GOPALAN NAMBIAR Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT Gopalan Nambiar has been convicted by the Sessions Judge of Tellicherry for the murder of his wife Lakshmikutty Amma and he has been awarded the lesser sentence of rigorous imprison­ment for life.

(2.) THE accused with his wife and children were living in Chithramadathil House in Kolayad village.A few months before the occurrence the relationship between the father of the accused had left some properties and a sister of the accused had filed a suit for partition in the Sub Court,Tellicherry.The accused was the chief contesting defen­dant and had filed his written statement but due to his indifference the suit happened to be decreed ex parte.His deceased wife used to find fault with the accused for not conducting the case properly.He was persuaded to file a petition to have the ex parte decree set aside and the deceased was spending money for the conduct of the case.For expenses in connection with that matter she had borrowed Rs.10 from P.W.6 a teacher who was taking his food from their house.The accused questioned her about the propriety of borrowing money from him and scolded her and even attempted to assault her.P.W.1 her son was staying with his grandmother for his studies and used to come for week ends.The day previous to the occurrence when the boy was in the house the deceased complained to him about the conduct of the father,how she was being harassed and she told him that if the father continues to be so cruel to her she would have to leave the house.That night after food P.W.1 went upstairs to sleep.P.W.3 the servant was also sleeping upstairs.The accused was sleeping in a side room.The deceased had not taken food that night as a protest against the con­duct of her husband.She was sleeping in the corridor with her youngest child aged about 2 1 / 2 years by her side.Two of her small children were also sleeping in the same corridor.P.W.2 her daughter was sleeping in the nor­thern room with a kerosene lamp burning dimly in her room.Some time in the night she felt that the child was being placed by her side by the father.The child started crying and she woke up and took back the child to mother.When she went there she saw the mother lying in a pool of blood and accused standing there wearing a thorthu and a chopper in his hand.She cried out.Hearing the cry P.Ws.1 and 3 woke up,brightened the lamp that was burning in the room and came down.He saw the accused standing by the side of his mother with a chopper in his hand.On seeing P.W.1 the accused asked him 'how will you now make over the properties in the name of your mother! P.W.1 got frightened,did not say anything and ran up to the neighbour Sankaran Nambiar's house.Along with him they went to one Narayanan Nambiar's shop and they all came over to the house.In the mean­while the accused changed his clothes and attempted to go away but P.W.3 made him remain there.P.W.1 then went to the village officer and made a complaint Ex.P -1.On receipt of the yadast a case was registered.Informa­tion was sent to the Sub -Inspector who came over to the house and held the inquest.The next day the Circle Inspector came and after completing the investigation laid the charge sheet against the accused . It is seen from the court records that at the request of the police the accused was sent for observation to the Civil Surgeon attached to the Central Jail Hospital.On his report the accused was sent to the Mental Hospital,Kozhikode,where he was under treatment till 6 th April 1965.Then the doctor certified that he was fit to stand his trial.The doctor was examined as a court witness,and the,criminal proceedings were started.No witnesses were examined and the accused was,in fact,not question­ed.When questioned in the Sessions Court the accused only stated that he did not know anything.

(3.) LEARNED counsel relying on the decision in D.C Thakkar v. State of Gujarat A.I.R.1964 S.C.1563 ,contended that it is for the prosecution to establish the necessary mens rea of the accused and even though the accused may not have taken the plea of insanity or led any evidence to show that he was insane when he committed an offence,the prosecution must satisfy the court that the accused had the requisite intention.There can be no doubt that the burden of proving an offence is always on the prosecution and that it never shifts.But the state of mind of a person can ordinarily only be inferred from circumstances.If a person deliberately cuts another with a deadly weapon like a chopper on the neck which according to our common experience is likely to cause a fatal injury,it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury which in fact resulted from the act.In such a case the prosecution must be deemed to have discharged the burden which rested upon it to establish the required mens rea. Section 84,I.P.C .,can be invoked by a person for nullifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law,but it is not for the prosecution to establish that a person who cuts with a chopper was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law.Everyone is presumed to know the natural consequences of his act.Under section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within any one of the exceptions specified in the Penal Code lies upon the accused person.It further provides that in such a case the court shall presume the absence of such circumstances.So when once the prosecution proves that the accused cut the deceased with the chopper practically severing the neck into two the duty cast on the prosecution is discharged and the presumption is that the accused was sane when he com­mitted the act.He can rebut it either by leading evidence or by relying upon the prosecution evidence which would show that he was not sane.There is, however,no duty cast on the prosecution to establish the sanity of the accused at the time of the commission of the offence.Reference may be made to the decision of the Supreme court in Bhikari v. The State of U.P. A.I.R.1966 S.C.1 .