Kuzhiyaramadiyil Madhavan Vs. State - Court Judgment

Excerpt:
- - 4. pw-9 in his evidence as well as ext. the act at the worst could be described as a heartless act of a hot temperd man who could be easily provoked. with reference to the power under articles 72 and 161 it is stated ;needless to say that this constitutional power would override the statutory power contained in sections 432 and 433 and the limitation of section 433a of the code as well as the power conferred by sections 54 and 55, i.l. manoharan, j.1. accused was charge-sheeted under sections 447 and 302, i.p.c. learned sessions judge, manjeri found him guilty of the offence punishable under sections 447 and 302, i.p.c., convicted him and sentenced him to undergo imprisonment for life under section 302, i.p.c. no separate sentence was awarded for the offence under section 447, i.p.c. accused has preferred this appeal against the said conviction and sentence.2. cheeru amma (deceased), aged 65 was residing along with her daughter at pakkarathkunnu in karuvambram amsom, desom of ernad taluk. in the evening of january 22, 1987 pw 1, a customer of pw 3 whose tea shop is on the south-east of the house compound of cheeru amma went to the tea shop for paying dues; finding pw-3 away to his house he (pw-1) went to the house of pw-3, paid the amount, and when he reached the road that runs in front of the house compound of cheeru amma he saw accused in her compound and herself protesting that the accused should not enter her compound. but accused asking what she would do if he entered, proceeded, she pushed him; then accused stabbed her on the right side of her neck. pw-1 raised an alarm and pws. 2 and 3 came to the scene. accused left the place. cheeru amma was removed to the district hospital, manjeri, on examination, she was pronounced dead.3. pw-1 went to the police station and tendered ext. p1 f. i. statement before pw-11, sub-inspector of police. he registered a crime against the accused. pw-11, sub-inspector of police who was authorised to conduct the investigation, held inquest over the dead body of cheeru amma at the hospital; ext. p4 is the inquest report under which he seized mos. iii to vi. pw 9 conducted the postmortem; ext. p7 is the postmortem report. then he proceeded to the scene of occurrence and prepared ext. p3 scene mahazar. he arrested the accused on 2.7-1-1987 at manjeri bus stand and seized mos. vii and viii the dress worn by the accused under ext. p 8 to which pw 7 is an attestor. he questioned the accused and pursuant to the information received from the accused mo-i dagger was recovered which he seized under ext. p5. he questioned the witness and completed the investigation. pw-12 verified the investigation and laid the charge before court.4. pw-9 in his evidence as well as ext. p 7 noted an incised penetrating wound horizontally placed on the right side of the neck 3 x 1 c.m. 2 c.m. above the middle of right clavicle 6 c.m. below the angle of the right mandible and 4 c.m. outer to the midline of neck. the wound was directed downwards and medially. the external carotid artery and the external jugular vein were found severed in the supraclavicular region on the right side. he said the injury could be caused by a stab with mo-i. from the evidence of pw-9, it is clear that the death of cheeru amma was murder.5. pws. 1 and 2 are the occurrence witnesses. pw-3 saw accused coming out from the house compound of cheeru amma immediately after the occurrence. pw-1 said, at about 6 p.m. on a day in january 1987 he went to the tea shop of pw-3 for paying dues and since pw-3 was not in his tea shop, he (pw-1) went to his (pw-3) house situated on the north-east of cheeru amma's house, paid the amount, and returned through the road lying in front of cheeru amma's compound. then he saw accused going into the house compound of cheeru amma, cheeru amma protested that he should not enter her compound, but when accused proceeded asking what she would do, she pushed him. immediately accused stabbed her on the right side of her neck. receiving the injury cheeru amma sat down, and on seeing this he (pw-1) raised an alarm. he said, he went near cheeru amma. at that time pws 2 and 3 also came there and that accused went away through the road. they took the deceased to the district hospital, manjeri. on examination doctor pronounced her dead. he then went to the police station and tendered ext. p 1 f. i. statement. he identified mo-i dagger.6. pw-2 supported pw-1, he said, he is a fruit vendor, that his fruit stall is situated at manjeri -- pandikkadu road, that on 22-1-1987 at about 6 p.m. while he was returning home he went to the tea shop of pw-3 and took tea, that at that time accused came to the tea shop and called abusive words against him and pw-3 and that both he and pw-3 went out to the court yard, and pw-3 left for his house nearby. according to him on seeing one kunjippennu in the road accused showing the dagger said something to her, that at that time cheeru amma asked the accused as to why he called abusive words, that accused went towards her and cheeru amma asked him not to enter her compound, but the accused went in and stabbed cheeru amma on the right side of her neck. he said, accused ran away and that pw-1 cried that cheeru amma was stabbed.7. pw-3 also said that at about 6-6.30 p.m. accused came to his tea shop, that at that time pw-2 was also in the tea shop, that accused was having a knife with him, and he created a scene on account of which he and pw-2 went out to the court yard and he went to his house where pw-1 came and paid the dues and left. according to him when he came out of his house on hearing the alarm of pw-1 he saw the accused coming out from the compound of cheeru amma with a knife in his hand.8. learned counsel for the appellant contended that pws 1 to 3 being chance witnesses, their evidence is not acceptable. it was also contended that evidence of pws 1 to 3 itself would reveal accused was insane at the time of occurence, and hence he is not liable to be found guilty of the offence alleged against him.9. in his statement under section 313, cr. p.c. accused said that he does not remember as to what happened and that when he regained consciousness he was in the lock-up of manjeri police station. though the said statement of the accused would reveal a defence of insanity, thereby the onus of prosecution to prove the prosecution case beyond the shadow fo reasonable doubt will not be affected. when an accused raises a plea falling under section 84, i.p.c. it being in the nature of an exception the burden of proof is on him to establish the same as per section 105 of the evidence act. every person is presumed to know the law, and the natural consequence of his act; and as per section 105 of the evidence act court shall presume the absence of the exception. in such circumstance in discharging its burden the prosecution need prove the basic facts and can rely upon the normal presumption; prosecution is not bound to show that the accused at the relevant time was not insane.10. as has been noticed pws. 1 and 2 are the occurrence witnesses. pw-3 saw the accused coming out of the compound of cheeru amma with a weapon immediately after the occurrence. according to the prosecution the said evidence gets corroboration from the recovery of mo-i under ext. p5 as per the information received from the accused, and also from ext. p 8 under which mos. vii and viii, the dress worn by the accused at the time of arrest were seized. mos. i, vii and viii were sent for chemical examination along with other material objects. ext. p 2 report shows that mos. i, vii and viii contained human blood.11. the attack against evidence of pws 1 to 3 is that they are only chance witnesses. as is held by this court in the decision in state of kerala v. narayanan bhaskaran, 1992 cri lj 238 merely because there is no compelling reason for a person to be present at the time of occurrence that by itself need not necessarily mean that his evidence has to be rejected. pw-1 came to the tea shop of pw-3, finding that pw-3 was not there he went to his house situated on the north-east of the compound of the deceased, paid the amount and when he came to the road which lies in front of the compound of the deceased, he said, he saw the accused going into the compound. the testimony of pw-1 would reveal as to the occasion for him to be present at the scene when the occurrence took place. likewise, pw-2 said that he came to the tea shop on his way to his house. in village life one cannot expect a villager to move in a particular orbit. they are by habit informal. the presence of pws. 1 and 2 in a rural tea shop in the evening cannot be said to be so unusual as to be doubted. we do not see any force in the argument of the learned counsel for the appellant.12. pw 11, sub-inspector of police has sworn, he arrested the accused on 27-1-1987, at manjeri bus stand, that on questioning he disclosed as to the place where he concealed mo-i, that pursuant to the said information he along with the accused proceeded to the property of kizhakkemadath lakshmi and that from the bushes therein accused took out mo--i which he seized under ext. p 5. pw 7 the attestor to ext. p5 though turned hostile, there is method in his hostility. he admitted to his having signed ext. p 5 as an attestor. he also has admitted that the accused took out a knife and handed it over to the police, but he would say that mo-i was not the weapon. as according to him, the knife that the accused produced was having wooden handle. but mo-i also is having wooden handle. in such circumstance the evidence of pw-11 becomes acceptable. the said evidence would support and corroborate the evidence of pws. 1 to 3. adding to that, as has noticed, pw-11 seized mos. vii and viii dress worn by the accused under ext. p 8. pw 10 is an attestor to ext. p8. the fact that the dress worn by the accused had human blood stain is yet another circumstance that would corroborate the evidence of pws 1 to 3. the attack against the evidence of pws 1 to 3 is not sustainable. consequently their evidence is acceptable.13. now the question for consideration is whether there is evidence in support of the plea of insanity. every person is presumed to be sane, and the contrary has to be proved. under section 84, i.p.c. unless the accused is suffering from legal insanity, he will not be absolved from liability for his acts. a person who is incapable of knowing the nature of his act or is incapable of knowing that he is doing a wrong or is contrary to law alone could be said to suffer from legal insanity.14. as has already seen, in terms of section 105 of the evidence act it is for the accused to establish the said fact, the prosecution is entitled to rely on the presumption that every person is presumed to know the law and the natural consequence of his act. it is true the burden of proof as to insanity is not as heavy as the burden of the prosecution to prove its case beyond the shadow of reasonable doubt. but as is held by this court in ramachandran v. state of kerala, 1985 klt 1174 and in buhari v. state of kerala, 1990 (1) klt sn 29 -- case no. 30 every mental aberration cannot constitute legal insanity. every type of insanity cannot amount to legal insanity, unless it is shown that his mental condition was such that it destroyed his capacity to understand the nature of his action. the decision in aravindakshan pillai v. state of kerala, 1988 (2) klt 990 held that the disorder should be of such magnitude and degree as to destroy his volitional capacity. what is crucial in such circumstance is, his mental condition, at the time of the commission of the offence. in that regard his conduct immediately before and after the occurrence may be of relevance. if the accused has a previous history of mental disease that also would be a relevant factor in considering the probability of the case pleaded. as is held in ramachandran's case, 1985 klt 1174, aravindakshan's case, 1988 (2) klt 990 and buhari's case, 1990 (1) klt sn 29 -- case no. 30 one important factor to be remembered is, minor mental aberration, hot temperament, lack of self control or getting easily provoked are not sufficient to absolve one from the liability of his act.15. what the learned counsel for the accused high-lighted is that, pws. 1 to 3 in the cross-examination stated that they do not know whether the accused had any enmity towards cheeru amma. the point urged is, the fact that no perceivable motive is established itself would show that the accused was suffering from mental malady which would amount to legal insanity. it is too feeble a ground to be sustained under section 84, i.p.c.16. under law, when there is occurrence witnesses, motive has only an academic role to play. therefore, it is not correct to say that when there is no evidence as to motive the act should be deemed to be the act of a mad man. apart from the same the conduct of the accused at the time of occurrence and immediately after the occurrence cannot support a case of legal insanity. he stabbed cheeru amma when she protested his entering her compound. when he was obstructed, he stabbed. the act at the worst could be described as a heartless act of a hot temperd man who could be easily provoked. but that under law cannot constitute legal insanity. apart from the same both pws. 2 and 3 said, after the occurrence accused ran away from the scene; the conduct is inconsistent with that of a person who did not know the consequence of his act. taking to his heels when others collected implies that he knew what he comitted was wrong. the fact that accused had created scene even on prior occasions, that he called abusive words against pws. 2 and 3 and that he confronted kunjippennu at the most can only show his aggressive nature. pw 11 would describe the accused as a rowdy element. there is nothing in evidence to show that the accused has a histody of mental disease or that he was under treatment for the same. in such circumstance, we are unable to agree that the accused was insane at the time of occurrence.17. learned sessions judge allowed set off for the period while he was under trial prisoner. it was contended that the accused having been sentenced to undergo imprisonment for life, set off in that manner cannot be allowed. the question whether a set off under section 428 of the code can be allowed in the case of a person who is sentenced to undergo imprisonment for life arose for determination in the decision in bhagirath v. delhi administration, 1985 (3) scr 743 : (1985 cri lj 1179). the matter arose in a criminal appeal and a writ petition where the challenge was against the refusal to set off of the period of detention undergone by them as under trial prisoners. they were sentenced to undergo imprisonment for life. it was held the period of detention undergone by undertrial prisoners shall be set off against the sentence of life imprisonment subject to the provisions contained in section 433a, and provided that order has been passed by the appropriate authority under section 432 or section 433 of the criminal p.c.18. in the decision in ashok kumar alias golu v. union of india, 1991 (3) jt 46: (1991 cri lj 2483), accused who was convicted and sentenced to undergo imprisoment for life claimed premature release under the rajas-than prisons (shortening of sentences) rules, 1958 claiming that he had earned remission and wanted premature release; but his request was denied by the authorities in view of section 433a of the cr. p.c.19. he challenged the same contending that even if the provisions of sections 432 and 433 are (sic) section 433a, the same cannot override the constitutional power conferred by articles 72 and 161 of the constitution on the president and governor respectively. though the matter that arose for determination related to remission earned by the petitioner, the question of set off under section 428, cr. p.c. also was considered in the context of the contention that imprisonment for life is imprisonment for a term. petitioners sought support for the same from the decision in bhagirath's case, 1985 (3) scr 743 : (1985 cri lj 1179). the contention was the ratio in gopal vinayak godse v. the state of maharashtra, 1961 (3) scr 440 : (1961 (1) cri lj 736) has undergone a change after the decision in bhagirath's case, 1985 (3) scr 743: 1985 cri lj 1179.20. after considering the decisions in gopal vinayak godse v. the state of maharashtra (1961 (3) scr 440 : (1961 (1) cri lj 736), maru ram v. union of india, 1981 (1) scr 1196 : (1980 cri lj 1440) and bhagiratha v. delhi administration, 1985 (3) scr 743 : (1985 cri lj 1179). supreme court held that the effect of section 433a is to restrict the exercise of power under sections 432 and 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in section 433a to freedom before they have completed 14 years of actual imprisonment. but it was held, the power of the president and the governor under articles 72 and 161 respectively is not affected by section 433a of the cr. p.c. with reference to the power under articles 72 and 161 it is stated ; 'needless to say that this constitutional power would override the statutory power contained in sections 432 and 433 and the limitation of section 433a of the code as well as the power conferred by sections 54 and 55, i.p.c.'21. as to the question of set off, with reference to in bhagirath's case (1985 (3) scr 743 : (1985 cri lj 1179)) it is held: 'the court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in section 433a and, 'provided that orders have been passed by the appropriate authority under section 433 of the code of criminal procedure'. these directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as undertrial would enure to the benefit of the convict provided the appropriate government has chosen to pass an order under sections 432/433 of the code. the ratio of bhagirath's case, therefore, does not run counter to the ratio of this court in the case of godse or maru ram'. thus set off under section 428 of the cr. p.c. in the case of accused who is sentenced to undergo imprisonment for life would be subject to the provisions contained under section 433a and provided that orders have been passed by the appropriate authority under section 432/433 of the cr. p.c.in the result the appeal fails and the same is dismissed.