Paily v. State of Kerala — 1959 DIGILAW 330 (KER)

JUDGMENT Anna Chandy, J. 1. The accused in Sessions Case No. 10 of 1959 of the Parur Sessions Court is the appellant. He was convicted for the murder of one Kunhikoru and was sentenced to rigorous imprisonment for life. 2. The facts of the case are simple. The accused, his brother, his brother's wife Thresia and her four children were living together. The deceased Kunhikoru was living in the southern portion of the same house. The accused began to suspect that his sister inlaw Thresia and Kunhikoru were on terms of illicit intimacy. He went about spreading the scandal and threatening to do away with Kunhikoru. He even made some indecent overtures to Thresia. Scadalised by this conduct of the accused, Thresia with her husband and children left the house and went to live with her father. Some two months after this, on 7-5-58 at about 3'O clock in the afternoon, PW 1 Ouseph and the deceased were returning from the market where they had gone to sell arecanuts, when they saw the accused walking ahead of them along the public road in front of the Mozhikkulam Church. The accused was carrying a bundle of plantain leaves on his shoulder. When the accused saw them coming behind him he slowed down and as soon as the deceased passed him, he took out a chopper from the bundle of plantain leaves and cut him. PW 1 raised a hue and cry. The accused disregarding the entreaties of PW 1 went on striking and caused as many as 38 injuries on Kunhikoru. After inflicting the injuries, the accused ran northwards along the road and surrendered at the Parrakadavu Outpost. The injured Kunhikoru died while he was being taken to the Parur Government Hospital. PW 1 reached the Angamali Police Station by 5-30 P. M. and gave Ext. P. 1, the First Information Statement. The accused who had appeared at the Parakkadavu Outpost was arrested and M. O. 1 chopper was seized from him. After due investigation, the charge sheet was laid before the Second Class Magistrate, Parur on 21-5-1958. 3. Some two months after his arrest, the accused showed signs of mental illness and was sent to the Trichur Mental Hospital. He was admitted to the Hospital on 5-7-1958 and was discharged cured on 12-11-1958 after which the preliminary enquiry was conducted. After due investigation, the charge sheet was laid before the Second Class Magistrate, Parur on 21-5-1958. 3. Some two months after his arrest, the accused showed signs of mental illness and was sent to the Trichur Mental Hospital. He was admitted to the Hospital on 5-7-1958 and was discharged cured on 12-11-1958 after which the preliminary enquiry was conducted. To the questions put to him in the Sessions Court, the accused replied that he had done nothing and that he remembers nothing. 4. There is ample evidence to prove that Kunhikoru died on 7-5-1958 as a result of the injuries he had sustained. PW 7, the Assistant Surgeon of the Government Hospital, Parur conducted the autopsy and issued Ext. P. 5 post mortem certificate. The certificate describes 38 incised injuries on the body mostly on the face, neck, shoulders and the upper parts of the body. According to the Medical Officer, death was due to shock and haemorrhage resulting from the injuries. He further stated that injury No. 1 in Ext. P. 5. an incised wound on the neck severing the blood vessels was by itself fatal and that the cumulative effect of all the injuries was necessarily fatal. He was also of the opinion that the wounds could have been caused by a weapon like M. O. 1 chopper. 5. There is also ample evidence to hold that it was the accused who inflicted the injuries on Kunhikoru. PWs 1 and 2 are the eyewitnesses. Of these, the evidence of PW 2 has been discarded by the learned Sessions Judge. PW 1 Ouseph swears that on the date of the incident he and the deceased went to the market to sell arecanuts. At about 3P.M. they were returning home along the public road lying to the south of the Mozhikulam Church when they saw the accused walking ahead of them. When the accused saw them he slowed down his pace. The witness and the deceased moved over to the eastern side of the road and continued to walk forward with the deceased in the lead. As soon as the deceased passed him, the accused took out the chopper from the bundle of plantain leaves he was carrying on his shoulder and attacked the deceased from behind. The witness raised a hue and cry but the accused kept on cutting the deceased. As soon as the deceased passed him, the accused took out the chopper from the bundle of plantain leaves he was carrying on his shoulder and attacked the deceased from behind. The witness raised a hue and cry but the accused kept on cutting the deceased. After having inflicted a large number of injuries, the accused with the bloodstained chopper in his hand ran away to the north. The witness left the injured Kunhikoru where he lay and went to call his relations. When he returned with one Gopalan a nephew of the deceased, he saw that some persons had managed to remove the injured to a boat in order to take him to the hospital. The witness then went to the Angamali Police Station to give information. The defence has not been able to bring out any circumstance which causes doubts about the veracity of this witness. He is not shown to have any reason to swear to a false case against the accused. On the other hand his evidence shows that the witness had known the accused from his early days and had always been on friendly terms with him. Further in Ext. P. 1 which was recorded soon after the incident, PW 1 had given the same version of the incident as that which he gave in court. The learned Sessions Judge was right in accepting the evidence of this witness. PWs 3 and 4 are persons who live near the scene of incident. They swear that attracted by the cries of PW 1 they came out to the road and saw the deceased lying injured in a pool of blood. They also saw the accused running away from the place. The accused had a bloodstained chopper in his hand and there were bloodstains on his clothes also. PWs 3 and 4 are both independent witnesses with no interest in any party concerned in the incident. Except for some minor discrepancies in the testimony of PW 3, the defence was not able to show any grounds which would justify the rejection of the evidence of these witnesses. The learned Sessions Judge has accepted their evidence and we can find no reason to disagree with them. PW 5 is the police constable attached to the Angamali Police Station who was on duty at the Parakkadavu Police outpost on the date of the incident. The learned Sessions Judge has accepted their evidence and we can find no reason to disagree with them. PW 5 is the police constable attached to the Angamali Police Station who was on duty at the Parakkadavu Police outpost on the date of the incident. He swears that the accused surrendered to him with a bloodstained chopper and wearing clothes spattered with blood. The witness arrested the accused and seized the chopper and clothes as per Ext. P. 3, mahazar. This witness has not even been cross examined. The articles seized from the accused were seen on chemical analysis to have been stained with human blood. PW 6, the Assistant Surgeon of the Angamali Primary Health Centre examined the accused at 10 P. M. on the date of the incident. He swears that he found an incised wound 3/4" x 1/2" skin-deep on the outer aspect of the middle of the left fore-arm. According to the witness the injury could be caused when wielding a chopper like MO 1. Under these circumstances the finding of the learned Sessions Judge that it was the accused who caused the injuries on the deceased has only to be upheld. 6. The most important question to be decided in this appeal and in fact the only question seriously urged by the learned counsel for the appellant is whether the plea of insanity can be sustained. As already noted, some two months after his arrest, the accused developed symptoms of insanity and had to be admitted to the Trichur Mental Hospital and kept there for a period of over four months till he was discharged cured, According to the learned counsel for the appellant the accused's previous history of mental illness, the lack of provocation for the attack on the deceased, the needless ferocity of the attack, his conduct in delivering himself up to the police, as well as the fact that he was found to be insane some two months after the incident, lead inevitably to the conclusion that the accused had acted in a fit of insanity. We shall now consider each of these factors in detail. 7. The defence has examined DW 2 an Ayurvedic Physician to prove the previous history of mental illness. However, the evidence of this witness does not help the defence. We shall now consider each of these factors in detail. 7. The defence has examined DW 2 an Ayurvedic Physician to prove the previous history of mental illness. However, the evidence of this witness does not help the defence. The witness swears that some two months before the incident, the accused was brought to him by the accused's elder brother. The witness diagnosed the trouble as due to some sort of witchcraft. He gave the accused some medicine to ascertain whether he was mad. The witness adds that the only symptom he noticed was some change in the facial expression of the accused. In cross examination the witness states clearly that he saw no symptoms of madness when he examined the accused. The evidence of the other witnesses also do not show that the accused suffered from any serious mental defect. PW 8 the sister inlaw of the accused says that at certain times the accused used to keep silent while at others he was very talkative, but she goes on to say that the accused never showed sings of madness or committed any acts of violence. Both this witness and PW 1 swear that the accused was regularly engaged in trade at the market place. Thus the evidence does not disclose that the accused ever suffered from any mental abnormality, except being subject to occasional moods of silence or garrulity which, however, do not seem to have produced any acts of violence or to have interfered with his avocation. 8. The lack of a provocation for the act is another circumstance relied upon by the learned counsel for the appellant. True, there was, no immediate provocation for the accused to have attacked the deceased, but the absence of provocation loses much, of its significance when viewed against the background of ill will which the accused had against the deceased and his previous threats to do away with the deceased. The prosecution case is that the accused suspected that his sister inlaw and the deceased were on terms of intimacy and that he had made public his suspicions as also his determination to kill the deceased. The prosecution case is that the accused suspected that his sister inlaw and the deceased were on terms of intimacy and that he had made public his suspicions as also his determination to kill the deceased. PW 8 swears that the accused had on many occasions confronted her with his suspicions and had continued to repeat them in spite of her denials and her retorts that it was for her husband and not for the accused to be concerned about such matters. PW 8 also states that on one or two occasions the accused made some indecent overtures on her. The witness adds that exasperated by the conduct of the accused, she together with her husband and children left the house and went to live in her father's house. The learned counsel for the appellant contends that no reliance can be placed on the evidence of this witness as on her own showing she had reason to bear ill will against the accused. True, she was scandalised and inconvenienced by the accused's conduct, but it is seen that no one, least of all her husband believed the accused's tales about her. In fact her husband accompanied her when she went to live in her father's house. Under these circumstances, her resentment towards the accused could not have been of such a nature as to prompt her to give false evidence against him. The learned Sessions Judge was right in accepting her evidence especially as it finds corroboration from the evidence of PWs 1 and 9. Both these witnesses swear that the accused had told them Ms suspicions about the conduct of his sister inlaw. They further swear that the accused had told them that he was determined to do away with the deceased. PW 9 also swears that about a month before the date of the incident the deceased sought the witness' advice as to what he should do in the face of the accused's threats to kill him. The witness undertook to speak to the accused about it and accordingly warned the accused not to go about spreading scandals and threatening people. Both P. Ws, 1 and 9 are disinterested witnesses and their evidence has been rightly accepted by the Trial Court. The witness undertook to speak to the accused about it and accordingly warned the accused not to go about spreading scandals and threatening people. Both P. Ws, 1 and 9 are disinterested witnesses and their evidence has been rightly accepted by the Trial Court. Thus the evidence reveals that though there was no immediate provocation for the attack the accused had been harbouring a grudge against the deceased and had made public his intention to kill the deceased. 9. Another circumstance which is brought forward in support of the plea of insanity is the large number of injuries inflicted by the accused. The post mortem certificate notes that the deceased had 38 injuries mostly on the upper parts of the body. However, the multiplicity of the injuries by itself does not necessarily mean that the person who caused them was insane. It can equally well indicate that the assilant was harboring some deep-rooted enmity towards his victim or that he had worked himself up into a blind fury, 10. It was argued that the accused's conduct in delivering himself up to the police is yet another indication of insanity. No such inference is warranted. On the other hand the consciousness that he commited a crime could have been responsible for his proceeding straight to the police station and surrendering with the weapon of offence. It often happens that same persons who take the lives of others through revenge or anger commit the murder openly and make no attemt to deny or conceal the crime, since denial or attempt at concealment would be hopeless. 11. It is seen from the records that when the accused was questioned in the committal court, the learned Magistrate detected symptoms of mental illness in the accused. The accused was then sent to PW 7 the Assistant Sargeon, Parur Government Hospital, PW 7 also came to the conclusion that the accused exhibited symptoms of insanity. He therefore sent the accused to the Trichur Mental Hospital. The accused was then found to be suffering manic depressive psychosis. He was admitted to the hospital and discharged cured on 12-11-1958. The learned Sessions Judge has commented upon the unsatisfactory nature of the evidence regarding this aspect of the case. PW 7 the Assistant Surgeon of the Parur Hospital seems to have conducted only a cursory examination before sending the accused to the Mental Hospital. He was admitted to the hospital and discharged cured on 12-11-1958. The learned Sessions Judge has commented upon the unsatisfactory nature of the evidence regarding this aspect of the case. PW 7 the Assistant Surgeon of the Parur Hospital seems to have conducted only a cursory examination before sending the accused to the Mental Hospital. The doctor who examined the accused and admitted him to the Mental Hospital has not been cited as a witness. DW 1 is the doctor who took charge of the Mental Hospital nearly two months after the accused has been admitted. He states that he first examined the accused on 8-9-1958 and came to the conclusion that he was insane. The witness appears to have come to the conclusion chiefly because the accused failed to give coherent replies to the questions put to 14m. Discussing the evidence of PW 1, the learned Sessions Judge says: "............. he has not made proper attempt to diagnose the disease or to find out whether it is a feigned insanity". This comment does .not seem to be unjustified. DW 1 admits that he administered no -treatment whatever to the accused and yet according to him the accused who was insane on 8-9-1958 was found fit to be discharged sixteen days later on 24-9-1958 though due to some technical difficulties, he was actually discharged from hospital only on 12-11-1958. However, we do not think these circumstances will justify a finding that the accused was feigning insanity. Even if the accused was found to be of unsound mind, some two months after the incident, it cannot be said on that ground alone that he was insane at the time of the occurrence. DW 1 clearly states that he is not in a position to say whether insanity preceded or followed the offence. 12. To attract the application of S.84, IPC, it must be shown that when he committed the act, the accused was by reason of unsoundness of mind incapable of knowing the nature of the act or that he was doing what is wrong or contrary to law. It is not every sort of mental instability or abnormality that can be termed legal insanity. It is only unsoundness of mind which materially impairs its cognitive faculties that could form a ground of exemption from criminal responsibility. It is not every sort of mental instability or abnormality that can be termed legal insanity. It is only unsoundness of mind which materially impairs its cognitive faculties that could form a ground of exemption from criminal responsibility. The evidence does not reveal that the accused suffered from any mental defect, if it can be so termed, other than being subject to moods and being possessed of a highly suspicious nature. His suspicion that the deceased was the paramour of his sister inlaw might have been completely baseless, but when he killed the person he suspected, after having made public bis intention to kill him, it is clear that the accused knew what he was doing. His declaration on former occasions, that he would do away with the deceased is a strong circumstance which would indicate that he committed the crime consciously. The ferocity of the attack might signify nothing more than the depth of hatred and anger he bore against his victim. His conduct in immediately surrendering himself to the police is indicative of his realisation that what he had done was contrary to law. A careful analysis of the evidence leads to the conclusion that the accused, a man given to moods and of unstable temperament, attacked the deceased on a sudden impulse and brooding over his act while in custody might have become temporarily insane. In the circumstances, we find no reason to differ from the learned Judge's finding that the argument based on S.84, I. P. C., has to fail. 13. In the result, the conviction entered against the accused under S.302, IPC and the sentence of rigorous imprisonment for life imposed on him are upheld and the appeal is dismissed.