic phases (psychomotor epilepsy).
Post-epileptic mental ill-health.--In this condition, stupor following the epileptic fits is replaced by automatic acts of which the patient has no Crl.Appeal No.880/15 -:14:- recollections. The patient is confused, fails to recognise his own relatives, and wanders aimlessly. He is terrified by visual and auditory hallucinations of a religious character and delusions of persecution, and consequently, may commit crimes of a horrible nature, such as thefts, incendiarism, sexual assaults and brutal murders. The patient never attempts to conceal them at the time of perpetration but on regaining consciousness may try to conceal them out of fear."
(iii) Devidas Loka Rathod v. State of Maharashtra [(2018) 7 SCC 718]. Counsel relied upon paragraphs 9, 10 and 14 in support of his arguments, which reads thus:-
"9. PW 14, in his examination-in-chief, stated that the appellant was caught immediately after he made the assault on 26-9-2006 and brought to the police station. The FIR was registered the same day. But the appellant was taken in custody only on 28-9-2006 because he was not keeping well and had been admitted in the hospital. The information of his arrest was not given to his sister or mother, but only to his friend Nagorao Baghe, who has not been examined. In view of the previous history of insanity of the appellant as revealed, it was the duty of an honest investigator to subject the accused to a medical examination immediately and place the evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused, as observed in Bapu v. State of Rajasthan [Bapu v. State of Rajasthan, (2007) 8 SCC 66 : (2007) 3 SCC (Cri) 509] . The admitted facts in the present case strongly persuade Crl.Appeal No.880/15 -:15:- us to believe that the prosecution has deliberately withheld relevant evidence with regard to the nature of the appellant's mental illness, his mental condition at the time of assault, requiring hospitalisation immediately after the assault and hindering his arrest, the diagnosis and treatment, the evidence of the treating doctor, all of which necessarily casts a doubt on the credibility of the prosecution evidence raising more than reasonable doubts about the mental condition of the appellant. Unfortunately, both the trial court and the High Court, have completely failed to consider and discuss this very important lacuna in the prosecution case, decisively crucial for determination or abjurement of the guilt of the appellant.
10. The law undoubtedly presumes that every person committing an offence is sane and liable for his acts, though in specified circumstances it may be rebuttable. The doctrine of burden of proof in the context of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361 : AIR 1964 SC 1563 : (1964) 2 Cri LJ 472] : (AIR p. 1568, para 7) "(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 Section 84 of the Penal Code:
the accused may rebut it by placing before the court all Crl.Appeal No.880/15 -:16:- 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."
"14. We shall now consider the sufficiency of other medical and defence evidence to examine if a reasonable doubt is created with regard to the mental state of the appellant at the time of commission of the assault on a preponderance of probability, coupled with the complete lack of consideration of the evidence of PW
14. Merely because an injured witness, who may legitimately be classified as an interested witness for obvious reasons, may have stated that the appellant was not of unsound mind, cannot absolve the primary duty of the prosecution to establish its case beyond all reasonable doubt explaining why the plea for unsoundness of mind taken by the accused was untenable".
21. Learned Public Prosecutor placed reliance on the following judgments:-
(i) Elavarasan v. State Rep. By Inspector of Police Crl.Appeal No.880/15 -:17:- [(2011) 7 SCC 110]. Paragraphs 30, 37 and 38 reads thus:-
"30. From the deposition of the above two witnesses who happen to be the close family members of the appellant it is not possible to infer that the appellant was of unsound mind at the time of the incident or at any time before that. The fact that the appellant was working as a government servant and was posted as a watchman with no history of any complaint as to his mental health from anyone supervising his duties, is significant. Equally important is the fact that his spouse Smt Dhanalakshmi who was living with him under the same roof also did not suggest any ailment afflicting the appellant except sleeplessness which was diagnosed by the doctor to be the effect of excessive drinking. The deposition of PW 3, Valli that her son was getting treatment for mental disorder is also much too vague and deficient for this Court to record a finding of unsoundness of mind especially when the witness had turned hostile at the trial despite multiple injuries sustained by her which she tried to attribute to a fall inside her house. The statement of the witness that her son was getting treatment for some mental disorder cannot in the circumstances be accepted on its face value, to rest an order of acquittal in favour of the appellant on the basis thereof. It is obvious that the mother has switched sides to save her son from the consequences flowing from his criminal act".
"37. Mr Mani, as a last ditch attempt relied upon certain observations made in mahazar, Ext. P-3 in support of the argument that the appellant was indeed insane at the time of commission of the offences. He submitted that the mahazar referred to certain writings on the inner walls of the appellant's house which suggested that the appellant was Crl.Appeal No.880/15 -:18:- insane. A similar argument was advanced even before the courts below and was rejected for reasons which we find to be fairly sound and acceptable especially when evidence on record establishes that the appellant was an alcoholic, who could scribble any message or request on the walls of his house while under the influence of alcohol. The courts below were, therefore, justified in holding that the plea of insanity had not been proved and the burden of proof cast upon the appellant under Section 105 of the Evidence Act remained undischarged. The High Court has also correctly held that the mere fact that the appellant had assaulted his wife, mother and child was not ipso facto suggestive of his being an insane person.
38. So, also the fact that he had not escaped from the place of occurrence was no reason by itself to declare him to be a person of unsound mind incapable of understanding the nature of the acts committed by him. Experience has shown that different individuals react differently to same or similar situations. Some may escape from the scene of occurrence, others may not while some may even walk to the police station to surrender and report about what they have done. Such post-event conduct may be relevant to determine the culpability of the offender in the light of other evidence on record, but the conduct of not fleeing from the spot would not in itself show that the person concerned was insane at the time of the commission of the offence."
(ii) The judgment of the Division Bench of this Court in (Crl. Appeal 1311/2014 - Ashraf V.P. v. State of Kerala. Paragraph 19 reads thus:-
"19. The plea of insanity/unsound mind as embodied Crl.Appeal No.880/15 -:19:- under Section 84 IPC has to be understood in relation to the time in which the alleged incident happened. Previous insanity/treatment given or subsequent revelation of insanity/unsoundness of mind would be relevant in testing whether the accused was incapacitated to know about the nature of act done by him on account of unsoundness of mind/insanity. But the test is to find out the incapacity of the accused to understand the consequences of his act at the time of commission of the act and not the previous or subsequent state of mind. The previous and subsequent state of mind are relevant in determining the incapacity of the accused on account of unsoundness of mind at the time of commission of offence. There should be total deprivation of mental ability to understand the consequences of his act at the time of its commission and that alone would bring the matter within the sweep of Section 84 IPC. A mere suspicion as to the existence of some mental ailment or an abnormality alone would not be sufficient to satisfy the requirement under Section 84 IPC. Loosing of temper or a high temperament, irritability, uncontrolled anger, explosion of emotions, whatever may be its gravity, seriousness or magnitude cannot be and would not be brought under the umbrella of Section 84 IPC. Section 84 IPC would attract when the accused is under the disablement of knowing the nature of his act or its consequences. An eccentricity or strange behaviour, extremely gruesome act, abnormal behaviour shall not be substituted in the place of "unsoundness of mind". The expression "unsoundness of mind" as embodied under Section 84 of the IPC is of such a nature depriving the person from Crl.Appeal No.880/15 -:20:- knowing the consequences of his act. Further, drunkenness/intoxication either by the use of alcohol or drugs, also cannot be brought under the purview of "unsoundness of mind". To have the application of Section 84 or to claim its benefit, the person who claims it should prove not only "unsoundness of mind" but also "the complete deprivation of knowing the consequences of his act" on account of "unsoundness of mind". In other words, a complete deprivation of knowing the consequences of his act due to some other reason other than "unsoundness of mind" will not come under the purview of Section 84 of the IPC. The expression "unsoundness of mind" shall not be understood as the one created either by intoxication or by other means. It should be a defect/disease/disorder suffered by the person and shall not be one created either by intoxication or otherwise by the user of any drugs or liquor. A man may be suffering from some sort of insanity in the sense in which the expression is used by medical man, but may not be suffering from unsoundness of mind as contemplated by law. If he is capable of knowing the nature of the act or realizing that the act is wrong or contrary to law, he must be held to be guilty. The mere fact that on former occasion the accused can be occasionally subjected to mental delusion or hallucination or has suffered dearrangement of the mind is per se insufficient to bring him within the exemption of Section 84 IPC. To invoke the defence of insanity, it must clearly be proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was Crl.Appeal No.880/15 -:21:- doing, or if he did know it, that he did not know he was doing what was wrong. There is no evidence to show that the appellant was suffering from any mental ailment as on the date and time of the commission of offence. A mere delusion, that too long after the alleged incident, cannot be brought under the purview of Section 84 IPC and hence there cannot be any interference to the finding of the learned Sessions Judge that the accused is not entitled to the benefit under Section 84 IPC and hence the finding of guilt of accused under Section 302 IPC and the conviction thereunder do not call for any interference by this Court."
22. We shall now examine whether the argument of the appellant's counsel based on Section 84 IPC is sustainable or not. Section 84 reads as under:
"84. Act of a person of unsound mind.--Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
In Jagdish v. State of M.P. [(2009) 9 SCC 495], the Apex court held that:
"The benefit of this provision is available to a person who at the time when the act was done was incapable of knowing the nature of his act or that what he was doing was wrong or contrary to law. The implication of this provision is that the offender must be of this mental condition at the time when the act was committed and the fact that he was of unsound mind earlier or later are Crl.Appeal No.880/15 -:22:- relevant only to the extent that they, along with other evidence, may be circumstances in determining the mental condition of an accused on the day of incident".
23. In Shrikant Anandrao Bhosale's case (supra), the Apex Court had made a detailed analysis on paranoid schizophrenia. It is also held that heredity plays a vital part in the cause of schizophrenia. However, in order to get the benefit of Exception in terms of S.84 of I.P.C., it is on the accused to prove that he was of unsound mind and as a result thereof, he was incapable of knowing the consequences of his acts. After referring to an earlier judgment in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563), the Apex Court held that the evidence placed before the Court by the accused or by the prosecution should 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 such a 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. Still further, it was held that when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence, by reason of unsoundness of mind, Crl.Appeal No.880/15 -:23:- the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. In Shera Ram's case (supra), while considering the nature of evidence to be adduced in a case where the defence raises an exception u/s 84 of I.P.C., the Apex Court was considering a case of epileptic psychosis. In Devidas Loka Rathod's case (supra), Apex Court still further held that if the previous history of the insanity of the appellant was revealed, it was the duty of the investigator to subject the accused to a medical examination immediately and place the evidence before the Court. If that is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. Reference was also made to the judgment in Bapu v. State of Rajasthan [(2007) 8 SCC 66]. It was further held that, if a reasonable doubt is created with reference to the mental state of the accused at the time of commission of the assault on a preponderance of probability, it is for the prosecution to establish its case beyond all reasonable doubt explaining why the plea of unsoundness of mind taken by the accused was untenable.
24. There cannot be any doubt about the legal Crl.Appeal No.880/15 -:24:- propositions that has been placed before us by either side. The primary question is whether the accused was able to prove based on preponderance of probability that he was suffering from unsoundness of mind and incapable of knowing the nature of his actions at the time when he had committed the aforesaid acts. As already stated, accused had attempted to prove the said facts by examining DW1 to DW3.
25. DW1 deposed that accused along with her daughter were living happily in a rented house at Vennala. On the previous day, she met her daughter Shimi. Accused along with Shimi and daughter Greeshma had come to her house, which was on a Sunday. They came by about 11.00 a.m. and went back by 5.00 p.m. Daughter had telephoned her that day morning and informed that her husband, the accused was disturbed. When he came to her house, he was saying unconnected matters, as if he was deranged. He was saying that people in his office had trapped him. Her daughter called the office. The employer asked her where the accused was and when she replied that he was at her house, the employer asked her to take him to his house. He presumed that since the mother of accused was a nurse, she Crl.Appeal No.880/15 -:25:- could take care of him. Accordingly, they went back home. She deposed that, on that day, he was behaving like a person of unsound mind. Daughter had taken him home. At home, he was saying that the auto team where he was working was trying to trap him. She further deposed that after becoming Assistant Manager, when he came home, he was not speaking to any person. He did not have proper sleep. On the previous day when he came to her house, he was not behaving as usual.
26. DW2 has given an opinion as Ext.D2. He had derived at that opinion based on the information supplied to him. At the time when the Doctor examined the accused, the father-in-law and mother-in-law were also present. Apparently, he was giving his opinion based on the information supplied by the father-in-law and mother-in-law regarding his conduct before commission of the offence.
27. DW3's evidence only proves that the family of accused had a history of mental disease.
28. In the examination of the accused u/s 313, he had given clear answers to various questions. The accused while being injured was immediately taken to a hospital and he was Crl.Appeal No.880/15 -:26:- examined by PW6 at Najath Hospital and again by PW7 at Medial Trust Hospital. He was discharged only on 30/10/2008. None of these Doctors had stated anything regarding the unsoundness of mind of the accused. Therefore, we have to proceed on the basis that the investigating officer has no proof regarding the alleged unsoundness of mind of the accused at the relevant time. A pointed question was put to PW27, that when he questioned father of the accused, whether he deposed regarding any unusual behaviour of the accused. PW27 answered that the accused's father was questioned on 22/10/2008 and he did not notice anything unusual. Father of the accused was not available for giving evidence as he was no more. Ext.X1 is the statement of accused's father given under section 164 Cr.P.C. In the said statement he has not stated that his son was having any mental disorder. He only stated that he saw that his son was disturbed and he thought of taking him to the Doctor. Apparently, this is a case in which the accused/appellant had not been treated for unsoundness of mind at any point of time prior to the commission of offence. But in the evidence of DW1, she says that on the previous day, he was found to be disturbed and that he was Crl.Appeal No.880/15 -:27:- having sleepless nights and his behaviour was improper. The fact that there was a family history where DW3 had treated the father of accused and his brother will not indicate that the accused was suffering from any unsoundness of mind. The only evidence is that of DW1 who says that he was disturbed and was showing unusual behaviour on the previous day. Evidence of DW2, the Doctor, cannot be taken as proof enough as he was giving opinion based on the information supplied by accused's in-laws. Further, the crucial aspect in the case is what is the motive of the accused to commit the aforesaid crime. There is some evidence from DW1 to indicate that he had problems in his office and according to him, some one in the office was trying to trap him. It is possible that he is worried about his future and the future of his family. Therefore, he wants to ensure that his family is not put to difficulties at a later stage, for which he might have devised a method of doing away with his family members and committing suicide. The fact that he had made self inflicted injuries by itself would indicate that he was capable of knowing the consequences of the injuries that he was committing on the victims. He wants them dead and he wants to die himself. In the said Crl.Appeal No.880/15 -:28:- circumstances, we do not think that this is a case in which the accused is entitled to claim the exception u/s 84 of I.P.C., as the evidence is not sufficient to probabilise a case that he was suffering from unsoundness of mind and incapable of knowing the consequences of his actions at the time when the offence has been committed.
Court below was therefore justified in convicting and sentencing the accused as stated above. Since no grounds are made out for interference, the appeal is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
N.ANIL KUMAR
Rp True Copy JUDGE
PS to Judge