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IN THE HIGH COURT OF KERALA
K. Hema, Babu Mathew P. Joseph, JJ.
Shibu - Appellant
Vs.
State of Kerala - Respondent
Crl. A. No.1561 of 2008
Decided On : 07-08-2012
MURDER - ATTEMPT TO COMMIT MURDER - SCOPE OF SECTION 6 OF INDIAN PENAL CODE - RELEVANCE OF SECTION 84 OF INDIAN PENAL CODE DURING INVESTIGATION - OFFENCE OF MURDER AND ATTEMPT TO COMMIT MURDER - RELEVANCE OF SECTION 105 OF EVIDENCE ACT DURING INVESTIGATION STAGE.
Fact of the Case:
The appellant was tried for offences under Sections 307 and 302 of the Indian Penal Code (IPC) by the Additional Sessions Court. He was convicted and sentenced under both the provisions. The appellant challenged the conviction and sentence.
Finding of the Court:
The court held that the prosecution failed to prove that the acts committed by the accused constitute alleged offenses when read with General Exceptions contained in Section 84 of IPC. A reasonable doubt was cast whether the accused was capable of understanding the nature of the act committed by him at the time of the incident, particularly in the absence of an investigation into the relevant aspects pertaining to the mental condition of the appellant at the time of the commission of the offense.
Issues: 1. Whether the accused committed the offense of murder by intentionally causing the death of his deceased son by cutting with MO1-axe, as alleged by the prosecution? 2. Whether the appellant attempted to commit the murder of PW2, his wife by cutting with MO1? 3. Whether the conviction and sentence passed against the appellant are sustainable?
Ratio Decidendi: 1. Section 6 of IPC provides that every definition of an offense, every penal provision, and every illustration of every such definition or penal provision shall be understood subject to the exceptions contained in Chapter IV titled as “General Exceptions”, though those exceptions are not repeated in each of the definition or the penal provision or illustration. 2. Section 84 of IPC provides that nothing is an offense 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. 3. Section 105 of the Evidence Act relates to the burden of proof in a proceeding before the Court and not elsewhere. Whatever is contained in Section 105 of the Evidence Act relating to the burden of proof is applicable only in a proceeding before the Court and not before the investigating officer or any other authority.
Final Decision: The conviction and sentence passed against the appellant were set aside. The appellant was found not guilty and acquitted of offenses under Sections 302 and 307 of the Indian Penal Code.
K. Hema, J.
What is the scope of S.6 of Indian Penal Code ('I.P.C.,' for short), with reference to definition of an offence or penal provision in I.P.C.? Does S.84 I.P.C. lay down merely a defence for accused in a trial or does it have any relevance during investigation? What constitute offence of murder and attempt to commit murder, under Sections 302 or 307 I.P.C., in the light of S.6 of I.P.C.? Does S.105 of Evidence Act have any relevance during investigation stage? These are some of important questions which are to be considered in this appeal.
2. The appellant was tried for offences under Sections 307 and 302 I.P.C. by the Additional Sessions Court. He is alleged to have attempted to commit murder of his own wife (PW2) and his only child who was aged just four months at the time of death. After trial he was convicted and sentenced under both the above provisions. This appeal is filed challenging the said conviction and sentence.
3. According to prosecution, on 30.3.2005 accused went for an afternoon nap to the bed room situated in his wife's house, along with his wife, PW2. At about 3 p.m., while PW2 was breast feeding the baby, accused went out of the room and came back with an axe (MO1) and cut his wife and child with MO1, with intention to commit their murder. Both of them sustained serious injuries and they were rushed to the hospital. The child succumbed to the injuries and the wife survived. The motive for the offence is the alleged suspicion of accused on fidelity of his wife.
4. To prove prosecution case, PWs 1 to 21 were examined and marked Exts.P1 to P19 and MO1 to MO6 series. The accused examined DW1 and DW2 and marked Exts.D1 to D7 on his side. While questioned under S.313 of the Code of Criminal Procedure (“the Code', for short), he stated that he did not know anything. He also filed a statement to the following effect;
"The accused was a mental patient, at the time of offence and also prior to that. He did not commit any offence knowingly. Five or six days prior to the incident, accused was taken to the hospital by his wife and his uncle (DW2) and he was treated by DW1, the doctor who suggested that he should be admitted as an inpatient. But, his wife and others did not admit him. He did not know what happened at the alleged time of incident. After he was released from the prison, he was treated as an inpatient in a hospital. He is taking 7 pills daily. He loved his wife and child as his own life. Because of the gravity of his mental illness, he is unaware of what happened and he cannot even remember what happened on the crucial day”.
5. On analysis of evidence and rival contentions taken up, trial court held that prosecution proved that the accused inflicted injuries on PW2 and also the child and caused the death of child. It is also held that accused is not entitled to benefit of Exception under S.84 I.P.C. However, court below observed that accused never questioned paternity of the child is not a circumstance in favour of the defence. His target was PW2 and the child received fatal blows during the course of attack on PW2, it is held.
6. Heard Sri. R. Muraleedharan for appellant and Sri. Noble Mathew, learned Public Prosecutor for prosecution. Perused records.
The points arising for consideration in this appeal are:
1. Whether accused committed offence of murder, by intentionally causing death of his deceased son by cutting with MO1-axe, as alleged by prosecution?
2. Whether appellant attempted to commit murder of PW2, his wife by cutting with MO1?
3. Whether conviction and sentence passed against appellant are sustainable?
7. Points 1 to 3: The fact that child Athul Krishna aged only 4 months died due to injuries sustained in the incident involved in this case is proved by medical evidence. It is not challenged also. But, no reason is stated by the prosecution why accused committed murder of his own child in his tender age. It is in evidence that accused loved both his child and wife. The deceased bab
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