Research › Search › Judgment

Kerala High Court · body

2005 DIGILAW 513 (KER)

Hussain v. State of Kerala

2005-08-02

K.PADMANABHAN NAIR, V.RAMKUMAR

body2005
Judgment :- Ramkumar, J. In this appeal preferred from the Central Prison, Viyyur, the appellant (Hassan @ Hussain) who was the accused in Sessions Case No.460/2001 on the file of the Addl. Sessions Court (Adhoc), Fast Track Court No.1, Manjeri, challenges the conviction entered and the sentence passed against him under Sec. 302 I.P.C. THE PROSECUTION CASE 2. The case of the prosecution can be summarized as follows:- On 8-2-2000 at or about 10.15 a.m. on the southern road margin of Mangalam-Alungal road in front of the vegetable shop of Muhammedkutty @ Kunhumon (P.W.3) in Mangalam amsom and desom, on account of his previous enmity towards Kizhakepediyekal Muhammedali for not letting out the shop room in his possession, the accused knowingly and intentionally caused the death of the said Muhammedali by stabbing him on the back and front of his chest with a knife. The accused has thereby committed AN offence of murder punishable under Sec.302 I.P.C. 3. P.W.2 (Rashid, who is the nephew of the deceased), his elder brother Nasar (C.W.7), and others intervened in the occurrence and forcibly separated the accused from his murderous spree. The deceased was rushed to the Government Hospital, Tirur in a Challenger jeep driven by P.W.8. (Subramanian). On reaching the hospital, the doctor after examining the deceased, pronounced him dead. THE CRIME STAGE 4. Ext.P1 first information statement was given by P.W.1 (Thamikutty), an eye-witness and a barber having a shop in the vicinity of the scene of occurrence. He gave the first information statement to the head constable (P.W.11) of Tirur Police Station at 11 a.m. on 8-2-2000. P.W.11 registered Ext.P6 F.I.R. P.W.14 (Radhakrishnan) who was the Circle Inspector of Police, Tirur commenced the investigation on 8-2-2000 itself. On that day between 12.30 p.m. he held inquest over the dead body of the deceased from the mortuary of the Government Hospital, Tirur and prepared Ext.P2 inquest report to which P.W.6 (Saidalikutty) is an attestor. On the same day at 3.30 p.m. P.W.14 inspected the scene of occurrence and prepared Ext.P3 scene mahazar to which P.W.9 (Rajan) is an attestor. P.W.14 seized M.O.3 series of chappals and M.O.1 knife from the scene of crime. He questioned the witnesses. At 7.15 p.m. he arrested the accused who was allegedly restrained there and kept under observation. The accused was produced before the Judl. P.W.14 seized M.O.3 series of chappals and M.O.1 knife from the scene of crime. He questioned the witnesses. At 7.15 p.m. he arrested the accused who was allegedly restrained there and kept under observation. The accused was produced before the Judl. First Class Magistrate, Tirur at 9.30 p.m. on 8-2-2000 itself and remanded to judicial custody in the Central Jail, Viyyur. Ever since then he has been in judicial custody. His remand was being extended from time to time. COGNIZANCE AND COMMITTAL 5. On 30-10-2001, P.W.15 laid the final report before the Magistrate who took cognizance of the offence. After complying with the formalities, on 20-11-2001, the Magistrate committed the case to the Court of Sessions, Manjeri. POST COMMITTAL STAGE 6. On 14-12-2001, the Sessions Court appointed an Advocate on State Brief to defend the accused who had no means to engage a lawyer of his own choice. The accused who was regularly produced before the Sessions court every 15 days, was however, not produced on 6-2-2002. Hence the Sessions Judge issued production warrant to secure the presence of the accused. On 15-3-2002, he was produced and the case was posted to 18-2-2002 for preliminary hearing. On that day, the accused told the Sessions Judge that he was undergoing treatment in the Mental Health Centre, Thrissur. Thereupon the Sessions Judge directed the Superintendent of the Mental Health Centre, Thrissur to certify whether the accused was fit to stand trial. On 30-4-2002 a report was produced before Court whereupon the Sessions Judge directed the Superintendent of Central Prison to make arrangements of the treatment of the accused in the Mental Health Centre, Thrissur and to file a report regarding the mental condition of the accused. After a few postings of the case, a report was filed on 19-6-2002 to the effect that the accused was fit to stand trial. On 11-7-2002, Dr. M.K. Moni, Psychiatrist in the Mental Health Centre, Thrissur was examined before the Sessions Court and the medical certificate issued by him was marked as Ext.C1. The Sessions Judge who was satisfied that the accused was fit to stand trial, after a few more adjournments made over the case to the Addl. Sessions Court (Adhoc) Fast Track Court No.I, Manjeri for trial and disposal. THE TRIAL 7. The Sessions Judge who was satisfied that the accused was fit to stand trial, after a few more adjournments made over the case to the Addl. Sessions Court (Adhoc) Fast Track Court No.I, Manjeri for trial and disposal. THE TRIAL 7. On 14-11-2002, charge was framed against the accused for an offence punishable under Sec.302 I.P.C. He pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case. 8. The prosecution altogether examined 15 witnesses as P.Ws.1 to 15 and got marked 9 documents as P.Ws.1 to 9 and five material objects as M.O.1, M.O.2 series and M.O.3 series. 9. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. The accused told that he does not either remember or know any of the circumstances put to him. To some of the questions asked he did not give any answers. 10. The trial judge did not consider this a fit case for recording an acquittal under Sec. 232 Cr.P.C. The accused was, therefore, called upon to enter on his defence and to adduce any evidence which he might have in support there of. The accused examined his mother as D.W.1 and a Psychiatrist as D.W.2 and got marked Exts.D1 and D2 prescriptions dated 1-7-1989 and 9-8-1989. THE CONVICTION AND SENTENCE 11. After the conclusion of trial, the learned Addl. Sessions Judge as per judgment dated 31-3-2003 found the appellant guilty of the offence charged against him and sentenced him to rigorous imprisonment for life and to pay a fine of Rs.2,000/- and on default to pay the fine, to suffer simple imprisonment for one year. It is the said judgment which is assailed in this appeal preferred from the Central Prison, Viyyur. THIS APPEAL 12. We heard Advocate Ligey Antony, the learned counsel who argued the appeal on State Brief and Advocate Smt. Noorjie Noushad, the learned Public Prosecutor who defended the State. 13. The following points arise for consideration in this appeal:- i) Has the prosecution proved that Kizhakkepeediyekal Muhammedali died as a result of sustaining homicidal injuries in the forenoon of 8-2-2000? We heard Advocate Ligey Antony, the learned counsel who argued the appeal on State Brief and Advocate Smt. Noorjie Noushad, the learned Public Prosecutor who defended the State. 13. The following points arise for consideration in this appeal:- i) Has the prosecution proved that Kizhakkepeediyekal Muhammedali died as a result of sustaining homicidal injuries in the forenoon of 8-2-2000? ii) Has the prosecution proved that the accused intentionally and knowingly caused the death of Mohammedali by stabbing him to death and he has thereby committed the offence of murder punishable under Sec. 302 I.P.C.? iii) Are the conviction entered and the sentence passed against the appellant sustainable? POINT NO.I DEATH – WHETHER HOMICIDAL 14. The fact that Kizhakepeediyekal Mohammedali dated as a result of homicidal stab injuries sustained by him in the forenoon of 8-2-2000 does not admit of any doubt or controversy. P.Ws.1 to 5 who are the eye-witnesses to the occurrence have deposed before Court that the accused repeatedly stabbed the deceased with M.O.1 knife at about 10.15 a.m. on 8-2-2000 in front of the vegetable shop of Muhammedkutty @ Kunhumon (P.W.3) in Mangalam bazaar area. The evidence of PWs.1 and 8 would show that the deceased who was rushed to the Government hospital, Tirur was pronounced dead by the doctor who examined him. 15. In quest over the dead body of the deceased was held by P.W.14 on 8-2-2000 between 12.30 and 2.30 p.m. Ext.P2 is the inquest report prepared by him and P.W.6 is an attester to the same. Against columns 7 and 8(a) of Ext.Ps report P.W.14 has described the fatal injuries on the body of the deceased. Against column 11 pertaining to the apparent cause of death P.W.14 has concluded that the deceased died as a result of the stab injuries inflicted by the accused with a knife. 16. Autopsy over the dead body of the deceased was conducted by P.W.12 (Dr. Vijayakumar) who was the Lecturer of Forensic Medicine in the Medical College, Calicut. Post-mortem examination commenced at 3.55 p.m. on 9-2-2000. Ext.P7 is the postmortem certificate prepared by P.W.12. The ante-mortem injuries and other findings recorded by P.W.12 are the following:- “B. INJURIES (ANTE MORTEM) 1. Incised Penetrating wound 2.5 x 0.3 x 4 cm directed downwards back of right of chest, vertical, lower edge 3 cm right of midline, upper edge at root or neck. Upper edge sharp. Lower edge square. The ante-mortem injuries and other findings recorded by P.W.12 are the following:- “B. INJURIES (ANTE MORTEM) 1. Incised Penetrating wound 2.5 x 0.3 x 4 cm directed downwards back of right of chest, vertical, lower edge 3 cm right of midline, upper edge at root or neck. Upper edge sharp. Lower edge square. 2. Incised penetrating wound 2 x 0.3 x 4.5 cm on back of chest 1.5 cm. right of injury No.1, vertical, directed down wards and inwards, lower edge square. 3. Incised penetrating wound 3.8 x 1 x 6 cm back of chest & lower edge square cut, directed downwards and inwards, lower edge 8 cm. Right of midline and 14 cm below top of shoulder. 4. Incised penetrating wound 2.5 x 0.2 x 4.5 cm on back of left chest, oblique upper and 6 cm left of midline and 16 cm below top of shoulder. 5. Incised penetrating wound 3.2 x 0.34.5 cm back of right side of chest transversely oblique inner lower end 4 cm right of midline 33cm below root of neck. The wound was directed upwards and inwards and entered chest cavity between 12th x 11th rib injury lower lobe. Outer end of wound was square cut and inner end sharp. 6. Incised penetrant wound 5 x 0.8 x 4.5 cm transversely placed on back of right chest, inner end 0.5 cm right of midline 36 cm below root of neck. Inner end with tailing for 1.5 cm upwards and inwards, outer end square. The wound entered the abdominal cavity through iliopsoas muscles. Intestines not injured. 7. Incised penetrating wound 4 x 2 cm on front of left arm oblique, lower inner end 16 cm below top of shoulder and upper outer end 15 cm below top of shoulder wound was directed upwards. 8. Incised penetrating wound 4.5 x 1 x 7.5 cm on right side of chest directed downwards and backwards. Upper inner end 5 cm on right of midline 5.5 cm below collar bone. Upper inner end square and lower outer end sharp the wound entered the chest cavity close to the sternum by cutting the margin of ribs 2 x 3 and sternum and then penetrating upper lobe of right lung. Right chest cavity contained 340 gms of blood clots. 9. Upper inner end square and lower outer end sharp the wound entered the chest cavity close to the sternum by cutting the margin of ribs 2 x 3 and sternum and then penetrating upper lobe of right lung. Right chest cavity contained 340 gms of blood clots. 9. Incised penetrating wound 1 x 0.5 x 1 cm right side of chest, oblique with a tailing for a length of 2 cm tail 11.5 cm right of midline 7.5 cm below nipple. 10. Abrasion 0.5 x 0.2 cm back of right fore arm 8 cm above wrist. 11. Multiple graze abrasion 2.5 x 0.6 cm back of right elbow. 12. Abrasion 2 x 0.5 cm inner aspect of left knee. 13. Abrasion 6 x 1 cm back of left elbow. C. OTHERS FINDINGS Lungs right 200 gms, collapsed left 300 gms congested. Heart normal, Peritoneal cavity Blood stained, liver 1400 gms normal. Kidneys right 110 gms, contained partly digested beaten rice like food (avil) particles in a fluid medium. No unusual smell. Mucosae normal. All other organs pale, otherwise normal”. 17. P.W.12 has opined in Ext.P7 certificate that the deceased died as a result of the injuries to his chest. When examined before Court, P.W.12 has deposed that injuries 1 to 9 described above could be caused with a weapon like M.O.1 and that those injuries are fatal and sufficient to cause death in the ordinary course of nature. There is, thus, overwhelming evidence to show that Mohammedali died as a result of sustaining fatal stab injuries in the forenoon of 8-2-2000. This point is answered accordingly. POINT NOS.2 AND 3 WITNESSES (WHO AND WHAT FOR) 18. P.Ws.1 to 5 are the persons examined as eye-witnesses to the occurrence. P.Ws.6 and 7 are attestors to Ext.P2 inquest report. P.W.8 is the driver of the Challenger jeep in which the deceased was taken to the hospital. P.W.9 is an attester of Ext.P3 scene mahazar under which M.O.1 knife and M.O.3 chappels were seized. P.W.10 (Ramakrishnan) is the Assistant Surgeon in the Government Hospital, Tirur who prepared Ext.P4 wound certificate of the deceased at 10.45 on 8-2-2000. His evidence shows that the deceased who was brought in a moribund state died in the casualty. P.W.10 also proved Ext.P5 wound certificate pertaining to P.W.2 who had sustained an injury while the accused was overpowered and disarmed. His evidence shows that the deceased who was brought in a moribund state died in the casualty. P.W.10 also proved Ext.P5 wound certificate pertaining to P.W.2 who had sustained an injury while the accused was overpowered and disarmed. P.W.11 is the head constable of Tirur Police Station who recorded Ext.P1 F.I. statement by P.W.1 and registered Ext.P6 F.I.R. P.W.12 is the doctor who conducted autopsy over the dead body of the deceased and issued Ext.P7 postmortem certificate. P.W.13 is the Village Assistant who proved Ext.P8 scene plan. P.W.14 is the Circle Inspector of Tirur Police Station who conducted investigation. P.W.15 is the Circle Inspector who succeeded P.W.14. It is P.W.15 who laid the final charge before court after verifying the investigation conducted by P.W.14. D.W.1 (Ayishabeevi) is the mother of the accused. D.W.2 (Dr. N. Subramanian) is the Psychiatrist who had treated the accused in the year 1989 and issued Exts.D1 and D2 prescriptions. ARGUMENTS OF THE PUBLIC PROSECUTOR 19. The learned Public Prosecutor made the following submissions before us in support of her argument that the conviction entered and the sentence passed against the appellant do not warrant any interference:- The defence now raised by the accused is one of insanity falling under Sec. 84 I.P.C. In view of Sec. 105 of the Evidence Act the burden is on the accused to substantiate the said plea. A person setting up the defence of insanity should establish that at the time of committing the act he was by reason of unsoundness of mind was incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. There is absolutely nothing to show that the accused was suffering from unsoundness of mind at the time of occurrence. Even if he is able to show that he was suffering from medical insanity is not sufficient under Section 84 I.P.C. which envisages legal insanity as laid down in the Mc Naughten’s rules. DW.1 the mother of the accused does not say that the accused was suffering from legal insanity at the time of occurrence. D.W.2, the doctor also does not say so. The evidence of D.W.1 shows that even on the date of occurrence there was a talk between the accused and the deceased. It was thereafter that the accused killed the deceased after carrying M.O.1 knife concealed on his person. D.W.2, the doctor also does not say so. The evidence of D.W.1 shows that even on the date of occurrence there was a talk between the accused and the deceased. It was thereafter that the accused killed the deceased after carrying M.O.1 knife concealed on his person. Repeated stabbing of an unarmed and undefended person is not the act of a mad man. (Vide Dahyabhai v. State of Gujrat – AIR 1964 S.C. 1563). These are not the acts of an unsound mind. Mere failure on the part of the accused to run away from the scene, cannot be taken as a circumstance to conclude that he was suffering from unsoundness of mind of such degree as to exempt him from criminal liability. JUDICIAL EVALUATION 20. We are afraid that we find ourselves unable to agree with the above submissions. The version regarding the occurrence in Ext.P1 F.I. statement given by P.W.1 is the following: The barber shop of P.W.1 is situated in Mangalam bazaar on the northern side of the Mangalam-Alungal road. 8-2-2002 was a holiday for his shop. At about 8 a.m. on that day he had come to his shop for cleaning the same. When he was standing on the veranda of his barber shop at about 10.15 a.m., he saw the deceased standing in front of the vegetable shop of P.W.3 for buying vegetables. While so, the accused came walking along the Alungal road and suddenly drew the knife concealed in his waist and stabbed the deceased on the back of his chest. When the deceased turned round the accused stabbed him repeatedly on the front of his chest. The deceased thereupon slumped to the ground. P.W.1 raised a hue and cry and ran to the nearby shop were Kunhapputty, the younger brother of the deceased was running a stationery business and cried loud. Kunhaputty was not in the shop. Hearing the loud cries of P.W.1 people thronged the place. The son of P.W.3 alone was there in the vegetable shop at that time. Those who had gathered there surrounded the accused and restrained him. The deceased was taken to the Tirur Government Hospital in a Challenger Jeep. Somebody informed over telephone that the deceased had died on reaching the hospital. He has straightaway come to Tirur to lodge this complaint. He does not know the reason for the occurrence. Those who had gathered there surrounded the accused and restrained him. The deceased was taken to the Tirur Government Hospital in a Challenger Jeep. Somebody informed over telephone that the deceased had died on reaching the hospital. He has straightaway come to Tirur to lodge this complaint. He does not know the reason for the occurrence. Both the deceased as well as the accused belong to Mangalam. The deceased was aged 58 years and the accused is aged about 53 years. The accused is held in captivity by the local people there. RE-APPRAISAL OF EVIDENCE 21. Although P.W.1, by and large, stuck to the above version in his First Information Statement while giving evidence before court, he, however, came out with an improvement that when the deceased had fallen down after receiving the stab on the back and front of his chest the accused mounted on the body of the deceased who was lying with his face downwards and repeatedly stabbed him. From the witness box P.W.1 also came out with a case of motive that the deceased had refused to let out to the accused a room in his shop building which had fallen vacant. Another embellishment made by P.W.1 was that he came to know that P.W.3 was also in the shop. 22. P.W.2 is the nephew of the deceased who was the elder brother of the father of P.W.2. He also claims to have seen the occurrence while standing by the side of his shop in Mangalam bazaar. He first stated that he saw the accused stabbing the deceased on the back of his chest. He then stated that what was first seen by him was the accused stabbing the deceased while both of them were in a face to face posture. His further version is that after the stab on the front of chest the deceased fell down and the accused mounted on his back and repeatedly stabbed him and that seeing this he and his elder brother Nazar and a few others went and separated the accused in which process P.W.2 sustained an injury on his chest. He admitted that the deceased was a very wealthy person and he used to given monetary help to the accused. 23. P.W.3 (Muhammedkutty @ Kunhumon) who runs the vegetable shop in front of which the occurrence took place, also figured as an eye-witness. He admitted that the deceased was a very wealthy person and he used to given monetary help to the accused. 23. P.W.3 (Muhammedkutty @ Kunhumon) who runs the vegetable shop in front of which the occurrence took place, also figured as an eye-witness. According to this witness he was sitting on the floor and arranging the vegetables. At that time he heard a sound and when he stood and looked he saw the accused stabbing the deceased on the front of his chest. He stood flabbergast. The deceased fell down with his face downwards. The accused mounted on his back and repeatedly stabbed him. When people came running the accused also was seen lying on the ground. He then poured a bucket of cold water on the accused who still lay motionless in that posture until the police came. His information about the motive is hearsay. 24. P.W.4 is the son of P.W.3 and he claims to have seen the latter part of the occurrence during which the accused is alleged to have repeatedly stabbed the deceased by sitting on his back. He stated that the deceased had come to the shop of P.W.3 for buying vegetables and the accused was stabbing him from behind. It was on hearing the cries of P.W.1 that he looked up and saw the accused sitting on the back of the deceased and repeatedly stabbing him. According to this witness also after the occurrence the accused was lying down on the muddy ground in between the road and the veranda of the vegetable shop and even after P.W.3 poured a bucket of cold water on him he remained motionless in that posture until the police came. He had heard that the deceased used to help the accused. 25. P.W.5 is a blacksmith having his workshop at Mangalam. He would claim to have seen the accused stabbing the deceased on the back of his chest. Even though he claims to have joined P.W.2 and others for separating the accused he does not depose about the remaining part of the occurrence. A suggestion was put to him that the accused was an insane person and he replied that he does not know whether it is true or not. 26. D.W.1 (Ayshabeevi) is the mother of the accused. Her evidence is to the following effect:- The accused who is her son was residing along with her. A suggestion was put to him that the accused was an insane person and he replied that he does not know whether it is true or not. 26. D.W.1 (Ayshabeevi) is the mother of the accused. Her evidence is to the following effect:- The accused who is her son was residing along with her. Her husband died when the accused was a small boy. The accused is afflicted by unsoundness of mind. The illness started 12 years ago. He was treated for the said illness. It was Dr. Subramonian (D.W.2) who treated him. The said doctor is presently at Kozhikode. When the accused gets that illness he shows bitter hatred towards his wife, children and mother. He gets scared of the people outside. He would show signs of a sort of phobia if he finds a gathering of people. She knows deceased Mohammedali. The deceased and the accused were on very affectionate terms. There was absolutely no enmity between them. The deceased was a man with a kind heart. He even used to give money to the accused for buying medicines. On the date of occurrence the deceased and the accused had talked to each other. On the day previous to the date of occurrence, the accused was scolding his wife and other inmates of the house without any reason. The accused used to take medicines regularly and used to go for work as and when he was better. He had not requested the deceased to let out any room on rent. The accused used to get his illness for about one week every month. During such seizure he will remain silent and used to look frightened and would immediately pick up quarrels. But he was never violent. He has never caused any harm to any one of them. 27. D.W.2 (Dr. Subramoniam) is a Psychiatrist. He has deposed on the following terms:- He had occasion to examine the accused at his residence at Tirur while he was working in the Mental Health Centre, Calicut. He examined the accused on 1-7-1989 and issued Ext.D1 prescription. Thereafter, he had examined him on 9-8-1989 and on several subsequent days. Ext.D2 is another prescription issued by him. The accused was suffering from paranoid schizophrenia. He examined the accused on 1-7-1989 and issued Ext.D1 prescription. Thereafter, he had examined him on 9-8-1989 and on several subsequent days. Ext.D2 is another prescription issued by him. The accused was suffering from paranoid schizophrenia. The complaint of the accused was that he was fearing people as the people were saying that he was doing black magic and the people wanted to burn him alive. The accused had decreased duration of sleep. He had similar illness eight years ago. He had some allegation against his wife that he was suspecting her fidelity. On examination D.W.2 found that the accused had a feeling that others could read his mind without his telling. He was having some delusion to which he held firmly and which cannot be corrected by logical reasoning. His feelings will not be shared by people of the same social or cultural background. He had auditory hallucination of 3rd person which means that people are talking about him among themselves. The conclusion of D.W.2 was that the accused was suffering from psychic disorder. Such patients will always nurse suspicion about others. The illness may get aggravated occasionally. Failure to give proper treatment and failure to take medicines may increase the disease. Exts.D1 and D2 prescriptions are in his handwriting. He is unable to state the duration of the treatment for want of other documents. He agrees that such patients may become violent on slight provocation. It is correct to say that such patients may not be aware about the consequences of their act. They may not be in a position to understand the nature and consequences. If not treated, the aggravated mental position will last for weeks or months. He did not advice institutional care for the patient. After Ext.D1 prescription he had noticed improvement during the second visit when the auditory hallucination had disappeared. First day he found symptoms of paranoid schizophrenia. He has been working in this field for the past 20 years. The disease could be managed by proper medication. There could be lucid intervals. He cannot say whether the patient had mental ailments subsequent to Exts.D1 and D2 prescriptions. The activities of a patient with the above disease cannot be predicted. He may become violent even on the slightest provocation as he feels that others are trying to harm him. The disease could be managed by proper medication. There could be lucid intervals. He cannot say whether the patient had mental ailments subsequent to Exts.D1 and D2 prescriptions. The activities of a patient with the above disease cannot be predicted. He may become violent even on the slightest provocation as he feels that others are trying to harm him. It is not possible for him to say whether the patient whom he treated in the year 1989 had committed an offence in the year 2000 under the influence of the above mental condition. He agrees that a patient who is having the above disease may become violent even without any provocation at any time. THE CASE LAW 28. The crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed and the burden of proving this lies on the accused. (Vide State of Madhyapradesh v. Ahmadullah – AIR 1961 SC 998). 29. In Dahyabhai Chhanganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563. It was observed thus: “It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S.299 of the Penal Code. This general burden never shifts and it always rests on the prosecution. But, under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the 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 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 Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (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 a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S.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. (Emphasis supplied) In the aforesaid decision by a three Judge Bench of the apex court it was further observed as follows: “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 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 Penal Code can only be established from the circumstances which preceded, attended and followed the crime” See also Jai Lal Vs. Delhi Administration – AIR 1969 SC 15 and Sheralli Wali Mohammed v. State of Maharashtra – AIR 1972 SC 2443). 30. In considering the defence based on Sec.84 I.P.C. the evidence of the near relatives of the accused is of great probative value. (Ratan Lal v. The State of Madhya Pradesh 1970 (3) SCC 533). 31. A Division Bench of this court in Madhavan v. State of Kerala – 1992 (1) KLT 544 observed thus: “Every person is presumed to be sane, and the contrary has to be proved. (Ratan Lal v. The State of Madhya Pradesh 1970 (3) SCC 533). 31. A Division Bench of this court in Madhavan v. State of Kerala – 1992 (1) KLT 544 observed thus: “Every person is presumed to be sane, and the contrary has to be proved. Under S. 84 I.P.C. unless the accused is suffering from legal insanity, he will not be absolved from liability for his acts. A person who is incapable of knowing that he is doing a nature of his act or is incapable of knowing that he is doing a wrong or is contrary to law alone could be said to suffer from legal insanity. As has already seen, in terms of S.105 of the Evidence Act, it is for the accused to establish the said fact, the prosecution is entitled to rely on the presumption that every person is presumed to know the law and the natural consequence of his act. It is true the burden of proof as to insanity is not as heavy as the burden of the prosecution to prove its case beyond the shadow of reasonable doubt. Every mental aberration cannot constitute legal insanity. Every type of insanity cannot amount to legal insanity, unless it is shown that his mental condition was such that it destroyed his capacity to understand the nature of his action. The disorder should be of such magnitude and degree as to destroy his volitional capacity. What is crucial in such circumstance is, his mental condition at the time of the commission of the offence. In that regard his conduct immediately before and after the occurrence may be of relevance. If the accused has a previous history of mental disease that also would be a relevant factor in considering the probability of the case pleaded. Minor mental aberration, not temperament, lack of self control or getting easily provoked are not sufficient to absolve one from the liability of his act. Under law, when there is occurrence witnesses, motive has only an academic role to play. Therefore, it is not correct to say that when there is no evidence as to motive the act should be deemed to be the act of a mad man. Apart from the same the conduct of the accused at the time of occurrence and immediately after the occurrence cannot support a case of legal insanity.” 32. Therefore, it is not correct to say that when there is no evidence as to motive the act should be deemed to be the act of a mad man. Apart from the same the conduct of the accused at the time of occurrence and immediately after the occurrence cannot support a case of legal insanity.” 32. In Shrikant Anandrao Bhosale v. State of Maharashtra – 2002 Crl.L.J.4356 = 2003 SCC Crl. 144 the Supreme Court was considering the case of an accused person suffering from paranoid schizophrenia as in the present case. The Court observed thus: “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 mens 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. 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” 33. In Kuttan Gopalan v. State – 1971 KLJ 142 a Division Bench of this court extended the benefit of doubt to the accused who was found to suffer from schizophrenia. 34. The principles which are to be borne in mind while applying Sec. 84 I.P.C. are the following: a) every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law; b) the Court shall presume the absence of such insanity; c) the burden of proof of legal insanity on the accused, though it is not as heavy as on the prosecution; d) the Court must consider whether the accused suffered from legal insanity at the time when the offence was committed; e) in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant considerations; and f) the prosecution in discharging its burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of law that everyone knows the law and the natural consequences of his act”. (Vide 1993 Crl.L.J. 2554 – S. Sunil Sandeep Vs. State of Karnataka) 35. In Kuttappan vs. State of Kerela – 1986 Crl. L.J. 271 = 1986 KLT 364 – a Division Bench of this Court observed thus: “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. State of Karnataka) 35. In Kuttappan vs. State of Kerela – 1986 Crl. L.J. 271 = 1986 KLT 364 – a Division Bench of this Court observed thus: “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 court”. (emphasis supplied) 36. In Ratan Lal’s case (supra) the accused who was facing a prosecution for the offence of arson under Sec. 435 I.P.C. was caught at the spot while setting fire and on being asked as to why he did the said act his reply was: I burnt it and do whatever you want”. After he was arrested on 23-1-1965 he remained in police custody till 2-2-1965 when it was found that he needed medical examination. The subsequent medical examination also did not reveal positive symptoms of legal insanity but he was found to be suffering from mania depressive psychosis requiring treatment. In support of the plea of insanity he examined his son-in-law and nephew as D.Ws.1 and 2. Even though the Magistrate acquitted him giving the benefit of Sec.84 I.P.C. But the High Court on appeal by the State reversed the said acquittal and convicted him. Restoring the order of acquittal passed by the Magistrate the apex court held as follows: “We are inclined to agree with the conclusion arrived at by the learned Magistrate. We hold that the appellant has discharged the burden. There is no reason why the evidence of Shyam Lal, D.W.1, and Than Singh D.W.2, should not be believed. It is true that they are relations of the appellant, but it is the relations who are likely to remain in intimate contact. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning of Section 84 I.P.C.”. OUR CONCLUSION 37. The behaviour of the appellant on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody, and the medical evidence indicate that the appellant was insane within the meaning of Section 84 I.P.C.”. OUR CONCLUSION 37. This is a case in which, to begin with, none of the prosecution witnesses had any case of motive to be attributed to the accused. P.W.1 had stated I unmistakable terms in Ext.P1 F.I. Statement that he does not know the reason for the accused indulging in a stabbing spree on the deceased. But he turned out to be a cunning performer in the witness box to say that the deceased had declined to let out a room in his shop building to the accused who was, therefore, inimical towards the deceased. In the case of the other witnesses also they did not have any motive to be attributed to the accused when questioned by the police. It is pertinent to note that the evidence of PWs.2 and 4 would show that the deceased who was a wealthy person used to give financial aid to the accused. The testimony of D.W.1 the mother of the accused is also to the same effect. If so, far from harboring any hostility towards the deceased the accused would have nursed only his affection and gratitude towards the deceased without any provocation. We have, therefore, no hesitation to conclude that motive was introduced as an after thought presumably at the instance of the police with a view to secure a conviction against the accused and to pre-empt a possible defence of insanity. 38. The proved circumstances in this case are the following: i) The accused was unusually indulging in repeated stabbing of the deceased which he persisted even after inflicting the fatal stab by mounting on the recumbent deceased and again stabbing him repeatedly. ii) The act of stabbing was committed without any motive or provocation. iii) After the murderous attack on the deceased the accused did not make any attempt to escape from there. iv) Soon after the incident the accused was seen lying down on the muddy ground and he remained motionless and unperturbed even after a bucket of cold water was poured over him. He lay there for hours till the police came and took him into custody. iv) Soon after the incident the accused was seen lying down on the muddy ground and he remained motionless and unperturbed even after a bucket of cold water was poured over him. He lay there for hours till the police came and took him into custody. v) The testimony of D.W.2, the Psychiatrist shows that the accused had a history of paranoid schizophrenia one of the manifestation of which is that the patient may turn violent even without any provocation and during the morbid state he may not be in a position to understand the nature and consequences of his act. vi) During his examination under Sec.313 Cr.P.C. the answer of the accused to most of the questions was that he does not remember. To some questions he did not give any reply. 39. The strange conduct of the accused during the occurrence as was discernible from the statements of the witnesses questioned by P.W.14 should have aroused a suspicion in the mind of P.W.14 about the sanity of the accused. The fact that he did entertain a doubt in that regard is evident from the following answer given by him. “MALAYALAM” So, P.W.14 did make an investigation into the question as to whether the accused had any mental problem and P.W.14 claims to have stumbled upon no material in that behalf. If P.W.14 had conducted an honest enquiry in that regard, one would have expected him to question D.W.1 the mother of the accused who was the only living close relative of the accused and she would have in that event divulged to P.W.14 about the previous medical treatment undertaken by the accused under D.W.2 the Psychiatrist. The case diary files show that P.W.14 did not question D.W.1. It is beyond our apprehension as to how P.W.14 concluded that his enquiry did not reveal any mental problem for the accused. It is in this context that the observations in Kuttappan’s case quoted supra assumes importance. 40. As observed in Shrikant Anandarao Bhosale’s case, if any of the aforementioned circumstances is taken in isolation, the same may not be sufficient to strengthen the plea of insanity. It is the totality of the circumstances evaluated in the light of the evidence on record that has to be considered in this connection. 40. As observed in Shrikant Anandarao Bhosale’s case, if any of the aforementioned circumstances is taken in isolation, the same may not be sufficient to strengthen the plea of insanity. It is the totality of the circumstances evaluated in the light of the evidence on record that has to be considered in this connection. So, viewed, we are definitely of the conclusion that even though the accused caused the death of Mohammedali by stabbing him to death, he was at the time of committing the acts attributed to him non compose mentis and is, therefore, entitled to the benefit of Sec.84 I.P.C. as per which the acts committed by the accused do not constitute an offence. The appellant is accordingly found not guilty of the charge of murder and is acquitted of the offence punishable under Sec.302 I.P.C. 41 . The appellant is, however, not entitled to be set at liberty since homicidal tendencies are lurking in him. Accordingly, he shall be detained in safe custody in the Mental Health Centre, Thrissur until he can be ordered to be delivered to any of his relatives or friends in the manner provided under Sec.335 (3) Cr.P.C. The said power can be exercised by the trial court which shall also report to the State Government the fact of detention of the appellant in the Mental Health Centre, Thrissur as enjoined by Sub Sec.4 of Sec.335 Cr.P.C.