Benny Joseph, C.No.4006 vs State Of Kerala on 13 June, 2023

[Cites 30, Cited by 0]

Kerala High Court

Benny Joseph, C.No.4006 vs State Of Kerala on 13 June, 2023

This jail appeal under Section 383 Cr.P.C has been filed by the accused in S.C.No.357/2018 on the file of the Court of Session, Kottayam, challenging the conviction entered and sentence passed against him for the offence punishable under Section 302 IPC.

1.2. The prosecution case as stated in the charge sheet is as follows - the accused due to his strong feelings of enmity towards his 75 year old mother, namely, Thresiamma and with the intention to kill her, on 21/02/2015 at 09.00 a.m, hacked her several times with an axe on the back of her head causing grievous injuries resulting in her death. The place of occurrence is inside the kitchen of their house bearing no.2/268, Bharananganam Grama Panchayath. Hence the accused is alleged to have committed the offence punishable under the above mentioned Section.

Crl.Appeal No.449 of 2021

1.3. Based on Ext.P1 FIS of PW1, Crime 344/2015, Pala Police Station, that is, Ext.P18 FIR was registered by PW20, the then Sub Inspector of the aforesaid station. The investigation was completed and the charge submitted by PW21, the then Inspector of Police, Pala.

2. On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case against the accused to the Sessions Court concerned, which court took the case on file as S.C.No.357/2018. On appearance of the accused before the Court of Session, he was furnished with copies of all the prosecution records. On 19/08/2019 the trial court framed a charge for the offence punishable under Section 302 IPC, which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs.1 to 21 and got marked Exts.P1 to P24 and MO1 to MO15 in support of the case. After closing the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. He denied all those circumstances and maintained his innocence.

3. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. DW1 to DW4 were examined and Exts.D1 Crl.Appeal No.449 of 2021 4 to D6 were marked on the side of the accused.

4. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment, found the accused guilty of the offence punishable under Section 302 IPC and hence convicted and sentenced him to undergo rigorous imprisonment for life and to a fine of ₹1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for two years. Set off under Section 428 Cr.P.C. has also been allowed.

5. In the appeal memorandum, it is alleged that the trial court grossly erred in appreciating the evidence on record, causing serious miscarriage of justice. There are no eyewitnesses to the incident. The prosecution has relied on circumstantial evidence, which evidence would in no way connect the accused with the crime. The appellant/accused was mentally unsound before and after the commission of the crime. The unsoundness continued at the stage of committal as well as during trial, due to which he was admitted to the Mental Health Centre several times. Therefore, he is entitled to get the benefit of the exception contained in Section 84 IPC, which aspect has not been considered in the proper or correct perspective by the trial court. The evidence on record clearly shows that the accused was suffering from paranoid schizophrenia from March 1997 onwards and that he was on medication. As Crl.Appeal No.449 of 2021 5 these facts have not been properly appreciated by the trial court, the findings entered are perverse and incorrect and hence liable to be set aside, contends the accused.

6. The only point that arises for consideration in this appeal is whether the conviction entered, and the sentence passed against the accused by the trial court is sustainable or not.

7. Heard Smt.Jayalatha M.R., the learned counsel appointed as the legal aid counsel for the appellant and Smt. Bindhu O.V. , the learned Public Prosecutor for the respondent.

8. The prosecution relies on the testimony of PW14, PW16 and Ext.P15 post-mortem examination report to establish the case of homicide. PW16 while working as Medical Officer, Casualty, Mar Kavukatt Medical Hospital, Pravithanam, on 21/02/2015 at 10.10 a.m. examined Thressiamma who was brought to the hospital with a history of alleged assault by his son. On examination, he found the patient dead. He found an extensive lacerated wound about 7x2 inches on the back of the ear extending to the scalp and lower neck with profuse bleeding. He immediately informed the police, and the body was shifted to the mortuary. PW14, Associate Professor, Medical College Hospital, Kottayam, on 22/02/2015 had conducted the post-mortem examination of the deceased. The ante-mortem injuries and the opinion as to Crl.Appeal No.449 of 2021 6 cause of death noted in Ext.P15 report are -

"INJURIES (ANTE-MORTEM):

1. Chop wound 8x3.5cm, bone deep obliquely placed on the left side of back of head, with its front lower end 1cm below the ear lobule. Scalp around it showed contusion over an area 12x5x0.5em. The occipital bone underneath was fractured and fragmented involving the left side of posterior cranial fossa. Dura was torn underneath. The atlanto-occipital joint was dislocated.

2. Chop wound 9x3cm, bone deep, obliquely placed on the left side of back of head with its front lower end 5cm behind the ear lobule and 2cm below the injury No.1. Occipital bone was fractured underneath.

3. Chop wound 5x1cm, bone deep horizontally placed on the left side of head and adjoining part of back of head, with its front end 4cm above ear lobe.

The left parietal bone was fractured underneath.

4. Chop wound 2.5x1.5cm, bone deep on the right side of forehead 2cm outer to midline and 3cm above the eyebrow.

Frontal bone underneath was fractured.

Brain showed bilateral thin film of subdural and subarachnoid haemorrhage. Contusion of bran 8x5x0.5cm involving the left occipital lobe.

5. Abraded contusion 5x3cm on the right side of face overlying the prominence of cheek.

Air passages contained blood stained fluid. Lungs were pale. Stomach was full with rice and other food materials having no peculiar smell. Its mucosa was pale. Urinary bladder was empty. Uterus 5x4x2cm. Cavity was empty, ovaries were atrophic. All other organs were pale.

Nail clipping, sample of hair, and blood stained dried gauze piece were handed over to Police in a sealed cover as requested. OPINION AS TO CAUSE OF DEATH:

DEATH WAS DUE TO HEAD INJURY."

9. PW14 deposed that injury no.1 to 4 are chop wounds caused by forceful blows with a heavy-cutting weapon: that the injuries noted in Ext.P15 Crl.Appeal No.449 of 2021 7 can be caused by MO1 axe and that the cause of death was due to the injuries sustained on the head. Neither Ext.P15 nor the testimony of PW14 or PW16 has been disputed or discredited by the defense. Hence, we can conclude that the death of Thressiamma was in fact a homicide.

10. It was argued on behalf of the accused that there is overwhelming evidence on record to show that the accused was mentally unsound before, during and after the incident. The accused had claimed the benefit of the exception under Section 84 IPC. However, the court below failed to appreciate the said fact in the correct perspective. The procedure contemplated under Section 329 Cr.P.C., has not been complied with by the trial court. Mens rea, one of the required ingredients to be proved to establish the commission of an offence has not been established by the prosecution in this case. Hence the impugned judgment is liable to be interfered with. In support of this argument, reference was made to the dictum in Sankaran v.

State of Kerala, 1993 KHC 436.

11. Per contra, it was argued by the learned Public Prosecutor that immediately after the arrest of the accused, the latter had been examined by PW19, who states that the medical condition of the accused was fine/normal. The testimony of PW1 to PW4 and PW6 also show that the mental condition of the accused on the date of the incident was quite Crl.Appeal No.449 of 2021 8 normal. Moreover, the accused had made an extra-judicial confession to the prosecution witnesses. Hence it is clear that he had no mental illness at the time of commission of the offence and therefore he is not entitled to the benefit under Section 84 IPC.

12. Before we consider the rival submissions of the parties, we refer to the law on the point and the precedents governing the field. Section 84 IPC says 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. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. (State of M. P. v. Ahmadull, AIR 1961 SC 998). A distinction has to be made between medical insanity and legal insanity. As held in Hari Singh Gond v. State of M. P., AIR 2009 SC 31, Section 84 IPC lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of 'unsoundness of mind' in the Penal Code. The term 'insanity' has no precise definition. It is a term used to describe varying degrees of mental disorder. Every person who is mentally diseased is not ipso facto exempted from criminal responsibility. In dealing with Crl.Appeal No.449 of 2021 9 cases involving a defense of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appears sane. In all cases, where previous insanity is proved or admitted, certain considerations must be borne in mind. Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detection; whether after his arrest, he offered false excuses and made false statements. It has also been pointed out that these tests are good for cases in which previous insanity is more or less established.

13. In Bapu v. State of Rajasthan, (2007) 8 SCC 66, it has been held, Section 84 embodies the fundamental maxim of criminal law, i.e., actus non facit reum nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). To constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furiosi nulla voluntas est). The Section itself provides that the benefit is available only after it is proved that at the Crl.Appeal No.449 of 2021 10 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 doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defense of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. The law recognizes nothing but incapacity to realize the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to comprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot, in the absence of a plea and proof of legal insanity, bring the case within this section.

14. In Sheralli Wali Mohammed v. State of Maharashtra, (1973) 4 SCC 79 : AIR (1972) SC 2443 it has been held that the mere fact that no motive has been proved why the accused committed the murder or Crl.Appeal No.449 of 2021 11 the fact that he made no attempt to run away, would not indicate that he was insane or that he did not have necessary mens rea for the commission of the offence. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84. Behaviour, antecedent, attendant, and after the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender' s mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory, and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.

14.1. The standard to be applied is whether according to the Crl.Appeal No.449 of 2021 12 ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section.

15. As far as burden of proof is concerned, it has been held in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563, that it is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide, shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S.299 IPC. This general burden never shifts, and it always rests on the prosecution. Under S.105 of the Evidence Act, read with the definition of 'shall presume' in S.4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it Crl.Appeal No.449 of 2021 13 believes that the said 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. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused must satisfy the standard of a ' prudent man'. If the material placed before the court, such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of 'prudent man' the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S.105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 IPC. If the judge has such reasonable doubt, he must acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution, and which never shifts, Crl.Appeal No.449 of 2021 14 and the special burden that rests on the accused to make out his defense of insanity.

16. Explaining the above decision, the Apex Court in Bhikari v. State of U.P., AIR 1966 SC 1, held that if upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act.

17. In T.N. Lakshmaiah v. State of Karnataka, AIR 2001 SC 3828, it has been held that under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case. Crl.Appeal No.449 of 2021 15

18. In State of U.P. v. Ram Sarup, AIR 1974 SC 1570, it has been held that the burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea. (See also Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170).

19. To ascertain whether the accused in the case on hand has discharged his burden, we need to examine the entire evidence on record. Therefore, let us examine the evidence on record to see whether the accused has been successful in bringing on record materials which probabilises his case of mental unsoundness at the time of the incident and before we venture into the said exercise, we need to first examine whether the prosecution has succeeded in establishing the case that it was the accused who caused the death of his mother.

20. PW17, Sibi Joseph, is the brother of the accused and son of the deceased. He says that he was at home in the morning of 21/02/2015. When he left home, it was only his brother (the accused) and his mother who were at home. When he returned, he found his mother on the floor of Crl.Appeal No.449 of 2021 16 the kitchen. Benny (accused) was then inside a closed room. He informed the matter to Siji (PW1). Siji and others took his mother to the hospital. In the cross examination, PW17 stated that on the date of the incident, his mother woke him up at about 05.45 a.m. His mother gave him a black coffee and by about 06.30 a.m. asked him to go and stand under a hillock (.......

എന ടക ന യട യ ല ന യ നന ള ന അമച ഞ .. See page 6 of his deposition). He then went to the house of Mathayi chettan and thereafter went to the hillock. As had been instructed by his mother, he returned home at 10.30 a.m., at which time he found his mother dead. According to PW17, the accused was restless on that day as their mother did not accede to the demand of the latter for buying him medicine. When Benny had asked his mother for the medicine, she asked him to go for work and earn money. (.... ന ടന മര വങന പ സ ക ട ക തത ല അസ"സന ആയ ര . ....... ന ടനന ട ണ എട ത പ സ ഉണ ക ന 'അമ ഞ ..... See page 10 of his deposition). In the re-examination, PW17 stated that he was not wearing a watch on the said day and so the time stated by him is only approximate.

21. PW1, is a neighbour of the deceased, who had given Ext.P1 statement to the police. PW1, in Ext.P1 FIS says thus - "I have come to Crl.Appeal No.449 of 2021 17 inform that my neighbour Thressiamma Chettathi has been murdered by her son Benny Joseph (accused) at their residence. Today at 10 a.m., I was on my way to clean the water tank of Jalanidhi. I was passing through the property of Thresamya Chettathi when her younger son Sibi (PW17) came running and told me that his mother is lying on the floor of the kitchen and that she is not responding to his calls. I along with my neighbour Sabu (PW4) went and looked. We saw Thresiamma Chettathi lying on the floor on her side. She was bleeding from the head. I rushed home, took my Omni van and with the help of the people of the locality, got her into my van. I along with Pattimavil Mambu took her to M.K.M. Hospital, Pravithanam. The doctor examined her and declared her dead. I was directed to inform the police. When I reached the house of Chettathi, only her younger son Sibi was there. When I inquired the matter with Sibi, the latter replied that he had gone out to 'Pampooran Paarayil' and when he returned, he saw his mother lying in the kitchen; that when he went out in the morning, his mother and his elder brother Benny were the only persons at home; that when he returned, he did not see Benny. Benny on several occasions had complained to me that his mother was not giving him anything ( നനര ത എന ട അമച എന ക ന തര ല എ ല പ വശശന ഞ ട ണ.) I heard that on the previous day in the evening, Benny had quarreled with his mother and due to the said enmity, Benny Crl.Appeal No.449 of 2021 18 sometime before 10.00 a.m. murdered his mother by beating her on the head with an axe. I have not seen the incident. Chettathi's husband and elder son passed away years back. She has four sons and three daughters. Daughters have been married off. The four sons are living in the same house. Benny, Saji and Sibi are unemployed. Johny is working at Pala. Saji leaves the house in the early hours of the day and returns only in the evening".

21.1. PW1 when examined stands by the case narrated by him in Ext.P1 FIS. PW1 in the box has a case that he was accompanied by his brother Saji (PW2) also, while on his way to clean the water tank. In the cross-examination he said that on the date of the incident he had not seen any signs of mental illness in Benny. He also denied the suggestion put to him that Benny (accused) and his siblings are suffering from mental illness.

22. PW2, Saji Joseph, the brother of PW1, supports the case narrated by PW1. According to him, he heard Benny (accused) telling the police that he had hacked his mother to death with an axe. When the police moved away (മ യ സമയന), he asked Benny what had happened. Benny told him that he had hacked his mother to death with an axe. At that time he noticed that Benny was slightly perplexed. (അവന ആ സമയന യ ര പഭ്രമന മ പതമ ണ കണത. See Page No.7 of his deposition). He then asked Benny as to why he had done such an act, to which the latter replied that his mother spoiled/ruined Crl.Appeal No.449 of 2021 19 his future by making him a mentally ill person. PW2 further says that he and Benny used to talk when they used to go for bathing in the stream ( നത ട). Then also Benny used to say it was his mother who spoiled his future by making him a mentally sick person. He used to see Benny daily during the time of the incident. (എന ന ട അത യയത എ ഞ ന ന ദ ച സമയന എ മ നസ ക നര ഗ യ ക എന് ഭ്ര വ കളഞത അമച യ ണ എ വന ഞ . അത ന മ ന ഞങൾ തമ ല ക ള ക ന ന ക സമയവ ന മറ ന വർതമ നന യ ണ യ ര . അനപ ഴ ന ഇയ ൾ ത മനസ കനര ഗ യ ക യത അമച യ ണ ന ഭ്ര വ കളഞത അമച യ ണ ന യ ണ യ ര . സനഭ്രവക ലത ഞ ന യ സ രമ യ ക ണ ണ യ ര . See pages 7 and 8 of his deposition).

During the said period he had not seen any signs of mental illness in Benny. To a question as to what Benny had told him as to the cause of the incident, PW2 answered that Benny had asked his mother to buy medicines which she refused (ഈ സനഭ്രവ ദ വസന എന ക ണ ണ ഇങ ന യയത എ ണ ഞത? (Q) അന ദ വസന മര വ ങ തര ന ഞ ട ത ലഎ ന എന ട ഞ ര (A) ............... See page 10 of his deposition). Ext.P2 is his 164 statement. PW2 also admitted that he is an attestor to Ext.P3 inquest report prepared by the police. At the time of inquest Mos.1 to 6, the dress and the ornaments worn by the deceased were seized by the police. In the cross-examination PW2 deposed that it was because the Crl.Appeal No.449 of 2021 20 children of Thresiamma are mentally ill, he had asked Sibi whether he had done anything to his mother. (ന ടത യ ട മകൾക മ നസ ക അസ ഖന ഉള്ളത ന ല ണ നന എ നങ ല ന യനത എ സ നയ ട ന ദ ചത. See pages 13 & 14 of his deposition). Sibi and Benny had been treated for mental illness. Saji has slight mental issues. Benny had been treated at Painkulam Hospital, Thodupuzha. He further deposed that when Benny confessed to the crime to him, the police were present in the house but they were standing away from them. (...... എന ട യ സമയന ന ലനസ ക ർ അവ ട ആ വനട ല ഉണ യ ര എ ഞ ല ശര യ ണ. അവർ മ ന ലക നനരത ണ ഞ ന ന ദ ചത. ...........See pages 18 & 19 of his deposition). PW2 was asked as to why he had not referred to the confession of the accused in his 164 statement to the Magistrate, he answered that there were no specific reasons for the same and that it was because he had given a detailed statement to the police. PW2 admitted that he had also not stated that Benny had told him that it was the latter's mother who was responsible for making him a mentally ill person. He also admitted that he had not stated to the police that Benny had complained about his mother on earlier occasions while going to the stream (നത ട) to bathe.

23. PW3, Saji Mathew, yet another neighbour of the deceased deposed that on being informed by a neighbour about the incident, he went Crl.Appeal No.449 of 2021 21 to the hospital where Thresiamma had been taken and thereafter to her house. When he reached her house, Benny (accused) was sitting inside a room with the door bolted. When he called out to Benny, the latter opened the door. He then asked Benny as to what had happened to his mother. Benny replied that he had hacked his mother to death with an axe as his mother did not accede to his demand for purchase of laxative as he had constipation for the last two to three days. According to PW3, the relationship between the mother and the son was good. PW3 further stated that a week before the incident, while he and the accused were cutting grass, Benny had told him that his mother was responsible for making him a mentally sick person. (......വയറ ല ന ന രണ മD ദ വസമ യ ന കന ട യര എ ന അമ മര നമട ച ത ലഎ ന അവന ഞ. അത ക ണ ണ അമ യ ക ത എ ന അവന ഞ.

        യ ന അമയ ന തമ ല നല                   നമ യ ര      . ഇവ ന അമയ ണ

വടന ക യത എ             ന ആള കൾ അവ ന വടന യ ട ക ണ ന ക രണന

അമയ ണ എ            ന അവന എന           ടന      ഞര        ......See page 5 of his

deposition). He did not notice any signs of mental illness in Benny. During the period of the incident also, he did not feel that Benny had any mental issues. PW3 admitted having given Ext.P4 164 statement to the Magistrate. Crl.Appeal No.449 of 2021 22

24. PWs.4, 5 and 6, neighbours of the deceased also support the case stated by PW1 to 3. According to PW4, Benny's mental condition was normal on the date of the incident. PW5 identified MO7 axe, which according to him was seized by the police from the kitchen of the deceased. PW6 also has a case that the accused had confessed to him, which confession was not made in the presence of the police and at that time Benny was in a normal state of mind. When the police asked Benny about the axe, the latter pointed out the axe lying among the firewood under the kitchen slab.

25. PW7, the son-in-law of the deceased and brother-in-law of the accused deposed that Benny had been under treatment for mental illness in a hospital at Painkulam. The incident in this case took place one year after Benny was discharged from the hospital. Benny was cross with his mother as he felt that his mother was not caring enough. The previous day, Benny had called him over the phone and complained of constipation and demanded that he be taken to the hospital. Thereafter he saw Benny at the police station. PW7 identified MOs 8 and 9, the lungi and shirt respectively worn by the accused on the date of the incident.

26. Ext.P5 is the scene mahazar prepared by PW21, the Crl.Appeal No.449 of 2021 23 investigating officer, soon after the incident. PW5, admits that he is an attestor to Ext.P5 scene mahazar.

27. PW20, the then Sub Inspector, Pala, registered Ext.P17 FIR based on Ext.P1 FIS of PW1. As it was a grave offence, he informed the Circle Inspector, (PW21) who had conducted the investigation in the case. Based on the confidential information received regarding the presence of the accused at the scene of occurrence, he along with party went to the house and took the accused to the station. PW21, the then Circle Inspector, Pala, the investigating officer in this case, prepared Ext.P3 inquest report and seized MOs.1 to 5, the dress and ornaments worn by the deceased. He made arrangements to have the inquest video graphed as well as photographed by PWs.8, 9 and 11. Exts.P18 and P.19 are the arrest memo and inspection memo prepared, when the accused was arrested. After the arrest, the accused was subjected to examination by PW19, who issued Ext.P16 certificate to the effect that accused was not having any clinically identifiable illness. By Ext.P7 seizure mahazar, he seized MOs.8 and 9, the dress worn by the accused at the time of the incident. The scene of occurrence was guarded by PW12, CPO, Pala police station till Ext.P5 scene mahazar was prepared. In the presence of PW10, the Scientific Assistant attached to the District Crime Crl.Appeal No.449 of 2021 24 Records Bureau, MO7 axe was seized from the kitchen. The material objects and samples collected from the scene were produced before the court and thereafter sent for forensic examination. Ext.P23 is the report of forensic examination conducted which confirmed the presence of human blood on the axe, and the dress of the deceased and the accused. The blood group found in the dress of the deceased and blood group found in the bloodstains in the shirt worn by the accused was the same. PW21 completed the investigation and submitted the charge sheet before the court.

28. There are no eyewitnesses to the incident. The testimony of PW17, who is none other than the brother of the accused shows that it was only the accused who was present along with their mother at home. True, the behavior or conduct of PW17 appears slightly strange. According to PW17, on the date of the incident he was woken up in the morning by his mother who gave him a black coffee and asked him to go and stand under a hillock. He obeyed the said direction and as instructed by his mother, he returned home at 10.30 a.m. What was the purpose for which he went and stood under the hillock, is not clear. Be that as it may, nothing has been brought out during the examination of PW17 to show that he was not competent to depose. Therefore, the deceased was last seen by PW17 in the Crl.Appeal No.449 of 2021 25 company of the accused. Thereafter when PW17 returned home, he found his mother dead. PW2, PW3 and PW6, speak of the extra judicial confession made to them by the accused. It is true that extra judicial confession is a weak piece of evidence by itself, and it has to be examined by the court with great care and caution. The court has to see whether it has been voluntarily and truthfully made and it should inspire confidence in the mind of the court. An extra judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances, and it is further corroborated by other prosecution evidence. For an extra judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. It must be proved like any other fact and in accordance with law. (See Sahadevan v. State of Tamil Nadu, (2012)6 SCC 403).

29. In the case on hand, nothing has been brought out to discredit the testimony of PW2, PW3 and PW6 who speak of the extra judicial confession made by the accused to them. Added to this, Ext.P23 report says that the blood found on the dress of the accused matched the blood group of the deceased. Presence of blood was seen on MO7 axe also. Therefore, from all these circumstances we can safely conclude that the trial court was right Crl.Appeal No.449 of 2021 26 in concluding that it was the accused who had hacked his mother to death with MO7 axe, which incident took place in the kitchen of their residence.

30. Now the question is, did the accused commit the murder with the required mens rea or whether by reason of unsoundness of mind was incapable of knowing the nature of the act or incapable of knowing what he was doing was either wrong or contrary to law. The possibility of the accused not being normal on the date of incident is quite clear from the extra-judicial confession he made to the witnesses wherein he gives the reason for hacking his mother to death. It is not a normal conduct of a son to hack his mother just because she refused to accede to his demand for medicine. It is true that the burden to prove unsoundness of mind at the time of the incident, is on the accused. But this burden is not as onerous as that of the prosecution and it is sufficient that the accused is able to prove his case by a preponderance of probabilities and to raise a doubt in the mind of the court regarding his mental condition. It is not necessary for him to prove his defense to the hilt. After the incident, the accused made no attempts to run away from the place of occurrence. On the other hand, after the incident, he retires to a room in the same house and bolts the door. When asked to come out of the room, he comes out without any resistance and on Crl.Appeal No.449 of 2021 27 being asked as to what had happened, he confessed to PW2, PW3 and PW6 that he had hacked his mother with MO7 axe. As held in Sheralli Wali Mohammed (Supra), behaviour, antecedent, attendant, and after the event, are relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is true that even if the motive or reason stated is atrocious or that the accused made no attempts to run away from the place of the incident and he continued in the place of incident itself, is no ground to hold that he was mentally unsound at the time of the incident. However, on going through the records in the case, we find overwhelming evidence to show that the accused was mentally unsound before and after the incident.

31. The first remand of the accused after his arrest was on 22/02/2015, which was till 07/03/2015. Order dated 24/02/2015 of the Judicial First-Class Magistrate-I, Pala, in C.M.P.No.526/2015 reads thus -

"......As per the report filed by the Superintendent, Sub Jail, Pala and Superintendent, Medical College Hospital, Kottayam vide under references cited above the accused is a lunatic.

Perused the records. I am satisfied that the accused is a lunatic. Hence the Superintendent Sub Jail Pala is permitted to produce the accused before the Mental Health Centre, Thiruvananthapuram for treatment. The Superintendent, Mental Health Centre is directed to file report regarding the mental condition of the above person periodically."

Crl.Appeal No.449 of 2021 28

31.1. On 07/03/2015, the date of expiry of the first remand period, the accused was not produced before the court. On the other hand, a report was filed by the Superintendent, Sub Jail, Meenachil, Pala, to the effect that the accused was under treatment at the Mental Health Centre, Thiruvananthapuram. This state of affairs continued till 19/12/2015, that is, for about ten months. On 16/01/2016, the Superintendent, Mental Health Centre, Thiruvananthapuram, reported to the Magistrate that on 19/12/2015 the accused has been discharged and sent to Sub Jail. Pursuant to the same, the Magistrate as per order dated 05/02/2016 committed the case to the Court of Session, Kottayam. Para 4 of the said order reads thus-

"4. Reports were called for from the Mental Health Centre, Thiruvananthapuram on the mental condition of the accused. On 11/12/2012 [sic] it was reported from the Mental Health Center, Thiruvananthapuram that the condition of the accused has been improved and is conscious, alert and oriented. It is further reported that the accused is aware of the charges against him and is fit to stand trial."

31.2. Thereafter, we see a letter dated 24/05/2016 of the Additional District and Sessions Judge, Pala, the trial judge, addressed to the Crl.Appeal No.449 of 2021 29 Superintendent, Sub Jail, Pala, by which the latter was directed to produce the accused before a competent doctor and to submit a certificate regarding the mental condition of the accused on or before 10/06/2016. On 10/06/2016, the Superintendent, Sub Jail informed the court that the accused had been under treatment as per the directions of the court at the Medical College Hosptial, Kottayam, and that on 10/06/2016 he had been discharged from the hospital and brought to the jail along with a report of the Assistant Professor, Psychiatry which reads thus-

"As per the references cited above and directed by Professor & Head, Dept of Psychiatry, Govt. Medical College, Kottayam, I Dr. Rekha Mathew, Asst Professor of Psychiatry have examined and observed Mr. Benny from 4/6/16 to 10/6/16. He was admitted as per above orders on 4-6-16 as IP No.31725 till 10-6-16.

Mr. Benny gives history of Psychiatric treatment from Community Mental Health Programme, Kottayam (Ullanadu) -No documents available.

During the stay in the ward he was cooperative with ward staff but did not interact with other patients in the ward.

On examination he is cooperative, rapport could be established. Talk was irrelevant at times. There was circumstantiality in thinking and he also expressed delusions of persecution. His delusions are active at present and needs psychiatric intervention due to potential danger to himself and others.

He needs supervised inpatient care in a center with custodial Crl.Appeal No.449 of 2021 30 facility like Government Mental Health Centre Thiruvananthapuram or Thrissur. The Psychiatry ward of Govt. Medical College Kottayam is an open general ward."

31.3. Pursuant to the said report, the trial judge by letter dated 23/08/2016 directed the Superintendent, Sub Jail, Pala to take necessary steps forthwith for providing medical assistance to the accused and thereafter report the details of the treatment to the court. The Superintendent of Mental Health Centre, Thiruvananthapuram as per letter dated 17/09/2016 informed the court regarding the mental condition of the accused, the relevant portion of which reads thus:

"During his current admission and after perusal of his past treatment records here he shows following features

- Impaired sleep initially

- Irrelevant and increased talk

- Persecuting delusion and somatic delusions

- Restricted affect

- Impaired judgment and partial insight

- Impression: Schizophrenia undifferentiated

- He needs further treatment here. He is not fit for trial at present."

31.4. Thereafter, on 04/07/2017, the trial Judge is seen to have conducted an inquiry as contemplated under Section 329 Cr.P.C. into the mental condition of the accused by examining Dr. Aneesh N.R.K., Junior Crl.Appeal No.449 of 2021 31 Consultant, Psychiatric Mental Health Centre, Thiruvananthapuram. Based on the inquiry conducted, it was concluded that the accused was not fit to stand trial. The accused continued his treatment in the Mental Health Centre, Thiruvananthapuram. On 16/09/2017, a request was made by the trial Judge to the Sessions Judge to transfer the case to the Register of Long Pending Cases as the accused continued to be mentally ill and under the treatment and thus unfit to face trial. This request was allowed on 19/10/2017. Periodic reports are seen filed before the court stating that the accused needed continued treatment. Letter dated 06/01/2018 from the Superintendent, Mental Health Centre, Thiruvananthapuram reads:

"I may inform you that the patient admitted on 05/07/2017, is found to have Undifferentiated Schizophrenia. His delusions persist despite adequate treatment. His other symptoms have improved and he is behaviorally stable and cooperative with staff and inmates. He is unable to take part in Court proceedings and he is not fit to stand trial.

He is unlikely to be fit for trial in the near future. He is fit to be discharge and manageable with supervised medication and regular follow-up. Hence please issue necessary orders for sending him back to jail."

In letter dated 09/04/2018 also, the same stand is repeated. However, on 07/07/2018, the Superintendent, Mental Health Centre, Thiruvananthapuram Crl.Appeal No.449 of 2021 32 is seen to have addressed the learned Judge, stating that the patient Benny Joseph diagnosed with undifferentiated schizophrenia has improved with treatment and that despite persistence of delusions, he is fit to stand trial. Similar reports are seen given on 16/07/2018 and 06/06/2019 also. Based on the aforesaid reports, on 19/08/2019 the trial court has recorded thus:

"Accused is present. MC report received. Fit to stand trial now. Heard on Framing charge. As he is fit to stand heard and charge framed against the accused. U/s.302 of IPC Accused pleaded not guilty after the charge was read over and explained in vernacular. Call on Remitted back to 07.09.2019."

Thus, the trial in the case commenced.

32. We also refer to the testimony of DW1 to DW4 examined on behalf of the accused. DW1, Assistant Professor, Psychiatry, stated that on 25/05/2015 she had examined Benny who had a history of psychiatric treatment from Community Health Programme, Kottayam. On examination Benny was found to have restricted effect. He expressed persecutory delusions. He needed psychiatric intervention. His delusions were active at that point of time which could become potentially dangerous to himself and others. He needed supervisory care at that point of time. He may also require long time supervised care also. According to DW1, it was better to treat the patient in a centre where custodial supervised care was available like in a Crl.Appeal No.449 of 2021 33 Government Mental Health Centre or Psychiatry ward of the Government Medical College, Kottayam. The certificate issued by her has been marked as Ext.D1. DW1 further deposed that a person with symptoms like the accused, could have mood swings and if such a person does not regularly take medicines, there was every possibility of the ailment becoming severe. She also said that such patients unless supervised, would not take medicines regularly. Such patients in the initial stages will have depression and hyperactivity. When she examined Benny Joseph, he had strong feelings of persecutory delusions. Persecutory delusions could happen all on a sudden or otherwise. DW1 said she cannot say whether the persecutory delusions she noticed in Benny, had developed all on a sudden. There is also every possibility that a person under continued treatment for a long time for paranoid schizophrenia, would have continued persecutory delusions and a person having delusions would not have the insight to know the consequences of the act done by him. According to DW1, the patient could be brought back to normal condition, only after long time supervised treatment is given to him. To a court question as to whether a person of the description mentioned in Ext.D1, is taken to a casuality medical officer who interacts with the patient, would it be possible to clinically identify the Crl.Appeal No.449 of 2021 34 delusions if any, she answered, that it would be possible if the doctor is properly trained. Sometimes it may not be possible to detect the delusions. She also added that if the patient had any mental issues, that would have been noted during the examination and the patient referred to the Psychiatric Department.

33. DW2, the then Jail Superintendent, Sub Jail, Meenachil, stated that on 22/02/2015 as per Ext.P20(a) remand order, the accused had been brought to the jail. On his instructions, the accused was taken to the General Hospital, Pala, for examination and Ext.D2 is the OP ticket relating to the same. The accused was referred to the Psychiatric Department of the Medical College Hospital, as per which Dr.Ganga (DW1) after examining the accused issued Ext.D1 report. Based on Ext.D1, he submitted Ext.D3 request to the jurisdictional Magistrate seeking permission to take the accused to the Mental Health Centre, Thiruvananthapuram for treatment, which request was allowed as per Ext.D4 order. On 27/02/2015 the accused was admitted as an inpatient and discharged on 19/12/2015. Thereafter, on 26/08/2016, he was again admitted and discharged on 02/12/2016.

34. DW3, PRO, SH Hospital, Painkulam, Idukki stated that Dr. Angel and Dr. Magi who had treated Benny, are no more. He produced the Crl.Appeal No.449 of 2021 35 documents relating to the treatment records of the accused maintained in the hospital. Finally, DW4, Consultant Psychiatrist in the aforesaid hospital, deposed that while he was working in the said hospital, Dr.Magie and Dr.Angel Mary were also working in the said hospital. Both have passed away. As per Ext.D6 series case record maintained in the hospital, Benny Joseph had been a patient of Dr.Magie and Dr.Angel from 20/03/1997 onwards. As per records, the patient has psychiatric issues like suspicious ideas which started four years before his treatment commenced. Benny was a patient of Dr.Sudarsan of Moolamattom, Valayil Hospital, where also he was treated by a psychiatrist and the illness noted is paranoid schizophrenia. He had ideas of persecution, bizarre delusions and thought alienation. Dr.Magie who has issued Ext.D6(a) certificate had noted that the patient needed lifelong medication. The patient had last come to the hospital on 08/10/2013, on which day, medicines for 15 days' had been given. There has been no follow-up thereafter. DW4 also stated that the patient had been treated as an inpatient many a time in the hospital. The severity of the symptoms in case of paranoid schizophrenia would vary from person to person. To a question whether such a patient would behave normally even when the symptoms are at its height, he answered in the negative. Crl.Appeal No.449 of 2021 36

(മDർച വസയ ല അവർ സ ധ രണന                      ല      രമ       മ         ഞല

ശര യ നണ ?         No. Symptoms and functioning can vary from person to

person depending upon treatment and rehabilitation given (A). See pages 6 and 7 of his deposition). According to DW4, if treatment is not taken, there was every possibility of the patient becoming dangerous, causing danger to himself and others. (പടനറ മന ല മ ടകന വര ത യ ല ന ഷശന അ കടമ യ അവസയ ല എത ന? (Q). സ ധശതയ ണ ......... ഈ ന ഷശന മര മ ടക യ ല തന ക ന മറ ള്ളവർക ന അ കടന വര ത ന സ ധശതയ ണ ? (Q). Possibility/likelihood is there. (A). See page 8 of his deposition). For a patient suffering from the said disease, regular supervised care and medication is required. To a question whether there was possibility of the patient becoming dangerous if he failed to take medicines after October 2013, till February 2015, he answered in the affirmative. (2013 ഒകനട ന നശഷവ ന 2015 Jപ വര വ ര ന ഷശന കKതശമ യ മര കഴ ച ലങ ല ഈ ന ഷശന അ കടക ര യ വ ന (Q) Possibility ഉണ." See page 9 of his deposition).

35. The learned trial judge disbelieved the defense set up by accused relying on the testimony of PW19, who had examined the accused soon after his arrest. However, PW19 is an Assistant Surgeon and not a psychiatrist. In the cross examination, PW19 admitted that he cannot Crl.Appeal No.449 of 2021 37 authoritatively give an opinion about violent behaviour. DW1, the Psychiatrist under whose treatment the accused was for a quite a long-time, stated that it is only a trained person who would be able to identify or find out whether a person is suffering from any mental illness or not. PW19 does not seem equipped to do so. Therefore, the trial Judge erred in relying on the testimony of PW19 as well as the prosecution witnesses who asserted that the accused was in a normal state of mind on the date of the incident and immediately thereafter, to reject the defense set up ignoring the ample evidence of his mental unsoundness.

36. It is evident from the materials on record that the accused was mentally unsound before and after the incident. As held in Hari Singh Gond (Supra), in all cases where previous insanity is proved or admitted, certain considerations will have to be borne in mind. Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detection; whether after his arrest, he offered false excuses and made false statements. It is true that in the case on hand, when the accused was heard on the question of sentence, he responded that the stand taken by his lawyer that he is mentally Crl.Appeal No.449 of 2021 38 unsound, is a wrong/incorrect statement. However, from the facts and circumstances in this case, that is, the motive alleged or the circumstances under which the accused is stated to have committed the crime; his subsequent conduct of remaining calmly in a closed room in the same house; coming out of the room without any resistance when asked to do so and confessing to the crime to all those who enquired about it, coupled with the ample evidence on record that he was under treatment for paranoid schizophrenia from the year 1997, do raise doubts in our mind as to whether the accused was in a normal mental state when the incident took place. Right from the time of his first remand, that is, on 22/02/2015, till the time of commencement of the trial on 19/08/2019, the accused was in and out of the Mental Health Centre, Thiruvananthapuram, undergoing treatment. The evidence of the psychiatrists shows that the accused suffering from schizophrenia had impaired judgment, partial insight and strong delusions of persecution. In the facts and circumstances of this case we find that the accused has been successful in establishing his case by a preponderance of probabilities.

37. It was also contended on behalf of the accused that the failure of the trial judge to follow the procedure laid down in Section 329 Cr.P.C. Crl.Appeal No.449 of 2021 39 would vitiate the trial in this case. In the case on hand, though it was found that the accused was not fit to stand trial, the trial court without conducting an inquiry as contemplated under Section 329, commenced the trial in the case, which has certainly caused prejudice to the accused. There is certainly force in this argument advanced by the learned counsel for the accused. As held by the Division Bench of this Court in Dhara v. State of Kerala, 1991 (2) KLT 775, law enjoins the Sessions Judge to hold a trial regarding the soundness of the accused's mind when it "appears" to him that the person brought to the trial is of unsound mind and consequently incapable of making his defense. He shall in the first instance, try the fact of such unsoundness and incapacity. He can proceed only if he is satisfied that the accused is of sound mind and is capable of making his defense. Referring to the interpretation given by the Apex Court to Section 465 Cr.P.C of the old Code corresponding to Section 329 of the new code in I.V. Sivaswami v. State of Mysore, AIR 1971 SC 1638, the Bench held that, if there is something in the demeanour of accused or in facts of the case which raise a doubt in the mind of court that the accused is of unsound mind and consequently incapable of making of making his defense, it is obligatory on the court to try the said fact before proceeding with trial into the charge. Crl.Appeal No.449 of 2021 40 Failure to follow the procedure laid down in S.329 would vitiate the trial as this is mandatory.

38. After the accused was discharged from the mental Health Centre after a prolonged treatment, it was reported to the court that he was fit for trial. We have our own doubts as to whether the accused was fit to stand trial in the light of the reports dated 06/01/2018 and 09/04/2018 of the Superintendent, Medical Health Centre, wherein it is stated that the accused is unlikely to be fit for trial in the near future. Strangely, after about three months, that is on 07/07/2018 another report comes stating that the accused diagnosed with undifferentiated schizophrenia has improved with treatment and that despite persistence of delusions, he is fit to stand trial. In the light of the said reports it was all the more necessary for the learned trial Judge to have conducted an inquiry as contemplated under Section 329 Cr.P.C. However, the trial judge based on the reports filed, proceeded to frame charge without conducting an inquiry as contemplated under Section 329 Cr.P.C., which procedure, as pointed out, is certainly an infirmity in the case.

39. Though we have found that the accused has committed the act of hacking his mother to death, he is entitled to be acquitted under Section 334 Cr.P.C. as he is entitled to benefit of the exception contained in Section 84 Crl.Appeal No.449 of 2021 41 IPC. Section 335 Cr.P.C. gives two options to the court to deal with persons who are acquitted on the ground of mental unsoundness. As per clause (a) to sub-section (1) such person shall be ordered to be detained in safe custody in such place and manner as the court thinks fit, or as per clause (b) he may be ordered to be delivered to any relative or friend of such person. Sub-section (3) says that no order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub-section (1) except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall- (a) be properly taken care of and prevented from doing injury to himself or to any other person; (b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct. Sub-section (4) of S.335 provides that the court shall report to the State Government, the action taken under sub-section (1) S.336 of Cr.P.C. gives the power to the State Government to empower the officer in charge of the jail in which a person is confined under the provisions of S.330 or 335 to discharge all or any of the functions of the Inspector General of Prisons under S.337 or S.338 of the Code. S.338 deals with the procedure where the prisoner with mental illness is detained under the provisions of sub-section (2) of Section Crl.Appeal No.449 of 2021 42 330 or Section 335 and such Inspector General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody or to be transferred to a Mental Health Establishment if he has not been already sent to such an asylum; and, in case it orders him to be transferred to an asylum, may appoint a commission, consisting of a judicial and two medical Officers. Sub-section (2) provides that such commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit. S.339(1) of Code provides that whenever any relative or friend of any person detained under the provisions of S.330 or S.335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of the State Government, that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person; be produced for the inspection of such officer, and at such times and places, as the State Government may direct.

40. In the result, we set aside the conviction and sentence entered Crl.Appeal No.449 of 2021 43 against the appellant under Section 302 IPC. We find that the appellant has committed the act of hacking his mother to death with MO7 axe. We, therefore, acquit the appellant under section 334 CrPC on the ground that, at the time at which he committed the offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged, or that it was contrary to law. We direct the appellant to be kept in safe custody for the present as provided under S.335 Cr.P.C. Sub-section (2) of S.335 provides that the order for detention shall be in accordance with the rules framed by the State Government under the Lunacy Act, 1912. As the Lunacy Act, 1912 has been repealed and the relevant Act in force is the Mental Healthcare Act, 2017, we find that the latter Act is applicable in this case. We, therefore, direct that the appellant shall be detained in one of the mental health establishments in the State in accordance with the rules, if any, framed by the State Government. It is open to the State Government to direct the appellant to be delivered to any of his relatives or friends in accordance with law. A copy of this judgment shall also be sent to the Director General of Prisons and the Secretary, Home Department, Government of Kerala in terms of S.335(4) for taking further action in terms of S.338 and 339 of the Cr.P.C. The said authorities are directed to submit a Crl.Appeal No.449 of 2021 44 report of action taken by them from time to time before the trial court within three months from the date of receipt of a copy of this judgment. The court below is directed to take further follow up action and issue necessary orders in the best interest of the appellant in accordance with Chapter XXV Cr.P.C.

In the result, the Criminal Appeal is allowed. The conviction and sentence imposed against the appellant by the trial court for the offence punishable under Section 302 IPC is set aside. As stated in paragraph 40 of the judgment, the accused stands acquitted subject to S.335(1)(a) Cr.P.C.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

P.B.SURESH KUMAR JUDGE Sd/-

C.S.SUDHA JUDGE ami/jms/ak

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