Dhora alias Vellinkiri vs State of Kerala

K.T. Thomas, J.—This case involves both patricide and matricide, besides severely haeking two neighbours with a sharpened chopper. Prosecution case reveals the story of Appellant running berserk during the early hours of 16th October 1987, killing his father and mother after mangling two Ors. . At 4.30 in the morning he gate crashed into the bed room of a neighbour and showered a fusillade of cuts with the chopper from head to toe, next he dashed into the bed room of Anr. neighbour and did the same thing. He then ran back to his house, caught his father and hacked him with the chopper, and then turned to his mother and did the same thing to her also. His father died instantaneously and his mother died at the hospital on the same day. The Other two injured, despite extensive cuts sustained, survived with expert medical aid as they were not destined to die. Learned Sessions Judge found the Appellant guilty of offence under Sections 302, 307 and 450 of the Indian Penal Code and sentenced him to imprisonment for life for the first count, but no separate sentence was awarded for other counts. This appeal has been filed from jail.

When judgment finding him guilty of the offences was pronounced by the learned Sessions Judge, Additional Public Prosecutor, who conducted prosecution in the trial court, made a forceful plea for awarding capital punishment to the Appellant. However, learned Sessions Judge was not fortunately persuaded to impose death penalty in spite of want of any ostensible extenuating circumstance. We say ''fortunately'' because the story has the appearance, at the first blush, of one of the rarest of rare cases in which the lesser sentence could be foreclosed. According to the learned Sessions Judge, "accused might have been prompted by some mental derangement" and hence death penalty need not be imposed on him.

Some more facts may be useful for narration to dispose of this appeal. Appellant and his wife (P.W. 13) were living in an appartment different from the place where his aged parents were residing, but both appartments are situated close to each other. P.Ws. 2 and 3 (the other two injured) were residing in a different building situated in the vicinity. It is alleged that Appellant snooped into the affairs of his neighbours and twaddled gossips concerning Jayamala (daughter in law of P.W. 2 and wife of P.W. 5). It appears that Appellant was instrumental in forestalling the progress of a marriage proposal mooted for one Rajeswari (niece of, P.W. 2). These two instances were mentioned as the possible motive for the Appellant to become enimical towards P.Ws. 2 and 3 (We failed to understand how those instances would incite, wrath in his mind against P.Ws. 2 and 3 or anybody else). On the previous day, Appellant is alleged to have commented that he would get better supply of meals in the jail. This is all the back-ground for the brutal carnage indulged in by the Appellant on the morning of the date of tragedy.

Appellant carried a torchlight in one hand and a chopper in the other. At 4.30 in the morning, he trespassed into the room of P.W. 3 and started cutting him abruptly. He inflicted as many as seventeen serious deep incised cuts on P.W. 3. Then he turned to the next-door-neighbour P.W. 2 and started cutting him with the chopper and inflicted ten serious incised cut wounds on him. By this time, Appellant''s wife reached the place and tried to catch her husband, but Appellant ran to his parents'' house, called his father and told him that it was time that they all should die. He then showered cut injuries on his father with the same chopper. Out of thirteen serious cuts inflicted on him, many were individually fatel. If the number of injuries is of any criterion, he was more considerate to his mother as he inflicted only six serious incised injuries on her.

Appellant coolly went to the police station with the weapon and narrated the whole facts to the police. His statement was recorded in Ext. P-10 mahazar as per which the weapon and the torchlight were taken into custody.

We have no doubt that the prosecution has proved beyond doubt that Appellant had done the acts alleged against him. P.W. 1 is an eye witness for the acts done against Appellant''s father and mother. P.Ws. 2 to 5 have spoken about the acts done against P.Ws. 2 and 3.

If one peruses the evidence in this case at a glance it may appear that this is one of the appeals which can be disposed of easily by confirming the conviction and sentence. But when we went deeper into the case our judicial conscience is distressed as we felt that the case did not receive proper approach at any stage. We fear that miscarriage of Justice is a possible consequence if this is not dealt with cautiously. We would expatiate the point now.

On hearing narration of facts of this case the first impression which strikes any legal mind is that the Appellant did the acts as a demented person. The mental disposition of the Appellant when he committed the crime would be seriously doubted on the broad probabilities of this case. As the learned Sessions Judge himself put it, there is no motive for the Appellant to commit the crimes on innocent victims including his "dear parents". We went through the Case Diary file to ascertain whether the investigating officer had made any effort to probe into the possibility of impairment of the Appellant''s cognitive faculties when the crimes were committed by him. It was very unfortunate that the investigating officer did not even bother to ascertain the said fact from any witness, not even when P.W. 13 (wife of the Appellant) was interrogated.

It is also unfortunate that the Additional Public Prosecutor, who conducted the trial, did not address the trial court regarding the possibility of impairment of the mental condition of the Appellant. Instead, he assiduously built up the argument for giving him death penalty. A counsel was appointed in the trial court to defend the Appellant on state brief, but we are told that the said counsel was not an experienced advocate. We do not know why the learned Sessions Judge did not appoint an experienced counsel in this case to defend the accused particularly when this is a double murder case (this would have been a quadruple murder case but for the miraculous survival of P.Ws. 2 and 3).

When the story gives a grotesque picture of the events, when the acts alleged have unusual brutality human mind tends to react with prejudice against the person indicted for the acts. Safety of such accused is that his case is tried in a Sessions Court presided, over by a judicially trained personage who would decide uninfluenced by prejudices and predilections. The graver are the facts or greater is the brutal nature of the case, greater must be the degree of concern and care in judicial forums.

When learned Sessions Judge entertained doubt in this case that Appellant "might have been prompted by some mental derangement", we are at a loss to understand why it did not strike to him that he should adopt the procedure prescribed in Section 329 of the Code of Criminal Procedure (''Code'' for short). The section reads thus:

Procedure in case of person of unsound mind tried before Court:

(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case;

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court.

Thus, law enjoins on the Sessions Judge to hold a trial regarding the soundness of the accused''s mind when it "appears" to him that the person brought to the trial is of unsound mind and consequently incapable of making his defence. According to the requirement, he shall "in the first instance, try, the fact of such unsoundness and incapacity". He can proceed only if he is satisfied that the accused is of sound mind and is capable of making his defence. The word "appears" in Section 329 is of lesser degree of probabilities than the word proof. The corresponding section in the old Code of Criminal Procedure (Section 465) received such an interpretation from Supreme Court in I.V. Shivaswamy Vs. State of Mysore, . If there is something in the demeanour of accused or in facts of the case which raise a doubt in the mind of court that the accused is of unsound mind and consequently incapable of making his defence, it is obligatory on the court to try the said fact before proceeding with the trial into the charge. Failure to follow the procedure laid down in Section 329 would vitiate the trial as the provision is mandatory vide Supdt and Rem. of L.A. v. Durga Charan 1961 (1) Crl.L.J. 811 and Satya Devi v. State AIR 1969 Punj and Har 387.

In this case, learned Sessions Judge could have reasonably doubted about the soundness of accused''s mental condition even on the very presentation of the prosecution story. We have reasons to presume that the Sessions Judge did entertain doubt about his mental disposition at least as the trial proceeded because he observed that "accused might have been prompted by some mental derangement".

In this case, learned Sessions Judge could have held by the Sessions Judge. We set aside the conviction and sentence as the learned Sessions Judge did not follow the procedure laid down in Section 329 of the Code. The case is sent back to the Sessions Court to follow the procedure in accordance with law. We further direct the Sessions Judge to appoint an experienced advocate to appear for the accused on state brief. Learned Public Prosecutor (who is also Director General of Prosecutions in the State) agreed that he would see that a senior Public Prosecutor in the Sessions Court, Trichur would conduct prosecution. Accused shall remain in custody until disposal of the case, unless the Sessions Judge deems it fit to release him on bail oh such conditions as he thinks necessary. The case will be disposed of afresh by the Sessions Court in the light of the observations made above.

Crl Appeal is disposed of as above.