Maluku Mohamed vs State

P.D. Dinakaran, J.

I-UNDER APPEAL

The appellant is the sole accused (hereinafter referred to as the ''accused'') in Sessions Case No. 360 of 2003 on the file of learned Principal

Sessions Judge, Kanyakumari District at Nagercoil: The accused questions the correctness of the judgment dated 31-1-2003 rendered in the

above stated sessions case, whereunder he was convicted for the offence punishable under Sections 341, 302 and 324, I. P. C. and sentenced to

undergo simple imprisonment for one month u/s 341, I. P. C., imprisonment for life with a fine of Rs. 1,000/- in default to undergo rigorous

imprisonment for six months u/s 302, I. P. C. and rigorous imprisonment for two years u/s 324, I. P. C. The sentences were directed to run

concurrently.

II-CHARGE

The charge against the accused is that on 12-10-1999 at 6.45 a.m., he wrongfully restrained the deceased Samsudeen and his son, P. W. 1,

which is punishable u/s 341, I. P. C., in the course of the same transaction, he attacked the deceased on his head by using a rice pounder, with an

intention to cause his death and inflicted grievous injuries, causing the death of the deceased, which is punishable u/s 302, I. P. C., and also

attacked P. W. 1 on his head with the same weapon and caused simple injury, which is punishable u/s 324, I. P. C.

III-CASE OF THE PROSECUTION

The prosecution story, unleashed from the evidence of the witnesses examined by them, is as follows:

(a) The accused had some misunderstanding with his wife and the matter was referred to Jamath ten months prior to the date of occurrence. The

deceased was a Member of the Jamath. The deceased advised the appellant to pronounce Talaq and hence, the appellant developed grudge over

the deceased.

(b) P. W. 1, Abdul Kadar, is the son of the deceased. P. W. 8, Hanifa, is the father-in-law of the accused.

(c) On 12-10-1999 at about 6.45 a.m., the deceased and P. W. 1 went to their field. When they were near Marthal tank, the appellant waylaid

them and by saying that ""you alone was instrumental for divorcing my wife"", attacked the deceased with a rice pounder, M.O. 3, on his head, Who

he again attacked the deceased, P. W. 1 intervened and prevented the attack. Hence, the accused attacked P. W. 1 on the left side of his head

with same rice pounder, M.O. 3, The deceased lost his consciousness and fell down. When P. W. 2, Mohammed Yusuf, and one Sheik

Mohammed, who were coming behind P. W. 1 and the deceased, shouted, the. appellant left the scene of occurrence with the weapon. Brother of

P. W. 1, one Saleem and two others took the deceased and P. W. 1 to Government Hospital.

(d) P. W. 9, Dr. Ramachandran, Kottar Government Hospital, admitted the deceased at 7.30 a.m. on 12-10-1999 and found a lacerated injury

over saggital line of head, between two parietal bone 4 1/2"" x 1 1/2"" x bone deep bleeding from the wound present (NC) pupil unequal not

reacting to light. Treatment was given to the deceased. P. W. 9 issued an accident register, Ex. P13, for the injury found on the deceased. P. W. 9

sent an intimation to the Police under Ex. P. 14.

(e) P. W. 9 also treated P. W. 1 for the injuries sustained by him and issued an accident register, Ex. P 15, certifying that the injury sustained by P.

W. 1 was simple in nature.

(f) On receipt of Ex. P 14, the police came to the hospital and recorded his statement, Ex. P1 and thereafter, the deceased was taken to Tirunelveli

Government Hospital for better treatment. But, unfortunately, he was declared dead.

(g) P. W. 11 is the Head Constable, who received information, viz. Ex. P14, about the incident at 8.15 a.m. On 12-10-1999, he rushed to the

hospital and recorded the statement of P. W. 1, viz. Ex. P1. P. W. 11, after returning to the police station, registered a case in Crime No. 720 of

1999 for the offence punishable under Sections 341, 324 and 326, I. P. C. Ex. P19 is the printed FIR, which was despatched to the Court and

handed over to the Sub-Inspector of Police, P. W. 14, for investigation.

(h) P. W. 14, Sub Inspector of Police, who took up the investigation at 11.00 a.m. on 12-10-1999, visited the scene of occurrence at 11.10 a.m.

and prepared observation mahazar, Ex. P12, in the presence of P. Ws. 6 and 7. P. W. 14 also drew rough sketch, Ex. P20. P. W. 14 recovered

bloodstained earth, M.O. 4 and also collected sample earth, M.O. 5, from the scene of occurrence at 11.30 a.m., under mahazar, Ex. P9, attested

by P. Ws. 6 and 7. P. W. 14 examined P. W. 2 and one Saleem and recorded their statements. At 1.30 p.m. he examined P. W. 1 and recorded

his statement. He recovered bloodstained shirt, M.O. 1, worn by P.W.1 and also a bloodstained lungi, M.O. 2, worn by the deceased, under

mahazar, Ex. PH, in the presence of P. Ws. 6 and 7. He also examined P. Ws. 6 and 7 and recorded their statements.

(i) On receipt of the death intimation of the deceased, Ex. P18, at 9.00 p.m., the case was altered into one u/s 302, I. P. C. Ex. P21 is the altered

FIR, which was sent to the Magistrate Court through the Police Constable, P. W. 13.

(j) On receipt of the altered FIR, Ex. P21, Inspector of Police, P. W. 16, took up further investigation in the case and conducted inquest over the

dead body on 13-10-1999 and prepared inquest report, Ex. P23. During the inquest, P. W. 16 examined panchayatdars, P. W. 2 and others and

recorded their statements. P. W. 16 gave a requisition to the Government Hospital, Palayamkottai, for conducting postmortem on the dead body

and deputed Constable, P. W. 12, for the said purpose.

(k) P. W. 13 is the doctor who conducted autopsy over the dead body of the deceased. He found the following ante-mortem injuries on the body

of the deceased.

An antero posterior, sutured lacerated injury seen on the top of head, 17 c.m. above the root of nose, measuring 11 c.m. x 1 c.m. x bone depth.

On dissection of scalp, skull and dura, sub scalpel contusion seen on the frontal,

raid parietal and occipital regions, measuring 25 c.m. x 20 c.m. Fracture of skull, left tempero parietal bones, 11 c.m. in length, seen. Diffused sub

dural and sub arachnid haemorrhage seen over left cerebral seen overt left cerebral hemisphere. Laceration of brain left tempero parietal lobes. 5

c.m. x 3 c.m. x 2 c.m. and laceration of cerebral hemispheres. 3 c.m. x 2 c.m. x 2 c.m. each seen. Fracture base of skull, left middle cranial fossa,

3 c.m. in length present. 2. Abrasions seen in the following areas:

i) Back of right shoulder, 2 c.m. x 2 c.m.

ii) Middle of front of left thigh, 3 c.m. x 3 c.m.

iii) Right knee, 2 c.m. x 2 c.m.

iv) Right middle toe, 1 c.m. x 1 c.m.

v) Inner aspect of right foot, near base of big toe, 1 c.m. x 1 c.m.

The doctor, P. W. 13, who conducted post mortem, was of the opinion that the deceased would have died of shock and haemorrhage due to

head injury. Ex. P17 is the postmortem certificate.

(1) P. W. 16, Investigating Officer, arrested the appellant at 3.00 p.m. on 13-10-1999, near Marthal tank. When P. W. 14 examined the accused

in the presence of P. Ws. 3 and 4, the accused gave a voluntary confession statement and the admissible portion of the same is marked as Ex. P.

Pursuant to the confession statement of the accused, rice pounder, M.O. 3, was recovered under Mahazar, Ex. P. 25, attested by P. Ws. 3

and 4. P. W. 16 examined P. Ws. 3 and 4 and recorded their statements. P. W. 16 sent the accused as well as material objects to the Court. He

examined witnesses and recorded their statements.

(m) P. Ws. 3 and 4 did not support the case of the prosecution and turned hostile.

(n) P. W. 14, on completion of investigation, filed the final report in the Court against the accused on 19-11-1999.

(o) The prosecution, accordingly, examined 16 witnesses as P. Ws. 1 to 16, filed Exs. P 1 to P 25 and marked M. Os. 1 to 6.

IV-DEFENCE

When the accused was questioned u/s 313 of the Code of Criminal Procedure about the incriminating circumstances found against him in the

evidence of prosecution witnesses, he was innocent and had knows complicity with the crime, but was falsely implicated. That apart, the accused

examined D. Ws. 1 to 3 and marked Exs. D1 to D5. D. W. 1 is Dr. Alexon Devasagayam, who treated the accused for acute psychiatrist episode

from 10-12-1997 to 7-2-1998 and issued a certificate, Ex. D3, to that effect. D. W. 2 is Dr. Nagarajan, who had also treated the accused for his

unsound mind and issued a certificate, Ex. D4, about his mental status. D. W. 3 is the brother-in-law of the accused, who speaks about the mental

disorder of the accused. Ex. D1 is the medical notes, Ex. D2 series is the prescription and Ex. D5 series is the prescription and bills. Thus, the

accused took the defence that he was not mentally sound at the time of occurrence.

V-JUDGMENT OF THE TRIAL COURT

The trial Court, on consideration of the oral and documentary evidence placed before it, found the accused guilty, convicted and sentenced him

as stated earlier. Hence the present appeal.

VI-CONTENTIONS ON BEHALF OF THE APPELLANT

6.1 Mr. R. Shanmugavelayutham, learned Counsel appearing for the accused, relying on the evidence of the witnesses examined on the side of the

accused, namely D. Ws. 1 to 3, submits that the accused is entitled to the benefit of Section 84, I. P. C., as the time of occurrence, the accused

was suffering from schizophrenia.

6.2 Without prejudice to the above contention, learned Counsel for the accused alternatively submits that assuming the motive behind the crime, as

projected by the prosecution is accepted, since the wife of the accused brought a divorce proceedings, as per the Muslim Personal law, before the

Jamath, in which the deceased was a member and in the said proceedings, the deceased suggested the accused to pronounce talaq against his

wife, the accused got provoked against the deceased, as his wedlock broke due to the ill-advice of the deceased which was subsisting in the mind

of the accused all along.

6.3 With this backdrop of subsisting provocation, on seeing the deceased and PW 1, the accused lost his power of self control and attacked the

deceased and thus, learned Counsel for the accused claims benefit of Exception 1 to Section 300, I. P. C., seeks modification of the conviction

and sentence u/s 302, I. P. C. and pleads for alteration of the same into one u/s 304(i), I. P.C.

VII-CONTENTIONS ON BEHALF OF THE PROSECUTION

7.1 Per Contra, learned Additional Public Prosecutor, submits that the accused is not entitled to the benefit of Section 84, I. P. C., as the evidence

adduced by the accused, viz. D. Ws. 1 to 3, are not sufficient enough to substantiate that the accused was suffering from schizophrenia at the time

of occurrence.

7.2 The learned Additional Public Prosecutor further submits that there is ample evidence to prove the motive aspect of the prosecution case, as

spoken to by P. Ws. 1, 2, 5 and 8 and therefore, it is a case of preplanned murder.

7.3 It is also contended by the learned Additional Public Prosecutor that since the alleged talaq was pronounced ten months prior to the date of

occurrence, there is no question of sudden provocation to attract Exception 1 to Section 300, I. P.C. and therefore, the accused is not entitled to

any modification in the conviction and sentence imposed on him by the trial Court.

VIII-CONSIDERATION AND FINDING

We have given very careful consideration to the relevant evidence and the submissions made by the learned Counsel on either side.

9.1 The motive for the occurrence, as projected by the prosecution and spoken to by P. Ws. 1, 2, 5 and 8, was not denied by the accused. The

prosecution substantially proved that the deceased was a member of the Jamath, before which the divorce proceedings between the accused and

his wife were initiated. The fact that the deceased suggested the accused to pronounce talaq against his wife is not disputed. As the wedlock of the

accused and his wife was broken, the accused developed enmity against the deceased, is also substantially proved. Therefore, the case of the

prosecution that there was a strong motive for the accused to cause the death of the deceased is well founded.

9.2 On the fateful day, with an intention to cause the death of the deceased, the accused waylaid the deceased and his son, P.W. 1, who were

proceeding to their field. The injury inflicted on P. W. 1, who was a direct witness to the occurrence, substantially proves the presence of P. W. 1

at the scene of occurrence. P. W. 1 in clear terms, deposed that the accused shouted on the deceased for having suggested him to pronounce

Talaq against his wife and he alone was responsible for pronouncement of Talaq, due to which his wedlock was irretrievably broken, and attacked

the deceased with rice pounder, M.O. 3 on his head. P. W. 1 also deposed that when he intervened to prevent the accused, the attack landed on

the left side of his head. This portion of the evidence of P. W. 1, who is an injured eye witness to the occurrence, is clear and direct. We do not

see any reason to disbelieve the same.

9.3 That apart, the contention made on behalf of the accused that the accused was suffering from schizophrenia cannot be accepted since the

accused wap in good state of mind at the time of occurrence, as he was able to correlate the Talaq pronounced by him before the Jamath, in which

the deceased was a member and to declare that the deceased alone was responsible for having suggested to pronounce Talaq.

9.4 Of course, the accused, as a defence, examined D. W. 1 to D. W. 3 and marked Exs. D1 to D5 to substantiate his evidence u/s 84, I. P. C.

Section 84, I. P. C. reads as follows:

Act of a person of unsound mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of

mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.

9.5 D. Ws. 1 and 2 are doctors, who examined the accused and gave treatment for his mental illness. D. W. 3 is the brother-in-law of the

accused. D. W. 1, Dr. Alexan Devasahayam, deposed that he treated the accused for Acute Psychiatrist Episode as an in-patient from 10-12-

1997 to 14-12-1997 and thereafter, as an out-patient on 21-12-1997, 31-12-1997, 11-1-1998,22-1-1998 and 7-2-1998. D. W. 2, Dr.

Nagarajan, deposed that he treated the accused from 23-7-2000 to 20-8-2000 for his mental unsoundness. D. W. 3 is the brother-in-law of the

deceased, who deposed that the accused was suffering from mental illness for the past 10 years.

9.6 Schizophrenia is a mental disorder involving a breakdown in the relation between thought, emotion, and behaviour, leading to faulty perception,

inappropriate actions and feelings, and withdrawal from reality into fantasy and delusion. (Concise Oxford English Dictionary --- 11th Edition).

Therefore, it is a temporary disorder and it can be cured. Even According to D.W. 1, the accused did not avail any treatment after 7-2-1998. The

occurrence took place on 12-10-1999. Of course, neither the evidence of D.W. 1 nor D.W. 2 would help the accused to state that he was

suffering from mental disorder on the date of occurrence, viz. 12-10-1999. Even, D. W. 3, the brother in law of the accused also did not depose

that the accused was actually suffering from mental disorder on the date of occurrence. In the absence of any satisfactory material evidence to

show that the accused was suffering from mental disorder at the time of occurrence, it is not proper for us to give the benefit of Section 84, I. P.

C., overlooking the direct evidence adduced by the prosecution that the accused was in sound mind at the time of occurrence, as he was annoyed

against the deceased for having suggested to pronounce Talaq and intended to take revenge against him for the same. The sound mind of the

accused and the motive behind the occurrence, therefore, stand substantially proved by the prosecution.

9.7 That apart, the evidence of P. W. 1 also corroborates with that of P. W. 2, an independent witness, who clearly and directly deposes that

when the deceased and his son were proceeding to their field on the date of occurrence, the accused waylaid them and shouted against the

deceased that he alone suggested to pronounce Talaq against his wife and attacked him with rice pounder, M.O. 3, on his head. The weapon

used, viz. rice pounder, seized on the confession statement given by the accused as well as the medical evidence adduced by P. W. 9 and P. W.

10, with reference to the injury inflicted on the deceased, corroborates the ocular testimony of P. W. 1 and P. W. 2. Therefore, the case of the

prosecution that with clear intention to cause the death of the deceased, the accused attacked him with rice pounder, M.O. 3 stands proved.

9.8.1 However, the alternative plea made on behalf of the accused claiming benefit of Exception 1 to Section 300, I. P. C. deserves I

consideration.

9.8.2 According to the evidence of P. Ws. 1, 2, 5 and 8, the deceased was a member in the Jamath and the accused developed enmity against the

deceased for having suggested the accused to pronounce Talaq against his wife in the divorce proceedings initiated by his wife before the Jamath.

The further case of the prosecution is that the accused developed a perennial enmity against the deceased from the date of pronouncement of the

Talaq, as the wedlock between him and his wife was broken due to the ill-advice of the deceased, on account of which, the accused, on seeing the

deceased and his son, P. W. 1 on the fateful day, lost his self-control and caused attack on the head of the deceased, which resulted in his death.

Of course, the words employed by the accused at the time of causing the attack on the deceased would clearly spell out the intention to cause the

death. But the very same words also substantiate the enmity that subsisted in the mind of the accused, which got provoked on seeing the deceased

and made him to attack the deceased as he was instrumental for divorcing his wife. Hence, we see some force in the contention of the learned

Counsel for the accused to bring the act of the accused under Exception 1 to Section 300, I. P. C. and convict him u/s 304(i), I. P. C.

9.8.3 In view of the direct evidence of P. W. 1, an injured eye witness as to the injury inflicted on him by the accused, which is also supported with

the evidence of P. W. 15, the Doctor, who treated him, we do not see any reason to interfere with the conviction and sentence imposed on the

accused under Sections 341 and 324, I. P. C. for the injury caused on P. W. 1.

IX-DECISION

In the result, the conviction and sentence imposed on the accused u/s 302, I. P. C. are set aside and instead he is convicted u/s 304(i), I. P. C.

and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- and a compensation of Rs. 5,000/-, which shall

be paid within a period of eight weeks from the date of receipt of a copy of this order, failing which, the accused shall undergo six months rigorous

imprisonment as default sentence. The compensation amount so paid shall be given to the wife of the deceased and if she is not alive, the same shall

be given to P. W. 1, the son of the deceased. The conviction and sentence imposed on the accused under Sections 341 and 324, I. P. C. by the

trial Court remain unaltered. All the sentences are to run concurrently. The sentence already undergone shall be given set off. The appeal is allowed

to the extent indicated above.