BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU Criminal Appeal No.360 of 2003 Maluku Mohamed ... Appellant Accused vs. State, by Inspector of Police, Boothpandi Police Station, Boothpandi, Kanyakumari District. Cr.No.720 of 1999. ... Respondent Complainant Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Principal Sessions Judge, Kanyakumari District at Nagercoil, dated 31.01.2003, in Sessions Case No.110 of 2000. !For Appellant ... Mr.S.Shanmugavelayutham ^For Respondent ... Mr.K.Radhakrishnan, Additional Public Prosecutor. :JUDGMENT
(Delivered by P.D.DINAKARAN,J.)
I – JUDGMENT 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 31.01.2003 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 under Section 341 I.P.C., imprisonment for life with a fine of
Rs.1000/- in default to undergo rigorous imprisonment for six months under
Section 302 I.P.C. and rigorous imprisonment for two years under Section 324
I.P.C. The sentences were directed to run concurrently.
II – CHARGE
2. 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 under Section 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 under Section 302 I.P.C.; and also attacked P.W.1
on his head with the same weapon and caused simple injury, which is punishable
under Section 324 I.P.C.
III – CASE OF THE PROSECUTION
3. 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 abut 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. When 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.” x 1.” 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.P14.
(e) P.W.9 also treated P.W.1 for the injuries sustained by him and issued
an accident register, Ex.P15, certifying that the injury sustained by P.W.1 was
simple in nature.
(f) On receipt of Ex.P14, 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
am, 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.P11, 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 under Section 302 IPC. 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.
1. An antero posterior, sutured lacerated injury seen on the top of head, 17 cm
above the root of nose, measuring 11cm x 1cm x bone depth.
On dissection of scalp, skull and dura, sub scalpel contusion seen on the
frontal, mid parietal and occipital regions, measuring 25cm x 20 cm. Fracture
of skull, left tempero parietal bones, 11 cm 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. 5cm x
3cm x 2cm and laceration of cerebella hemispheres. 3cm x 2cm x 2cm each seen.
Fracture base of skull, left middle cranial fossa, 3cm in length present.
2. Abrasions seen in the following areas:
i) Back of right shoulder, 2cm x 2cm.
ii) Middle of front of left thigh, 3cm x 3cm.
iii)Right knee, 2cm x 2cm.
iv) Right middle toe, 1cm x 1cm.
v) Inner aspect of right foot, near base
of big toe, 1cm x 1cm.
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.
(l) 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.P24. Pursuant to the confession
statement of the accused, rice pounder, M.O.3, was recovered under mahazar,
Ex.P25, 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.P1 to P25 and marked M.Os.1 to 6.
IV – DEFENCE
4. When the accused was questioned under Section 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 know 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 07.02.1998
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
5. 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 IPC, as, at 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 PW1, 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 IPC, seeks modification of the conviction and sentence under
Section 302 IPC and pleads for alteration of the same into one under Section
304(i) IPC.
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 IPC, 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 pre-planned 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 IPC 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
8. 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
was 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 under Section 84, IPC. Section
84 IPC reads as follows:
“84. 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, 11.01.1998,
22.01.1998 and 07.02.1998. D.W.2, Dr.Nagarajan, deposed that he treated the
accused from 23.07.2000 to 20.08.2000 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 07.02.1998. 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, IPC,
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, IPC deserves 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 IPC and
convict him under Section 304(i), IPC.
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, IPC for the injury caused on P.W.1.
IX – DECISION
10. In the result, the conviction and sentence imposed on the accused
under Section 302 IPC are set aside and instead he is convicted under Section
304(i) IPC and sentenced to undergo rigorous imprisonment for seven years and to
pay a fine of Rs.1000/- and a compensation of Rs.5000/-, 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
Section 341 and 324 IPC 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.
ATR/gb/kpl
Copies to:
1. The Principal Sessions Judge,
Kanyakumari District at
Nagercoil.
2. The Inspector of Police,
Boothpandi Police Station,
Boothpandi, Kanyakumari District.
3. The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.