State Of Kerala v. Venkita Rao

1. The sessions judge of tellicherry acquitted the accused of an offence under s. 302 of the penal code holding that he was insane at the relevant time and that s. 84 of the penal code entitled him for an acquittal. A learned judge of this court on perusing the calendar felt that the statement of the law by the sessions judge was not correct and the learned judge made a note to that effect on the calendar. The public prosecutor filed an appeal against the acquittal, Which was dismissed summarily by a division bench. Still, The learned judge who perused the calender felt that in the interests of justice the records of the case should be called for. The records were consequently called for under s. 439 of the code of criminal procedure and the calender revision is now before us.

2. Two main questions arise for consideration: one, Whether the calendar revision is competent; and two, If it is competent, What are our powers - - what we should do in the case. Incidentally, A further question may also become necessary - - whether the dismissal of the appeal against acquittal in limine by the division bench was proper.

3. There are quite a few decisions by the supreme court which may be relevant for the questions to be decided by us. We do not propose to refer to all of them; and we shall rest content by restating the principles that could be gathered from those decisions.

4. At the outset we shall just indicate the scheme of the code of criminal procedure relating to appeals and revisions to the high court. S. 410 provides for appeals against convictions by a sessions judge or an additional sessions judge; s. 417 provides for appeals against acquittal, Both by the public prosecutor and by a private complainant; and s. 420 makes provision for jail appeals in cases where the accused persons are convicted and are confined in jail. S. 421 deals with summary dismissal of appeals - - appeals against conviction filed by the accused persons and by their counsel and also appeals against acquittal. S. 422 provides for notice in appeals; and s. 423 deals with the appellate powers of the high court. The only other section which need be mentioned is s. 439, Which provides for revisions by the high court at the instance of a party aggrieved and suo motu.

5. Now we point out the distinction between an appeal against acquittal and an appeal against conviction. In considering an appeal against acquittal, The high court has to keep in mind, Or should give proper weight and consideration to, The following matters: one, The views of the trial judge as to the credibility of the witnesses; two, The presumption of innocence in favour of the accused, A presumption certainly not weakened by the fact that he has been acquitted at his trial; three, The right of the accused to the benefit of any doubt; and four, The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. These principles were laid down by privy council as early as 1934 in sheo swarup v. King emperor (air. 1934 p. C. 227) ; and these principles have since been followed by the supreme court in several decisions, For example, Narayan ittiravi v. State of travancore - cochin (air. 1953 - s c. 478) and balbir singh v. State of punjab (air. 1957 s. C. 216). These principles must be borne in mind in considering an appeal against acquittal not only when it is finally heard, But also under s. 421 of the code in considering whether the appeal should be dismissed in limine or whether notice to the accused should issue under s. 422.

6. On the other hand, In considering an appeal against conviction, The supreme court has said, The high court will not be right in dismissing the appeal preferred by the convicted person summarily where the appeal raises some arguable point which requires consideration (vide, For example, Mushtak hussain v. The state of bombay: air. 1953 s. C. 282 and chittaraajan das v. State of west bengal: air. 1963 s. C. 1696). We may hasten to add that the content of the power of the high court in considering both the types of appeals is the same under s. 421, But the difference lies only in the approach. This has also been pointed out by the supreme court in sanwant singh v. State of rajasthan (air. 1961 s. C. 715) and gurdatta mal v. State of uttar pradesh (air. 1965 s. C. 257) and other cases.

7. Now we come to the question whether the present calendar "revision is maintainable. If a convicted person files a jail appeal and the same is dismissed summarily, Neither he nor his counsel has a further right to file another appeal. The summary dismissal of the appeal concludes the matter qua the convicted person. If a person charged of a graver offence has been convicted of a lesser offence and he files an appeal against his conviction of the lesser offence and the appeal is dismissed summarily, The state does not lose its right of appeal against the acquittal of the accused of the graver offence (vide pratap singh v. State of vindhya pradesh air. 1961 s. C. 586: u. J. S. Chopra v. State of bombay: air. 1955 s. C. 633; and other cases.). In chopra's case what happened was that the presidency magistrate of bombay convicted the accused under the bombay prohibition act and sentenced him to undergo imprisonment till the rising of the court and also to pay a fine. The accused: preferred an appeal to the bombay high court, Which was summarily dismissed, And thereafter, The state filed a revision application before the high court praying for an enhancement of the sentence. In that revision application notice was issued to the accused; and an objection was taken that, Once the appeal filed by the accused had been dismissed, The state had lost its right to apply in revision for enhancement of punishment. This objection was overruled; and the supreme court laid down two principles in this decision. The first; as we have already stated, Is that, If the accused files an appeal which is dismissed summarily, The state does not lose its right to appeal against the acquittal or the right to apply for enhancement of "punishment. And the second principle is that when notice in revision goes to the accused under s. 439 of the code, He gets his right under s. 439 (6) of the code to show cause not only against enhancement of punishment but also against his conviction. A very recent decision of the supreme court which may also be cited is the decision in hirbhay singh v. State of madhya pradesh (1969 - - 11 s. C. W. R. 133). In this decision the supreme court has observed that if a convicted person files an appeal and the appeal is dismissed summarily, Any other person including the state, Who is affected by the decision, Does not lose his or its right of appeal: the dismissal of the appeal is final only qua him and it does not affect the right of appeal of any other party. On the other hand, If the appeal ailed by him is heard after notice to the other side and the high court either confirms the conviction or acquits the accused, Thereafter, The state or any other party who had notice in the appeal has no further right of appeal. The supreme court has observed that these principles are "supported by abundant authority. " in the light of these principles, We shall now examine the suo mote revisional powers of the high court and see whether the calendar revision before us is competent.

8. In this case the state filed an appeal against the acquittal of the accused and the appeal was dismissed in limine by a division bench of this court. The dismissal was not after hearing both sides - - not a full hearing, So that the suo mote revisional powers of the high court are not affected or extinguished by the summary dismissal of that appeal. Evidently, If any other party had a right to move this court in revision

(of course, In the case before us, None else could have had any such right), That right was not taken away by the summary dismissal of the state's appeal. Therefore, The powers of this court under s. 439 to call for the records suo mote are still subsisting; and those powers could have been extinguished only if an appeal or revision (at the instance of any party) was finally heard after notice to the opposite party. In this view the calendar revision before us is competent.

9. Next we come to the question as to what are our powers in a suo mote revision. This requires a consideration of s. 439 of the code. Under subsection (1) of the section the high court can exercise any of the powers it has under s. 423 (powers in appeal), S. 426 (suspension of sentence and release of the accused on bail), S. 427 (arrest of the accused in an appeal against acquittal), S. 428 (taking additional evidence in appeal) and s. 338 (directing tender of pardon). The other sub - sections which have to be noted for the purpose of this case are sub - sections (2), (4), (5) and (6). Subsection (2) provides that no order under the section shall be made to the prejudice of the accused unless he is given an opportunity to be heard; sub - section (4) provides that the high court shall not be deemed to have the power to convert a finding of acquittal into one of conviction; sub - section (5) provides that where an appeal lies and an appeal is not brought, The party who has such right of appeal cannot move the high court in revision; and sub - section (6) provides that when a notice is issued for enhancement of punishment, The accused is entitled to show cause not only against enhancement but also against his conviction. From sub - section (4) it is abundantly clear that we have no power in revision - - even in revision suo motu - - to convert a finding of acquittal into one of conviction. In this case the accused has been acquitted by the sessions judge and the appeal filed by the state has been dismissed in limine. Therefore, By exercising our powers under s. 439, The maximum we can do is only to set aside the order of acquittal and order retrial: we cannot convict the accused straightway even if the evidence in the case warrants it.

10. Then arises the further question as to how we should exercise this power of ordering retrial. The supreme court has said in chinnaswamy reddy v. State of andhra pradesh (a. I. R. 1962 s. C. 1788) that, If the high court cannot convert a finding of acquittal into one of conviction, The high court cannot indirectly achieve that result by ordering retrial. The supreme court has also observed that this jurisdiction should be exercised only in exceptional cases, Where there is a glaring defect in the procedure or there is a manifest error of law or there has been a miscarriage of justice, Etc. This means that, Even in the exceptional case where we decide to order retrial, We should not discuss the evidence in such a way as to indicate even an inclination which will, In the happy language of patanjalai sastri j. In longendranath jha v. Shri polai lal biswas (a. I. R. 1951 s. C. 316), Have the effect of loading the dice against the accused. This again means that we should exercise our power of ordering retrial only if we find that by the acquittal justice has failed or injustice has resulted or the acquittal was the result of a glaring defect in the procedure or a manifest error of law.

11. In the light of these principles when we examine the judgment of the sessions judge, We do not feel that this is a case where the interests of justice demand a retrial. Now that we have decided not to remand the case, We shall consider the merits of the case and also the question whether the sessions judge has erred in his finding.

12. The accused cut and killed his mother; and pw. 2, His brother, Witnessed the occurrence. Pw. 4, A neighbour, Ran up to the scene and wrested the chopper from the accused. Pw. 4 also asked the accused what he did, To which he replied that he killed his mother. However, The accused remained in the room till the police came and arrested him the next day. He did not make any attempt to leave the place. Pw. 1 is a doctor, Under whose observation the accused was kept for a time two or three days after he was arrested. The doctor kept him for 10 days; and he has stated that during the time the accused was having amnesia and hallucination and he was not in a position to know what he was doing. There is also evidence that two brothers of the accused were insane and were roaming about. Again, Pw. 6, A private medical practitioner, Has deposed that even on the day of occurrence he saw the accused and the accused was not then behaving like a normal man. The witness has stated further that he administered a tranquilliser to the accused for two days and also gave b - complex injections. Another doctor (pw. 3), The superintendent of the mental hospital at calicut, Has deposed that the accused was suffering from schizophrenia and the accused could not have got the attack of the disease suddenly. The doctor has said further that the nature of the disease was such that the patient occasionally might develop criminal propensities. The witness has also said that he could not deny that the accused was having the disease six months prior to the incident.

13. The evidence of the eye - witness, The neighbour and the doctors indicates that the accused must have been insane during the relevant time. One circumstance that may be pointed out against this is the version given by pw. 4, Who has said that the accused answered, When the witness questioned him as to what he did, That he killed his mother. It is one thing to say that a person knew what he did was killing: it is quite a different thing to say that, When he knew that what he did was killing, He knew that he was doing an act which was either wrong or contrary to law. Therefore, The mere fact that the accused knew that he killed his mother does not necessarily mean that he knew that he did an act wrong or illegal. It follows that this statement of pw. 4 cannot be taken to clinch the question that the accused was not insane at the relevant time. Of course, The sessions judge has given only a brief discussion and has said that the accused was "off his head" at the relevant time. Probably, The sessions judge could have given a better or a more elaborate reasoning; but that is no ground for holding that his finding that the accused was insane at the relevant time is incorrect.

14. We do not think it is necessary to recapitulate the law regarding insanity. However, For the sake of completeness, We shall indicate in brief the law on the subject. There are two or three recent supreme court decisions on the question, Viz., Dahyabhai chhaganbhai thakker v. State of gujarat (air. 1964 sc. 1563) and shikari v. State of uttar pradesh (air. 1966 sc. 1). There is also a very recent decision of our high court, To which one of us was a party, In palakkal mani v. State of kerala (crl. Appeal no. 354 of 1968). In the first decision mentioned above, Subba rao j. Has recapitulated or restated the three principles in considering a question under s. 84 of the penal code. His lordship has said that the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea and the burden of proving that always rests on the prosecution from the beginning to the end of the trial; that there is a rebuttable presumption that the accused was not insane when he committed the crime, Which presumption the accused may rebut by placing before court all the relevant evidence, Oral, Documentary or circumstantial, But the burden of proof upon him is not to prove that he was insane beyond all reasonable doubt, But is only to establish by a preponderance of probability as in a civil case that he was insane; and that if the evidence adduced by the accused is not sufficient to establish conclusively that he was insane, Still, If it raises a reasonable doubt in the mind of the court regarding one or more ingredients of the offence including mens rea, The court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution has not been discharged, Since mens rea is also an ingredient the prosecution is bound to establish. These principles have been approved and followed by the supreme court in the second decision cited above; and in the decision of this court also these principles have been reiterated. In the light of these principles, Even if we come to the conclusion that the accused has not established conclusively that he was insane at the relevant time, Still, If he is able to raise a reasonable doubt in our mind that he might have been insane or might not have been insane (a reasonable doubt regarding his state of mind) at the relevant time, Then the prosecution will have not discharged its primary onus of proving the guilt of the accused - - of proving all the ingredients of the offence including the mens rea. In the case before us we have no doubt that the facts and circumstances at least raise such a reasonable doubt in the judicial mind regarding the state of mind of the accused at the relevant time.

15. Incidentally we may observe that the dismissal of the appeal filed by the state against the acquittal of the accused was also justified, Because, In the light of the principles laid down by the judicial committee of the privy council in sheo swarup's case, The appeal had;only to be dismissed.

16. We do not think that any interference is called for in this case; and the calendar revision is dismissed.

17. Before leaving the case we would add a word of warning to the authorities concerned. The sessions judge has directed under s. 471 (1) of the code of criminal procedure that the accused be detained in safe custody. The proviso to that sub - section provides that the accused (he cannot now be called the accused) can be kept in a lunatic asylum only in accordance with the rules made by the state government under the indian lunacy act. It is hoped that the authorities concerned will be alive.