JUDGMENT
N. Dhinakar, J.
1. The sole appellant, who in the judgment will be referred to as “the accused”, challenges his conviction and sentence. He was tried before the learned Sessions Judge, Nagercoil, on a charge of murder and the allegation against him in the charge is that, at 5.00 p.m. on 21.2.1991, he caused the death of Sreekumar aged about 14 years. The learned trial Judge, on the recorded evidence, both oral and documentary, found him guilty and sentenced him to imprisonment for life and aggrieved by the said conviction and sentence, the present appeal is filed.
2. The facts necessary to dispose of the appeal, clipping out unnecessary details, can be briefly summarised as follows:-
P.W.1 with his son, the deceased in the case, was residing at Killiyur. P.Ws.2 and 3 are the villagers. The deceased, Sreekumar, during the relevant period, was studying in a school and on the date of incident, he returned to the house from the school at about 4.30 p.m. After returning from the school, he took goats for grazing them. Some of the goats, which the deceased was grazing, went and damaged the crops in the lands of the accused. On seeing the deceased grazing the goats, the accused abused him in filthy language and questioned the deceased as to how he could graze the goats in his lands and thereafter, indiscriminately cut him with a vettukathi, M.O.1. The occurrence was witnessed by P.Ws.1, 2 and 3. After cutting the deceased, the accused ran away from the place. P.W.1 accompanied by others took the injured, Sreekumar, to Karungal Police Station and narrated the incident to P.W.11, the Sub Inspector of Police. P.W.11 reduced the oral statement of P.W.1 into writing. The said statement is Ex.P.1. P.W.11 registered a case in Crime No. 98 of 1991 and sent the injured, Sreekumar, to the hospital with a memo.
3. Sreekumar was produced before P.W.6, the Casualty Medical Officer, Government Hospital, Colachal, at 6.45 p.m. with a memo and on examining him, the doctor found the following injuries:-
1. A clean incised gaped wound of about 7x3x1 cm obliquely placed with severe bleeding over forehead right side including right cheek.
2. A clean incised wound of about 7x1x1 cm vertically placed with severe bleeding over scalp back.
3. A clean incised wound of about 7x1x1 cm vertically placed over scalp left side.
4. A clean incised wound of about 7x1x1 cm vertically placed over scalp left side.
Ex.P.6 is the copy of the accident register. As the condition of Sreekumar was serious, he was referred to Government Hospital, Kottar and accordingly, Sreekumar was taken to Kottar and produced before Dr. Manoharan, Casualty Medical Officer, at 7.20 p.m. Ex.P.7 is the case sheet for the deceased and Ex.P.8 is the copy of the accident register issued by the hospital authorities. P.W.7, the doctor at Government Hospital, Kottar, examined the injured, Sreekumar at 8.00 p.m. and gave him treatment; but in spite of the treatment, Sreekumar, unfortunately, died at about 5.30 p.m. on 22.2.1991. The death intimation, Ex.P.9, was sent to the police authorities.
4. In the meantime, P.W.11, who registered the crime against the accused under Section 326 IPC. took up investigation and reached Colachel hospital with a view to record the statement of Sreekumar; but was informed by the medical authorities that Sreekumar was sent to Government Hospital, Kottar. He, thereafter, proceeded to Kottar and was informed that Sreekumar is undergoing surgery. M.O.2, the trouser of the injured, Sreekumar, on being produced by his mother, P.W.1, was seized. P.W.11 left the hospital and reached the scene of occurrence and on the morning of 22.2.1991, prepared an observation mahazar, Ex.P.2 and seized M.O.3, blood-stained earth and M.O.4, sample earth, under a mahazar Ex.P.3 attested by witnesses. The rough sketch, Ex.P.13 was prepared. He questioned P.Ws.2, 3 and others. Their statements were recorded. He searched for the accused at Ironipuram, Tholaiyavettai and other places; but could not apprehend him. The death intimation, Ex.P.9, was received by P.W.11 and thereafter, the crime was altered to one under Section 302 IPC. Ex.P.14 is the express report. The higher officials were informed and investigation was taken up by P.W.12, Circle Inspector of Police, Colachel.
5. P.W.12, on taking up investigation in the crime, reached Government Hospital, Nagercoil, where, between 6.00 a.m. and 9.00 a.m. on 23.2.1991, conducted inquest over the body of Sreekumar in the presence of Panchayatdars and at the time of inquest, P.Ws.1 to 3 were questioned and their statements were recorded. Ex.P.15 is the inquest report and after the inquest was over, the body was handed over to a Police Constable with a requisition to the doctor for conducting autopsy.
6. On receipt of the requisition, P.W.8, Assistant Surgeon attached to Government Headquarters Hospital, Nagercoil, conducted autopsy on the body of Sreekumar and found the following injuries:-
1. Linear vertical sutured wound about 7 cm just in front of right ear passing upwards to the right parietal region of the scalp.
2. Linear vertical sutured wound about 7 cm on the right side of occipital region of the scalp.
3. Linear vertical sutured wound 7 cm on the left side of the occipital region of the scalp. On exploration of the above three wounds the underlying bones fractured correspondingly. Few bits of bone missing in fractured area. Margins of the fractured bones irregular. Underlying brain matter lacerated. Blood clots collected under the skull and within the brain. In additional muscles of the scalp laceration in the 1st wound.
The doctor issued Ex.P.11, the post-mortem certificate, with her opinion that the deceased died on account of head injury.
7. P.W.12, continuing with his investigation, examined the witnesses, who were earlier examined by the Sub Inspector of Police, P.W.11 and as they did not divulge any new fact, their further statements were not recorded. On an information received, he proceeded to Munjirai bus stop and arrested the accused in the presence of P.W.5. The accused was questioned. He gave a statement. In pursuance of the admissible portion, Ex.P.4, given by the accused, the police party was taken to the property of Paulraj and from underneath a coconut tree, which was behind the compound, M.O.1, knife, was taken out and produced, which was seized under a mahazar Ex.P.5 attested by witnesses. The accused was brought to the police station and locked up. On the next day, the accused was sent to Court for remand and the knife was shown to the witnesses and their statements were recorded. On 24.2.1991, he showed the knife to the doctor, P.W.8, who conducted autopsy and examined her. The material objects were forwarded to the Court with his requisition, Ex.P.16, requesting the Court to forward them for analysis. Exs.P.17 and 19 are the reports of the chemical analyst and Exs.P.18 and P.20 are the reports of the serologist. The final report was filed against the accused after the examination of witnesses on 27.4.1991.
8. The accused was questioned under Section 313 of the Cr.P.C. on the incriminating circumstances appearing against him. He denied all the incriminating circumstances and stated that he was admitted as an in-patient at Kilpauk Medical Asylum and only after his coming home from the hospital, after discharge, he came to know about the incident, on being informed by the neighbours. He examined D.W.1 on his side. D.W.1 has, in her evidence, stated that she was running a private hospital at Trivandrum under the name and style “J.J. Hospital” and according to her, she gave treatment to the accused from 10.2.1990 to 22.2.1990 and that the accused was suffering from recurrent Mania, which is a mental illness and that the patient having such illness will not be knowing what he is doing. She has further stated that the patient continued treatment and she discharged the accused, as his relatives wanted him to be discharged. She further claimed in her evidence that on the date of his discharge, the accused was not fully cured. In short, the plea of the accused is insanity and that he is entitled for the benefit of Section 84 IPC.
9. The learned counsel appearing for the appellant/ accused strenuously contends before us that in view of the evidence of the doctor, D.W.1 and in view of the additional typed set of papers filed before this Court by the appellant, the Court should give the benefit of Section 84 IPC. to the accused. In the additional typed set of papers, a medical certificate issued by D.W.1 and a letter of the Superintendent, Central Prison, Palayamkottai, dated 5.7.1993 as well as some prescriptions are filed. The learned counsel submits that in view of the letter, dated 5.7.1993, of the Superintendent, Central Prison, Palayamkottai, addressed to the wife of the accused, it can be safely said that the accused, Chellan, was mentally ill, since the letter indicates that on the advice of the doctor, the accused, Chellan, was sent to Kilpauk Mental Hospital on 1.7.1993 and that if she wants to see her husband, she can go to the hospital at Madras. We have heard the Additional Public Prosecutor on the above contentions.
10. The cause of death of Sreekumar is not in dispute. The doctor, P.W.8, who conducted autopsy, in her evidence before the trial Court, stated that the deceased died on account of the head injuries and that they are sufficient in the ordinary course of nature to cause death. On the medical evidence, we hold that Sreekumar died on account of homicidal violence. The said fact is also not disputed by the accused.
11. The occurrence, according to the prosecution, was witnessed by P.W.1, the mother of the deceased, Sreekumar, and P.Ws.2 and 3, the neighbours. It is the evidence of P.W.1 that the deceased, Sreekumar, who was aged about 14 years, after he returned from his school, went out taking the goats to grace them and when some of the goats trespassed into the lands of the accused, the accused took the deceased, Sreekumar, to task for allowing the goats to destroy his crops and thereafter, cut him. The evidence of P.W.1 is supported by P.W.2 as well as by P.W.3. In fact, the only suggestion made to the witnesses is that the accused was mentally ill and no other material was brought forth from their evidence to indicate that the witnesses had a grievance against the accused to give false evidence. On going through the evidence of P.Ws.1 to 3, which is supported by the medical evidence, as brought out from P.Ws.6, 7 and 8, we find no reason to reject their evidence and accordingly, accept the said evidence and hold that the deceased, Sreekumar, was inflicted with fatal injuries by the accused.
12. The only contention of the learned counsel is that the case of the accused will fall under Section 84 of the Indian Penal Code, since, according to the counsel, the accused was incapable of understanding the nature and consequences of his act and therefore, is to be acquitted. In support of his plea, he drew our attention to the evidence of D.W.1. We have already extracted the evidence of D.W.1 in the earlier part of the judgment. In her evidence, though D.W.1 has claimed that she treated the accused at her hospital from 10.2.1990 to 22.2.1990, she did not produce any document to substantiate her oral evidence. In cross-examination, she has admitted that in her hospital they have registers to show the names of the patients, who come to the hospital for treatment with particulars of date, month and year. She went on to admit that she cannot produce any document to show that she had given treatment to the accused, Chellan, during the period between 10.2.1990 and 22.2.1990 and also admitted that she did not know the mental condition of the accused, Chellan, on 21.2.1991. The evidence of D.W.1, therefore, shows that it is not of any use to the defence to establish that the accused was suffering from mental illness and therefore, committed the act by reason of his unsoundness of mind and he was not capable of knowing the nature of the act or that he is doing what is either wrong or contrary to law, as contemplated under the above said section.
13. At this juncture, we cannot, but, refer to the suggestion made to P.W.1 by the defence. It was suggested to P.W.1 that the accused was treated at Government Hospital, Thiruvananthapuram and therefore, he was mentally ill during the relevant period. If, according to the defence, the accused was treated at Government Hospital, Thiruvananthapuram, for any mental illness, then there could not have any difficulty for the defence to have summoned the documents from Government Hospital, Thiruvananthapuram, to substantiate their claim that the accused was mentally ill and was treated at Government Hospital, Thiruvananthapuram.
14. Section 105 of the Evidence Act contemplates that the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon the accused and the Court shall presume his absence in such circumstances and Section 106 of the said Act contemplates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is to be stated that though the burden is upon the accused to prove that he was mentally ill during the relevant period, viz., 21.2.1991, he did not discharge his burden at least by preponderance of probabilities.
15. The contention of the learned counsel that the accused was sent from the jail by the Superintendent, Central Prison, for treatment of mental illness is not supported by any document and even if it is to be presumed that the accused was sent to the hospital for treatment, there is no material to indicate that on the date of incident, viz., on 21.2.1991 he was suffering from mental illness and that he committed the offence without knowing the nature or consequences of his act. Similarly, the letter dated 5.7.1991 written by the Superintendent, Central Prison, Palayamkottai, addressed to the wife of the accused also will not go to show that the accused was mentally ill on 21.2.1991 and at best, the said letter will only show that on 1.7.1993, the accused had been sent to Madras for his treatment.
16. At this juncture, we have to refer to the evidence of P.W.1. The evidence of P.W.1 is that after her son, Sreekumar, returned from the school, he went out of the house taking the goats with him to graze them and few of the goats went astray by trespassing into the lands of the accused. The goats, which trespassed into the land of the accused, destroyed the crops by eating them and the accused went there and questioned the deceased, Sreekumar, who was aged about 14 years and when he did not reply, he was cut. The evidence of P.W.1, therefore, shows that the accused knew that the deceased, being careless, has allowed the goats into the fields and on account of such carelessness, the crops were damaged and that the accused also abused the deceased in filthy language and when the deceased kept mum, he was cut, which shows that the accused was conscious of his act. The words attributed by the accused and the conduct of the accused in questioning the deceased as to why he allowed the goats to trespass into the lands, since they have destroyed the crops, show that the accused knew the nature of the act of the deceased and therefore, it is very difficult for this Court to assume that he did not know the nature of his act of cutting and its consequences. In fact, the accused was not available in the village and had to be arrested at a later point of time during the course of investigation and if the accused did not know the consequences of the act, he would not have absconded.
17. In view of the above discussion, we find it difficult to bring the case of the accused under Section 84 of the IPC. to hold that he was mentally ill on the date of incident and that the murder was committed by the accused without his understanding the nature or consequences of the act. The appeal, therefore, deserves to be dismissed and it is, accordingly, dismissed.