Point of Law: Section 335 Cr.P.C. gives two options to court to deal with persons who are acquitted on ground of mental unsoundness.

JUDGMENT :

C.S. SUDHA, J.

1. This appeal under Section 374(2) Cr.P.C. by the accused in S.C. No. 182/2015 on the file of the Court of Session, Pathanamthitta, has been filed challenging the conviction entered and sentence passed against him for the offence punishable under Section 302 IPC.

2. The prosecution case as stated in the charge sheet is as follows:

the accused due to some enmity towards his 8 year old son and with the intention of murdering him, on 19/11/2014 at 03:30 p.m. hacked the child to death with MO.6 chopper and MO.5 coconut scraper/grater. The scene of occurrence is stated to be the residence of the accused and family, bearing no. IV/60, Thottappuzhassery panchayath. Hence the accused is alleged to have committed the offence punishable under the above mentioned Section.

3. Based on Ext.P1 FIS of PW1, Crime no. 1091/2014 of Koipuram police station alleging commission of the offence punishable under Section 302 IPC, that is, Ext.P8 FIR, was registered by PW16, the then Sub Inspector of the aforesaid station. PW17, the then Circle Inspector, Kozhencherry is the officer who conducted the investigation and submitted the charge-sheet before the court.

4. On the final report being submitted, the jurisdictional magistrate, after complying with the statutory formalities, committed the case against the accused to the Sessions Court concerned, which court took the case on file as S.C. No. 182/2015. On the appearance of the accused before the Court of Session, he was furnished with copies of all the prosecution records. On 07/07/2018, the trial court framed a charge for the offence punishable under Section 302 IPC, which was read over and explained to the accused to which he pleaded not guilty. The prosecution examined PWs.1 to 18 and got marked Exts.P1 to P24 and MO.1 to MO.8. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C. he was asked to enter on his defence and adduce evidence in support thereof. DW1 was examined and Ext.D1 was marked on behalf of the accused.

6. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 302 IPC and hence convicted and sentenced him to imprisonment for life and to a fine of Rs. 10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. Set off under Section 428 has also been allowed. It has also been directed that if the fine amount is realised, the amount shall be given to PW2 Sheela, the mother of the deceased, under Section 357(1)(b) Cr.P.C.

7. The only point that arises for consideration in this appeal is whether the conviction entered, and sentence passed against the accused by the trial court is sustainable or not.

8. Heard Sri. Rajesh K. Raju, the learned counsel appointed on State Brief for the appellant and Smt. S. Ambika Devi, the learned Special Public Prosecutor.

9. As stated earlier, the prosecution case is that the accused had murdered his child by hacking and cutting with MO.6 chopper and MO.5 Coconut scraper/grater. PW15, Assistant Professor, Medical College Hospital, Kottayam deposed that on 20/11/2014, he had conducted postmortem examination on the body of Rejin, aged about 8 year. On examination, he noted the following ante-mortem injuries:

“INJURIES (ANTE-MORTEM)

1. Incised decapitating wound 16 x 12 cm horizontally placed, involving the lower lip on the front and body of 6th cervical vertebra on the back of neck. The neck structures were severed. The larynx was cut at the level of cricoid cartilage. The lower jaw was cut fractured and fragmented with a portion on the front aspect