The crucial point of time for ascertaining the state of mind of the accused is the time when the offense was committed. The accused failed to establish unsoundness of mind at that time, and the injuries indicated his intention and knowledge of the likely consequences of his act. Therefore, the court concluded that the accused's act constituted culpable homicide not amounting to murder under Section 304 Part-1 IPC.

JUDGMENT :

M.R. Anitha, J.

1. This is the second round of appeal against the conviction and sentence passed in S.C No.199/2004 on the file of Sessions Judge, Thodupuzha.

2. Prosecution case can be summarized as follows:

On 18.4.2002 at about 8.45 p.m. accused out of previous enmity towards his neighbour, the deceased Thomas @ Thommachan, while walking through Thopramkudi-Melechinnar public road, intentionally stabbed him with MO1 knife on his vital parts. Thomas @ Thommachan succumbed to the injuries on the way to St. John's Hospital, Kattappana, thereby the accused committed the offence u/s 302 IPC.

3. PWs 1 to 8 were Examined and Exts.P1 to P8 were marked and MOs 1 to 10 were identified and marked from the side of the prosecution. Thereafter accused was questioned u/s.313 Cr.P.C. He almost admitted the incriminating facts and circumstances put to him and pleaded lack of memory and absence of knowledge with regard to some other factors. He also filed an unsigned separate statement stating that he surrendered his life before Christ and so many wonders would happen and he has been implicated not on account of his own intention. He had not committed any offence and the Christ is the only protector and he is submitting the entire case before Christ who know about the facts of the case etc. Finally on hearing both sides, he was convicted and sentenced to undergo life imprisonment.

4. Aggrieved by the same, he preferred Crl.A.No.76/2009 before this Court. As per the judgment dated 04.10.2011 the appeal was allowed setting aside the order of conviction and sentence and the case was remanded to the court below to consider whether accused is entitled to the benefit u/s. 84 IPC.

5. After remand, court below on enquriy was satisfied that he is fit to stand trial.

6. PWs 1 to 4 and 6 to 8 were re-called and cross examined as part of proving the defence. DW1 was further examined and Exts.X1 and X1(a) were also marked. Thereafter, on hearing both sides the learned Sessions Judge again found the accused guilty u/s 302 IPC and convicted and sentenced him to undergo imprisonment for life and to pay fine of Rs.50,000/-, in default to undergo simple imprisonment for six months u/s.302 IPC. Against the conviction and sentence this appeal has been filed.

7. Notice was issued to the respondent. Respondent appeared through Senior Public Prosecutor Sri.Alex M. Thombra. Lower court records were called for. Sri. Gracious Kuriakose, Senior counsel appeared for the appellant. Heard both sides.

8. The main argument of the learned senior counsel for the accused is that the appellant/ accused ought to have given the protection u/s 84 IPC since it has come out from the evidence of prosecution witnesses that accused is not mentally sound. It is also his contention that none of the relatives of the accused has been questioned by the investigating officer to ascertain the soundness of the mind of the accused. Investigating officer did not subject the accused to medical examination and place that evidence before the court and that has caused serious infirmity in the prosecution case. Hence benefit of doubt on that count ought have been given to the accused. It is also his contention that the evidence adduced by the prosecution in toto is quite insufficient to find the accused guilty in a grievous offence u/s. 302 IPC.

9. In order to claim the benefit u/s. 84 IPC, 1860 the learned Senior Counsel placed reliance on Dahyabhai Chhaganbhai Thakkar v. State of Gujarat [AIR 1964 SC 1563], Bapu Alias Gujraj Singh v. State of Rajasthan [(2007) 8 SCC 68], Shibu v. State of Kerala [2013 (4) KLT 323], Abilash v. State of Kerala [2015 (3) KLJ 610.

10. The burden of proof in criminal Justice system is always upon the prosecution and that burden never shifts. But in a case of plea of unsoundness of mind and consequent incapacity to know the consequences of the acts done by the accused, the burden is upon the accused. Section 84 of IPC (45 of 1860), provides that nothing is an offence whi