Mohammed v. State of Kerala — 1985 DIGILAW 252 (MAD)

JUDGMENT KOCHU THOMMEN, J.: The accused in Sessions Case No.28 of 1981, Sessions Court, Manjeri, is the appellant. He was convicted under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The case of the prosecution is that on 31.3.1980 the accused stabbed Ayamu with a dagger (M.O.1) below the right shoulder blade at about 3.30 p.m. as a result of which Ayamu died at 5.15 p.m. while he was at the Nilambur Government Hospital. Ayamu and P.W.2 were walking along the Mamankara Angadi Road. The accused was standing near a tree. The accused uttered certain very provocative and insulting words. P.W.2 stopped and asked him whether those words were meant for him. The accused replied that they were meant for Ayamu. Ayamu then took two steps towards the accused. The accused took two steps backward. Ayamu turned back and he and P.W.2 proceeded towards the shop of P.W.5. The accused followed Ayamu and stabbed him with the dagger below the right shoulder blade. Ayamu was taken to the Government Hospital where he died at 5.15 p.m. The First Information Statement, Ext.P-2, was given by P.W.2 to P.W.17, the Sub Inspector of Nilambur Police Station. Ext.P-12 is the F.I.R. The inquest was held by P.W.19, who along with P.W.20 conducted the investigation. The post-mortem certificate was issued by P.W.8. It shows that the deceased sustained: “An incised wound 4.5 cm. long and 2 cm. wide over the lower aspect of right scapular region 3 cm. away from the midline. The wound is directed downwards and forwards to a depth of 15 cm.” 3. The accused was absconding till 18.3.81. He was arrested by P.W.20 on that day. P.W.20 reported that the accused suffered from a mental disorder. The accused was examined by the doctor P.W.1 3, who certified (Ext.P-9) that the accused suffered from schizophrenia. The trial of the case was accordingly adjourned and the accused was treated at the Mental Hospital, Calicut. Ext.P-1 dated 15.6.1981 is the certificate of fitness which was issued by P.W.1, the doctor attached to that Hospital. 4. On behalf of the prosecution 20 witnesses were examined. Exts. P-1 to P-13 were marked, and M.Os.1 to 6 were produced. The accused pleaded insanity when questioned under section 313 of the Criminal Procedure Code. 5. Ext. Ext.P-1 dated 15.6.1981 is the certificate of fitness which was issued by P.W.1, the doctor attached to that Hospital. 4. On behalf of the prosecution 20 witnesses were examined. Exts. P-1 to P-13 were marked, and M.Os.1 to 6 were produced. The accused pleaded insanity when questioned under section 313 of the Criminal Procedure Code. 5. Ext. P-8 is the certificate issued by P.W.12 on 25.4.1980 stating that the accused was treated for Manie Depressive Psychosis from 11.8.1977 till 26.8.1977 when he was discharged. This was more than 2 1/2 years prior to the incident. Ext. P-9 is the certificate issued by P.W.1 3 who was the Assistant Surgeon at the District Hospital, Manjeri, stating that the accused was examined by him on 23.3.1981 and 25.3.1981 and found to be “a lunatic and proper person to be taken charge of under care and treatment”. It was on the basis of that certificate that the accused was sent to the Mental Hospital, Calicut for treatment where he remained from 26.3.1981 to 15.6.1981. Ext. P-1 certificate dated 15.6.1981 states that the mental condition of the accused has “improved and he is fit to stand the trial and capable of making his defence”. 6. P.W.2 to 6 are occurrence witnesses. They speak to the overt act in clear terms. All of them say how the incident occurred. The accused used extremely insulting language against the deceased. The deceased was unarmed. Despite the abusive words of the accused, the deceased turned back and proceeded in the direction in which he was walking. He was totally unaware of what the accused was about to do. The accused suddenly took out a dangerous weapon (M.O.1 dagger) and stabbed Ayamu on the right-hand side of his back as a result of which the victim did. 7. Not a single witness stated that the accused was suffering from any mental dis order at the time of the incident. In fact P.Ws.2 and 3 categorically stated in cross-examination that the accused was perfectly sane at the time of the incident. P.Ws.4 to 6 also support the evidence of these two witnesses. There is no whisper in their testimony to suggest that the accused was suffering from any kind of unsoundness of mind at the relevant time so as to attract the provisions of section 84 of the Indian Penal Code. P.Ws.4 to 6 also support the evidence of these two witnesses. There is no whisper in their testimony to suggest that the accused was suffering from any kind of unsoundness of mind at the relevant time so as to attract the provisions of section 84 of the Indian Penal Code. Furthermore, the evidence of P.W.7 shows that the accused was well aware of what had taken place and tried to suppress the evidence by washing off the blood from his face and weapon in the nearby stream. The fact that the accused was absconding for about a year until he was arrested on 18.3.1981 by P.W.20 lends support to the prosecution case that the accused was fully conscious of what he had done. 8. Counsel for the defence Shri Abdul Latiff however contends that from the nature of the evidence on record, namely, the medical certificates and the report of the Investigating Officer, it would appear that the accused was not a sane person. He says that when arrested by P.W.20 the accused was found to be suffering from mental disorder. The trial of the case was accordingly adjourned. Exts. P-9 and P-1 confirm the fact that the accused was treated for unsoundness of mind. Ext. P-8 also shows that for some time during 1977 the accused had been treated for unsoundness of mind. Counsel therefore contends that from these circumstances it could be concluded that section 84 was attracted and the accused was entitled to the protection of that section. 9. Insanity per se is not a defence. The burden is on the defence to prove by preponderance of probabilities that at the time of the act the accused was suffering from such unsoundness of mind as to be incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. 9. Insanity per se is not a defence. The burden is on the defence to prove by preponderance of probabilities that at the time of the act the accused was suffering from such unsoundness of mind as to be incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. This is the principle of section 84 of the Indian Penal Code, which is in substance based on the well-known M’ Naghten Rules, as formulated by the Judges of the House of Lords in 1843, which say: “…..the jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party 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, if he did know it, that he did not know he was doing what was wrong.” The two lines of defence open to an accused under section 84 of the Indian Penal Code are: (1) Because of the unsoundness of his mind at the time of the act, he did not act know the nature of the act; and (2) Even if he did know the nature of his act, he did not know it was wrong or contrary to law. Although the two limbs of the Section require separate consideration, the common question under both the limbs is whether the accused was at the relevant time suffering from unsoundness of mind or, in the language of the House of Lords, “a defect of reason from disease of the mind”. 10. The doctrine of burden of proof in the context of the plea of insanity has been stated by the Supreme Court in the following words: “(1) the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by section 84 of the Penal Code: the accused may rebut it by placing before the Court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings; (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.” Dabyabhai v. State of Gujarat Dabyabhai v. State of Gujarat (1965) 2 S.C.J. 531: (1965) MLJ. (Crl.) 773: A.I.R. 1964 S.C. 1563. See also Gyami Ayatu v. State of M.P. Gyami Ayatu v. State of M.P. (1974) 2 S.C.J. 357: (1974) Crl.L.J. 305: A.I.R. 1974 S.C. 216. 11. The medical certificates only show that the accused suffered from some mental dis order long prior to and long subsequent to the act in question. That the accused was treated for some kind of mental dis order over 2 1/2 years prior to the incident or a year after the incident would not be an indication of his mental state at the relevant time. The fact that the accused deliberately used the dagger in the manner in which he is proved to have done and immediately tried to suppress the evidence by washing off the blood from his face and weapon and the further fact that he absconded for over a year would show that the accused was well aware and fully conscious of what he was doing. There is no indication in the oral evidence to suggest that the accused at the relevant time suffered from unsoundness of mind. 12. In the circumstances we are satisfied that there is no evidence to attract the protection of section 84. From the nature of the evidence we are satisfied that the learned Judge was fully justified in coming to the conclusion which he did. 12. In the circumstances we are satisfied that there is no evidence to attract the protection of section 84. From the nature of the evidence we are satisfied that the learned Judge was fully justified in coming to the conclusion which he did. We see no reason to interfere with the finding. The appeal is accordingly dismissed. Appeal dismissed.