Accused and deceased both women were lesbians, Plea of insanity by accused not tenable, Lesbianism is a sort of perversity and not insanity

Accused and deceased both women were lesbians, Plea of insanity by accused not tenable, Lesbianism is a sort of perversity and not insanity

KERALA HIGH COURT (D.B.)


Before :- B.M. Thulasidas and K.A. Mohamed Shaffi, JJ.
Crl. A. No. 372 of 1993


Sathi  Versus State of Kerala, D/d. 20.8.1996


For the Appellant :- Mr. S.K. Balachandran, Advocate.
For the Respondent :- Mr. Kallada Sukumaran, Director General of Prosecution and Mrs. G. Krishnakumari, Public Prosecutor.

Indian Penal Code, Sections 84 and 302 - Insanity - Accused and deceased both women were lesbians - Accused killing the deceased - Plea of insanity by accused not tenable - Lesbianism is a sort of perversity and not insanity. [Para 8]

JUDGMENT


B.M. Thulasidas, J. - This judgment in S.C. No. 110 of 1991 of the Additional Sessions Court, Thalassery is under challenge in this appeal filed by the accused, who had been found guilty under Section 302 IPC., convicted and sentenced to undergo imprisonment for life.

2. The accused and the deceased, in their early thirties and unmarried, were thick friends. They enjoyed each other's company and maintained a sort of lesbian relationship to the great annoyance of their kith and kin. Allegedly the deceased stopped visiting the house of the accused after her brother's marriage about a year before the incident. But then the accused frequented the house of the deceased and spent time with her who was employed as often as possible. She used to help the accused in a generous way to the and displeasure of her mother. Allegedly the accused was upset because the deceased had been forbidden to visit her house and hated all her people, except one Nisha, a small girl. The incident took place on a day when the deceased had no work. Allegedly the accused met her soon after lunch and inquired whether they could go for cutting grass and plantain leaves. Though she hesitated at first she agreed and went with the accused to the adjoining property of PW.3. PW.5, the mother of the deceased and PW.6, her sister had seen them going out. On the way they had ice-candy from PW.10. Allegedly the accused had taken MO.1 from her house and she had also MO.2 that she collected from the house of the deceased. From the property PW.3, where plantains were grown, amongst cocunut-trees, the accused was alleged to have chased the deceased and inflicted injures with MO.1. PW.1 who happened to see this while returning home after work in the house of PW.3 immediately reported the matter to PWs. 2 and 17, who are the brother and husband of PW.3. They soon went to the place and saw the deceased Sarojini lying in a pool of blood with the accused standing by her side with a chopper, MO.1, that was bloodstained. She threatened those who dared to go near, barandishing the chopper. PWs. 2 and 17 raised a hue and cry and PW4 a neighbour rushed to the place. He said that the accused should not be allowed to go and went away to bring people. But by the time he came back she left the place with MO.1, that she flung into the adjacent canal. PW.17 went to the shop of PW.13 to get in touch with the police over phone, but failed. Around 5.00 p.m. he went to the Panoor Police Station and gave a statement Ext.P.11 about the incident to PW.21 who registered Crime 143 of 1991. He went to the scene of occurrence, made arrangement to guard the same and at about 6.30 p.m. took the accused into custody. PW.20 investigated the case the same day and arrested her around 9.30 p.m. On the next day, he conducted the inquest and under Ext. P.1 report seized MOs. 3 to 5 from the dead body and MOs. 6 to 8 and 12 as also MO2. He also seized MOs. 9 to 11 from the accused under Ext.P.13. As per her statement, marked as Ext.P.14, he seized MO1 under Ext.P.2 with the help of PW.8. The scene of incident which carried tell-tale marks of the incident was described in Ext.P3 mahazar, that he prepared at 4.30 p.m. the same day, and laid the final report after completing the investigation.

3. The accused denied the entire incident, about which she said she had heard, but in which she was not involved. She was sorry that her friend had a tragic death and maintained her innocence. He mother was examined as DW.1 and Ext.D1 was marked in defence.

4. We heard counsel of the appellant and the Public Prosecutor.

5. PW.1 had testified to the incident, that she claimed to have witnessed around 1.30 p.m. whole going home after work in the house of PW.17. She had to pass through the property of PW3 to reach her house. Her case was that she saw the accused chasing the deceased with a chopper and inflicting injury on her neck. The deceased fell down in a pit with a bleeding injury. She ran back and told PW.3 what she had seen. She had been questioned by the investigation officer the next day and she struck to her version to him at the trial. The accused and the deceased were known to her before the incident. She was not involved in any dispute with either of them. She had indeed no reason to have testified against the accused falsely. Her version has a ring of truth.

6. PW.2 and PW.17 deposed that soon after they came to know about the incident from PW1, they rushed to the place and saw the deceased to have been felled and bleeding profusely, with the accused standing by her side with a bloodstained chopper, that she brandished and threatened those who dared to go near the injured. After some time, she left the place and PW. 17 went near the injured woman, and found her dead. PWs. 3 and 4, who had reached the place hearing the commuotion corroborated their case. PW.21 found her a little away from the place of incident with bloodstained clothes. Indeed, PW.17 had implicated her in the incident in Ext.P.11 and she was formally arrested by PW20 the same night. PWs. 2 and 17 had identified MO1 as the weapon of offence. According to PW20, it was seized at the instance of the accused from a canal running by the side of the scene of incident, with the help of PW8, who had attested Ext.P2 seizure mahazar and corroborated the case regarding recovery. PW18 had testified that MO1 could have caused the inurees sustained by the deceased.

7. There were over 30 ante-mortem injures all over the body of the deceased, in a murderous display of violence. PW18 opined that injury No. 1, which was -
    "incised gaping wound 14 x 3.5 x 4 cm with brevelling of its upper margin transverse at the back of upper part of neck its left end just behind ear and its right end 3 cm behind the ear (Rt). The muscles superficial vessels and nerves were cut and the wound has cut the spinous process of 2nd cervical vertebrae and the intervertebral joint and terminated in the spinal canal. The spinal cord was intact"
could, itself, have caused death of the deceased in the ordinary course. Injuries 3 to 6 and 15, 23, 27 and 30 collectively could also have caused death, which the Doctor opined was the result of the multiple injuries the deceased sustained. Her death indeed was homicidal.

8. No witness for the prosecution and the mother of the accused, who was examined as DW1, stated that she was insane at the relevant time. She went about as any normal person would, though her relationship with the deceased and vice-versa had an abnormal character, that did not go unnoticed by their close relatives. Going by the evidence of PW18, it could well be said that the deceased was accustomed to unnatural sexual activities. He had noticed scaring of anal mucossa, possible in sodomic cases and seen in a chronic passive agent. Possibly she and the accused were lesbians. Lesbianism is homosexuality among women. In the view of medical experts, psycho-pathology of homo-sexuals is similar to that observed in heterosexuals, which is one of the reasons that homosexuality is no longer considered to be mental illness. In some counties, it is considered to be a normal variant of human behaviour. The incidence and prevalence of mental illness in homosexuals are no higher than in heterosexuals. Indeed the causes of homosexuality are not well understood. The family backgrounds of lesbians are more diverse and less understood. Many lesbians are masculine in type possibly because of endocrine disturbances and they are indifferent towards individuals of the opposite sex. Lesbians, it has been said, are morbidly jealous of one another and when scorned may resort to homicide, suicide or both. All the same lesbianism is a sort of perversity, which is a pathological condition, distinct from insanity, where there is total loss of control of the mind and inability to distinguish right from wrong. One might acquire perverse sexual habits by association, contacts as also exposure and there will be degeneration of mind and impulses. But not so in insanity where the conscious mind has lost its balance due to disease or otherwise and the victim lives quite often in surrealistic world of dreams and fantasies without being aware of the real world around. We have to keep perversity apart from insanity that could be invoked only within the parameters of Section 84 IPC. It was not anybody's case and it was not even suggested that the accused was insane and did not know the nature of the act that she committed, that it was either wrong or contrary to law. She was rightly found guilty of murder.

We uphold the conviction and sentence and dismiss the appeal.

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Accused and deceased both Women were Lesbians, Plea of insanity by accused not tenable, Lesbianism is a sort of perversity and not insanity, Details on Geek Upd8, thanks to Advocate Jackie Paulson, Navneet Khudania - http://g8.geekupd8.com/191

Adv Sneha Jaiswal

very nice judgment

Advocate Virender Binda

Gd decision

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