w w w . L a w y e r S e r v i c e s . i n



Joseph Mathai @ Jose v/s State of Kerala, Thiruvampady Police Station, Crime No.199/07


Company & Directors' Information:- N J JOSE AND CO PVT LTD [Strike Off] CIN = U55101KL1979PTC003037

Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    CRL.A. No. 507 of 2016

    Decided On, 28 November 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A. HARIPRASAD & THE HONOURABLE MR. JUSTICE N. ANIL KUMAR

    For the Appellant: S.A. Sherly, State Brief. For the Respondent: ----------



Judgment Text


N. Anil Kumar, J.

1. The appellant is the accused in S.C.No.45/2009 on the file of the Additional Sessions Judge-V, Kozhikode in Crime No.199/2007 of Thiruvampady Police Station for the offence punishable under Section 302 of the Indian Penal Code (for short 'IPC') for committing matricide. By judgment dated 12.1.2016, the learned Additional Sessions Judge-V convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months.

2. The brief facts giving rise to the instant appeal are as follows:-

The accused Joseph Mathai @ Jose, his brother PW1 John, his brother's wife PW2 Mariyamma John, his mother Mariyam and CW2 Kochuthresia (since deceased), who was the sister of Mariyam, were residents of the building bearing door No.VIII/7 of Perumalippady. According to the prosecution, as there was incompatibility between the mother of the accused and the accused, the accused started residing with his family in a building owned by him. It is further alleged that some landed properties were in the name of the mother and the accused was compelling his mother to transfer the land in his name. About eight months prior to the incident, it is alleged that the accused had inflicted a stab injury on the abdomen of his mother in connection with the property dispute. The mother was reluctant to execute documents in favour of the accused. She had expressed her strong disapproval stating that she would not be prepared to transfer her property as demanded by the accused. The denial on the part of the mother alleged to be the cause and motive for committing matricide.

3. The indictment against the accused is that at about 11.45 am on 13.12.2007, the accused out of his ill-will towards his mother Mariyam, aged 90 inflicted stab injury on the right side of her neck and inflicted blows with a stick on her head with an intention to cause death in the courtyard of the residential building bearing door No.VIII/7 at Perumalippady and thereby committed matricide.

4. For the occurrence in question, Ext.P1 FIS was lodged by PW1 who is the brother of the accused on 13.12.2007 before PW10 the Assistant Sub Inspector of Police, Thiruvampady Police Station. PW10 recorded Ext.P1 statement of PW1 and registered Ext.P1 FIR on 13.12.2007.

5. PW12 the Circle Inspector of Police, Thamarassery took over the investigation on 13.12.2007 itself. As directed by PW12, PW11 the Sub Inspector of Police, Thamarassery conducted inquest on the body of the deceased and prepared Ext.P3 inquest report in which PW6 was a signatory. Column No.11 is pertaining to the apparent cause of death. PW12 noted that the deceased died as a result of stab injury on the right side of her neck. As part of inquest, PW11 removed the clothes of the deceased and seized MO4 and MO5 from the body of the deceased. In addition to the same, PW11 seized MO6 series bath towels and MO7 walking stick found adjacent to the body of the deceased.

6. PW12 arrested the accused on 13.12.2007 in accordance with law. On being questioned while in custody, PW12 recorded Ext.P2(a) confession statement of the accused. In Ext.P2(a), the accused confessed that he had thrown away the knife and stick on the back side of the house and that if he was taken there, he would show the same. Based on the aforesaid Ext.P2(a) confession statement, PW12 proceeded to the place as led by the accused and recovered MO1 knife and MO2 series broken piece of stick as per Ext.P2 seizure mahazar. Later material objects were produced before court by Ext.P7 property list. He forwarded the material objects by Ext.P8 to the Chemical Examiner for examination and report. The Chemical Examiner submitted Ext.P9 report stating that the weapons used by the accused contained blood stains. PW12 collected material evidence for the prosecution, questioned the witnesses, recorded their statements and filed the final report before court.

7. On committal, on the basis of the materials on record, the trial court framed charge against the appellant under Section 302 of IPC to which he pleaded guilty. However, the trial court did not accept the plea of the accused and decided to proceed with the trial.

8. During the trial, prosecution examined PWs.1 to 13 and marked Exts.P1 to P10 and MOs.1 to 7 on prosecution side. On the basis of the evidence on record, the accused was questioned under Section 313(1)(b) of Cr.P.C. On being questioned under Section 313 Cr.P.C., the accused admitted that he had murdered his mother. He also admitted that the police recovered MO1 knife from him. He further stated that he pointed out MO1 knife to PW12 and accordingly, he had taken MO1 knife from the place it was concealed and was entrusted to PW12. According to him, PWs.1 and 2 hated him and branded him as an insane person.

9. The learned Sessions Judge, who conducted the trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C. The accused was called upon to enter on his defence and to adduce evidence which he might have in support thereof. On behalf of the defence, DW1 was examined and marked Exts.D1 and D1(a).

10. The trial court on conclusion of the trial and on perusal of the entire evidence, declined to accept the plea of insanity and found the accused guilty of the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- with a default clause.

11. As the accused was an indigent person and had filed this appeal through the Central Prison and Correctional Home, Kannur, Advocate Sherly.S.A. was appointed as Legal Aid Counsel from the High Court Legal Services Committee.

12. The learned counsel for the appellant, taking us through the entire evidence on record, contended that the materials before the court would eloquently show that the accused had taken up the plea of insanity at the earliest opportunity claiming benefit under Section 84 of the Indian Penal Code. The learned counsel further submitted that the answers elicited during the cross-examination of prosecution witnesses themselves and the tenor of answers given by the accused on being questioned under Section 313 of Cr.P.C. would clearly prove that there were enough materials before the court to hold that the accused was insane at the time when he had committed the act. Elaborating on the submission, learned counsel for the appellant submitted that the accused was referred to a Medical Board by the trial court to ascertain as to whether he was fit to stand trial. It was submitted that the trial court was obliged to consider the circumstances which preceded, attended and followed the act committed by the accused. Highlighting the conduct of the accused, the learned counsel for the appellant contended that when the conduct of the accused is abnormal, it is the duty of the prosecution to subject the accused to a medical examination immediately, especially during the investigation, and place before the court all the evidence that could be available to show that the accused was in a proper state of mind when he had committed the alleged offence. The learned counsel for the appellant added that the conduct of the accused at the outset would reflect fundamental disturbance in personality, thinking, emotional life, behaviour, interest and relationship with other people. As such the alleged murder, though heinous in nature, is not an offence in view of Section 84 of the IPC, it has been contended.

13. Refuting the contentions of the learned counsel for the appellant, the learned Senior Public Prosecutor Sri.K.B.Udayakumar submitted that there is absolutely no material to indicate that at the time of commission of the offence, the accused was insane. He contended that the mere insanity on the part of the accused prior or after the commission of the offence will not automatically entitle the accused to get the benefit under Section 84 of the IPC. It was also contended that the burden of proof was on the accused to show that the murder committed by him was on account of insanity.

14. Matricide is one of the rarest of reported murders and has always been considered as one of the most abhorrent crimes in the world. Mother is a mother. It is a fact. In an attempt to understand the role of the bond between mother and son in this case, it would be advantageous to take note of the relevant aspects emerging from the statement of material witnesses in requisite details. We have considered the rival contentions of the prosecution as well as the defence. Before dealing with the rival contentions of the parties, it is advantageous to peruse the opinion of the Doctor, who conducted the postmortem examination on the body of the deceased and all the material eye witnesses before court.

15. PW13, the Doctor, who conducted autopsy on the body of the deceased, had issued Ext.P10 postmortem certificate in which as many as five antemortem injuries were noted. On going through the evidence let in by PW13, we have noticed that the trial court failed to record the antemortem injuries sustained by the deceased. The court below has simply marked Ext.P10 postmortem certificate without recording the contents therein. In the above circumstances, we think it is just and proper to narrate the details of antemortem injuries sustained by the deceased as hereinbelow:-

B. INJURIES (ANTEMORTEM):

1. Incised wound 4cm long, gaping, transversely placed on the right side of neck 6 cm below the ear lobule and 1.5cm above the root of neck. The front end of the wound was 7cm to the right of midline. The margins of the wound were sharply cut. The front end of the wound was blunt and the back end was pointed with tailing for 0.2cm. The wound was directed down-wards and medially cutting the underlying subcutaneous tissues, muscles and blood vessels. The front aspect of the incised wound was deeper (depth 2cm). The wound transected the internal jugular vein completely and the common carotid artery partially at the level of ericoid cartilage. The underlying cervical vertebral bodies appeared intact.

2. Scalp contusion 7x6cm on the left aide of forehead just above the eyebrow.

3. Split laceration 1x0.4cm, oblique skull deep on the right side of top of head 6 cm above the outer end of right eyebrow and 4cm to the right of midline. The surrounding portion appeared depressed. On reflecting the scalp there was laceration over an area 4.5x2 cm, obliquely placed underneath with surrounding blood infiltration over 6.5x5cm. The right temporalis muscle was contused.

4. Lacerated wound 5cm long gaping transversely placed with slight obliquity (Right lower end and left upper end) on the back of head overlying the occipital prominence. The wound was 7cm above the hair line on either side of midline more towards the right. The injury was bone deep with bridging of soft tissues at places within the wound. The right end of the wound was 8 cm behind the root of ear. The wound margins showed abrasion, more along the lower margin of the wound. Blood infiltration seen over an area 5x4cm around the injury on reflecting the scalp.

5. Diffuse thick subarachnoid haemorrhage and subdural bleeding over both the cerebral hemisphere of brain.

Postmortem ant erosions seen on the back of right forearm (1.5x1cm), back of left forearm 17x7cm), outer aspect of left leg (17x4cm), and over the back of left calf (12x6cm). Callosities seen over the back of proximal inter phalangeal joints of both hands with healing abrasions over it on the left hand.”

16. PW13 opined that the victim died of a cut injury (incised wound) sustained to the neck involving major blood vessels, adding that she had also sustained blunt force injuries on the head producing intracranial bleeding.

17. PW1, who is none other than the brother of the accused, stated that on 13.12.2007 at 12 noon he received a telephone call at his working place to go home urgently. Immediately, he rushed home in an autorickshaw where he found several persons assembled in front of his house and his mother lying dead in a pool of blood in a coconut palm trench. While so, the accused stood on the veranda of his house possessing a stick on his hand. When PW1 attempted to proceed further, the accused threatened that he also would be done away with along with the mother. Considering the tensed situation prevailing, PW1 went to the police station and lodged Ext.P1 First Information Statement. He also stated that the accused had inflicted a stab injury about eight months ago on the abdomen of his mother in connection with the property dispute. During cross-examination, he stated that the accused had undergone treatment for mental illness for nearly 10-25 years. According to him, he was instrumental in taking the accused for psychiatric treatment.

18. PW2 is the wife of PW1. She was employed in a local school. According to her, on 13.12.2007 at 1.30 pm. PW1 informed her over telephone that his mother was not feeling well. PW1 instructed her to return home immediately. Accordingly, she reached home by 2 pm. and while so, several persons had assembled in front of their house and the body of the mother was lying in the courtyard of their residence. She also stated that a few months before the occurrence, the accused had inflicted a stab injury on Mariyam in connection with the property dispute. On cross-examination, she further stated that the accused had been suffering from mental illness for the last 10-25 years and he used to become violent without any reason whatsoever. She further stated that the accused had undergone treatment at Govt.Mental Health Centre, Kozhikode.

19. PW3 is one of the neighbours of the accused and deceased. He stated that, on 13.12.2007, he reached the place of occurrence on hearing about the incident of this case. When he reached the place of occurrence, he saw the accused standing in front of his house possessing a stick on his hand and his mother Mariyam found lying on the courtyard in a pool of blood.

20. On going through the entire evidence especially the evidence of PW1, who is not only the son of the deceased but also the brother of the accused, would convincingly establish the fact that on 13.12.2007 at about 11.45 am., the accused assaulted the deceased with MO1 and MO2 which resulted in her death. The fact that the death of Mariyam being homicidal in nature is also not in dispute. When the plea was recorded, the accused admitted his guilt. On being questioned under Section 313 of Cr.P.C., the accused categorically admitted that he had committed the murder. On the date of occurrence, when PW1 questioned the act of the accused, he threatened that PW1 also would be done away with along with his mother. The evidence tendered by PWs.1 to 3 coupled with the medical opinion of PW13, who conducted postmortem examination on the body of the deceased, gives no doubt in our mind that it was the accused and the accused alone who caused the death of his mother Mariyam on 13.12.2007 at 11.45 am. as alleged by the prosecution. However, the main question arises for consideration is as to whether the act committed by the accused is homicidal death amounting to murder or the act of the accused falls under Section 84 of the IPC.

21. The prosecution witnesses including PWs.1 and 2 clearly stated that the appellant had been undergoing treatment for insanity for nearly 10-25 years. The evidence of PW12, the Investigating Officer in this case coupled with the conduct of the accused during trial persuaded us to examine the proceedings of the trial court in order to satisfy us that there had been proper and complete appreciation of all evidence and the findings were recorded by consideration of relevant circumstances involved in this case.

22. It was brought on record that the appellant was a poor person having no income of his own. Resultantly, the trial court appointed a legal aid counsel from the Taluk Legal Services Authority for his defence.

23. It is clear from the records in this case that PW12 arrested the accused immediately after the accused assaulted his mother on 13.12.2007. When PWs.1 and 2 reached the residence where the occurrence took place, the accused was very much present there holding a stick. He went to the extent of threatening PW1 and others presented at the spot. When PW12 was cross-examined before court, he stated that he received reliable information touching the mental condition of the accused. However, he maintained that on the date of commission of the offence, the accused was not suffering from mental illness as alleged by the defence.

24. The diary extract furnished before this Court pertaining to the proceedings of the court below would show that production warrant was issued to produce the accused before the court on 07.04.2009. On that day, the learned Sessions Judge sent back the accused with a direction to produce him before the Superintendent of Mental Health Hospital, Kuthiravattom on 17.4.2009 at 10 am. The Superintendent of Mental Health Centre was directed to constitute a Medical Board on 17.4.2009 and report before the court below touching the mental condition of the accused on or before 22.5.2009. On the application of the Superintendent of Mental Health Centre, time was granted to conduct medical examination and report. Accordingly, the Superintendent of Mental Health Centre submitted a report before court on 08.10.2009 as ordered. The court below issued summons to the Medical Officer to appear before court on 11.12.2009 and to give evidence touching the mental condition of the accused. On 11.12.2009, sworn statement of the Superintendent of Mental Health Centre was recorded. On that day, the accused had expressed his inability to engage an Advocate. Hence, the court below appointed Sri.P.C.Suresh Kumar as State Brief from the Taluk Legal Services Authority. On 21.12.2009, the accused was not produced before the court below as directed. However, a report was filed before the court below stating that the accused was admitted in the Medical College Hospital due to mental ailment. On 04.01.2010, the accused was produced. The learned trial Judge recorded that the accused appeared to be not in sound state of mind. Hence, further direction was issued by the court below to produce the accused before the Govt.Mental Health Hospital, Kozhikode with a direction to examine the patient and report the matter to the court below. On 18.2.2010, the Superintendent of Medical College Hospital filed a report stating that the accused was fit to stand trial. Hence, the accused was directed to be produced before the court below on 19.2.2010. On that day, the court below issued notice to the Doctor who issued the fitness certificate to testify touching the mental condition of the accused on 23.2.2010. On that day, the court passed an order based on the evidence tendered by the Doctor that the accused was fit to stand trial. When the case came up for consideration on 02.03.2010, the accused was not produced as directed. However, a report was filed before the court below stating that the accused was admitted in the Mental Health Hospital. After several postings, the accused was produced before the court below on 20.7.2010. On that day, the learned Sessions Judge noted abnormal conduct on the part of the accused. After recording the abnormal conduct, the case was adjourned to 30.7.2010. On that day, the accused was produced. However, the accused had shown signs of abnormality. Hence, the court below again issued notice to the Doctor who issued fitness certificate. On 21.8.2010, the accused was produced. The Doctor was summoned and examined in the presence of the accused. He had stated that the accused was fit to stand trial though he was having many physical problems. Relying on the evidence of the Doctor, the trial court heard the learned counsel for the accused and the learned Public Prosecutor on the charge. The learned Sessions Judge recorded that the accused answered something without understanding the contents. After hearing the statement of the accused, the court referred the case to the Medical Board. The accused was initially admitted in the Medical College Hospital, Kozhikode and thereafter admitted to Mental Health Centre, Kozhikode. After the lapse of several postings, a report was filed before the court below on 31.12.2010 stating that the accused was fit to stand trial. In the report it was stated that the accused was physically not stable. Thereafter, the Doctor submitted certificate stating that the accused was physically stable. On 16.7.2011, the court below issued notice to the Doctor to appear before the court. On the very same day, Advocate T.Sheela was appointed as the Legal Aid Counsel from the Taluk Legal Services Authority. On 18.7.2011, the court recorded the evidence of the Doctor and found that the accused was fit to stand trial. The court also framed charge against the accused and the case was posted to 24.8.2011 for trial. In the meanwhile, on 08.08.2011, the trial court received a letter from the Superintendent, District Jail stating that the accused needed treatment for mental illness. Accordingly, the court below called for a report touching the mental condition of the accused on or before 18.8.2011. On 18.8.2011, a report was received from the Mental Health Hospital stating that the accused was not fit to stand trial. He was admitted as an inpatient in the Mental Health Centre, Kozhikode. Hence, trial could not be conducted as scheduled. Accused underwent treatment for mental illness for a considerable long period at the Mental Health Hospital, Kozhikode. After the lapse of nearly 3 years, the court below received a report from the Superintendent, Mental Health Hospital, Kozhikode on 30.9.2014 stating that the accused was fit to stand trial. On 20.1.2015, the case was posted for preliminary hearing. Despite direction issued by the court to produce the accused on that day, the accused was not produced as directed. Hence the court issued direction to produce the accused on 18.2.2015. On that day, the learned Public Prosecutor filed an application stating that the accused was still suffering from mental illness and it would be desirable to ascertain his mental condition before starting the trial. Accordingly, the court referred the patient to the Mental Health Centre, Kozhikode for examination and report. On 03.06.2015, the Medical Board examined the accused and submitted a report stating that he was fit to stand trial. Hence, after hearing both sides, charge under Section 302 of IPC was framed against the accused on 27.6.2015 and issued summons to the witnesses.

25. It is obvious from a bare reading of the diary extract stated above that the accused had been suffering from mental illness during the pendency of the case before the court below until 27.6.2015. Reverting to the facts of the above case, it may be noted that witnesses PWs.1 and 2 for the prosecution including PW12 the Investigating Officer stated that the accused had been suffering from mental illness before the date of occurrence. The conduct of the accused in his statement under Section 313 of Cr.P.C. would eloquently show that he was having mental disorder. In addition to the same, the accused adduced evidence seeking benefit of Section 84 of IPC both documentary as well as oral, in support of his claim.

26. DW1 Doctor Sivadasan.K.K., Consultant and Deputy Superintendent of Mental Health Centre produced Ext.D1 file to show that the accused was suffering from schizophrenia. Ext.D1 would show that Joseph Mathai, aged 57 was admitted in the Govt.Mental Health Centre, Kozhikode on 05.12.2007. It is recorded therein that Joseph Mathai is a known psychiatric patient getting treatment from Govt.Mental Health Centre, Kozhikode. It is further recorded therein that he was in an unmanageable condition. Mental state and general behaviour including appearance and mannerisms are recorded in Ext.D1(a). Persecutory delusion is noted in Ext.D1 as the mental condition of the accused as on the date of examination. Dictionary wise, the word 'persecutory delusion' means a set of delusional conditions in which the affected person believe that he is being persecuted. His mood on the date of examination is recorded as irritable/euphoric. Ext.D1(a) would show that the case of the accused was an old one and he underwent treatment at H3 unit of Govt.Mental Health Centre, Kozhikode earlier. On going through the evidence of DW1 and Exts.D1 and D1(a), it is clear that the accused had been suffering from mental insanity even prior to the date of occurrence in this case.

27. Before we proceed to analyse the rival submissions, it is apposite to restate the settled legal position about matters to be considered for deciding the benefit under Section 84 of the IPC. The law presumes that every person committing an offence is sane and is liable for his acts, though in specified circumstances it may be rebuttable. The doctrine of burden of proof in the context of the plea of insanity has been considered by the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563]. The Supreme Court held as follows:-

“(1) xxx xxx xxx

(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the IPC: the accused may rebut it by placing before the court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.”

28. Section 84 of the IPC provides an exception that an act will not be an offence, if done by a person who, at the time of doing the same, 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. Under Section 105 of the Indian Evidence Act, when a plea of insanity is raised by the accused, the burden is on the accused to substantiate the plea.

29. In Ratan Lal v. State of Madhya Pradesh [(1970) 3 SCC 533], the Supreme Court held as follows:-

“2. It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused.”

30. On going through the oral evidence of PW12, it is clear that no investigation was conducted touching the background of the appellant's mental illness. In Ext.P1 First Information Statement, PW1 had clearly stated that the appellant had been suffering from mental illness. Despite learning the fact that the appellant was suffering from mental illness for a considerable long time, PW12 did not probe into the matter further. The facts in the present case persuade us to believe that the prosecution has deliberately omitted to conduct investigation with regard to the appellant's mental illness. In 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)], the 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.........”

31. In the case of Surendra Mishra v. State of Jharkhand [(2011) 11 SCC 495] the Supreme Court, while determining an offence under Section 84 of IPC, opined that it is the totality of the circumstances seen, in the light of the evidence on record, which would prove that the appellant in the said case was suffering from insanity. The court added that it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Going by the evidence including the conduct of the accused during trial, we are satisfied that the accused was suffering from mental illness before the incident, at the time of the incident and after the incident in this case.

32. In Vijayee Singh & others v. State of U.P. [(1990) 3 SCC 190], the Supreme Court held as follows:-

“26....................... But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.”

33. Applying the principles of law laid down by the Apex Court to the facts of the case including the evidence of eye witnesses to whom we have already adverted to, the defence evidence adduced by DW1, Ext.D1 and Ext.D1(a) and also the report of the Medical Superintendent of the Mental Health Hospital, Kozhikode during the pendency of the proceedings, we are of the view that the appellant is entitled to the benefit of exception under Section 84 of the IPC. We are also satisfied that the appellant had acted on account of unsoundness of mind. The appellant was also suffering from mental illness prior to the occurrence. The manner in which the crime was committed by the accused, the accused standing in front of the house with a stick in his hand and shouting that if PW1 moved an inch further he would also be done away with, no attempt of concealment or running away from the spot immediately after committing the occurrence and his conduct during trial including his admission of guilt are sufficient to indicate that the accused was of unsound mind and that he was incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. In view of the overwhelming evidence, the conviction on the appellant for the offence under Section 302 of IPC is unsustainable. However, we have reasons to believe that the accused committed the act, which, if he had been of sound mind, would have been an offence of murder and that he was, at the time when the act was committed, by reason of unsoundness of mind, incapable of knowing the nature of the act that it was wrong. In other words, we find that the accused had committed the acts in question namely, the assault on his mother resulting in her death but for the case of the accused falling under Section 84 of the IPC, the said act would have been an offence of murder.

34. We have taken into account the trial court proceedings in this case. The occurrence in this case was on 13.12.2007. The trial commenced before the court below on 27.6.2015. The case had been pending before the court below for nearly 8 years. On a perusal of the records in this case, it is clear that the trial court was fully aware regarding the mental condition of the accused. It has come out in evidence that during the pendency of the case, learned Session Judges changed one after the other, but the plight of the accused, who had been suffering from mental illness, continued for nearly 8 years. Despite the fact that the accused had been suffering from serious mental illness, the learned Sessions Judges, who dealt with the case, did not make any attempt to solve the issue appropriately.

35. Under Section 329 of Cr.P.C, if at the trial of an accused before a court of session, it appears to the court that such person is of unsound mind and is consequently incapable of making his defence, the court shall, at the first instance, try the fact of such unsoundness and incapacity and if the court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceeding in the case. Section 330 Cr.P.C. mandates the steps to be taken for the care or safe custody of such accused. Sections 331 to 333 Cr.P.C. provide that the enquiry or trial, as the case may be, can be resumed only after the accused has fully recovered from insanity. In the case at hand, the accused was remanded to jail during the pendency of the proceedings before the court below though the court was fully aware that the accused had been suffering from insanity. It was further brought out that the medical certificates were issued mechanically stating that the accused was fit to stand trial. Despite various certificates issued by the medical experts, the plight of the accused continued without any change whatsoever. In Machindra v. Sajjan Galfa Rankhamb & others [(2017) 13 SCC 491], the Supreme Court held as follows:-

“16. ….......Expert's opinion should be demonstrative and should be supported by convincing reasons. The court cannot be expected to surrender its own judgment and delegate its authority to a third person, however great. If the report of an expert is slipshod, inadequate or cryptic and information on similarities or dissimilarities is not available in the report of an expert, then his opinion is of no value. Such opinions are often of no use to the court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of prosecution.”

36. Looking at the facts and circumstances of the case, we are of the view that the trial court failed to apply its mind for arriving at a right decision.

37. In view of Sections 329 to 331 of Cr.P.C., we are of the view that there is non-compliance of the above provisions by the trial court. The learned trial Judge should have applied the provision under Section 329 of Cr.P.C. when the trial court recorded statement of the accused under Section 313 Cr.P.C. All the answers given by the accused were irrational and illogical in nature. His conduct was eloquent. However, he was again sent to jail pending proceedings. In fact, the trial itself was vitiated. We would have remanded the case to the trial court for fresh consideration in the light of the fact that the court below convicted and sentenced an accused who was suffering from mental illness on the date of pronouncing the judgment. Having considered the fact that this case has been pending for the last more than 12 years and that the accused has been in jail, no purpose will be served in remanding the matter to the court below at this point of time. Further, the evidence adduced in this case is sufficient to indicate that the accused was suffering from mental illness on the date of occurrence.

38. We have also noted that the trial court has conducted the trial in this case in a casual manner. When PW13, the Doctor, who conducted the postmortem examination, was examined, the trial court has straight away marked the postmortem report without recording the details of antemortem injuries and finding of the Doctor. In criminal cases pertaining to offences against human body, medical evidence has a decisive role to play. A medical witness, who performs a postmortem examination, is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by the Supreme Court in Nagindra Bala Mitra & another v. Sunil Chandra Roy & another (AIR 1960 (SC) 706) as follows:-

“43. Further, the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also an independent testimony, because it may establish certain facts, quite apart from the other oral evidence.”

In view of the dictum in Nagindra's case (supra), we are of the view that the trial courts are bound to record the contents of postmortem certificate pertaining to offences against human body when medical witness is examined before court.

39. The justice delivery system may not perform its duties effectively unless knowledge and skills of the judicial officers are periodically upgraded by appropriate education and training in a systematic manner. We have come across several cases where the learned Sessions Judges have recorded evidence of the medical witness without recording the contents thereof. To upgrade the requisite skill, knowledge, attitude of the judicial officer to record evidence, it is imperative to equip the judicial officers not only the methods to record deposition of witnesses but to endow them with vision as to what is expected of the hierarchy which they serve. In such a hierarchy, if the court fails to record evidence in accordance with law, it is not only forced to lower the dignity and majesty of the court, but it may tend to shake the faith and trust of the litigant, who is the most important stakeholder, in the justice dispensation system.

40. It has come out in evidence that the accused had been suffering from schizophrenia. On delusion affecting the behaviour of a patient, he is a source of danger to himself and to others. Section 335 of Cr.P.C. has its thrust mainly towards the interest of the society in general. The Section at the same time seeks to protect such accused from harming himself. No doubt, the paramount interest of the society shall not be sacrificed at the cost of a person suffering from insanity. As already indicated, even if there is no criminal liability in view of Section 84 of IPC, the accused has committed the act which resulted his mother's death. In the circumstances, it is dangerous to let go such person freely in an orderly society without imposing suitable conditions as future chance of recurrence of lunacy in such cases may not be ruled out in which event the society will be in danger. The court cannot assume the fact that if such person is let off freely, he would not repeat similar dangerous acts or would not harm himself.

41. Judged by the provisions contemplated under Sections 335 and 338 of the Code of Criminal Procedure, we are of the view that the appellant is to be detained in safe custody in terms of Section 335(1)(a) of the Code of Criminal Procedure. Considering the fact that schizophrenia is a dangerous mental illness, we are of the further view that at this stage, it is not in the interest of justice to deliver the appellant for the time being to any relative or friend of the appellant as provided under Section 335(1)(b) of the Cr.P.C.

42. Section 335 of the Cr.P.C. gives two options to the Magistrate or court before whom or which the trial had been held to deal with such person in accordance with clauses (a) and (b) to subsection(1) under which such person is ordered to be detained in safe custody in such place and manner as the Magistrate or court thinks fit, or he may be ordered to be delivered to any relative or friend of such person. Subsection (4) of Section 335 provides that the Magistrate or court shall report to the State Government, the action taken under subsection (1). Sectio

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n 336 of Cr.P.C. gives the power to the State Government to empower the officer in charge of the jail in which a person is confined under the provisions of Section 330 or 335 to discharge all or any of the functions of the Inspector General of Prisons under Section 337 or Section 338 of the Code. Section 338 deals with the procedure where the prisoner with mental illness is detained under the provisions of subsection (2) of Section 330 or Section 335 and such Inspector General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person, the State Government may thereupon order him to be released, or to be detained in custody or to be transferred to a public lunatic asylum (at present Mental Health Establishment) if he has not been already sent to such an asylum; and, in case it orders him to be transferred to an asylum, may appoint a commission, consisting of a judicial and two medical Officers. Subsection (2) provides that such commission shall make a formal inquiry into the state of mind of such person, take such evidence as is necessary, and shall report to the State Government, which may order his release or detention as it thinks fit. Section 339(1) of Code provides that whenever any relative or friend of any person detained under the provisions of section 330 or section 335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of the State Government, that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person; be produced for the inspection of such officer, and at such times and places, as the State Government may direct. 43. In the result, we set aside the conviction and sentence entered against the appellant under Section 302 of IPC. We find that the appellant has committed the act of stabbing and assaulting the deceased with MO1 knife and MO2 stick resulting in her death for the foregoing reasons stated in the judgment. We, therefore, acquit the appellant on the ground that, at the time at which he is alleged to have committed the offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged, or that it was contrary to law. We direct that the appellant shall be kept in safe custody for the present as provided under Section 335 of the Cr.P.C. Sub-section (2) of Section 335 provides that the order for detention shall be in accordance with the rules framed by the State Government under the Lunacy Act, 1912. As the Lunacy Act, 1912 is not in force at present and it has been repealed and the relevant Act in force is the Mental Healthcare Act, 2017, we find that the latter Act is applicable in this case. We, therefore, direct that the appellant is to be detained in one of the mental health establishments in the State in accordance with the rules, if any, framed by the State Government. It is open to the State Government to direct the appellant to be delivered to any of his relatives or friends in accordance with law. A copy of this judgment shall also be sent to the Director General of Prisons and the Secretary, Home Department, Government of Kerala in terms of Section 335(4) for taking further action in terms of Sections 338 and 339 of the Cr.P.C. The said authorities are directed to submit a report of action taken by them from time to time before the trial court within three months from the date of receipt of a copy of this judgment. The court below is directed to take further follow up action and issue necessary orders in the best interest of the appellant in accordance with Chapter XXV of the Cr.P.C. 44. The Criminal Appeal is allowed. The conviction and sentence imposed against the appellant by the trial court for the offence punishable under Section 302 IPC stand set aside. The accused stands acquitted subject to Section 335(1)(a) of Cr.P.C. as stated above. Before parting, we direct the Registry to send a copy of this judgment to the Director, Kerala Judicial Academy for appropriate necessary action. We also direct the Registry to forward a copy of this judgment to the trial Judge, who passed the impugned judgment wherever he is, for future guidance.
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