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2019 Supreme(Ker) 875
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.HARIPRASAD, N.ANIL KUMAR, JJ.
Joseph Mathai @ Jose, S/o Mathai – Appellant
Versus
State Of Kerala, Thiruvampady Police Station – Respondent
CRL.A.No.507 OF 2016
Decided On : 28-11-2019
For the Appellant : Sherly.S.A (State Brief), Adv.
IMPORTANT POINTS
Section 339(1) of Code provides that whenever any relative or friend of any person detained under the provisions of section 330 or section 335 desires that he shall be delivered to his care and custody, the State Government may, upon the application of such relative or friend and on his giving security to the satisfaction of the State Government, that the person delivered shall be properly taken care of and prevented from doing injury to himself or any other person; be produced for the inspection of such officer, and at such times and places, as the State Government may direct.
Headnote:
Code of Criminal Procedure -Sections 335 and 338 -The appellant is to be detained in safe custody in terms of Section 335(1)(a) of the Code of Criminal Procedure-Schizophrenia is a dangerous mental illness-It is not in the interest of justice to deliver the appellant for the time being to any relative or friend of the appellant as provided under Section 335(1)(b) of the Cr.P.C-The appellant shall be kept in safe custody for the present as provided under Section 335 of the Cr.P.C. Sub-section (2) of Section 335 provides that the order for detention shall be in accordance with the rules framed by the State Government under the Lunacy Act, 1912- As the Lunacy Act, 1912 is not in force at present and it has been repealed and the relevant Act in force is the Mental Healthcare Act, 2017 the latter Act is applicable in this case.
Statement of facts:
The appellant is the accused in S.C.No.45/2009 on the file of the Additional Sessions Judge-V, Kozhikode in Crime No.199/2007 of Thiruvampady Police Station for the offence punishable under Section 302 of the Indian Penal Code (for short 'IPC') for committing matricide. By judgment dated 12.1.2016, the learned Additional Sessions Judge-V convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months
Finding of the court:
The appellant has committed the act of stabbing and assaulting the deceased with MO1 knife and MO2 stick resulting in her death -Acquit the appellant on the ground that, at the time at which he is alleged to have committed the offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged, or that it was contrary to law. We direct that the appellant shall be kept in safe custody for the present as provided under Section 335 of the Cr.P.C. Sub-section (2) of Section 335 provides that the order for detention shall be in accordance with the rules framed by the State Government under the Lunacy Act, 1912. As the Lunacy Act, 1912 is not in force at present and it has been repealed and the relevant Act in force is the Mental Healthcare Act, 2017, we find that the latter Act is applicable in this case. We, therefore, direct that the appellant is to be detained in one of the mental health establishments in the State in accordance with the rules-The conviction and sentence imposed against the appellant by the trial court for the offence punishable under Section 302 IPC stand set aside. The accused stands acquitted subject to Section 335(1)(a) of Cr.P.C. as stated above.
Result: Criminal Appeal is allowed.
JUDGMENT :
N.Anil Kumar, J.
The appellant is the accused in S.C.No.45/2009 on the file of the Additional Sessions Judge-V, Kozhikode in Crime No.199/2007 of Thiruvampady Police Station for the offence punishable under Section 302 of the Indian Penal Code (for short 'IPC') for committing matricide. By judgment dated 12.1.2016, the learned Additional Sessions Judge-V convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of six months.
2. The brief facts giving rise to the instant appeal are as follows:-
The accused Joseph Mathai @ Jose, his brother PW1 John, his brother's wife PW2 Mariyamma John, his mother Mariyam and CW2 Kochuthresia (since deceased), who was the sister of Mariyam, were residents of the building bearing door No.VIII/7 of Perumalippady. According to the prosecution, as there was incompatibility between the mother of the accused and the accused, the accused started residing with his family in a building owned by him. It is further alleged that some landed properties were in the name of the mother and the accused was compelling his mother to transfer the land in his name. About eight months prior to the incident, it is alleged that the accused had inflicted a stab injury on the abdomen of his mother in connection with the property dispute. The mother was reluctant to execute documents in favour of the accused. She had expressed her strong disapproval stating that she would not be prepared to transfer her property as demanded by the accused. The denial on the part of the mother alleged to be the cause and motive for committing matricide.
3. The indictment against the accused is that at about 11.45 am on 13.12.2007, the accused out of his ill-will towards his mother Mariyam, aged 90 inflicted stab injury on the right side of her neck and inflicted blows with a stick on her head with an intention to cause death in the courtyard of the residential building bearing door No.VIII/7 at Perumalippady and thereby committed matricide.
4. For the occurrence in question, Ext.P1 FIS was lodged by PW1 who is the brother of the accused on 13.12.2007 before PW10 the Assistant Sub Inspector of Police, Thiruvampady Police Station. PW10 recorded Ext.P1 statement of PW1 and registered Ext.P1 FIR on 13.12.2007.
5. PW12 the Circle Inspector of Police, Thamarassery took over the investigation on 13.12.2007 itself. As directed by PW12, PW11 the Sub Inspector of Police, Thamarassery conducted inquest on the body of the deceased and prepared Ext.P3 inquest report in which PW6 was a signatory. Column No.11 is pertaining to the apparent cause of death. PW12 noted that the deceased died as a result of stab injury on the right side of her neck. As part of inquest, PW11 removed the clothes of the deceased and seized MO4 and MO5 from the body of the deceased. In addition to the same, PW11 seized MO6 series bath towels and MO7 walking stick found adjacent to the body of the deceased.
6. PW12 arrested the accused on 13.12.2007 in accordance with law. On being questioned while in custody, PW12 recorded Ext.P2(a) confession statement of the accused. In Ext.P2(a), the accused confessed that he had thrown away the knife and stick on the back side of the house and that if he was taken there, he would show the same. Based on the aforesaid Ext.P2(a) confession statement, PW12 proceeded to the place as led by the accused and recovered MO1 knife and MO2 series broken piece of stick as per Ext.P2 seizure mahazar. Later material objects were produced before court by Ext.P7 property list. He forwarded the material objects by Ext.P8 to the Chemical Examiner for examination and report. The Chemical Examiner submitted Ext.P9 report stating that the weapons used by the accused contained blood stains. PW12 collected material evidence for the prosecution, questioned the witnesses, recorded their statements and filed the final report before cou
