M.M. Pareed Pillay, J.
1. The appeal is filed against the conviction and sentence entered against the appellant (accused) by the Sessions Judge Palghat in S.C. 58/1980. The appellant was found guilty under Section 302 of the I.P.C. and he was convicted and sentenced to undergo imprisonment for life.
2. The prosecution case is that Devaki Antherjanam, a widow was residing alone at Kizhakkekalam in Trippalamunda amsom and that accused who is one of the sons of Kesavan Namboodiri (brother-in-law of the deceased) went to her house on 19-6-1980 at about 9 a.m. and inflicted injury on her head with a chopper resulting in her death. Immediately after the incident, accused confessed to P.W. 1 that he committed the murder of Devaki Antherjanam. P.W. 1 went to the police station and lodged the first information statement. Accused who went to the police station was arrested by P.W. 18, Sub Inspector. P.W. 18 took the accused to his house and as pointed out by him M.O. 8 thorthu was seized. P.W. 19, Circle Inspector verified the investigation done by P.W. 18 and also interrogated witnesses. P.W. 17 prepared the plan Ext. P. 11. P.W. 15 conducted the autopsy and issued Ext. P7 post-mortem certificate. P.W. 16, Addl. Judicial Magistrate of the first class, Palghat recorded the confession of the accused.
3. On the prosecution side P.Ws. 1 to 19 were examined, Exts. PI to P13 marked and M.Os. 1 to 10 were identified. On the defence side, D.Ws. 1 to 3 were examined and Ext. Dl marked,
4. While questioned under Section 313 Cr. P.C. accused admitted that he assaulted Devaki Antherjanam with a chopper and that he went to the Kongad police station and surrendered there. To prove the plea of identity D.Ws. 1 to 3 were examined and Ext. Dl was marked.
5. Prosecution mainly relies on the evidence of P.W. 1 before whom the accused made a confession immediately after the incident and also the confession which was recorded by P.W. 16, P.W. 1 Narayana Moothan, the Kariasthan of Devaki Antherjanam as well as accused's father Kesavan Namboodiri deposed that he was looking after the affairs of Devaki Antherjanam as well as Kesavan Namboodiri for the last 23 years, that Kesavan Namboodiri along with his wife and children were residing with Devaki Antherjanam in a house at Kizhakkekalam, that 3 years ago they shifted to another house, that children of Devaki Antherjanam had to pay 4 paras of paddy and 10 coconuts every month to Kesavan Namboodiri, that on 19-6-1980 while he was standing in the field the accused came to him and told him that he demanded coconuts from Devaki Antherjanam and that she refused to give the same and that therefore he finished her immediately. It is the evidence of P.W. 1 that there were blood stains on the cloth worn by the accused, that he (P.W. 1) went to Kizhakkekalam and found Devaki Antherjanam lying dead with bleeding injuries. P.W. 1 further stated that he went to the police station and lodged Ext. PI first information statement.
6. P.W. 2 deposed that he was informed by P.W. 1 about the occurrence and also what the accused had told him regarding the perpetration of the crime. P.W. 2 also saw Devaki Antherjanam lying dead. To P.W. 3 also accused confessed about the commission of the crime. P.W. 3 saw accused with blood stained cloth, that he asked accused about it and that accused told him that Devaki Antherjanam refused to give him coconuts and so he assaulted her with chopper. Apart from the extra-judicial confession spoken to by P.Ws. 1 and 3 there is also the evidence of P.W. 16 Magistrate who recorded the confession of the accused after observing all formalities prescribed under the law. P.W. 16 stated that the accused was brought to him at 2.30 P.M. on 26-5-1980, that he gave two days time to the accused for reflection, that when the accused was brought again he gave him due warning about the consequences of his statement and that after having satisfied himself that the accused was giving a voluntary statement uninfluenced by any promise, threat or inducement by the police recorded the confession statement of the accused. Ext. P8 is the statement.
7. Advocate Mr. Jacob Murickan appearing for the appellant contended that the evidence in the case would really disclose that the accused was mentally insane at the time of the incident and therefore he cannot be held guilty of the crime charged against him. Counsel contended that evidence of D.W. 3 (accused's father) would really show that the accused was suffering from mental disorder and coupled with the above evidence there is also the evidence of D.Ws. 1 and 2 which would go a long way to establish the defence case of insanity. Accused while questioned Under Section 313 Cr. P.C. admitted that when he demanded Devaki Antherjanam coconuts she objected to it. Counsel for the appellant contends that though no specific plea under Section 84 of the I.P.C. has been pleaded by the accused while questioned Under Section 313 Cr. P.C., still it is open to him to establish from the prosecution evidence itself that at the time of the incident he was not aware of what he was doing. Counsel contended that evidence of D.Ws. 1 to 3 would really establish the plea of insanity.
8. D. W. 1 stated that he had occasion to treat the accused for mental illness. He stated in chief-examination that he used to go to Trichur and Ernakulani for treating patients and that at present be confined his practice at his house. In cross-examination he stated that he went to Trichur and Ernakulani only to visit the mental hospitals there D.W. 1 admitted that he happened to treat the accused only on two occasions and that too only for 1V2 hours. D. W. l's evidence would show that there is no record to show that he had at any time treated the accused. He could not also say what sort of medicine he had given to the accused. In chief examination D.W. 1 stated that accused was a person of short temper and prone to depression. Evidence of D.W. 1 is hardly sufficient to show that the accused was suffering from any mental disorder. It is also pertinent to note that D.W. 1 is only an ayurvedic physician and not an expert in psychic treatment.
9. D.W. 2 deposed that he could not remember to have treated the accused. Ext. Dl was marked through him. D.W. 2 fairly conceded that he could not say whether Ext. Dl relates to the accused. Moreover, Ext. Dl relates to 1975. As rightly pointed out by the learned Public Prosecutor, Ext. Dl dated 15-11-1975 is hardly sufficient to prove the plea of insanity by the accused at the time of incident. D.W. 3 deposed that accused was suffering from mental disorder and he was treated In cross-examination, D.W. 3 admitted that accused had passed 10th standard examination and that he used to attend to household matters and agricultural operations 5 to 8 years prior to the incident. Counsel for the appellant contended that D.W. 3's evidence would show that accused tried to commit suicide some years ago and this is a factor which would show that the accused was suffering from mental derangement. Though D.W. 3 in chief examination stated that on the date of incident accused was terribly afflicted by mental disorder in cross-examination he stated that he had no occasion to see the accused on the date of incident. In view of the above evidence it is really difficult to accept the evidence of D.W. 3 that on the date of incident accused was afflicted by any mental disorder.
10. Evidence of P.W. 6 would show that she was deputed two days prior to the incident by the sister of the accused to get coconuts from Devaki Antherjanam. P.W. 6 stated that her errand was only an exercise in futility as Devaki Antherjanam told her that it was not an auspicious day for giving coconut. P.W. 6 informed accused's sister in the presence of the accused. The above incident might have embittered accused and that was the reason why he went to P.W. 11, a blacksmith to sharpen the chopper. Learned Counsel for the appellant contended that as P.W. 1 stated that the accused had got sharpened a chopper and an axe by P.W. 11 it cannot be said that the intention was to use the chopper against the deceased. P.W. 11's evidence would show that the accused wanted P.W. 11 to sharpen M.O. 1 chopper. In this context, the evidence of P.W. 7 assumes importance. P.W. 7 in cross examination stated that he along with accused went to the temple to worship in the morning on the date of incident. He stated that he knows the accused for 27 years and he never suffered from any mental illness. The witness examined on the prosecution side does not at all say that at any point of time the accused was suffering from any mental illness. Evidence of P.W. 7 would show that even on the date of incident he and accused took bath and went to the temple for worship. This evidence is sufficient to demolish the defence case that the accused was mentally deranged and he was not aware of the consequences of what he had done to the deceased.
11. P.W. 1 stated that he knows the accused from the childhood and he asserted that the accused suffered no mental disorder at any point of time. No doubt, he stated in cross-examination that accused consumed Tik-20 (poisonous substance) in 1973 or 1974 and sleeping pills. P.W. 1 stated that accused did so as his father did not give him money demanded. P.W. 2 who also knows the accused intimately testified that accused never suffered any mental illness. Undoubtedly, accused can establish that he was insane and that he had no mens rea to commit the crime basing on the preponderance of probabilities as in a civil case. Evidence of P.Ws. l, 2 and 7 rule out any possibility that the accused was insane or was afflicted by any mental disorder. As already stated, evidence of D.Ws. 1 to 3 is hardly sufficient to hold that accused was suffering from any mental derangement.
12. The general burden of proof squarely rests upon the prosecution to establish its case. In a case where the prosecution has discharged its burden it has to be considered whether the version of the accused is probable or not. Accused can discharge the burden cast upon him or at least prove from the circumstances from the evidence adduced by him or at least from the prosecution evidence that he was not aware of the consequences of the act done by him due to insanity or mental disorder. Unless that has been done the prosecution case cannot be thrown out merely because accused made a plea of insanity.
13. It is the fundamental proposition of law that it presumes every person at the age of discretion to be sane unless the contrary is proved. Even in a case where any lunatic had lucid intervals the law presumes the offences committed by him to have been committed in a lucid interval unless there is evidence to show that it was committed during the period of mental disorder. Section 84 of the I.P.C. provides that 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 acts or that he is doing what is either wrong or contrary to law. Though the initial burden is on the prosecution to prove its case there is a rebuttable presumption that the accused was not insane when he committed the crime. It is for the accused to rebut that presumption by adducing evidence before the court. Accused has to prove not only that he was a lunatic but also that the act was committed during lunacy and not in a lucid interval. Merely because it is shown that accused is a short tempered person it cannot be said that he was unaware of the consequences of his act. So long as there, is no evidence to show that the appellant (accused) was not suffering from any mental derangement it cannot be held that he was unaware of the consequences of his act The fact that he went to the police station and the fact that he made a clean breast of what had transpired would really show that he was aware of what he had done.
14. To attract the immunity provided under Section 84 of the I.P.C., the court has to consider whether the accused suffered from legal insanity at the relevant time. Every type of insanity would not come under legal insanity unless there is evidence to the effect that the faculty of mind was destroyed as a result of unsoundness to that magnitude as to make him incapable of knowing the nature of his acts. We have necessarily to consider whether the congenitive faculty of mind of the accused was not there when he committed the crime. P.W. 6's evidence would show that she was sent by the accused's sister to get coconut from Devaki Antherjanam and she reported the failure of her mission in the presence of the accused. This naturally infuriated the accused and he went to P.W. 11 and got sharpened M.O. 1 chopper and it was with that chopper he backed the deceased. The conduct that followed after the action would also show that the accused was aware of the act done by him. Straightway accused went to the police station. He also confessed about, the crime to P.Ws. 1 and 3. These are the circumstances to hold that the accused was never insane at the time of incident.
15. No court can at the outset start with the presumption that the accused was insane. On the other hand, the court shall presume absence of insanity. The burden to prove insanity is on the accused though it is not as heavy as it is on the prosecution to prove an offence. Any minor or slight mental aberration or proneness to wild temperaments cannot be considered to be the result of insanity. Minor mental aberrations may be, present in many persons. So also there may be persons who may become violent on slight provocations. Such persons cannot obviously escape from culpability of their acts on the ground that they were not aware of what they had done or about its consequences. As any and every type of insanity recognised in medical science is not legal insanity, appellant (accused) can succeed only if there is evidence to hold that at the time of committing the act he was mentally unsound. So long as there is evidence to hold that at the time of committing the offence the appellant was not labouring under a defect of reason which had been caused by unsoundness of mind resulting in the incapability of knowing the nature of the act he cannot escape from the culpability.
16. Learned Counsel for the appellant argued that the trial was not valid as the court did not ascertain whether the accused was in a fit position to stand trial. There is absolutely no force in the above contention as no attempt was made by the counsel for the appellant during the course of the trial that the accused was not in a position to stand trial. Accused did not have such a case when he was questioned under Section 313 Cr. P.C. It has to be noted that the accused was defended by his own counsel before the Sessions Court. At no point of time any mention was made that the accused was not in a fit condition to stand the trial. Having not done so, it is too late to raise such a contention before this Court.
17. The learned Counsel for the appellant next contended that before P.W. 16 accused stated that he was insane and it is a factor which has to be taken into account in considering the plea of insanity. P.W. 16 who recorded the confession of the accused deposed that he never felt that the accused was suffering from any mental illness. Evidence of P.W. 16 would show that accused made the confession voluntarily and fully knowing its consequences. Merely because accused stated that he was insane at the time of the commission of the crime it cannot absolve him from the complicity of the crime unless satisfactory and cogent evidence is adduced by the accused or brought out from the prosecution evidence itself that there were circumstances to uphold the plea of insanity. In this case neither there is any evidence nor any circumstances to uphold the plea of insanity put forward by the accused.
On a consideration of the entire evidence we find that the learned Sessions Judge was perfectly justified in convicting the accused Under Section 302 of the I.P.C and sentencing him to imprisonment for life. There is no merit in the appeal and hence the same is dismissed.