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2005 DIGILAW 653 (KER)

Sheela v. State of Kerala

2005-10-05

K.PADMANABHAN NAIR, V.RAMKUMAR

body2005
JUDGMENT : V. RAMKUMAR, J. 1. 34 year old Sheela who was the sole accused in S.C. No. 58/2003 on the file of the Addl. Sessions Court (Fast Track) (Adhoc)-I, Kozhikode for an offence of infanticide punishable under S.302 IPC and attempt to commit suicide punishable under S.309 IPC, challenges the conviction entered and the sentence passed against her by the said court for the offence punishable under S.302 I.P.C. 2. The case of the prosecution can be summarised as follows:- On 18-9-2000 at about 8.30 a.m. the accused Sheela aged 29 years in M.M. Paramba in Unnikkulam amsom and desom, with the intention of doing away with her two year old son Sonu, proceeded towards the rear portion of her parental home by name Kottakkunnummal house along with the child and a chopper under the guise of splitting firewood and knowingly and intentionally caused the death of the said child by cutting its throat with the chopper. Thereafter the accused attempted to commit suicide by cutting her own throat with the chopper. The accused has thereby committed offences punishable under S.302 and 309 I.P.C. 3. On the accused pleading not guilty to the charge framed against her by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 11 witnesses as PWs. 1 to 11 and got marked 16 documents as Ext.P1 to P 16 and six material objects as MOs. 1 to 6. 4. After the close of the prosecution evidence the accused was questioned under S.313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against her in the evidence for the prosecution. She denied those circumstances and maintained her innocence. She filed a separate written statement under S.233 Cr.P.C. to the following effect. She has nothing to do with the occurrence as alleged by the prosecution. She was married by Vazhoramalayil Satheesan who belongs to Kannadipoyil. Two children were born in that wedlock. While she was pregnant for the second child, her husband on the allegation that he is not the father of that child had on several occasions attempted to destroy the foetus. On account of his conduct she had become mentally deranged and had become a mental patient. She was undergoing treatment for the mental illness. While she was pregnant for the second child, her husband on the allegation that he is not the father of that child had on several occasions attempted to destroy the foetus. On account of his conduct she had become mentally deranged and had become a mental patient. She was undergoing treatment for the mental illness. On the day previous to the date of occurrence her husband had come to her house and had threatened to kill her and her child. She had undergone tremendous mental stress on account of the above threat. She subsequently came to know that on the next day that is on 18-9-2000 she and her child sustained injuries due to an attack by her husband. She was by reason of unsoundness of mind unable to know what happened. She has not done anything as alleged and she is completely innocent. She may be set at liberty. 5. Since the evidence adduced by the prosecution did not warrant an acquittal under S.232 Cr.P.C. the learned Addl. Sessions Judge called upon the accused to enter on her defence and to adduce any evidence which she might have in support thereof. The accused examined two witnesses as DWs. 1 and 2 and got marked Exts.D2 to D5 through them. Ext.D1 is the case diary contradiction of PW-1. 6. After the conclusion of the defence evidence the case was posted for arguments. Thereafter the learned Addl. Sessions Judge as per judgment dated 30-8-2005 acquitted the appellant of the offence punishable under S.309 I.P.C. but convicted her of the offence of murder punishable under S.302 IPC and sentenced her to imprisonment for life and to pay a fine of Rs. 5,000/- and on default to pay the fine, to undergo rigorous imprisonment for six months. It is the said judgment which is assailed in this appeal by the accused. 7. We heard Advocate Smt. C.G. Preetha, the learned counsel appearing for the appellant and Advocate Sri. R.M. Habeeb, the learned Public Prosecutor who defended the State. 8. The following points arise for determination in this appeal:- (i) Has the prosecution proved that Sonu the two year old child of the accused died as a result of homicidal injuries sustained in the morning of 18-9-2000? (ii) Is the conviction entered and the sentence passed against the appellant for the offence punishable under S.302 I.P.C. sustainable? 9. 8. The following points arise for determination in this appeal:- (i) Has the prosecution proved that Sonu the two year old child of the accused died as a result of homicidal injuries sustained in the morning of 18-9-2000? (ii) Is the conviction entered and the sentence passed against the appellant for the offence punishable under S.302 I.P.C. sustainable? 9. POINT No. I - Upon receiving the information about the death of the child Sonu and the attempt to commit suicide by the accused, PW-8 who was the Inspector of Police, Balussery proceeded to the house of PW-1 Vasu, the father of the accused and recorded Ext.P1 F.1. statement from him. PW-8 then forwarded the F.1. statement to the police station. PW-8 then held inquest over the dead body of the child from the scene of occurrence itself from 11 a.m. to 12.30 p.m. on 18-9-2000. Ext.P5 is the inquest report prepared by PW-8. In columns 7 and 8(a) of Ext.P5(a) PW-8 has described the fatal injuries on the neck of the child. He has tentatively concluded in Ext.P5 that the child died as a result of cutting of its neck with a chopper. PW-8 has also described the scene of occurrence in Ext.P5 inquest report and he did not therefore prepare any separate scene mahazar. He seized M.O. 1 chopper from the vicinity of the scene of occurrence, M.O. 6 blood stained earth, M.O. 2 series of anklets and M.O. 3 dress of Sonu. 10. After the inquest the corpse of the child was despatched to the Medical College Hospital, Calicut for postmortem examination. PW-6 (Dr. K. Prasannan) who was the Assistant Professor and Police Surgeon conducted autopsy over the dead body of the child at 1 p.m. on 18-9-2000. Ext.P7 is the postmortem certificate prepared by PW-6. He noted the following ante mortem injuries and other findings on the dead-body:- “(B) Injuries Ante mortem: 1. Incised wound 4 x 1 x 2 cm, transverse on front of middle of neck 3 cm above collar bone. There was a linear superficial incised wound extending to right (1 cm) from the right end. Trachea underneath was transected. 2. Inside gaping wound 7 x 3 x 2.5 cm, transverse on left side of neck, 5 cm below ear at root of neck. Front end 0.8 cm below left end of injury No. 1. There was a linear superficial incised wound extending to right (1 cm) from the right end. Trachea underneath was transected. 2. Inside gaping wound 7 x 3 x 2.5 cm, transverse on left side of neck, 5 cm below ear at root of neck. Front end 0.8 cm below left end of injury No. 1. There was a linear abrasion 3 cm long extending to right from the front end. Back end at midline back, the muscles, blood vessels, nerves were cut and body of 6th neck vertebra and spinal cord were transected. (C) Other Findings: Scalp and skull intact. Brain 1100 gms, normal. Stomach contained 20 ml of brownish black fluid and vegetable bits. No unusual smell. Urinary bladder empty. All other organs pale. Dry blood stain preserved.” 11. PW-6 has opined in Ext.P7 that the boy died due to the cut injuries on his neck. When examined before Court PW-6 has deposed that the injuries on the neck of the dead body could be inflicted with a weapon like M.O. 1 chopper. There is thus ample evidence to suggest that Sonu, the two year old child of the accused died as a result of homicidal injuries sustained in the morning of 18-9-2000. This point is answered accordingly. 12. POINT No. II PW-1 - (Vasu) is the father of the accused. On the date of occurrence the accused was residing along with her second child Sonu in her parental home belonging to PW-1. PW-1 turned hostile to the prosecution. PW-2 (Yesoda) is the wife of PW-1 and the mother of the accused. He also turned hostile to the prosecution. She identified M.O. 4 nighty belonging to the accused and M.O. 3 shirt belonging to the deceased child. PW-3 (Sheena) is the daughter of PW-2's sister. She also turned disloyal to the prosecution and Exts. P4 and P4(a) are her case diary contradictions. PW-4 is an attestor to Ext.P5 inquest report. PW-5 is a neighbour of PW-1 and attestor to Ext.P6 mahazar regarding M.O. 4 nighty. PW-6 (Dr. Prasannan) is the autopsy surgeon who proved Ext.P7 postmortem certificate. PW-7 is the Village Officer of Unnikkulam Village who proved Ext.P8 scene plan. PW-8 is the Sub Inspector of Police, Balussery who recorded Ext.P1 F.I. statement of PW-1 from the house of PW-1 and forwarded the same to the Police Station. He held inquest over the dead body. PW-6 (Dr. Prasannan) is the autopsy surgeon who proved Ext.P7 postmortem certificate. PW-7 is the Village Officer of Unnikkulam Village who proved Ext.P8 scene plan. PW-8 is the Sub Inspector of Police, Balussery who recorded Ext.P1 F.I. statement of PW-1 from the house of PW-1 and forwarded the same to the Police Station. He held inquest over the dead body. He also proved Ext.P9 medical certificate pertaining to the accused who was treated in the Primary Health Centre, Balussery for the injury on her neck. PW-9 was the Head Constable holding the charge of Balussery Police Station at the relevant time. On receipt of Ext.P1 F.I. Statement he registered Ext.P10 F.I.R. PW-10 was the Circle Inspector of Police, Balussery who conducted the investigation. He arrested the accused on 18-9-2000 at 4 p.m. after her discharge from Balussery Community Health Centre. He proved Ext.P6 mahazar under which he seized M.O. 4 nighty of the accused. He also proved Ext.P5 F.S.L. report as per which human blood was detected on all the properties including M.O. 1 chopper. PW-11 who succeeded PW-10 laid the charge before Court. DW-1 (Dr. Vijayan) is the Psychiatrist who had treated the accused prior to the occurrence for Schizophrenia coupled with depression. DW-2 (Dr. K.S. Mohanan) who is the Assistant Professor of Psychiatry, Medical College Hospital, Calicut and also attached to the Mental Hospital, Calicut had examined the accused on 19-9-2000 on being referred from the Government Hospital, Quilandy where the accused was taken after her remand to judicial custody. His diagnosis of the accused was that she was suffering from paranoid schizophrenia with persecutory delusions and auditory hallucination. He proved Ext.D3 report dated 13-3-2000 sent to the committal court. He also proved Ext.P4 O.P. Card dated 19-9-2000 of the Government Hospital, Quilandy and Ext.D5 notebook shoving the out patient and in patient treatment given to the accused after she was remanded to judicial custody. 13. The learned Public Prosecutor made the following submissions before us in support of his plea that the conviction entered and the sentence passed against the appellant do not warrant any interference: Even-though the material witnesses for the prosecution did not support the prosecution, the proved facts show that it was the accused who came from the rear side of Kottakunnummal house carrying her two year old son which was bleeding through its neck. Her relationship with her husband had been strained due to her husband disowning the paternity of Sonu. But, neither the accused nor her parents had a case that the child was done away with by Satheesan the husband of the accused. They had not lodged any complaint against Satheesan. The child was of such a tender age that it needed the constant attention of its mother, the accused. Hence the accused who was in exclusive control over the child owed an explanation as to what happened to the child which was in her control and custody. She cannot pretend ignorance of what transpired. Merely because the accused was undergoing treatment for paranoid schizophrenia both before and after the occurrence it cannot be concluded that she was at the time of occurrence incapable of knowing the nature and consequence of her act or that she was doing what was either wrong or contrary to law. It is only on proof of such a mental condition at the time of occurrence that the accused would be entitled to the benefit of S.84 I.P.C. With regard to the charge of S.309 I.P.C. the doctor who issued Ext.P9 wound certificate pertaining to the accused has not been examined by the prosecution and that was why the trial judge acquitted the accused of the said offence. But her conviction under S.302 is fully justified since she had developed an aversion for the child the paternity of which was disputed by her husband. 14. We are afraid that we find ourselves unable to agree with the above submissions. What is stated by PW-1 in Ext.P1 F.I. Statement given to PW-8, the Sub Inspector of Police, Balussery at 10 a.m. on 18-9-2000 from Kottakkunnummel house in M. M. Paramba in Unnikkulam amsom is the following: The accused Sheela is his daughter born to his second wife. She was given away in marriage to one Satheesan of Kannadipoyil. It was a love marriage which took place 5 years ago and two children have been born in that wedlock. The husband and wife were not on cordial terms. Even-though, after their separation, Sheela used to go to her matrimonial home frequently, she used to return soon after creating some problem there. She was having mental problems on account of the strained relationship with her husband. She was treated also for the said problem. The husband and wife were not on cordial terms. Even-though, after their separation, Sheela used to go to her matrimonial home frequently, she used to return soon after creating some problem there. She was having mental problems on account of the strained relationship with her husband. She was treated also for the said problem. Even on 5-9-2000 she was treated by Dr. Vijayan of Eranhipalam. Sheela and her children are in the care and custody of PW-1. On 18-9-2000 at about 8.30 a.m. Sheela had stepped into paramba with a chopper and her two year old son Sonu under the pretext of splitting firewood. Within five minutes she came back stating that she had cut her son to death with the chopper. Her nighty was smeared with blood. Thereupon PW-1 and his wife rushed to the paramba to find the boy Sonu lying in a pool of blood in front of the bathroom at the rear side of the house. He had a deep injury on his neck. PW-1 took the boy and brought him to the front courtyard of his house. Finding that the child had already breathed its last, he laid the child on the floor. It was the mental turmoil arising from the matrimonial discord of her daughter which had driven her to kill her own child. The chopper was lying near the dead body of the child and the gold chain of Sheela was lying near the bathroom door. Sheela is lying unconscious in the courtyard of his house. She has a wound on her neck. 15. When examined before Court PW-1 did not, however, support the above case in Ext.P1 F.I. Statement. He deposed before Court that Sonu was lying dead under circumstances which were not known to him and Sheela was seen carrying the child to the house and screaming aloud. The prosecution treated him hostile and cross examined him during which PW-1 stated that M.O. 1 chopper did not belong to his house and that the accused had not made any confession to him that she had killed the child. The prosecution treated him hostile and cross examined him during which PW-1 stated that M.O. 1 chopper did not belong to his house and that the accused had not made any confession to him that she had killed the child. He further stated that upon Satheesan, the husband of Sheela disputing his paternity over the second child Sonu, Sheela and her children were under the care and custody of PW-1, that Satheesan never accepted Sonu as his child and wanted to get rid of the child, that about one month prior to the occurrence the accused had visited her matrimonial home and at that time also Satheesan was unwilling to accept Sonu and PW-1 believes that Sonu and Sheela sustained injuries due to an attack by Satheesan. 16. The prosecution has no case that the accused had developed any aversion for her own child or that she wanted to kill the child to win the love and affection of her husband. If so, there is absolutely no reason as to why the accused who had given birth to the child and who had brought up the child for two years should on a fine morning without any provocation, cut the throat of the child unless she was suffering from some acute morbid condition. It is in this context that the testimony of P.Ws 8 and 10 assumes importance. PW-8 the Sub Inspector has deposed as follows:- “Other Language” 17. Thus PW-8 would assert that he did not notice any abnormality in the behaviour of the accused. He, however, confessed that even in the first information statement PW-1 had stated that the accused had been treated for mental illness by Dr. Vijayan on 5-9-2000. 18. Even in his chief examination PW-10 the Circle Inspector of Police stated as follows:- “Other Language” So, the investigating officer also would assert that he did not notice any abnormality in the accused at the time of her arrest. Event-hough during his cross examination PW-10 would claim to have questioned Dr. Vijayan and would say that the doctor did not tell him that he had treated the accused on 5-9-2000, the case diary does not indicate that PW-10 had questioned Dr. Vijayan at all. But, what we find from the testimony of DW-1 (Dr. Vijayan) is that he had treated the accused for paranoid schizophrenia. Vijayan and would say that the doctor did not tell him that he had treated the accused on 5-9-2000, the case diary does not indicate that PW-10 had questioned Dr. Vijayan at all. But, what we find from the testimony of DW-1 (Dr. Vijayan) is that he had treated the accused for paranoid schizophrenia. Ext.D2 photocopy of the out patient card indicated that she was under treatment for the said disease for the past two years prior to 5-9-2000. DW-1 has further deposed that when the patient is suffering from the disease the patient may show both suicidal and homicidal tendencies. 19. DW-2 (Dr. Mohanan) of the Mental Health Centre, Kozhikode who had treated the accused while she was in judicial custody has definitely stated that on his diagnosis it was found that she was suffering from paranoid schizophrenia with persecutory delusions and auditory hallucination. He had also proved Ext.D3 report dated 13-2-2000 sent by him to the Magistrate giving the details of the examination of the accused. He also proved Ext.D5 notebook showing the out patient and in patient treatment given to the accused while she was in judicial custody. 20. This is a case in which the very occurrence as narrated in Ext.P1 shows that the accused was acting in a highly abnormal manner by cutting the throat of her own child (her only male child) whom she had painfully delivered after a full gestation. Her elder child is a female. Thereafter she had attempted to commit suicide by cutting her own throat. This version found in Ext.P1 F.I. statement should have alerted the investigating officer to conduct an enquiry regarding the sanity of the accused. PW-8 has confessed that he did not get the accused examined by a doctor soon after her arrest. The evidence in this case shows that it was the Jail Superintendent who referred the accused to the Government Hospital, Quilandy from where she was referred to the Mental Health Centre, Kozhikode as evidenced by Ext.D4 O.P. card dated 19-9-2000. In Kuttappan vs. State of Kerala, 1986 KLT 364, a Division Bench of this Court observed that where the investigating officer comes across any suggestion or material showing any doubt on the sanity of the accused it would be his duty to investigate the mental condition of the accused and to place the material before Court. In Kuttappan vs. State of Kerala, 1986 KLT 364, a Division Bench of this Court observed that where the investigating officer comes across any suggestion or material showing any doubt on the sanity of the accused it would be his duty to investigate the mental condition of the accused and to place the material before Court. Even-though Ext.P1 F.I. statement specifically mentioned about the accused undergoing treatment for mental illness before Dr. Vijayan, PWs. 8 and 10 would assert before Court that they did not notice any sort of abnormality in the accused. PW-10 does not appear to have conducted any serious investigation regarding the mental condition of the accused. On the contrary, he was more interested in suppressing her morbid condition presumably with a view to secure a conviction somehow or other. This is not the conduct expected of a fair investigator. 21. Even-though there is no direct evidence of the accused killing the child, even if the version given in Ext.P.1 F.I. statement is believed, (of course PW-1 had disowned the said version) the killing of the child by the accused in broad daylight without any apparent provocation and admitting the killing and thereafter dropping unconscious in the courtyard and making no attempt to run away from the scene is a highly abnormal conduct which no sane person will do. Since the child which was of tender age, was under the care and control of the appellant it is only reasonable to infer that in the absence of a satisfactory explanation from the appellant, the child sustained fatal injuries at the hands of the appellant. 22. It is a fundamental principle of criminal jurisprudence that an accused person is presumed to be innocent until proved otherwise and the burden to prove the guilt of the accused beyond reasonable doubt lies on the prosecution. In a case of homicide the prosecution, therefore, has to prove that the accused caused the death of the victim with the requisite intention. This general burden never shifts and it always rests on the prosecution. Even-though under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within any of the exceptions, lies on the accused, the standard of proof on the accused is not as heavy as that on the prosecution. The accused need not prove the existence of those circumstances beyond reasonable doubt. Even-though under S.105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within any of the exceptions, lies on the accused, the standard of proof on the accused is not as heavy as that on the prosecution. The accused need not prove the existence of those circumstances beyond reasonable doubt. It is enough if the accused is able to prove the existence of those circumstances by preponderance of probabilities which is the degree of proof which on a party to a civil litigation. In his attempt to substantiate his defence the accused is even entitled to rely on the circumstances elicited by the prosecution. Even if the accused is not able to establish conclusively that he was insane at the time when 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 extend the benefit of acquittal to the accused on the ground that the general burden of proof resting on the prosecution was not discharged. Dahyabhai Chhanganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563 . 23. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. But very often medical evaluation of the mental condition of the accused at the time of committing the offence may not be possible. Even in a case where soon after the occurrence the accused is subjected to medical examination it may not reveal his mental condition at the time of occurrence. It will only disclose his mental condition at the time of the medical examination. Therefore, for deciding whether the accused was in such a state of mind as to be entitled to be benefit of S.84 I.P.C. what is generally looked into is the conduct of the accused and other circumstances which preceded, attended, or followed the occurrence. D.C. Thakkar's Case (supra) and Jai Lal vs. Delhi Administration, AIR 1969 SC 15 and Sheralli Wall Mohammed vs. State of Maharashtra, AIR 1972 SC 2443 . 24. D.C. Thakkar's Case (supra) and Jai Lal vs. Delhi Administration, AIR 1969 SC 15 and Sheralli Wall Mohammed vs. State of Maharashtra, AIR 1972 SC 2443 . 24. In considering the defence based on S.84 I.P.C. the evidence of the near relatives of the accused is of great probative value. Ratan Lal vs. State of Madhya Pradesh, 1970 (3) SCC 533 . 25. In Shrikant Anandaro Bhosale vs. State of Maharashtra, 2003 SCC (Cri) 144, the apex court found that the accused who had been suffering from paranoid schizophrenia was entitled to the benefit of S.84 I.P.C. for the charge of murder. In Kuttan Gopalan vs. State, 1971 KLJ 142 and Radhakrishnan Nair vs. State of Kerala, 1988 (1) KLJ 547 Schizophrenia was held to qualify for exception under S.84 I.P.C. Judged in the backdrop of the above decisions we have no hesitation to conclude that the appellant was, at the time of occurrence, non compose mentis and is, therefore, entitled to the benefit of acquittal. We, therefore, hold that the appellant caused the death of her child Sonu by cutting his neck and he was at the time of committing the above act non compose mentis and therefore entitled to the benefit of S.84 I.P.C. The appellant is, accordingly, found not guilty of the offence of murder punishable under S.302 of I.P.C. and is acquitted of the same. She is, however, not entitled to be set at liberty since homicidal tendencies are lurking in her. Accordingly, she shall be detained in safe custody in the Mental Health Centre, Kozhikode until she can be ordered to be delivered over to any of her relatives or friends in the manner provided under S.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, Kozhikode as enjoined by sub-section (4) of S.325 Cr.P.C.