Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 1084 (KER)

Thomas v. State of Kerala

2019-12-18

A.HARIPRASAD, N.ANIL KUMAR

body2019
JUDGMENT : A. Hariprasad, J. 1. Appellant is tried and convicted by the learned Additional Sessions Judge for offences under Sections 324 and 302 of IPC. For the offence under Section 324 of IPC he was directed to undergo rigorous imprisonment for one year and for the offence under Section 302 of IPC, he was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-. Feeling aggrieved, conviction and sentence are challenged in this appeal. 2. Heard the learned counsel for the appellant and also learned Public Prosecutor for the respondent. 3. In the course of hearing, we came across certain materials indicating that the appellant is entitled to claim the benefit under Section 84 of IPC. In the final report as well as in the court charge it is mentioned that the appellant is native of Myanmar (formerly Burma). In other words, the appellant is a foreigner who got involved in a case of murder. Since we entertained a doubt regarding the manner in which the appellant has to be handled if we find that he is entitled to get the benefit under Section 84 of IPC, we impleaded the Secretary, Ministry of Home Affairs, Union of India as an additional party to this case. 4. We heard the learned Assistant Solicitor General of India too. 5. The charge framed by the Sessions Judge reads as follows:- "I V.G. Anilkumar, B.Sc.LLB., I Addl. Sessions Judge, Ernakulam hereby charge you: Thomas, aged 31, S/o. Kangnauge, Penitapen village, Paletwa Township, Myanmar(Burma) The accused in the above case as below:- That on 14/4/2011 at 5.30 am in the upper floor of the building having door No. 32/1194(B) by name Sharunikethan at the place Palarivattom you intentionally caused death by inflicting blow with cement block on the head and face and by beating with iron pine on different parts of the body of Joseph and you committed the offence u/s. 302 IPC. That in the same transaction you voluntarily caused hurt to Joseph by beating with iron pipe on different parts of the body and thereby you committed the offence u/s. 324 IPC and the aforesaid offences being within cognizance of Sessions Court. And, I hereby direct that you be tried for the said offences before this court. Dated this the 26th July, 2013." 6. And, I hereby direct that you be tried for the said offences before this court. Dated this the 26th July, 2013." 6. Prosecution case, in short, is that, on 14.4.2011 at about 5.30 am, the appellant hit deceased Joseph with a cement block on his head and face and beat him with an iron pipe causing his death. Further case is that the appellant and deceased along with others were sleeping in a room attached to Hotel Abhirami as they were workers in the hotel at the relevant time. Without any provocation the appellant attacked the deceased causing his death, is the prosecution case. 7. To substantiate the prosecution case 19 witnesses were examined and 16 documents were marked. Exts. D1 to D3 are the defence Exhibits. Material Objects are M.Os. 1 to 12. 8. PW1 lodged Ext. P1 FIS. In his statement he has clearly implicated the appellant in the crime. PW19 Circle Inspector of Police, Ernakulam North Police Station conducted the investigation. At about 8 am. on 14.4.2011 he started investigation. He conducted inquest on the body of deceased Joseph between 9 am and 12 noon on the said day. Ext. P2 is the inquest report. It has come out in evidence through PW19 that even in the inquest report, identity of the appellant as the assailant was revealed. The appellant was arrested from the place of occurrence itself at about 1 pm. Ext. P9 is the arrest memo. His body was searched and an inspection memo (Ext. P10) was prepared. He had no apparent injuries. Ext. P5 is the mahazar through which his dress materials were recovered. MO2 is the pants worn by the appellant at the time of incident. Ext. P3 is the scene mahazar prepared by PW19. He proved recovery of MO1 iron pipe, MO9 bed sheet, MO10 cement block allegedly used by the appellant to hit on the deceased's head and three identity cards belonging to the appellant. PW19 sent the materials for scientific examination. Blood samples taken from the place of occurrence and blood and hair samples of the appellant were also sent for analysis. He questioned material witnesses and completed the investigation. 9. P.Ws. 3 and 4 are the witnesses who spoke in favour of the prosecution regarding the incident. According to their testimony they along with the appellant and the deceased were sleeping on the upper floor of Hotel Abhirami. He questioned material witnesses and completed the investigation. 9. P.Ws. 3 and 4 are the witnesses who spoke in favour of the prosecution regarding the incident. According to their testimony they along with the appellant and the deceased were sleeping on the upper floor of Hotel Abhirami. All of them were working in the Hotel either as waiters or for table cleaners. PW3 deposed that on 14.4.2011 at about 5.30 am he heard the deceased screaming. At that time he was sleeping. When he went to the place where the deceased was sleeping, he found three Hindi speaking workers and Manager coming out of the room. At that time, the appellant was found standing in front of the room with an iron pipe in his hand. PW3 found the deceased lying face down on the floor. Blood was oozing from his head. By the side of deceased Joseph, a cement block was also seen drenched in blood. Thereafter, they telephoned PW1 who was the Manager of the Hotel. PW3 and others locked up the appellant inside the room and PW3 kept the key with him. When PW1 came, PW3 handed over the key to him. When intimation was given to police, police officers came and they opened the room. Even at that time the accused was sitting in the room unconcerned and without any sort of emotions. The testimony of PW3 is not seriously challenged in cross-examination. 10. PW4 was working in the hotel at the material time as waiter. He also deposed that, on 14.4.2011, he heard a hue and cry from the room where the accused, deceased and others were sleeping. When he first saw the appellant, he was standing with an iron pipe in his hand. He also found the deceased lying on the floor in a pool of blood. He understood that the deceased was severely injured on his head by hitting with a cement block lying adjacent to his body. At that time the appellant was present in the room. 11. PW1 came to the hotel on receiving information of this incident over phone. He reached at about 6 am on 14.4.2011. At that time, he found the appellant inside the room which was locked from outside. On peeping through the window, he found the deceased lying face down with bleeding injuries and the appellant sitting on a chair with a pipe in his hand. He reached at about 6 am on 14.4.2011. At that time, he found the appellant inside the room which was locked from outside. On peeping through the window, he found the deceased lying face down with bleeding injuries and the appellant sitting on a chair with a pipe in his hand. He also found a cement block lying by the side of the deceased. It was having blood stains. The pipe was also stained with blood. In the cross-examination PW1 deposed that the appellant was found sitting on a chair with crossed legs and holding an iron pipe stained with blood. He was listening to a song on his mobile phone. He was unmoved about the happening which was his own creation. According to P.Ws. 1, 3 and 4, accused was behaving very unnaturally immediately after the incident. 12. PW2 is a witness to Ext. P2 inquest report. He also spoke in favour of the prosecution. 13. PW5 is the owner of Abhirami Hotel. He testified that the deceased and appellant were employees in the hotel. According to him, deceased Joseph brought the appellant to the hotel to work as cleaning boy. Prosecution witnesses have deposed a case that the appellant was unhappy about nature of job assigned to him as he was expecting the job of waiter. Instead, deceased Joseph could arrange only a table cleaning job to him for which he was not interested. It is the prosecution case that motive for murder is the procurement of a menial job by the deceased for the appellant as against the promise made. 14. PW9 is a witness to Ext. P3 mahazar. He proved recovery of the blood stained materials. 15. PW13-Dr. Sonali examined the accused immediately after arrest and collected the nail clippings and scalp hair. She also drew blood samples from the deceased. 16. PW11 conducted autopsy on the body of deceased. The findings are as follows:- "1. Lacerated wound 1.8 x 1.5 x 0.5 cm on the right side of forehead overlying the eyebrow 1 cm outer to inner end. 2. Lacerated wound 1 x 0.5 cm on the right side of face 0.5 cm above the outer angle of right eye. 3. Abraded contusion 20 x 7 to 12 x 0.5 cm on the middle of forehead right side face around right eye and injuries Nos. 2. Lacerated wound 1 x 0.5 cm on the right side of face 0.5 cm above the outer angle of right eye. 3. Abraded contusion 20 x 7 to 12 x 0.5 cm on the middle of forehead right side face around right eye and injuries Nos. 1 and 2, right side of cheek, 2 cm out of ala of nose and both lips. 4. Abraded contusion 3 x 1 x 0.5 cm on the forehead 3.5 cm right of midline and 5 cm above eyebrow. 5. Abraded contusion 6 x 3 x 0.5 cm on the lower part of nose, depressed fracture fragmentation of nasal bones and the bones behind. 6. Abraded contusion 1.5 x 0.5 x 0.5 cm on the left side of face. 7. Lacerated wound 2.5 x 1.5 x 1 cm across the frenium of upper lip. 8. Abraded contusion 7 x 5 x 0.5 cm on the right side of face, depressed comminuted fracture on the frontal bone, displacement of fragments and fissured fracture extending backward with sagittal sutural separation, subdural and subarachnoid bleeding seen on the surface of brain, pulverisation of frontal lobes, contusion of left occipital lobe and depressed fracture of mandible on the left side. 9. Rudimentary tooth of upper jaw is dislocated. 10. Abraded contusion 3.5 x 2 cm outer free border of right ear. 11. Abraded contusion 1 x 0.5 x 0.5 cm on the tragus of right ear. 12. Contusion 8 x 6 x 1 cm on the back of head behind ear. 13. Abraded contusion 5.5 x 1 x 0.5 cm at the root of neck. 14. Abraded contusion over an area 20 x 2.5 cm x 0.5 cm on the right side of chest. 15. Abrasion 3 x 2 cm in the right side of chest. 16. Abrasion 3 x 2 cm right side of chest. 17. Abraded contusion 2.5 x 0.5 cm on the front of right elbow. 18. Abraded contusion 1 x 0.5 x 0.5 cm on the forearm. 19. Multiple small abraded contusion over an area 13 x 7 cm on the back of right forearm. 20. Abrasion on the back of right hand. 21. Multiple small abrasion over an area of 37 x 8 cm front of right thigh. 22. Abrasion on top of right foot. 23. Multiple small abrasion over an area 18 x 11 cm on the left thigh and knee. 20. Abrasion on the back of right hand. 21. Multiple small abrasion over an area of 37 x 8 cm front of right thigh. 22. Abrasion on top of right foot. 23. Multiple small abrasion over an area 18 x 11 cm on the left thigh and knee. 24. Abrasion on liner aspect of left leg. 25. Abrasion on the front of scrotum. Contusion of left testis." 17. PW11 deposed that the death was due to blunt injury sustained to head. Injuries 1 to 8 and corresponding internal injuries resulted in his death. It is also brought out in evidence that those injuries are sufficient to cause death in the ordinary course of nature. No material could be unearthed in cross-examination to discredit her version. 18. Overwhelming evidence in this case would clearly show that the appellant caused the death of Joseph by hitting with MO10 piece of cement block and beating with MO1 iron pipe. The injury sustained by the deceased was on most vital parts of the body. 19. It is seen from the materials placed before the court that the deceased was behaving abnormally immediately after the incident. This prompted us to probe into the mental condition of the deceased prior to the incident, at the time of incident and subsequent to the incident. 20. It can be seen from the records that the accused had raised a contention that he was entitled to get benefit under Section 84 of IPC. In paragraph 16 of the trial court's judgment the learned Judge has made the following observations:- "16. The counsel for the accused submitted that from the facts and circumstances of the case, it can be reasonably inferred that at the time of commission of the act, the accused was of unsound mind. He pointed out that the prosecution failed to prove any motive for the accused to commit the offence. From the records, it can be seen that after the incident, on 29/4/11, the accused was admitted at the Mental Health Centre, Thrissur and thereafter, on several occasions he had undergone treatment as out-patient at the Mental Health Centre, Thrissur for his mental illness. From the records, it can be seen that after the incident, on 29/4/11, the accused was admitted at the Mental Health Centre, Thrissur and thereafter, on several occasions he had undergone treatment as out-patient at the Mental Health Centre, Thrissur for his mental illness. I had already found that because of the fact the prosecution failed to prove any motive on the part of the accused to commit the illegal acts, it cannot be considered that at the time of commission of the acts, the accused was of unsound mind. It is true that from the records, it can be seen that after the occurrence, on 29/4/11, the accused had undergone treatment as out-patient at Mental Health Centre, Thrissur and thereafter, on several occasions, he had undergone treatment in that hospital as out-patient for his mental illness. But, there is absolutely no evidence to show that at any time prior to the incident on 14/4/11, the accused has got some mental illness or he has undergone treatment for that. Because of the fact that, the accused had undergone treatment for his mental illness, after the occurrence it cannot be found that at the time of occurrence, he was of unsound mind. After the commission of the offence, some changes might have occurred to the state of mind of the accused, it might have caused mental disturbances to him. In this context, it is to be noted that it is reported that CW8 who is said to have witnessed the incident have become mentally ill after the incident. PW19 stated that in some cases where normal persons commit heinous crime like murder he had noticed changes in the behavior after the commission of the offence, Learned Public Prosecutor submitted that there is no evidence to find that at the time of commission of offence, the accused was of unsound mind and further there are circumstances to find that the accused was of sound mind at the time of commission of offence." 21. Further the learned Judge held thus in the same paragraph (paragraph 16):- "I find that there is no evidence to find that at the time of commission of the offence by the accused, he was of unsound mind and by reason of unsoundness of mind, he was incapable of knowing the nature of the acts done by him. Further the learned Judge held thus in the same paragraph (paragraph 16):- "I find that there is no evidence to find that at the time of commission of the offence by the accused, he was of unsound mind and by reason of unsoundness of mind, he was incapable of knowing the nature of the acts done by him. Further, from the evidence, it can be found that at the time of commission of the offence, the accused was of sound mind and he was capable of knowing the nature of the acts. I find that the accused failed to prove that at the crucial point of time, at the time of the occurrence. He was of unsound mind and by reason of unsoundness of mind, he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. So, the accused is not entitled to the benefit of Exception provided U/s. 84 of the IPC." 22. We have gone through the letter issued by the Superintendent, Central Prison, Viyoor to the Judicial First Class Magistrate-I, Ernakulam dated 21.6.2011. Along with the letter a medical certificate showing mental condition of the appellant issued by a Psychiatrist attached to the Government Health Centre, Thrissur is also seen. The mental condition report issued by the Psychiatrist would show that the appellant was undergoing treatment for psychosis and he was not fit for trial at that time. Another memo dated 30.4.2011 issued by the Judicial First Class Magistrate-I, Ernakulam would show that the appellant was admitted as inpatient in the Mental Health Centre, Thrissur and the Doctor has advised inpatient treatment for him. 23. The Superintendent, Central Prison, Viyoor sent yet another letter to the Judicial First Class Magistrate-I, Ernakulam stating the following facts:- "Kind attention is invited to the reference cited. Remand No. 6995, THOMAS, S/o. Kawnhangnge, (Myanmar National), is admitted at Govt. Mental Health Centre, Thrissur (referred by Jail Medical Officer) on 29/04/2011. Kindly issue necessary orders to the Superintendent of Mental Health Centre, Thrissur, for treatment and periodical mental health assessment reports of the accused. I also report that a case was registered against the prisoner for attempting to escape from the jail. He climbed the prison cell roof and tried to jump down in order to escape/commit suicide. Kindly issue necessary orders to the Superintendent of Mental Health Centre, Thrissur, for treatment and periodical mental health assessment reports of the accused. I also report that a case was registered against the prisoner for attempting to escape from the jail. He climbed the prison cell roof and tried to jump down in order to escape/commit suicide. Presently he is extremely violent and attacked co-prisoners with roof tiles and jail officers. Earlier he was sent to Govt. Mental Health Centre, Thrissur for outpatient treatment on 25/04/2011. At that time he was refusing to take food and found disoriented. On 27/04/2011, he was also provided treatment from Govt. Medical College Hospital, as the prisoner refused to take medicines and food." 24. We find it difficult to agree with the view taken by the learned Sessions Judge as above ignoring all these materials. It has come out in evidence that immediately after the occurrence on 29.4.2011 the accused exhibited signs of mental illness and he was taken to hospital. It is seen that he was treated in Govt. Mental Health Centre, Thrissur on various occasions. Finally, on 29.11.2013, Psychiatrist attached to the hospital certified that he was fit to stand trial. Thereafter, the case was committed to the court of session. 25. The learned Public Prosecutor produced a report dated 15.11.2019 before this Court showing the mental condition of the appellant. Even on that date the appellant was having a major mental illness, psychosis not otherwise specified. He was still on medication. It is an alarming fact that the Investigating Officer, noticing the unnatural behavior of the accused shortly after the incident and on noticing the mental illness during custody, did not conduct any investigation into the state of mind of the accused at the material time. Failure on the part of the Investigating Officer is a major flaw in the course of investigation. Supreme Court in many number of decisions has deprecated this practice adopted by the Investigating Officers, not going into the mental illness of the accused involved in serious crimes even when they came to know of that fact. 26. Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC 109 ], Sidhapal Kamala Yadav v. State of Maharashtra (2009) 1 SCC 124 ] and Devidas Loka Rathod v. State of Maharashtra (2018) 7 SCC 718 )] are some of them. 26. Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC 109 ], Sidhapal Kamala Yadav v. State of Maharashtra (2009) 1 SCC 124 ] and Devidas Loka Rathod v. State of Maharashtra (2018) 7 SCC 718 )] are some of them. Supreme Court opined (in Sidhapal Kamala Yadav's case) as follows:- "8. ........................... The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused........." 27. In a long line of decisions, it has been held that, it is a major defect in the prosecution case when no investigation was done into the state of mind of the accused involved in serious crimes when it came to the notice of the Investigating Officer. 28. It is seen from the records that the accused was suffering from schizophrenia. It is a common knowledge that schizophrenia is an incurable condition of mind. A person may lead a life, near normal, on medication. In this case there is no evidence to show that the accused was on proper medication at the time of commission of the offence and he was fully aware of the consequences of his action. We have no hesitation to hold that the accused is responsible for the death of Joseph as stated by the prosecution. But prior to the incident, as spoken to by some of the witnesses, at the time of incident, as spoken to by all the material witnesses and after the incident, as revealed from the records, the accused was having mental illness of a very serious nature. Therefore, we find that the accused/appellant is entitled to get the benefit under Section 84 of IPC. Hence, we conclude that denial of benefit under Section 84 of IPC by the learned Sessions Judge was legally incorrect. 29. Now the question to be answered is whether the appellant shall be dealt with under Section 335 of Cr.P.C. since he is indisputably a foreigner. Section 335 of Cr.P.C. deals with handling persons who are acquitted on the ground of unsoundness of mind. It reads as follows:- "335. 29. Now the question to be answered is whether the appellant shall be dealt with under Section 335 of Cr.P.C. since he is indisputably a foreigner. Section 335 of Cr.P.C. deals with handling persons who are acquitted on the ground of unsoundness of mind. It reads as follows:- "335. Person acquitted on such ground to be detained in safe custody. (1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence,- (a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or (b) order such person to be delivered to any relative or friend of such person. (2) No order for the detention of the accused in a lunatic asylum shall be made under clause (a) of sub-section (1) otherwise than in accordance with such rules as the State Government may have made under the Indian Lunacy Act, 1912 (4 of 1912). (3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub-section (1), except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall- (a) be properly taken care of and prevented from doing injury to himself or to any other person; (b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct. (4) The Magistrate or Court shall report to the State Government the action taken under sub-section (1)." 30. On a plain reading of the Section, it may appear that this applies to citizens of this country who are tried and convicted for criminal offences. In the case of a foreigner, like the appellant, it may not be possible for this Court to order delivery of him to a relative or friend in India. There is no material on record to find that the appellant has any valid travel document in his possession either at the time of apprehension or at present. We are constrained to look into Section 49 of the Kerala Prisons and Correctional Services (Management) Act, 2010, which reads as follows:- "49. There is no material on record to find that the appellant has any valid travel document in his possession either at the time of apprehension or at present. We are constrained to look into Section 49 of the Kerala Prisons and Correctional Services (Management) Act, 2010, which reads as follows:- "49. Foreign prisoners-(1) Subject to the provisions of the Act and the rules made thereunder relating to the security of prison and prisoners, foreign prisoners may be permitted to use internet facilities at their own cost for legal assistance and also to contact their Embassies in India in such manner and upon such conditions, as may be prescribed. (2) The Superintendent of the prison concerned shall report the admission of any foreign national in the prison to the Director General immediately stating the full name, address and nationality and the sections under which the prisoner is detained. The Director General shall address the State Government in this regard. The release of such prisoner from the prison shall also be reported by the Superintendent to the Director General who in turn shall inform the Government. (3) Foreign prisoners who have no valid travel documents, when released from prison, and those under orders of deportation, shall be handed over to the Station House Officer of the Police Station having jurisdiction over the area who shall take appropriate action in accordance with the law for the time being in force." On going through Section 49(3) of the Act, it can be seen that foreigner prisoners, who have no valid travel documents, when released from prison, shall be handed over to the Station House Officer of the Police Station having jurisdiction over the area who shall take appropriate action in accordance with law for the time being in force. But since the appellant is found to be a mentally unsound person, legally we cannot physically hand him over to the Station House Officer as provided in sub-section (3) of Section 49 of the Act. In this context, we may refer to Section 3(2)(c) of the Foreigners' Act, 1946 which says that the Central Government may by order make provision, either generally or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India for their departure therefrom or their presence or continued presence therein. Sub-section (2) of Section 3 of the Foreigner's Act, 1946 says that in particular and without prejudice to the generality of the provisions, orders may be passed under the Section to provide that the foreigner shall not remain in India or in any prescribed area therein. The Foreigner's Act, 1946 deals with deportation of the foreigners who have no valid permit to stay in India. It is for the State Government to take appropriate action in this regard by bringing this fact to the notice of the Central Government. At the same time, he shall be provided with adequate treatment until he is deported in a lawful manner. In the result, the appeal is allowed. Conviction of the appellant under Sections 324 and 302 of IPC are hereby set aside. The appellant shall be acquitted as provided under Section 335 Cr.P.C. read with Section 3(2)((c) of the Foreigner's Act, 1946. A copy of the judgment shall be sent to the Chief Secretary of the Government of Kerala for appropriate action in this regard. Till deportation he shall be kept in safe custody in Central Prison, Viyoor. The Superintendent, Central Prison shall afford adequate medical treatment to the appellant until he is deported.