Kerala High Court
Abdul Munaf vs State Of Kerala on 4 September, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934
CRL.A.No. 2658 of 2008 (B)
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SC.347/2007 of ADDL.SESSIONS COURT (ADHOC)-II, KOZHIKODE
CP.20/2007 of J.M.F.C.-V,KOZHIKODE
APPELLANT(S):
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ABDUL MUNAF,S/O.ALI,C.NO.6457,
CENTRAL PRISON, KANNUR.
BY ADV. SHAHNAKARTHIKEYAN(STATE BRIEF)
RESPONDENT(S):
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI.JIKKU JACOB
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-09-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR
&
C.T. RAVIKUMAR, JJ.
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CRL.APPEAL. No.2658 OF 2008
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Dated this the 4th day of September, 2012
JUDGMENT
Sasidharan Nambiar, J.
Appellant was convicted and sentenced to imprisonment for life and a fine of Rs.5,000/- and in default, rigorous imprisonment for six months for the offence punishable under section 302 of the Indian Penal Code, by the Additional Sessions Judge, Kozhikode in S.C.No.347 of 2007. The appellant is the son of Ayishabi, who was murdered on the early hours of 18.1.2006 at 4.00 a.m. at her residence. Appellant, PW2 Savad and PW5 Anshad are the children of PW1 Ali and Ayishabi. PW4 Ummer is the brother of Ayishabi. Ayishabi, PW1 and PW2 were residing in house No.8/811 of Olavanna Panchayat during January, 2006. The prosecution case is that at about 4 a.m., hearing the cry of Ayishabi, PW2 woke up and Crl.A.No.2658/08 2 came to the middle room where Ayishabi and the appellant were sleeping. He found the appellant leaning near Ayishabi and throttling her. PW2 rushed to the room, where PW1, the father, was sleeping and walk him up and returned back to the room. By that time, the appellant had already caused the death of Ayishabi by throttling. Appellant went out stating that police could now be called. PW3 Nousahd, the nephew, was informed of the incident over phone. He came to the house and found the body of Ayishabi and thereafter, went to the police station and furnished Ext.P1 F.I Statement at 8.30 a.m which was recorded by PW7, the Head Constable who registered the crime under Ext.P3 F.I.R. PW9, the Circle Inspector was informed. He took over the investigation at 9.30 a.m. He prepared Ext.P5 Inquest Report and sent the body for post mortem.PW6 Dr.Sujith Sreenivasan conducted the autopsy and prepared Ext.P2 post mortem certificate. The appellant was brought to the police station by the Head Constable, who was in G.D charge on the same day morning and kept him under surveillance. PW9, on reaching the police station, effected the arrest at 2.15 p.m. After completing the investigation, PW10, the successor Circle Inspector laid the final Crl.A.No.2658/08 3 report. The learned Magistrate committed the case to the Sessions court who made it over for trial to the Additional Sessions Judge. The appellant was being treated in the mental hospital while on remand. Only after getting the certificate of fitness from DW1 Dr.Madhavadas that appellant is fit to stand for trial, charge was framed. As appellant did not engage any counsel, a counsel was appointed at the expense of the State to defend the appellant. When charge for the offence under section 302 of IPC was framed, read over and explained to the appellant, he pleaded not guilty. Prosecution examined ten witnesses and marked 8 exhibits and identified MO1 series dresses worn by the deceased which were seized by PW9, at the time of the inquest. After closing the prosecution evidence, appellant was questioned under section 313 of Code of Criminal Procedure. He only denied the incriminating materials put to him and did not offer any explanation. As it is not a case for acquittal under section 232 of the Code, learned Sessions Judge called upon the appellant to enter on his defence and adduce evidence, if any, in support of the defence. Appellant then examined DW1 and got marked Exts.D1 to D4, the treatment records as well as Crl.A.No.2658/08 4 the certificate of the mental condition issued by DW1.
2. The learned Sessions Judge, on the evidence, found that the death of Ayishabi was homicide and her death was caused by throttling and it was the appellant who caused her death. The learned Sessions Judge did not accept the plea raised by the appellant under section 84 of the Indian Penal Code and found that the evidence on record do not establish that, at the time of commission of the offence, appellant was of unsound mind and incapable of understanding the nature of the act or that what he was doing was wrong or contrary to law. Finding that appellant committed the offence under section 302 IPC, he was convicted and sentenced as stated earlier. The conviction and sentence is challenged in the appeal preferred from jail. As appellant did not engage a counsel, a counsel from the senior panel of State Brief was appointed to defend him.
3. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor was heard.
Crl.A.No.2658/08 5
4. The learned counsel appearing for the appellant submitted that though the evidence establish that it was the appellant who caused the death of Ayishabi, the mother, by throttling, the evidence also establish that he was being treated for Paranoid Schizophrenia from 1.12.2005 onwards and after his remand, he was produced before the doctor due to the mental illness on 31.1.2006 and he continued the treatment as an in-patient till he was discharged on 9.8.2006 and again, he was treated for the same illness from 19.7.2007 till he was discharged on 9.4.2008 and in such circumstances, there is evidence to prove that appellant was suffering from mental illness due to Paranoid Schizophrenia, when he caused the death of Ayishabi and it is thus clear that appellant was unaware of the consequence of his act or that he was doing something wrong or contrary to law and therefore, the learned Sessions Judge was not justified in denying the benefit under section 84 of IPC. The learned counsel submitted that evidence of PW2, the brother, establish that appellant did not attempt to conceal the murder or absconded after the murder and there is no motive for the murder and in such circumstances, it is clear that appellant did not commit the murder of Crl.A.No.2658/08 6 his mother with the knowledge that he is committing the murder or that he is doing something wrong or contrary to law and in such circumstances, the conviction is unsustainable. Relying on the decision of the Supreme Court in Siddhapal Kamala Yadav v. State of Maharashtra (AIR 2009 SC 97), the learned counsel argued that the disclosure in Ext.P1 First Information Statement would reveal that appellant committed the act due to his mental illness and hence the investigating officer has a duty to get the appellant examined by a Psychiatrist after his arrest and PW9 failed to take the appellant to a doctor to get his mental condition determined and the evidence of PW9 establish that he did not conduct any investigation on the mental condition of the appellant, at the time of commission of offence. Relying on the decision of the Supreme Court in Shrikant Anandrao Bhosale v. State of Maharashtra (AIR 2002 SC 3399), the learned counsel argued that this is a fit case where the learned Sessions Judge should have granted the benefit under section 84 of the Indian Penal Code. The learned counsel argued that the learned Sessions Judge failed to take note of the fact that though the burden to prove that the appellant is entitled to the benefit under section 84 of IPC is on the Crl.A.No.2658/08 7 appellant, the burden is not as stringent as that of the prosecution to prove their case and when the circumstances and the evidence unerringly point out that the appellant was suffering from mental illness on the date of commission of the offence, his conviction is not legal.
5. The learned Public Prosecutor submitted that though a plea of insanity was raised, there is no material or evidence to support the case that at the time when the appellant caused the murder of his mother, he was having any unsoundness of mind and thereby, he was unaware of the nature of the act or that he was doing something wrong or contrary to law. It was pointed out that the evidence of PW2, the brother of the appellant establish that after committing the murder, appellant asked PW2 to call the police and went away from the house indicating that the appellant was aware that he was thereby causing the death of the mother and also that he was doing something contrary to law as he wanted to call the police. In such circumstances, he is not entitled to the benefit under section 84 of IPC. The learned Public Prosecutor also pointed out that the evidence of DW1, the Crl.A.No.2658/08 8 Doctor, establish that the appellant was not having mental illness throughout the period from 1.12.2005 till he committed the murder on 18.1.2006, and it is for the appellant to prove that at 4.00 a.m., on 18.1.2006, when he committed the murder, he was of unsound mind and that he was unaware of the nature of the act or that he was doing something wrong or contrary to law and the conviction is perfectly legal.
6. The fact that appellant, PW1 and PW2 were residing in the same house in Olavanna Panchayat on 18.1.2006 is admitted. Appellant was married and is having two children. His wife is living separately and as proved by the evidence of PW2, appellant was visiting her only once in a week. Appellant was working as a timber worker. The evidence of PW4, uncle of the appellant, shows that appellant was not going for regular work. The fact that on 18.1.2006, at 4.00 a.m., appellant caused the death of Ayishabi, the mother, by throttling is deposed by PW2, the brother. In fact, that fact was not disputed. The evidence of PW6, the Lecturer in Forensic Medicine who conducted the autopsy and prepared Ext.P2 post mortem Crl.A.No.2658/08 9 certificate conclusively establish that the death of Ayishabi was caused by throttling. Though PW1, the father of the appellant turned hostile and disclosed that he did not witness the incident, PW2 the brother, had given evidence that on hearing the cry of the mother, he reached the place where the appellant and the deceased were sleeping and he found the appellant throttling the mother. We find no reason to disbelieve that evidence of PW2 which was not seriously challenged. It is therefore, conclusively proved that death of Ayishabi was homicide and it was caused by throttling and it was the appellant who caused her death.
7. The only argument raised by the learned counsel appearing for the appellant is based on section 84 of Indian Penal Code. Section 84 provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Therefore, in order to claim the benefit under section 84, it is to be proved that at the time of doing the act which caused the death, the person who caused death Crl.A.No.2658/08 10 was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law due to the reason of his unsoundness of mind. Section 105 of Indian Evidence Act provides that when an accused is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any part of the same Code or in any law defining the offence is upon him and the court shall presume the absence of such circumstances. Illustration (a) to section 105 provides that A, accused of murder, alleges that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. Therefore, it cannot be disputed that the burden to prove that appellant, due to his unsoundness of mind was incapable of knowing the nature of the act which caused the death or that what he was doing was either wrong or contrary to law, is definitely on the appellant. At the same time, the burden is not as stringent as the burden of the prosecution to prove the ingredients of the offence committed by an accused.
Crl.A.No.2658/08 11
8. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563), the position was clarified by the three Judges Bench as follows:-
"It is fundamental principle of criminal jurisprudence that an accused in 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 of the Indian Penal Code.
This general burden never shifts and it always rests on the prosecution. But, S. 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that Act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under S. 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. 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 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 Crl.A.No.2658/08 12 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 has to 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 S. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that even 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, and the special burden that rests on the accused to make out his defence of insanity."
The Hon'ble Supreme Court in Dahyabhai's case (supra) held:-
"9.When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing Crl.A.No.2658/08 13 the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime."
Therefore, the relevant point of time to consider the mental condition of the appellant, and to determine whether he was capable of knowing the nature of the act or that he was doing what is either wrong or contrary to law is at the point when the appellant committed the murder at 4 a.m on 18.1.2006.
9. Ext.P1 FI statement lodged by PW3 itself reveals that it was brought to the notice of the investigating officer that appellant committed the act due to his mental illness. Still, when the appellant was arrested on the next day by PW9, he did not think it necessary to take the appellant before a Psychiatrist to assess his mental capacity to know the nature of his act or whether the appellant was aware that what he has done was wrong or contrary to law. The evidence of Crl.A.No.2658/08 14 PW9 also reveal that he did not conduct any investigation to find out whether the appellant was having sufficient mens rea, at the time when he committed the act or whether he was capable of understanding the nature of his act at the time when he caused the death of his mother. A Division Bench of this Court in Kuttappan v. State of Kerala (1986 KLT 364) considered the duty of an investigating officer to get the accused examined by a doctor in case of a doubt regarding his mental capacity was brought to the notice of the investigating officer. It was held :-
"16.The crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed. For this purpose, the state of his mind, both before and after the commission of the act, is also relevant. The court has to pay due regard to the circumstances which preceded, attended and followed the act. It would not be proper to assume that the investigating officer is to direct his attention only to the act but not to the mens rea. Of course, ordinarily attention of the investigator would be directed to the act, particularly in the absence of circumstances throwing any doubt on the sanity of the perpetrator of the act. But where the investigator comes across any suggestion or material throwing any such doubt, it would be his duty to investigate the mental condition of the accused also and place the material before Crl.A.No.2658/08 15 court."
10. The Hon'ble Supreme Court in Siddhapal Kamala Yadav's case (supra), observed that in spite of the onus of the accused to prove his unsoundness of mind at the time of commission of offence, if the investigating officer fails to get the accused examined by the doctor, it is a serious infirmity. It was held:-
"The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that 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. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly, every person is also presumed to know the law. The prosecution has not to establish these facts."
(underline supplied) Crl.A.No.2658/08 16
11. The appellant examined DW1, the doctor who had treated him earlier to the commission of offence and later, while on remand, when he was taken to the mental hospital from jail, while in custody. Ext.D1, the case sheet, with the evidence of DW1 establishes that appellant was admitted in Mental Hospital, Kuthiravattom, on 2.12.2005. Ext.D1 establishes that it was reported to DW1 that appellant was having such mental illness, at least six months prior to the date of his examination on 2.12.2005. Ext.D1 shows that PW2 Savad, the younger brother and the mother were having mental illness. It indicates that his family is having history of mental illness. It was was also noted by DW1 in Ext.D1 that appellant was originally engaged in building work and thereafter, eight months prior to December, 2005, he started engaging in timber work and he was irregular in the work five months prior to December, 2005. The mental state of the appellant was recorded in Ext.D1 as follows:-
"Patient brought with hands restrained, shabbily dressed, rapport established difficulty, poor eye contact. Speech: speaks only when spoken to, answers tend to be irrelevant at times, speaks in a lower tone, guarded in his replies, says he has been symptomatic since last 1 year."
Crl.A.No.2658/08 17
12. The insight and judgment are noted in Ext.D1 as "impaired judgment". Though he was conscious, attention was not sustained. It was also noted that his sleep was poor. The doctor had prescribed medicines and admitted him as an inpatient. Evidence of DW1, which is not challenged, establish that appellant absconded from the hospital on the very next day. The incident in this case was within 1= months, thereafter. Though there is no evidence to prove the exact mental condition of the appellant on 18.1.2006, when he committed the act, after his arrest by PW9 on 18.1.2006, and he was remanded to jail by the learned Magistrate, when he was produced before DW1, Ext.D2 with the evidence of DW1 establish that as referred by the learned Magistrate, appellant was taken to Mental Hospital, Kuthiravattom and was admitted there as an inpatient. Ext.D2 establish that the treatment continued till he was discharged on 9.8.2006. Ext.D3 with the evidence of DW1 establish that he was again admitted as an inpatient on 19.7.2007 and was discharged only on 9.4.2008. The evidence of DW1 further establish that appellant was being treated for Paranoid Schizophrenia. The question is, in Crl.A.No.2658/08 18 such circumstances, whether it could be found that appellant was incapable of knowing the nature of the act or that he was doing what is either wrong or contrary to law on 18.1.2006 at 4 a.m when he committed the murder.
13. The facts of the case in Shrikant Anandrao Bhosale (supra) relied on by the learned counsel appearing for the appellant show that the accused in that case was also suffering from Paranoid Schizophrenia and he was treated as an inpatient in a Government Hospital from 28.10.1993 to 1.5.1993 and that he was suffering from this illness at least from 20.4.1992 and he was examined by DW3 the doctor on 20.4.1992 and his mental illness continued till 27.10.1993. The death was caused on 24.4.1994. The records in that case also reveal that subsequent to the incident, the appellant was being treated 25 times from 27.6.1994 to 5.12.1994. Based on these facts, it was held:-
"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 Crl.A.No.2658/08 19 reference occur, which gradually develops into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but are afterwards changes 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 belives 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 gives 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 prosecutory to the grandlose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversations 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 hereditary plays a part. The irritation and excitement are effects of illness. On delusion affecting behaviour of patient, he is source of danger to himself and to others."Crl.A.No.2658/08 20
On the special facts of the case it was further held:-
"20.Mr. Arun Pednekar relies upon Sheralli Wali Mohammed v. State of Maharashtra (1973) 4 SCC 79 to contend that mere fact that the appellant did not make any attempt to run away or that he committed the crime in day light and did not try to hide it or that motive to kill his wife was very weak would not indicate that at the time of commission of the act the appellant was suffering from unsoundness of mind or he did not have requisite means rea for the commission of the offence. It is correct that these facts itself would not indicate insanity. In the present case, however, it is not only the aforesaid facts but it is the totality of the circumstances seen in the light of the evidence on record to prove that the appellant was suffering from paranoid schizophrenia. The unsoundness of mind before and after incident is a relevant fact. From the circumstances of the case clearly an inference can be reasonably drawn that the appellant was under a delusion at the relevant time. He was under an attack of the ailment. The anger theory on which reliance has been placed is not ruled out under schizophrenia attack. Having regard to the nature of burden on the appellant. We are of the view that the appellant has proved the existence of circumstances as required by S. 105 of the Evidence Act so as to get benefit of S. 84, I.P.C. We are unable to hold that the crime was committed as a result of extreme fit of anger. There is a reasonable doubt that at the time of commission of the crime, the appellant was incapable of knowing the nature of the act by reason of unsoundness of mind and, thus, he is entitled to the benefit of S. 84, I.P.C. Hence, the conviction and sentence of the appellant cannot be sustained."Crl.A.No.2658/08 21
14. A Division Bench of this Court in State of Kerala v. Ravi (1978 KLT 177) had occasion to consider the same plea based on section 84 of IPC. In that case, apart from the evidence of the sister of the accused who was examined at the defence stage, no other evidence was adduced to prove that the accused was suffering from any mental illness at the time when he committed the offence. Still holding that the absence of motive or the cruel nature of the offence are not relevant aspects for deciding whether benefit under section 84 IPC is to be granted or not, this Court relied on the decision of the Supreme Court in S.W.Mohammed v. State of Maharashtra (AIR 1972 SC 2443) and held that mere fact that no motive has been proved for the commission of murder or the fact that the accused made no attempt to run away would not indicate that he was insane or that he did not have the necessary mens rea. Relying on the decision in Re Govindaswami (AIR 1965 Mad. 283) and Re Subramaniam (AIR 1964 SC Mad. 526), it was held that the fact that the accused behaved in a strange manner, consequent to the commission of the offence or that he did not try to escape or run away from the scene of Crl.A.No.2658/08 22 offence are not indicative of insanity or incapability of knowing the nature of the act or that he was doing wrong or contrary to law. Relying an earlier Division Bench decision of this Court in State of Kerala v. Madhavan (AIR 1958 Kerala 80), it was held that it would be dangerous to hold that because of an atrocious murder committed for no apparent reason and for no proved motive, the offender must have been insane at the time and that too, without any proof whatsoever, of prior insanity. On the facts of that case it was held that though the learned Sessions Judge granted the benefit under section 84 of IPC, the accused is not entitled for the same and reversed the acquittal and the appellant was convicted.
The Hon'ble Supreme Court in Siddhapal Kamala Yadav's case (supra) also reiterated the law as follows:-
"11. The section itself provides that the benefit is available, only after it is 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 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 Crl.A.No.2658/08 23 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 defence 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. Stephen in 'History of the Criminal Law of England,' Vo. II, page 166 has observed that if a person cuts off the head of a sleeping man, because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend 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 plea and proof of legal insanity, bring the case within this section This Court in Sherall Walli Mohammed v. State of Mahara- shtra : (1972 Cr LJ 1523 (SC), held that the mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was insane or that he did not have necessary mens rea for the offence. Mere abnormality of mind or partial delusion, Crl.A.No.2658/08 24 irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated Naughton rules of 19th Century England. The provisions of Section 84 are in substance the same as that said down in the answers of the Judges to the questions put to them by the House of Lords, in M. Naughton's case (1843) 4 St. Tr. (NS) 847.
Behaviour, antecedent, attendant and subsequent to 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 ofthe 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 prefect 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."
15. The facts of the case considered by the Division Bench in Kuttappan's case (supra) establish that the accused in that case was Crl.A.No.2658/08 25 treated for Paranoid Schizophrenia. The murder was on 3.4.1982. Evidence establish that the accused was treated for reactive depression from 12.12.1977 to 27.2.1978, 6.4.1978 to 8.4.1978 and 10.4.1978 to 15.4.1978 and he was again treated from 6.3.1979 to 4.1.1980. On the evidence, this Court found that the accused was suffering from minor mental illness which developed to paranoid psychosis and later into Paranoid Schizophrenia. It was held:-
"Medical evidence shows that if not properly treated the condition will persist and even aggravate. Evidence of DW4 would indicate that the appellant was not taking medicines properly. In fact, he disappeared from the village for a period of nearly two years and returned two months prior to the occurrence."
Based on this evidence, it was held that the accused is entitled to the benefit under section 84 of IPC. The Division Bench also considered the question of burden to prove and relying on the decisions of the Supreme Court in State of Madhya Pradesh v. Ahmadulla (AIR 1961 SC 998), Ratan Lal v. State of Madhya Pradesh (AIR 1971 SC 778) and S.W.Mohammed's (supra), it was held :-
"Materials so placed before the court may not sometimes be sufficient to discharge the burder Crl.A.No.2658/08 26 S.105 of the Evidence Act; however, it may raise a reasonable doubt in the mind of the court as regards one or the other of the necessary ingredients of offence, itself, either actus reus or mens rea. If it raises a reasonable doubt in the mind of the court whether the accused had the mens rea required for the offence, accused would be entitled to the benefit of doubt."
The same position has been reiterated by another Division Bench of this Court in Daniel v. State of Kerala (1993 (1) KLT SNC.No.11) as follows:
"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."
16. Ext.P1 itself discloses that it was made known to the investigating officer that the appellant is suffering from mental illness and the act would have been committed due to his mental illness. Crl.A.No.2658/08 27 Even though the appellant was arrested on the same day, the investigating officer did not get the appellant examined by a Psychiatrist to find out whether the appellant was having the knowledge of the nature of his act or that whether he knew that what he has done was wrong or contrary to law at that time. The investigating officer also did not conduct any investigation whatsoever to find out the mental capacity of the appellant at the time of committing the offence, so as to discharge the general burden of the prosecution that appellant committed the offence with sufficient mens rea. The evidence of DW1 with Exts.D1 to D3 establish that appellant was suffering from mental illness six months prior to 1.12.2005 and he was admitted in the Mental Hospital, Kuthiravattom on 1.12.2005 and he absconded from the hospital without continuing the treatment, within two days. Evidence also establish that immediately after the arrest and remand, appellant exhibited symptoms of mental illness which persuaded the jail authorities to bring it to the notice of the learned Magistrate, who directed his examination by a Psychiatrist and consequently, the appellant was treated as inpatient at Mental Hospital, Kuthiravattom from 31.1.2006 Crl.A.No.2658/08 28 onwards. Evidence of DW1 with Exts.D1 to D3 establish that appellant was being treated for Paranoid Schizophrenia. Even if such a patient was discharged from the hospital, if he discontinued to have the prescribed drugs, the illness would recur. So also when a person is having the illness of Paranoid Schizophrenia, he will not be fully aware of the nature of his acts or its consequences. Therefore, even though there is no evidence to prove the exact mental condition of the appellant at 4.00 a.m., on 18.1.2006, when he committed the murder, when the evidence establish that appellant was suffering from paranoid psychosis at least seven months earlier to the date of commission of offence, there is a reasonable doubt that at the time of committing the murder, appellant was incapable of knowing the nature of the act by reason of his unsound mind. If so, he is entitled to the benefit of section 84 of Indian Penal Code. In any case it is sufficient to raise a reasonable doubt whether the appellant had the mens rea required for the offence and if so, prosecution must be taken to have failed to prove the guilt beyond reasonable doubt. On the evidence, we hold that at the time of the occurrence, appellant was a person of unsound mind and by reason of such illness, he was Crl.A.No.2658/08 29 incapable of knowing the nature of his act. He is therefore entitled to be acquitted by virtue of section 84 of Indian Penal Code.
The appeal is allowed. The conviction of the appellant and the sentence for the offence under section 302 IPC, in S.C.No.347 of 2007 by Additional Sessions Judge, Kozhikode are set aside. We acquit the appellant of the offence charged. As the appellant is suffering from a disease, which led to homicidal tendencies in him, we are of the opinion that it is dangerous to let him at liberty. Hence, he is to be detained in safe custody. We direct the appellant to be detained in one of the mental hospitals in the State, in accordance with the rules, if any, framed by the State Government. It is also open to the Government to direct the appellant delivered to any of the relatives, on sufficient conditions.
M.SASIDHARAN NAMBIAR (JUDGE) C.T. RAVIKUMAR (JUDGE) spc/ Crl.A.No.2658/08 30 C.T. RAVIKUMAR, J.
JUDGMENT Crl.A.No.2658/08 31 September, 2010