A fatal stabbing and attacks on four interveners arose from a rubber-tapping contractual dispute. The Court rejected insanity and grave-and-sudden-provocation pleas, declined to reduce murder to culpable homicide, and dismissed the appeal, confirming the convictions and sentences for house-trespass, murder and attempted murder.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 15TH DAY OF JUNE,2020/25TH JYAISHTA,1942
CRL.A.No.47 OF 2016
[AGAINST THE JUDGMENT dtd.31.12.2015 IN SC 5/2015 OF ADDITIONAL DISTRICT COURT, PALA
AGAINST THE ORDER IN CP 20/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ERATTUPETTA
CRIME NO.220/2014 OF Thidanadu Police Station , Kottayam]
APPELLANT/ACCUSED:
ANTONEY @ KUTTIYACHAN, AGED 57 YEARS, S/O.VARKEY, CHAMAKALAYIL HOUSE, CHEMMALAMATTOM BHAGOM, KONDOOR VILLAGE, MEENACHIL THALUK, KOTTAYAM DISTRICT
BY ADV. SRI.NANDAGOPAL S.KURUP
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031
OTHER PRESENT:
SR. PUBLIC PROSECUTOR MR.S U NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-062020, THE COURT ON 15-06-2020 DELIVERED THE FOLLOWING:
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JUDGMENT 'CR' [Dated this the 15th day of June, 2020]
N.ANIL KUMAR, J.
This appeal is directed against the judgment in S.C.No.5/2015 dated 31.12.2015, passed by the court of Additional Sessions Judge, Pala, for the offences punishable under Sections 449,302 and 307 of the Indian Penal Code,1860 (for short 'the IPC'), convicting and sentencing the appellant/accused for the aforesaid offences under various spells including life imprisonment under Section 302 IPC. The appellant assails his conviction and sentence passed by the trial court for the aforesaid offences, rejecting his defence that the investigating officers have manipulated the entire case out of sheer anxiety to punish the appellant/accused.
The deceased Joseph.J.Njavallil was a
businessman and an agriculturist. He was residing along
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with his wife and two children in House No.507 in Ward No.9 of Thidanadu Grama Panchayat. The deceased had entered into an agreement with the accused for slaughter tapping in respect of 1500 rubber trees standing in his estate for an amount of Rs.1,50,00,000/-. The agreement period was three years starting from December,2012. Initially, the accused had paid an amount of Rs.60,00,000/- as advance. Later, due to unforeseen circumstances, some rubber trees had fallen down and the price of latex had come down sharply in the world market. The accused had nursed a feeling that the fall in the price of latex and the destruction of the rubber trees due to rough wind would render the contract impossible to perform. Thereupon, a mediation talk and a new agreement was executed on 07.06.2013. Still, the accused had a feeling that the contract would cause total loss to him. Out of this frustration, the accused came to the house of the deceased on his motorcycle bearing registration
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No.KL/05-1053 at 9.30 am on 16.04.2014. Thereafter, he had committed criminal house trespass and called the deceased to come outside near the car porch of the house. A wordy altercation took place between the accused and the deceased . Feeling agitated, the accused stabbed the victim with MO1 dagger which he had kept in his loin. The accused had stabbed on the left side of the chest of the deceased and on the back twice, causing grievous injuries to the deceased. When the wife and children of the deceased along with one of his workers went to rescue the deceased, the accused stabbed them. The accused stabbed on the left side of the chest of PW2-Appu Jose and caused grievous hurt to him. The accused also stabbed PW7-Rijo on the left part of his chest, on the left hand muscle and on the left forearm. When PW3-Usha, the wife of the victim went to his rescue, the accused stabbed on the left side of her chest causing grievous injuries. When PW4-Biju went to the rescue of the deceased, the accused stabbed him with MO1.
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Thereafter, the accused dragged the deceased to the courtyard and inflicted stab injury on the left side of his chest and ensured his death. The accused had attempted to murder PW2-Appu Jose, PW3-Usha, PW4-Biju and PW7-Rijo during the very same transaction.
Statement before PW30 the Sub Inspector of Police, Thidanadu Police Station. He is an eye witness to the occurrence. Consequent to Ext.P1 FIS, PW30 registered Ext.P43 First Information Report as Crime No.220/2014 for the offences punishable under Sections 302,354,447 and 324 of IPC .
Erattupetta took over the investigation of the case on 16.4.2014 itself. PW31 conducted inquest on the body of the deceased at 11.45 am and prepared Ext.P3 inquest report in which PW5 is a signatory. Column No11 is pertaining to the apparent cause of death. PW31 noted
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that the victim died as a result of the stab injuries on his chest. As part of the inquest, PW31 removed the clothes of the deceased and seized MO12 from the body of the deceased. He prepared Ext.P5 scene mahazar in which PW11 is a signatory. PW31 seized MO1 dagger, MO14 knife,MO15the outer cover, which had enclosed MO1 dagger, MO16 white button, MO17 series chappals, MO18 hospital prescription, MO2 dhothi and MO19 mobile phone, which were found adjacent to the body of the deceased by Ext.P5 mahazar.
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Ext.P48 report before the Judicial First Class Magistrate Court, Erattupetta incorporating the above penal provisions. At the time of arrest, PW31 recovered MO21 dhothi, MO22 shirt, MO23 mobile phone, MO24 helmet, MO25 key and Ext.P51 letter from the pocket of the accused. PW31 questioned the witnesses including the injured witnesses, recorded their statements and filed the final report before the court.
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against him. The accused also filed an additional statement contending that the deceased cheated him whereby he was forced to execute Ext.D1 agreement much against his wish. Thereupon, the accused had filed a complaint against the deceased in the Thidanadu Police Station alleging that the deceased had committed criminal breach of trust. Pursuant thereto, PW10 Varkey and others intervened in the dispute. According to the accused, he was not in a position to realise a portion of Rs.60,00,000/- paid by him to the deceased by way of Ext.D1 agreement. Hence, he was constrained to execute Ext.P2 agreement. He could not recover a small portion of the amount though he had conducted tapping by himself. He further stated that the deceased was a wealthy man and having high political connections. The accused was scared of him and he did not even dare to speak to the deceased. He was eager to get back a portion of Rs.60,00,000/- paid to the deceased by way of Ext.D1 to get his daughter married at the earliest. On
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15.4.2014, he went for tapping the rubber trees as usual. He saw the deceased sitting in the sit-out of his bungalow. Exts.D7 and D8 letters prepared by him were handed over to the deceased. Out of fear, the accused did not speak anything on that day. On the next day, he went for tapping the rubber trees. Around 9 a.m., the accused had completed the tapping work and had gone to the shed to change his clothes and had gone for breakfast in his bike. While so, he was stopped by Arun, one of the workers of the deceased and informed that the deceased had directed to meet him. As desired by Arun, he went to the car porch in front of the bungalow and while so, the deceased was standing in the car porch with a knife in his hand. On seeing the accused, the deceased took Exts.D7 and D8 letters from his pocket, which were given by him on the previous day and asked him whether his intention was to create problems again. Since he was scared of the deceased, he wanted to leave the place immediately. However, Arun waylaid him and took a knife from his loin. After that, he could not remember what exactly had happened. According to
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him, MO1 did not belong to him. He straight away went to the Police Station and surrendered before the police. In the occurrence, he had sustained several injuries on his left palm. He underwent treatment in the Medical College Hospital, Kottayam on 16.4.2014. Ext.P50 certificate is concocted. His daughter Soumya Antony informed PW31 on 16.4.2014 that he had been suffering from mental ailments. He had stopped taking medicines before the occurrence as prescribed by PW26 Dr.Suresh Ninan. He had taken the medicine for mental ailments while he was undergoing detention in the jail. Exts.D7 and D8 letters were not written by him. The Police directed him to copy Exts.D7 and D8 in accordance with Ext.P51 letter given to the deceased on 15.4.2014. Ext.P51 letter was written by him under threat from the Police while he was in custody. He has a wife and two daughters. The second daughter is a plus two student. According to him, he gave Rs.60,00,000/-, the money which was saved for conducting the marriage of his daughters, to the deceased by selling his property. He claimed to be totally innocent in the case.
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trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused was called upon to adduce evidence which he might have in support thereof. On behalf of the defence, DW1 was examined and marked Exts.D1 to D10.
10. The learned counsel for the appellant, taking us through the entire materials on record, contended before this Court that although the plea of insanity is set up by the
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accused under Section 84 of the IPC, the accused is entitled to
set up lack of the intent required to constitute the crime attributable to the provoking circumstances, mental disorder or any other cause. The learned counsel further submitted that the answers elicited during the cross-examination of the prosecution witnesses themselves and the tenor of answers given by the accused and the written submission made by him under Section 313(1)(b) of Cr.P.C. would eloquently show that there were enough materials before the trial court to conclude that at the time when the accused had committed the act, he was totally frustrated. Elaborating on the submission, the learned counsel for the appellant submitted that the appellant was composed in his behavior all through his life and he had believed the deceased and entrusted an amount of Rs.60,00,000/- after selling his valuable property owned by him. The learned counsel further submitted that the sale proceeds were intended to arrange his two daughters' marriage at the earliest.
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However, the deceased cheated him and received unconscionable amount to his detriment by way of Ext.D1. It was submitted that the trial court was obliged to consider the circumstances which preceded, attended and followed the act committed by the accused. The learned counsel for the appellant added that the conduct of the accused at the outset would reflect fundamental disturbance in his behaviour with the deceased. The learned counsel further submitted that the deceased was a wealthy man having high connections in the society. Hence, it is submitted that the accused has been implicated in this case, manipulating records.
counsel for the appellant, the learned Senior Public Prosecutor Sri.S.U.Nazar submitted that there is no material evidence before the trial court to indicate that at the time of committing the offence, the accused was suffering from mental insanity. According to the learned
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Public Prosecutor, the doctrine of insanity is a defence only when the mental disorder is such as to come within the accepted legal principles and then it is a complete defence requiring acquittal. This doctrine recognises no middle ground between responsibility and irresponsibility where mental disorder not sufficient to require acquittal may nevertheless serve to reduce the degree of the crime. In the above background, the learned Public Prosecutor submitted that a person can be held committing a premeditated killing even though he lacked the mental capacity t o pre-meditate.
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the accused had sufficient motive to do away with the deceased. That apart, the learned Senior Public Prosecutor contended that the accused stabbed PWs. 2,3,4 and 7 when they made an attempt to intervene in the matter. In view of the conduct of the accused, the learned Senior Public Prosecutor maintained that all the acts were done by the accused knowing fully well the natural and probable consequences thereof.
13. PW15 is the Doctor, who conducted autopsy on the body of the deceased on 16.4.2014 and issued Ext.P10 Postmortem Certificate. PW15 noted 13 ante
mortem injuries on the body of the deceased as follows:-
“B:INJURIES (ANTE MORTEM)
1. Linear abrasion on front of shoulder right 4.5cm inner end 13 cm below tip of shoulder from inner end had a width of 0.2cm and other end pointed with tailing.
2. Incised wound on inner aspect of right wrist 1.8cm.,transverse with a width of 0.4cm, muscle tendon deep.
3. Abraded contusion on front of right knee 5x3cm transverse.
4. Abraded contusion on front of left knee
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5x5cm.
7. Linear abrasion on back of left upper arm 2.5x0.2cm transverse.
8. Abraded contusion of back of left elbow 2.5x1cm.,vertical.
9. Stab wound on left axillary region 4.3x1.3cm transverse both end sharply cut, directed downwards through muscular plain for a length of 6cm downwards and slightly inwards.
13. Linear abrasion on left side of face, vertical 7.5x0.2cm, thigh cheek.”
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14. Out of the above injuries, injury No.11 is
sufficient in the ordinary course to cause the death of the victim. PW15 further stated that the death was due to the stab wound sustained to chest with MO1 dangerous weapon. On going through Ext.P10 Postmortem Certificate and oral evidence of PW15, there is no reason to disagree with the opinion expressed by PW15 regarding the cause of death of the deceased. There is no allegation from anybody that the death of the victim was accidental or suicidal. Injuries noted in Ext.P10 Postmortem Certificate cannot be said to be self inflicted, which really stands proved that the death of the victim was homicidal.
15. Immediately after the occurrence, criminal law was set in motion by PW1 Benny. He went for work at the residence of the accused on 16.4.2014. According to him, the house is a bungalow facing towards the east and its car porch is a very big one where four vehicles can be easily parked. Around 9.30 am on that day, he heard a hue and cry from the
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car porch and he rushed to the scene, where he could find the accused assaulting the deceased pointing a knife on his chest. He noticed blood oozing from the chest of the deceased. PW4Biju, one of the co-workers working along with him on that day also followed him. PW4 tried to prevent the accused from doing further overt acts. Infuriated by the conduct of PW4, the accused warned him against interfering in the dispute and stabbed on his chest. Though PW4 made an attempt to ward off the stab, it struck on his chest. Apprehending danger, PW4 moved back. While so, PW2 Appu, PW3 Usha and PW7 Rijo tried to rescue the deceased. According to PW1, the accused did not like their conduct and stabbed them indiscriminately. On sustaining the stab injuries, PW2 and PW7 had fallen down. Then the accused dragged the deceased to the courtyard and made him to lie on the ground. The deceased fervently pleaded for his life. Then the accused uttered that hereafter he did not want any favour from him and thereafter mercilessly stabbed on his
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chest with MO1 dagger. Consequently, blood flowed profusely through the nose and mouth of the deceased. The accused casually kept MO1 dagger, on the top of the latex barrel and rode away on his motor cycle. PW3 requested PW7 to take PW2, who had sustained very serious injuries, to the hospital. With the assistance of workers, PW7 took PW2 to the hospital in a car. Simultaneously, he along with others took the deceased in an autorickshaw to the hospital. PW1 identified MO1 dagger used by the accused for stabbing the deceased and others.
16. PWs.2,4 and 7 supported the case advanced by PW1 in full. PW3 is the wife of the deceased. She was taken to the Medical College Hospital and from there to Caritas Hospital, Kottayam. She also identified MO1 and Ext.P2 agreement between the accused and the deceased. PW2 was initially taken to the Medical College Hospital and was admitted there for three days. Thereafter, he was
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referred to the Caritas Hospital, Kottayam for better management. According to him, the accused stabbed on his chest and made an attempt to murder him. PW7 stated before the trial court that he had sustained injuries on the
very same occurrence on his chest, hand and palm.
17. PW16 Dr.Vinitha.V.Nair examined PW2 Appu
on 16.4.2014, while she was working as Senior Lecturer in Cardio Thoracic Surgery at the Medical College Hospital, Kottayam and issued Ext.P11 Medical Certificate noting the following injuries.
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Ext.P7 Accident Register-cum-Wound Certificate noting the injuries of PW2 issued by the Medical Officer of the Taluk Headquarters Hospital, Kanjirappally was shown to her. She stated that injuries noted in Ext.P7 are corresponding to the injuries noted in Ext.P11. She further opined that injury Nos.1 to 3 are possible by stabbing with a weapon like MO1 and lacerated wounds can be caused to that part of body coming into contact with any hard or rough surface. She opined that the injured was in a critical condition and he would have died, but for the timely treatment.
18. PW18 examined PW3- the wife of the deceased while she was working as a Consultant Plastic Surgeon at Caritas Hospital, Kottayam. According to him, PW3 was admitted to the hospital on 16.4.2014 and was discharged on 27.4.2014. He further stated that Dr.Ajaya Kumar Kamath was working along with him during the above period. PW3 was admitted, treated and discharged by Dr.Ajaya Kumar
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Kamath. He identified Ext.P15 Discharge Certificate issued by the hospital. He further stated that PW4 Biju was also admitted to the hospital on 16.4.2014 and discharged on 19.4.2014 by Ext.P16 Discharge Certificate.
19. On 16.4.2014, PW14 Dr.Rajan.M.Mathew was working as Junior Consultant at the Taluk Hospital, Kanjirappally. On that day at 10 a.m., he had examined PW4Biju with the alleged history of assault and issued Ext.P6 wound certificate. On the same day, PW14 examined PW2 Appu and issued Ext.P7 wound certificate noting the injuries sustained to him. PW14 examined PW7 Rijo also and issued Ext.P8 wound certificate. He further stated that on the same day at 10.10 a.m., he had examined PW3 Usha and issued Ext.P9 wound certificate noting the injuries sustained to her. He further stated that Exts.P6 to P9 wound certificates were issued by him. According to him, injury noted in Exts.P6,P7,P8 and P9 can be caused with MO1 weapon. According to him, when PW2 was brought
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before him, he was in a very bad condition. He referred all the injured to the Medical College Hospital, Kottayam. He further stated that all the injuries were life threatening injuries which, if not attended properly, would cause the death of the injured.
20. PW16 testified that PW2 Appu had sustained very serious injuries. His pericardium was visible out from the wound of the chest. PWs.2,3,4 and 7 deposed before court that the accused had stabbed with an intention to murder. PW14,PW16 and PW17-the Doctors, who treated the injured, testified that the injured sustained serious injuries on the vital parts of the body. The injuries inflicted to PW3 are over her left breast and are serious. The oral evidence of PWs.2,3,4 and 7 would inter alia show that the accused did the overt acts with such intention or knowledge and under such circumstances that, if he, by that act caused death, would be guilty of murder. It is clear from the evidence adduced by the witnesses that the
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accused attempted to murder PWs.2,3,4 and 7.
21. PWs.2,3,4 and 7 testified before the trial court that the deceased Joseph.J.Njavellil had sustained injuries on account of the overt acts committed by the accused. The evidence tendered by PW15 along with Ext.P10 postmortem certificate would inter alia show that the death of Joseph.J.Njavellil was due to the fatal injuries sustained on his chest.
22. PW21 is the Village Officer, who prepared Ext.P25 scene plan. As per Ext.P25 scene plan, the occurrence took place inside the car porch in front of the house under the name and style 'Njavallil Veedu' bearing Door NO.507 of Thidanadu Grama Panchayath. There is sufficient space to park two to three cars inside the car porch. On the western side of the car porch, the sit out of the house is situated. PW21 also prepared Ext.P26 report
at the request of the investigating officer, noting the nature and lay out of the rubber estate owned by the deceased. As
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per Ext.P26 report, there are more than 4700 rubber trees in the rubber estate owned by the deceased and as per Ext.P27 Ownership Certificate issued by the Secretary, Thidanadu Panchayath, the house stands in the name of Mariyamma Joseph Njavallil. No plausible explanation was offered by the accused explaining the circumstances under which he had come to the front of the house owned by the deceased. On being examined under Section 313 Cr.P.C, he contended that he was summoned by the deceased to discuss the dispute between them through one Arun, one of the workers of the deceased. This contention is not established in evidence. The deceased was the owner in possession of the property and building therein. All the prosecution witnesses including his wife would testify that the accused was not summoned by the deceased on the date of occurrence. It was brought out in evidence that the accused was in possession of MO1 dagger in his loin on the date of occurrence. It is very difficult for us to
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believe that the accused went to the residence of the deceased for a discussion in connection with the contractual agreement between them as summoned by the deceased. Keeping a dagger like MO1 safely with the accused is an indication that the accused came to the scene of occurrence with pre-meditated intention to question the deceased and if necessary, to do away with him. Evidently, the accused was a trespasser. He had no right to enter into the courtyard of the house owned by the deceased on the date of occurrence. His right, if any, was to tap the rubber trees in accordance with the agreement between the parties. Nothing more and nothing less.
23. One of the contentions advanced by the learned counsel for the appellant is that the deceased was a cheat. According to the accused, Ext.D1 is the original agreement executed between the deceased and the accused. Initially, according to the accused, he paid an amount of Rs.60,00,000/- as advance to the deceased pursuant to an
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agreement between them. He suffered a huge loss on account of the fall in price of the latex. Further, some of the trees let out to him had fallen down owing to bad weather conditions. Consequent to a mediation talk between them, Ext.P2 agreement was executed. It is also disclosed that in connection with the same, the accused filed Ext.D10 complaint before the Sub Inspector of Police, Thidanadu. On going through the evidence adduced by the prosecution and the defence set up by the accused, it is clear that there was an on-going civil dispute between the parties in connection with slaughter tapping in the rubber estate owned by the deceased. In a criminal case, it is absolutely unnecessary to consider as to whether the deceased received an unconscionable amount of Rs.60,00,000/-from the accused. It is the case of the accused that the aforesaid Rs.60,00,000/- was collected after selling his valuable properties owned by him. The accused sold the property for the purpose of collecting
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money to get his daughters married. According to him, the said amount was invested in anticipation of collecting more money by way of business. These are all indications to show that the accused was totally frustrated on account of his loss in the business with the deceased. On a consideration of Ext.P2 agreement, we are of the view that it is unnecessary to discuss and decide as to whether the accused sustained a loss on account of the agreement between the parties. It is purely a civil matter. Had it been a case that the deceased was unlawfully enriched at the expense of the accused, no doubt, the accused would have been at liberty to take appropriate legal action in accordance with law rather than taking law into his hands. Needless to say that private vengeance as a substitute for civil action is not legally recognised.
24. Learned counsel for the appellant Sri.Nandagopal.S.Kurup contended that Ext.P51 letter alleged to be written by the accused and which was kept in
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his pocket at the time of the incident and at the time of surrendering before the Police, is a complete manipulation. The learned counsel further submitted that Ext.P47 Inspection Memo and Ext.P7 custody memo do not disclose the recovery of Ext.P51 letter. It is a fact that PW23-the attestor of Ext.P28 mahazar by which Ext.P51 letter was seized from the accused has categorically stated that he had not seen such a letter being seized from the custody of the accused. The court below has entered a finding that Exts.D7 and D8 are not copies of Ext.P51. The court below discarded Exts.P51,D7 and D8 as material evidence in this case. As rightly held by the trial court, Ext.P51 letter alleged to have been written by the accused, is not necessary to prove the motive to commit the crime. Even otherwise, there is ample evidence in this case to hold that there was an on-going dispute between the parties pursuant to Ext.P2 agreement. The evidence tendered by v. PWs.1,2,3,4 and 7 is clear, cogent and reliable. In Atley
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State of Uttar Pradesh [AIR 1955 SC 807], the Apex Court had held that where there is a clear evidence that the person has committed the offence, it is immaterial where no motive for commission of crime has been shown. In Sanjeev v. State of Haryana [(2015)4 SCC 387], the Apex Court held that to establish commission of murder by an accused, motive is not required to be proved and intention can be formed even at the place of incident at the time of commission of the crime. In the case on hand, it is brought out that the parties were at loggerheads in connection with a civil dispute and the accused had clear motive to murder the deceased. The case of the prosecution is sustainable even if the prosecution is not able to establish recovery of Ext.P51 in accordance with law.
25. Learned counsel for the appellant further contended that the version in Ext.P1 FIS is different on material aspects from what PW1 has deposed in his
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evidence before the trial court. According to the learned counsel for the appellant, the trial court has committed grave error in relying upon the same. The trial court has considered meticulously this aspect in detail and held that the evidence of PW1 is reliable. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence under Section 154(1) of Cr.P.C., the concerned Police Officer cannot embark upon the details of every information. In the case on hand, the officer in charge of the Police station registered the case and proceeded with the investigation in accordance with law. PWs.2,3,4 and 7 disclosed the entire occurrence in detail before the investigating officer immediately after the occurrence. Even if the entire information is not disclosed in Ext.P1, the prosecution case is not vitiated. The primary duty of the police is to aid and help the injured to give necessary medical aid immediately after the occurrence. The mere fact that the injured had been admitted to the
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hospital just before the lodging of FIS itself is not a ground to hold that the FIS and FIR are concocted. Such a
contention is prima facie unsustainable.
26. One of the contentions taken by the appellant is that the prosecution failed to explain the presence of MO14 knife at the place of occurrence. According to the learned counsel for the appellant, the presence of MO14 at the scene of occurrence would indicate that the deceased was armed with MO14 knife when the accused was called upon to enter the car porch as requested by Arun. PW12 is the maid servant working in the house of the deceased. She stated before court that on 16.4.2014, she went to the house of the deceased for work, she heard a hue and cry and when she went to the car porch, she had seen the deceased with bleeding injuries. On seeing the deceased with bleeding injuries, according to PW12, MO14 knife fell from her hand. MO14 knife is a kitchen knife used for slicing
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vegetables. It is clear from the evidence let in by PW12 that the court below rightly entered a finding that the version of PW12 can be believed. PW12 had been working as a maid servant at the residence of the deceased for nearly 22 years. She has no prior enmity to implicate the accused falsely in this case.
27. The learned counsel for the appellant tried to show that the killing was not deliberate and pre-meditated and was, therefore, only second degree murder. Although evidence was adduced by the accused to show that he was suffering from mental illness, no positive evidence was adduced to prove the same. Hence, on the basis of the available evidence, the trial court discarded the plea of insanity and found the accused guilty of murder with deliberate and pre-meditated malice. According to the learned counsel for the appellant, when the evidence adduced in this case would eloquently show that the appellant was totally frustrated on the date of occurrence
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owing to substantial loss in the business transaction, the abnormal condition of the mind though not amounting to insanity may reduce the alleged overt act, if any, done by the accused as culpable homicide not amounting to murder. It is true that insanity is a defence only when the disorder is such as to come within the accepted test of legal insanity as provided under the Indian Penal Code. The question mooted is as to whether the accused can be held guilty of committing murder even though he lacks the mental capacity to commit a pre-meditated murder on account of his mental aberrations though not amounting to legal insanity.
28. Before we proceed to analyse the plea of insanity, it is necessary to analyse the evidence adduced in this case. DW1 is the elder daughter of the accused. She stated before trial court that her father had undergone treatment for mental illness. According to her, before the time of occurrence, he refused to take medicines. The fact
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that the accused was suffering from mental illness was conveyed to the Circle Inspector of Police, Erattupetta on 16.4.2014. As suggested by the Circle Inspector, she produced the originals of Exts.D2,D3,D4 prescriptions before him. She also stated that her mother had been undergoing psychiatric treatment since 2013.
29. PW26 was working as Consultant Psychiatrist at Caritas Hospital, Kottayam. On 18.6.2014, at the request of the C.I. of Police, Erattupetta, PW26 issued Ext.P38 Certificate in favour of the accused. According to him, the accused had depressive disorder with predominant anxiety syndrome. He was treated with anti-depressive and anxiolytic and supportive psychotherapy. Ext.P38 certificate was issued by him to the accused on 18.6.2014. He testified that the wife of the accused was his patient for 3 or 4 years prior to Ext.P38. He also proved Exts.D2 to D4. According to him, the originals of Exts.D2 to D4 were issued to the accused. He
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further stated that the accused was suffering from depressive mood disorder which if not treated properly, would lead to delusion.
30. On the other hand, PW25 Assistant Professor of Psychiatry, Government Medical College Hospital, Kottayam treated the accused on 14.5.2014. He further stated that the mental status examination finding of the accused would reveal that he is conscious, in touch with surroundings, well groomed, maintains eye to eye contact, and no delusions or hallucinations.
31. The law presumes that every person committing an offence is liable for his acts, though in specified circumstances, it may be rebuttable. The doctrine of burden of proof in the context of plea of insanity has been considered by the Apex Court, in the decisions reported in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SCC 1563], Ratan Lal v. The State of Madhya Pradesh [(1970)3
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SCC 533], Surendera Mishra v. State of Jharkhand [AIR 2011 SC 627] and Vijayee Singh and others v.
State of U.P. [AIR 1990 SC 1459].
32. Section 84 of the Indian Penal Code provides an exception that an act will not be an offence if done by a person, who, at the time of doing the same, 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. Under Section 105 of the Indian Evidence Act, when the plea of insanity is raised by the accused, the burden is on the accused to substantiate the plea. The accused is obliged to rebut the plea by placing before the court all the relevant evidence, oral, documentary or circumstantial, but the burden of proof upon him is not higher than that rests upon a party to civil proceedings. PW25 treated the accused on 14.5.2014, which is nearly a month, after the occurrence. He testified that the accused did not require treatment in a mental asylum and could be
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managed as an outpatient with regular follow-up and adherence to the treatment regiment prescribed. Evidence tendered by PW25 would show that subsequent to the occurrence, the accused was having mental problems. However, there is no reliable evidence to show from the circumstances and the behaviour preceding the date of occurrence to prove that before the date of occurrence, the accused had been suffering from mental illness. There is also no evidence to hold that the accused was suffering from mental illness at the time of the occurrence. Exts.D2 to D4 prescriptions are not reliable. The originals of these prescriptions were not produced by the accused. PW26 stated before court that he had treated the wife of the accused earlier for mental illness. According to DW1, the accused had undergone treatment for mental illness at Caritas Hospital, Kottayam. However, when PW26 was examined before the court below, he stated that the accused came to him at his residence and underwent
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treatment for mental illness by way Exts.D2 to D4 prescriptions. Unless and until some evidence is produced to show that the accused had undergone treatment in a hospital in accordance with register kept therein, it is unreliable to accept the photocopies of Exts.D2 to D4 as evidence in this case to hold that the accused was suffering from mental illness on the date of occurrence and prior to that. No material was produced before this Court to show that Exts.D2 toD4 were produced before PW31 by DW1. Per contra, PW31 would swear that no evidence was submitted before him to prove that the accused had been suffering from insanity before the incident and at the time of incident. He also stated that during the investigation, previous history of insanity was not brought out. Since the accused had developed mental illness after the occurrence, necessary steps were taken for medical examination of the accused and the entire matter was placed before the court below. On a perusal of the evidence adduced, we are not
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satisfied that the accused was suffering from mental illness on the date of occurrence and prior to the occurrence. It is unsafe to rely on the oral evidence of PW26 to hold that the accused was suffering from insanity on the date of occurrence. He stated before the trial court that the accused was suffering from depression. He also stated before court that the wife of the accused was also suffering from mental illness and she was his patient. The evidence adduced by medical expert in this case is unreliable. PW31 cited PW26 as a prosecution witness in this case. There is no suppression of material facts involved. The facts in the present case have persuaded us to believe that the prosecution has placed all the relevant facts with regard to the appellant's mental illness. We are also satisfied that the appellant had acted on the date of occurrence not on account of unsoundness of mind. The manner in which the crime was conducted by the accused trespassing in front of the car shed of the deceased with MO1 dagger in
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his hand inflicting serious injuries on the deceased, is an indication that the accused was determined to do away with the deceased due to the on-going contractual dispute between the parties. It has come out in evidence that the accused inflicted serious fatal injuries to PWs.2,3,4 and 7 during the very same transaction. After that, he overpowered the deceased and inflicted fatal injuries on his chest. The nature of injuries inflicted by the appellant is such that the appellant had an intention to murder the deceased. When PW1 found the deceased and others lying in a pool of blood, he took them to the hospital with the help of others, who had rushed to the scene of occurrence. All the injured witnesses supported the prosecution case in full. The injuries found on the body of the deceased and the fact that PWs.2,3,4 and 7 were injured in the very same occurrence, lend assurance to their testimony that they were present at the time of occurrence. The evidence of an injured witness is entitled to a greater weight and the
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testimony of such witness is considered to be beyond reproach and reliable. Fair, cogent and convincing ground is required to discard the evidence of an injured witness.
In Mano Dutt and another v. State of Uttar Pradesh
[(2012)4 SCC 79], it was held as follows:-
“31.We may merely refer to Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], where this Court held as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar [(1973)3 SCC 881], Malkhan Singh v. State of U.P.[(1975) 3 SCC 311], Machhi Singh v. State of Punjab [(1983) 3 SCC 470], Appabhai v. State of Gujarat [(1988) Supp.SCC 241], Bonkya v. State of Maharashtra [(1995) 6 SCC 447], Bhag Singh v. State of Punjab [(1997)7 SCC 712], Mohar v. State of U.P. [(2002) 7 SCC 606} (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan [(2008)8 SCC 270], Vishnu v. State of Rajasthan [(2009)10 SCC 477], Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546] and Balraje v. State of Maharashtra [(2010)6 SCC 673.]”
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33. While deciding this issue, an identical view has been taken by the Apex Court in Jarnail Singh and others v. State of Punjab [(2009)9 SCC 719], Shivalingappa Kallayanappa and others v. State of Karnataka [1994 Supp(3) SCC 235], State of U.P. v. Kishan Chand and others [(2004) 7 SCC 629] and Krishan and others v. State of Haryana [(2006)12 SCC 459]. Going by the legal principles, it is clear that testimony of a stamped witness has its own relevance and efficacy. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of occurrence and because the witness does not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the crime.
34. Judged by the above standards, we are of the view that the evidence of PWs.2,3,4 and 7 should be relied upon. There are no grounds for rejection of their evidence on the basis of major contradictions and discrepancies.
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35. We may also notice that PW15- the Doctor, who had conducted postmortem examination on the body of the deceased, issued Ext.P10 Postmortem Certificate indicating the injuries sustained to the deceased all over his body. After analysing the testimonies of PWs.2 to 4 and 7 and Ext.P10 Postmortem Certificate, we are satisfied that the appellant had inflicted fatal injuries on the deceased and PWs.2 to 4 and 7. The injuries sustained to the deceased are sufficient to cause death in the ordinary course of nature and the accused attempted to murder PWs.2 to 4 and 7.
36. On the basis of the reliable evidence, the trial court came to the conclusion that the direct evidence brought on record contain positive proof, credible evidence, factual proof linking the accused with the commission of murder. The appellant was admittedly present in the scene of occurrence on the date of occurrence. No plausible explanation was offered as to
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why the accused criminally trespassed into the car shed of the deceased and assaulted the deceased and all others. The fact that the injuries are inflicted all over the body of the deceased is a strong circumstance against the appellant. Majority of the injuries were on the front portion of the body of the deceased. Immediately after the occurrence, the accused somehow opted to escape from the occurrence place. He did not take the deceased and all the injured to the hospital.
37. Now let us consider the question before us. The learned counsel for the appellant tried to show that the killing was not pre-meditated and was therefore, only culpable homicide not amounting to murder. According to the learned counsel for the appellant, though the mental disorder is not sufficient to require an order of acquittal, it is always open to the accused to contend a middle ground
to raise the plea of culpable homicide not amounting to murder. It is his contention that if the court below
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recognises his mental aberration, short of legal insanity as a recognised defence to the charge of murder, the very same principle logically may extend to the point where lack of the intent require to constitute the crime as murder under Section 300 of IPC. Relying on Exception I to Section 300 of IPC, the learned counsel for the appellant contended that the culpable homicide is not murder, if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person, who gave the provocation or causes the death of any other person by mistake or accident.
38. The sum and substance of the contention is that although the accused knew the nature and quality of the act and knew that it was wrong, he lacked necessary mental capacity to form an intention to murder. The learned counsel for the appellant submitted that the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there
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was grave and sudden provocation on the part of the appellant so as to reasonably conclude that it was possible to provoke him. The learned counsel for the appellant contended that the appellant had slight mental aberrations, which would result into loss of self-control. Hence, it is contended that such provocation and the resulting reaction of the appellant at the time of occurrence need to be measured from the surrounding circumstances.
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court can cull out materials from the evidence pointing to the existence of circumstances leading to the exception.
40. In view of Exception I to Section 300 of IPC, the provocation not only be grave but sudden as well. The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused placed in the situation in which the accused was situated would be so provoked as to lose his self-control. We have examined the entire evidence in detail. We are of the view that the words and gestures of the accused, the fatal blows inflicted on the chest of the deceased with MO1 dagger and the fatal injuries sustained to PWs.2 to 4 and 7 are sufficient to conclude that the accused had not acted reasonably at the time of occurrence. There is nothing to indicate that the accused assaulted and killed the deceased by mistake or accident during the continuance of the deprivation of the power of self-control. In the present case, although PWs.2 to 4 and 7 cried aloud, the appellant inflicted severe injuries on
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the deceased in a pre-planned manner which is clearly evident from the fact that the deceased sustained severe injuries, which are sufficient in the ordinary course of nature to cause death. MO1 dagger was thrust deep into the body of the deceased resulting in multiple injuries. This categorical opinion of the Doctor was not assailed in cross-examination. The victim also died within a short time due to the injuries suffered by him. The accused failed to place before the trial court, by cross-examination of the prosecution witnesses or by defence evidence, necessary materials to claim Exception I to Section 300 of IPC.
41. On going through the evidence adduced in this case including the evidence of the injured witnesses, we are of the view that the accepted test of insanity, malice, deliberation and premeditation would prove that the accused is guilty of murder and he did the occurrence with deliberate and premeditated malice on account of an on-going contractual dispute. We are also satisfied that the appellant was carrying MO1 dagger from the beginning with an intention to cause the
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death of the deceased. Since the injuries were caused in such a brutal manner, there is no scope for discussing the case from the point of having committed the offence due to grave and sudden provocation on account of mental aberration on the part of the accused. The present case does not fall under any of the Exceptions mentioned in Section 300 IPC nor has any Exception been proved by the appellant during the trial. It goes without saying that all the acts of the accused would squarely fall within the Third clause of Section 300 IPC as these acts were done with the intention to cause the death as laid down in Virsa Singh v. State of Punjab [AIR 1958 SC 465].
42. For all the foregoing reasons, we are of the view that there are no valid grounds to alter the conviction of the appellant from the one under Section 302 to that under Section 304 Part I or under Part II of IPC.
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Accordingly, the Criminal Appeal fails and is,
therefore, dismissed. The conviction and sentence imposed by the trial court are confirmed.
Sd/-
A.HARIPRASAD, JUDGE sd/-
N.ANIL KUMAR, JUDGE
MBS/
3 issues framed by the court
Did the accused establish legal insanity at the time of the offences?
Did mental aberration or grave and sudden provocation justify reducing murder to culpable homicide not amounting to murder?
Could the injured witnesses' testimony be relied upon to sustain the convictions?
Colour shows how this judgement treated each authority
Atley v. State of Uttar PradeshRelied on¶160
[AIR 1955 SC 807] · Who else cites this
Sanjeev v. State of HaryanaRelied on¶160
[(2015)4 SCC 387] · Who else cites this
Dahyabhai Chhaganbhai Thakkar v. State of GujaratReferred¶186
[AIR 1964 SCC 1563] · Who else cites this
Ratan Lal v. The State of Madhya PradeshReferred¶186
[(1970)3 SCC 533] · Who else cites this
Surendera Mishra v. State of JharkhandReferred¶189
[AIR 2011 SC 627] · Who else cites this
Vijayee Singh and others v. State of U.P.Referred¶190
[AIR 1990 SC 1459] · Who else cites this
Mano Dutt and another v. State of Uttar PradeshRelied on¶207
[(2012)4 SCC 79] · Who else cites this
Jarnail Singh and others v. State of PunjabRelied on¶213
[(2009)9 SCC 719] · Who else cites this
Shivalingappa Kallayanappa and others v. State of KarnatakaRelied on¶213
[1994 Supp(3) SCC 235] · Who else cites this
State of U.P. v. Kishan Chand and othersRelied on¶213
[(2004) 7 SCC 629] · Who else cites this
Krishan and others v. State of HaryanaRelied on¶213
[(2006)12 SCC 459] · Who else cites this
Virsa Singh v. State of PunjabApplied¶242
[AIR 1958 SC 465] · Who else cites this
7 provisions across 4 enactments
ANTONEY @ KUTTIYACHAN
STATE OF KERALA
A.HARIPRASAD
N.ANIL KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
