State of Kerala vs K.V. Sreenivasan

P. Bhavadasan, J.—1. Aggrieved by the acquittal in S.C. No. 152/2007 before the Additional Sessions Court, Thalassery on the ground

that the accused was seized of mental illness at the time of commission of act and therefore he is entitled to the benefit of Section 84 of Indian

Penal Code, the State has come up in appeal.

The incident took place on 10.04.2006 at 10.30 a.m. The deceased is one Purushothaman who is closely related to the accused. In fact

accused is the son of sister of wife of deceased. The prosecution allegation is that the accused was holding some property and he wanted to sell a

portion thereof. He was unable to do so and he was under the impression that it was due to the mischievous act of the deceased. On the date of

incident, when PW1 was on his way to a shop, he found the deceased and accused engaged in exchange of words on the road. Soon thereafter he

had occasion to see the accused taking out a chopper from his plastic bag and then he suddenly began to inflict injuries on the deceased. Taken by

surprise, PWs 1 and 2 rushed to the place and tried to prevent the accused from further attack. The accused then turned towards Suresh Babu,

PW2. In the process, PW2 was also injured. Later on the accused placed the chopper in the plastic bag he carried with him and went away from

the place of incident. Few persons who had gathered there at the place of occurrence removed Purushothaman, the deceased, and PW2 Suresh

Babu to Tellicherry Indira Gandhi Hospital. On reaching there, the doctor examined Purushothaman and pronounced him dead. PW2, the injured,

underwent treatment in the same hospital.

PW1, who had accompanied the injured and deceased to the hospital, went to the Police Station and laid Ext. P1 First Information Statement.

That was recorded by PW16 who registered crime as per Ext. P1(a) First Information Report. PW17 took over investigation. Coming to know

that the accused had been restrained by the people, he reached the place and arrested him. The mahazar he prepared at the place of occurrence is

Ext. P9 and M.O.1 is the weapon seized by him. He then proceeded to the Thalassery Government Hospital and conducted inquest over the body

of Purushothaman and prepared Ext. P2 report. He returned to the place of occurrence and prepared Ext. P3 scene mahazar. He seized certain

articles found at the place of occurrence as per the scene mahazar. In the meanwhile, the body was sent for autopsy. PW14 conducted autopsy

over the body of deceased and furnished Ext. P13 certificate. It so happened that not satisfied with causing injuries on the deceased, accused is

said to have rushed to the house of Purushothaman and caused damages to the household articles. The information regarding that act led PW17 to

the house of Purushothaman and he prepared Ext. P10 mahazar. He recorded statement of witnesses and he had Ext. P16 report filed

incorporating Section 326 IPC. He seized the clothes found on the body of deceased so also the clothes worn by PW2 at the time of incident. He

had all the articles seized produced before court. Finding that offence under Sections 427 and 452 IPC had also been committed by the accused,

he filed Ext. P17 report to incorporate the same.

Further investigation was done by PW18. He took over investigation on 08.07.2006 and obtained Ext. P14 document which shows the

ownership of the property where the deceased resided. He obtained chemical analysis report, Ext. P19, completed investigation and laid charge

before court.

The court before which final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of

Sessions, the case was committed to Sessions Court, Thalassery which made over the case to Additional Sessions Court, Adhoc-II, Thalassery

for trial and disposal after following the procedures under Section 209 Cr.P.C. The latter court, on receipt of records and on appearance of

accused, framed charges for the offence under Sections 302, 326, 452 and 427 IPC. To the charge, accused pleaded not guilty and claimed to be

tried. That led prosecution to examine PWs 1 to 19 and mark Exts.P1 to P21. M.O.s 1 to 17 were got identified and marked.

After the close of the prosecution evidence, accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances

brought out in evidence against him and stated that due to his mental illness he was unable to state anything before court.

Finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. He examined DWs 1 and 2

and had Exts.X1 and X2 marked.

The court below, based on the evidence of PWs 1 and 2, came to the conclusion that the incident has been proved beyond reasonable doubt.

But, finding that the accused was seized of mental illness at the relevant time and therefore he was entitled to protection under Section 84 IPC,

court below acquitted him on that ground.

Challenging the acquittal, learned Public Prosecutor contended that medical insanity is entirely different from legal insanity and the exception that

protects the accused is legal insanity and not medical insanity. Learned Public Prosecutor contended that being an exception, burden is on the

accused to show that he was mentally ill at the relevant time and thus was unaware of the nature of the act committed by him and the consequences

of his action. It has to be proved by the defence that at the time of commission of offence, accused was so mentally ill and that he was incapable of

knowing the nature of the act committed by him. If that be the test to be applied, the present case fails to meet the said standards and at best the

defence has been able to show that at some point of time before and after the incident the accused had undergone medical treatment for mental

illness. But that is too insufficient to meet the requirements of a plea under Section 84 IPC. The test to be applied is that the accused was seized of

mental illness at the relevant time. There is no evidence to show that the accused was incapable of knowing the nature of the act at the time of

incident and this aspect has been lost sight of by the court below. The lower court was greatly impressed by the evidence of DWs 1 and 2 and also

Exts.X1 and X2 and jumped to the conclusion that in all probability at the time of incident the accused might have been insane. The necessity to

prove that the accused was seized of mental illness at the time of incident is not a matter of presumption. In short, the contention of the learned

Public Prosecutor is that the court below was not justified in extending the benefit of Section 84 IPC to the accused.

Sri. R. Krishnakumar appointed on State Brief to defend on behalf of the respondent-accused, on the other hand, contended that the court

below has analysed the evidence on record and has come to the definite conclusion that in all probability the accused must have been suffering

from mental illness at the relevant time and he was incapable of knowing the nature of act for which the court below relied on the evidence of DWs

1 and 2 and also Exts.X1 and X2. Learned counsel went on to point out that it is virtually impossible to know the state of mind of a person at a

particular point of time and one has to ascertain the same looking at his conduct before and after the incident. If that be so, the test to be applied is

to see if there is sufficient evidence to show that before the incident, for a long period, accused was under the treatment of DW1. The illness has

been diagnosed as chronic organic psychosis.

It is seen from the records, according to the learned counsel for the accused, that after the incident was over, he was treated by DW2 who

also has maintained records of treatment. Exts.X1 and X2 are sufficient to show that the accused was treated for organic psychosis. Both DWs 1

and 2 elaborated on the consequences of labouring under such a disease. Learned counsel pointed out that it was for the prosecution to place the

entire records before court and even after knowing that accused was suffering from mental illness, prosecution has pretended as if it had no idea

about the same.

Relying on the decision in State of Rajasthan v. Shera Ram alias Vishnu Dutta (, (2012) 1 SCC 602) wherein an identical situation was

considered by the Apex Court and also the consequence of prosecution in not producing the records even after coming to know that the accused

was suffering from mental illness, it is pointed out that the principle in the said decision applies with all force to the case on hand and the acquittal is

perfectly justified. In other words, the contention is that there are no grounds made out to interfere with the order of acquittal passed by the court

below.

That Purushothaman died as a result of injuries caused by accused and that PW2 also suffered injuries are not matters in dispute. In fact, court

below has found that the incident has occurred as alleged by the prosecution. That is mainly relying on the evidence of PWs 1 and 2 who are

occurrence witnesses. Among whom, PW2 is an injured witness also.

Learned counsel appearing for the accused did not dispute the incident before us but supported the findings of the court below that the

accused was incapable of knowing the nature of act committed by him and therefore he is entitled to protection under Section 84 IPC. As rightly

pointed out by the learned Public Prosecutor, being an exception, burden is on the accused. Further, being a matter within his exclusive

knowledge, it is for him to establish that he was suffering from mental illness with such an intensity and that he was incapable of knowing the

consequence of his act.

Learned Public Prosecutor may be justified in his submission that merely because the accused had undertaken treatment for mental illness prior

to the incident and also subsequent to the incident, it does not automatically lead to the conclusion that he was mentally ill at the relevant time. That

is a matter of proof. But it is virtually impossible to know the state of mind of a person at any point of time. Therefore, the law has prescribed the

test for ascertaining mental status of a person at the time of incident. That is determined on the basis of evidence adduced in the case with regard to

the actions of the accused prior, during and subsequent to the incident. If he has been undergoing treatment for mental illness and has been suffering

from mental illness of severe nature and if his conduct during the incident is abnormal and unusual and also that his subsequent conduct is of

doubtful nature in relation to the same action, the law will be justified in presuming that the accused was seized of mental illness at the relevant time.

Before going into the question as to whether the court below was justified in its conclusion, one fact will have to be noticed. We, as per

records, have seen that even during the time of investigation, accused was seized of mental disorders and he was in the mental hospital. The

Investigating Officer therefore could not be heard to say that he was unaware of the mental illness of accused at all for the simple reason that

enquiry under Section 328 Cr.P.C was conducted by the court below to ascertain the fitness of the accused to stand trial. It is discernible from the

order of committal that the accused was sent to hospital. It is only after ascertaining whether the accused could stand trial that the committal was

resorted to. We have also gone through the order of the court below and we find that subsequent to the order, the accused was sent to mental

hospital and after obtaining certificate from the hospital, trial was conducted from time to time. It would have been only just and proper for the

prosecution to produce the documents which they had come to know during investigation and enquiry and placed them before court. The total

feigning of ignorance by two Investigating Officers cannot be justified and that shows that the prosecution wanted to suppress the materials. The

prosecution cannot take advantage of its own folly and latches by saying that the burden is on the accused and that if one claims an exception, the

general principle is that burden is upon him to prove the same. In the decision cited above, the Apex Court had occasion to refer to the

consequence of the prosecution withholding a document which came to their knowledge and which would indicate that the accused was mentally

unsound. This aspect was considered in the decision in Bapu alias Gujraj Singh v. State of Rajasthan (, (2007) 8 SCC 66) wherein it was

observed as follows:

Under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing

the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is

protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the

act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that

what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law

even though he did not know that it was wrong. 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. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his

conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to

know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these

facts"".

Even assuming that the prosecution had no obligation to do so, we are satisfied that on going through the evidence especially the testimony of

DWs 1 and 2 and also Exts.X1 and X2 and also considering the nature of disease the accused was seized of, the court below was justified in

acting as it did.

It will be necessary to refer to the evidence of DW1, the doctor who had admittedly treated the patient for a long time. He was called for

senior consultation while the accused was undergoing treatment in Keerthi Hospital at Tellicherry. He says that the patient then had a complaint of

mental illness of more than 11 years and he was under the treatment of a Neurologist named Dr. Rajeev Nambiar. DW1 says that he was brought

to the hospital with complaints of violent behaviour and seizure disorders for the last five years which increased intensely during the last two years.

He also says that on examination, accused was seen in irritable mood and of suspicious nature. He further says that the patient was suffering from

persecutory delusions. He had seizure disorders and in short he had combination of psychosis with epilepsy. Ext. X1 is the case sheet produced

regarding the treatment given by DW1. It is only fair to mention here that DW1 has stated in his evidence that at the time of examination of accused

in his house, accused was not showing any violence. However, he was fair enough to say that a patient having persecutory delusions will always

have a feeling that he would be harmed by somebody. DW1 is definite that the illness i.e. organic psychosis from which the accused is suffering is

incurable but it can be managed on medication. He in no less terms says that a patient having persecutory delusions will always be suspicious and

he is unaware of the acts committed by him. DW1 further says that it is not possible to predict as to what could cause onset of the attack and what

exactly he was going to do and he would be very violent in his action during the time of attack. Organic psychosis as explained by DW1 means

psychosis caused by deformity of organs. He also says that there may be variations or fluctuations in the symptoms and intensity.

DW2 is another doctor who had occasion to examine the accused while he was under custody during investigation and he was taken to mental

hospital at Thiruvananthapuram. He examined the accused on 03.11.2007 also and issued Ext. X2. He also confirmed that accused was suffering

from organic psychologic disorder. He has no doubt that it is a major mental disorder which need long medication and it can be controlled by

taking medicines properly and if the medicines are discontinued or are withdrawn, the symptoms can easily reappear. The court below was greatly

impressed by the evidence of DWs 1 and 2 and Exts.X1 and X2 which clearly show that the accused was suffering from major mental illness. The

question is whether that can be projected as if accused was suffering from mental illness at the time of incident.

As already noticed, it is virtually impossible to ascertain the state of mind of a person at a particular point of time and it can be ascertained from

the conduct of the person before, during and after the incident. The incident occurred in a busy market area. It will indicate that the accused had

not chosen a place for mounting an attack on the deceased.

The evidence of PW1 is to the effect that there was exchange of words between the deceased and the accused and all of a sudden, the

accused took out a chopper from the plastic bag he had with him and began to chop the deceased.

PW2''s evidence is to the effect that when he tried to prevent the attack by accused he too was attacked. He would say that he saw the

accused continuing to inflict injuries on the deceased. He then leaves the place as if nothing had transpired. The evidence in this case is to the effect

that not satisfied with the above acts, accused proceeded to the house of deceased and caused a havoc there destroying almost all the household

articles.

It must be noticed here that accused had a feeling that it was due to the act committed by the deceased that he was unable to sell a portion of

his property. This appears to be too brittle a reason. Then one has to remember the evidence of DWs 1 and 2 who say that it is impossible to

predict as to what would spark off disease in the accused and what would make him violent. The manner in which he moved away from the place

as if nothing had happened shows that he did not know the consequence of his act. It would appear from records that he was cool as a cucumber

at the relevant time. This, of course, shows that he did not know the nature of act and the consequence thereof.

We have already referred to the evidence of DWs 1 and 2 and Exts.X1 and X2 which clearly show that the accused was suffering from major

mental illness causing delusions and prompting him to act in a violent manner.

After having analysed the evidence in detail and also after having considered the material aspects, the evidence of DWs 1 and 2 and also the

fact that during investigation and on enquiry and also during trial, the accused had intermittently taken to mental hospital for treatment for mental

disorder, we are convinced that the court below has not erred in any manner in giving the benefit under Section 84 IPC.

One aspect will have to be noticed in this context. We must caution ourselves that we are sitting in appeal against an order of acquittal wherein

the accused is entitled to double presumptions; first of which is that a person is presumed to be innocent unless proved otherwise and second is

that he has been found not guilty by a court. Even assuming that there may be some doubt regarding the applicability of Section 84 IPC, since the

court below which had the opportunity to watch the demeanour of witnesses and had occasion to see the accused in such a manner, had come to

the conclusion that the accused is entitled to protection under Section 84 IPC, unless it is shown that the said findings are so very perverse, this

Court will not be justified in interfering with the order of acquittal.

For the above reasons, we find no grounds to interfere with the findings of the court below.

This appeal is without merits and it is accordingly dismissed.