REPORTABLE

IN THE SUPREME COURT OF INDIA   

CRIMINAL APPELLATE JURISDICITION   

CRIMINAL APPEAL NO.1250 OF 2006     Elavarasan                           …Appellant   

 Versus    

 State Rep. by Inspector of Police …Respondent     

J U D G M E N T

T.S. THAKUR, J.   

 1. This appeal by special leave arises out of a judgment  

and  order  passed  by  the  High  Court  of  Madras  whereby  

Criminal Appeal No.1215 of 2003 has been dismissed and the  

conviction of the appellant and sentence awarded to him for  

offences punishable under Sections 302, 307 and 342 of the  

I.P.C. upheld.

2. Briefly  stated  the  prosecution  case  is  that  the  

appellant was residing in a house situate at Yadwal Street,

Poovam Koticherri, Distt. Karaikal, Tamil Nadu. Apart from  

his wife Smt. Dhanalakshmi, PW2 and his daughter Abirami,  

aged about 1½ years, his mother Smt. Valli, PW3 also lived  

with  him.   On  the  fateful  night  intervening  11-12  of  

December, 2000 at about 1 p.m. the appellant is alleged to  

have started a quarrel with his wife accusing her of having  

brought misfortune to him ever since she got married to  

him. The immediate provocation for making that accusation  

was his inability to sell the property owned by his mother,  

as the Revenue entries relating the same stood in the name  

of  Kannan,  the  paternal  uncle  of  the  appellant,  who  it  

appears was not agreeable to the sale of the property. The  

quarrel between the husband and the wife took an ugly turn  

when the appellant made a murderous assault on his wife,  

Dhanalakshmi  causing  several  injuries  to  her  including  

those on her head, left hand, right cheek and other parts  

of the body. Intervention of PW3, Vali who is none other  

than  the  mother  of  the  appellant  also  did  not  stop  the  

appellant from assaulting his wife. In the process injuries  

were caused even to the mother. Due to the ruckus caused by  

the quarrel and the assault on the two women, Abirami who  

was  sleeping  in  the  adjacent  room  woke  up  and  started  

crying. The appellant at that stage is alleged to have gone  

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inside  the  room  and  hit  the  deceased  resulting  in  her  

death.  

3. The prosecution case further is that the appellant did  

not allow the injured to go out of the house and bolted the  

doors from inside.  In the morning at about 7 a.m. Shri R.  

Parvathi,  PW5  is  said  to  have  gone  to  the  house  of  R.  

Natarajan,  PW1  -  a  resident  of  the  same  street  in  the  

village and told him about the quarrel at the house of the  

appellant the previous night.  Both of them then came to  

the spot and found a pool of blood near the outer door of  

the house of the appellant. Since the door was bolted from  

inside, PW1 called the appellant by his name, who responded  

to the call and said that he had cut his mother and wife  

and wanted to commit suicide for which he demanded some  

poison  from  them.   A  large  number  of  villagers  in  the  

meantime gathered on the spot but the appellant refused to  

open the door. The Police was informed about the incident  

on telephone and soon arrived at the spot to knock at the  

doors of the appellant’s house asking him to open the same.  

The appellant refused to do so and threatened that he would  

murder anyone who ventured to enter the house. Since the  

appellant remained adamant in this resolve, the Police with  

the help of PWs 1, 8 and others forced the door open and  

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found the appellant inside the house armed with an Aruval,  

and his mother and wife lying inside the house with serious  

cut injuries and blood all over the place.  In the adjacent  

room  they  found  Abirami  in  an  injured  condition.  Not  

knowing whether she was dead or alive, she was picked up  

and rushed to the hospital alongwith the other two injured,  

where  the  doctor  pronounced  the  child  brought  dead.  On  

completion of the investigation, the police filed a charge-

sheet against the appellant for offences punishable under  

Sections 342, 307 (2 counts) and 302 IPC. He was committed  

to the sessions at Karaikal where the appellant pleaded not  

guilty and claimed a trial.  

4. Before  the  Trial  Court  the  prosecution  examined  as  

many  as  21  witnesses  in  support  of  its  case  while  the  

accused-appellant who set up unsoundness of mind in defence  

did  not  lead  any  evidence  except  making  a  request  for  

medical examination which request was allowed and Dr. R.  

Chandrasekaran  and  Dr.  P.  Srinivasan  who  examined  the  

appellant summoned as court witnesses to depose about their  

observations and conclusions as regards the mental health  

of the appellant.

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5. The  Trial  court  eventually  rejected  the  plea  of  

insanity  and  found  the  appellant  guilty  of  the  charges  

framed  against  him  and  sentenced  him  to  undergo  

imprisonment  for  life  for  the  murder  of  his  child  baby  

Abirami and to undergo 1 year rigorous imprisonment for the  

offence  punishable  under  Section  342  IPC  and  10  years  

rigorous imprisonment together with a fine of Rs.1,000/-  

for each of the offences punishable under Section 307 (2  

counts).  The sentences were ordered to run concurrently.  

6. Aggrieved by the judgment and order of the Trial Court  

the  appellant  filed  an  appeal  before  the  High  Court  of  

Madras, who dismissed the same and affirmed the findings  

recorded by the Trial Court as already noticed by us. The  

High  Court  held  that  the  appellant  had  been  caught  red  

handed with the weapon of offence inside the house in the  

presence of PWs 1, 7, 8 and others.  Besides, there was no  

reason why his wife PW2, who was an injured eye-witness to  

the  entire  incident,  should  have  falsely  implicated  the  

appellant. The High Court also took the view that since  

PW3, the mother of the appellant who had also been injured  

in the incident had turned hostile and stated that she had  

sustained the injuries accidently because of a fall, the  

appellant’s  conviction  for  the  attempted  murder  of  his  

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mother punishable under Section 307 was liable to be set  

aside.   The  fact  that  PW3  had  turned  hostile  did  not,  

opined the High Court, make any dent in the prosecution  

case in so far as the same related to the murder of the  

innocent child and an attempt made by the appellant on the  

life of his wife Dhanalakshmi. The plea of insanity was  

rejected by the High Court on the ground that there was no  

material to show that the appellant was insane at the time  

of the commission of the   offences. The present appeal  

assails the correctness of the above judgment and order as  

already noticed by us.   

7. Appearing for the appellant, Mr. Mani, learned counsel  

urged  a  solitary  point  in  support  of  the  appeal.  He  

submitted that the material on record sufficiently proved  

the plea of insanity set up by the appellant at the trial.  

Reliance in support was placed by the learned counsel upon  

the deposition of Dr. P. Srinivasan, CW1, according to whom  

the appellant was a person of unsound mind.  He also drew  

our attention to the deposition of other witnesses to argue  

that the appellant had been treated by a Psychiatrist and  

had  been  taking  medicines  for  his  illness.  Reliance  in  

particular  was  placed  by  the  learned  counsel  upon  the  

contents of Ex.P.3 the observation Mahazar which refers to  

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certain  writings  on  the  walls  of  the  appellant’s  house  

suggesting that the appellant was mentally unsound even at  

the time of commission of crime.  From the graffiti, it was  

according to Mr. Mani evident that the appellant suffered  

from insanity before and at the time of the incident. Mr.  

Mani further argued that murderous assault on his wife, his  

mother and child without any ostensible reason was itself  

suggestive  of  the  appellant  being  an  insane  person.  The  

appellant’s conduct after the event was also, argued Mr.  

Mani,  suggestive  of  his  being  of  unsound  mind,  which  

aspects the courts below had failed to appreciate in the  

process denying to the appellant the benefit of Section 84  

of the Indian Penal Code, legitimately due to him.  

8. On behalf of the respondent Mr. Venkataramani, learned  

senior counsel contended that the trial court as also the  

High Court had correctly found the plea of insanity set up  

by  the  appellant  as  not  proved  and  held  the  appellant  

guilty of the offences with which he stood charged.  Mr.  

Ventakaramani argued that there was no credible evidence to  

establish legal insanity at the time of the commission of  

the offence so as to entitle the appellant to the benefit  

of Section 84 of IPC. The fact that the appellant did not  

run  away  from  the  place  of  occurrence  or  that  he  had  

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attacked  his  wife  and  child  without  any  reason  did  not  

establish  that  the  appellant  was  of  unsound  mind,  hence  

unable to understand the nature of the act or that what he  

was doing was either wrong or contrary to law.  Reliance  

was placed by Mr. Venkatarmani upon the deposition of CW2  

Dr. R. Chandrasekaran in support of his submission that the  

appellant  was  not  an  insane  person  at  the  time  of  the  

incident  or  at  the  time  he  was  tried  for  the  offences  

committed by him.

9. There was before the courts below and even before us  

no  challenge  to  the  factual  narrative  given  by  the  

prosecution and the witnesses examined on its behalf.  That  

the appellant lived with his mother, wife and minor child  

in  the  house  owned  by  him  was  not  disputed.  That  he  

assaulted  his  wife,  who  was  in  family  way  and  caused  

several injuries to her and to his mother who intervened to  

save the former is also not in dispute. That injuries were  

caused even to Abirami who succumbed to the same was also  

not  challenged  before  us  by  Mr.  Mani.  The  appellant’s  

mother PW3, no doubt turned hostile at the trial and tried  

to attribute the injuries sustained by her to a fall in the  

house, but the deposition of PW2, the wife of the appellant  

completely supported the prosecution case and the sequence  

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of events leading to the heartless killing of the innocent  

child Abirami, who was sleeping in the adjacent room and  

whose only fault was that she woke up hearing the shrieks  

and  wails  of  the  mother  and  started  crying.  That  the  

appellant  was  arrested  from  the  house  from  where  the  

injured witnesses PW2 and PW3 and Abirami were removed in  

an  injured  condition,  was  also  not  disputed.  Even  

independent of the line of arguments adopted by the learned  

counsel,  we  are  satisfied  that  there  is  no  reason  

whatsoever  to  disbelieve  the  deposition  of  Dhanalakshmi,  

PW2  who  unlike  Abirami  not  only  suffered  the  murderous  

assault but survived to tell the tale in all its details  

that leave no room for any doubt in our mind about her  

version being completely reliable. That Shri R. Natarajan,  

PW1 and Shri J. Ashokan, PW8 also support and corroborate  

the version of PW2, Dhanalakshmi, only goes to show that it  

was the appellant and the appellant alone who attacked not  

only his wife but his daughter of tender age resulting in  

the  death  of  the  later.  Superadded  to  the  above  is  the  

depositions  of  PW19,  Dr.  Ramamurthy,  who  conducted  the  

post-mortem of the dead body of Abirami and who proved the  

post-mortem  report  marked  as  Ex.P.25  enumerating  the  

injuries found on the body of the unfortunate child. The  

doctor opined that death was due to coma as a result of  

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head injuries within 24 to 36 hours prior to post-mortem  

and that the blunt side of a weapon like M.O.27 could have  

caused the injuries found on the dead body.  

10. Similarly,  the  deposition  of  PW16,  Dr.  Anni  Pula  

Juilet  who  was  posted  as  Assistant  Surgeon  in  the  

Government Hospital at Karaikal proved the injury report  

marked  Ex.P19  that  listed  the  injuries  sustained  by  

Dhanalakshmi, PW2, as under:  

(1) Injury of 3 cms. x 3 cms. Right side of leg. (2) Injury of 3 cms. x 3 cms. Lt. side of elbow. (3) Injury on left side of forearm of 7 cms. x 7 cm.  

Suspected fracture on it. Forearm. (4) Injury Lt. side of hand 3 cms. x 3 cms.  (5) Injury Lt. Side of hand 3 cms. x 3 cms. (6) Injury on the palm. (7) Injury all the fingers. (8) Injury chest 4 cms. x 4 cms. (9) 24 weeks foetus. (10) Injury face angle from Lt. Side measuring 7 cms. x  

7 cms. (11) Injury scale back side of 8 cms. x 8 cms. (12) Deep cut on the scale 10 cms. x 12 cms.  Deep cut  

extending to the back 3 cms. x 3 cms. (13) Abrasion frontal side of scalp. (14) Injury Rt. Side of the hand.  Lacerated injury Rt.  

Index finger extending bone. (15) Deep cut injury on the scalp 6 cms. x 6 cms.      

11. Injuries found on the person of PW3, the mother of the  

appellant  were  described  in  Ex.P20  proved  by  the  same  

witness, as under:

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(1) Cut injury Lt. Side of forearm hand. (2) Cut injury Rt. Side of hand near the Wrist 7 cms.  

x 6 cms. (3) Deep cut injury on the forehead 5 cms. x 5 cms.  

Lt. Side above ridge bone. (4) Deep cut injury Lt. Side of forearm 7 cms. x 7  

cmx. near wrist. (5) Deep cut injury on the Lt. Side of forearm 5 cms.  

x 5 cms.  (6) Deep cut injury on the scalp exposing the bones  

about 16 cms. x 16 cms.  

12. PW15, Dr. Shriramulu, was the Assistant Surgeon in the  

General Hospital at Karaikal who found 15 injuries on the  

person of PW2, stated that PW2 remained admitted to the  

hospital from 12th December, 2000 till 28th January, 2001.  

According  to  him  the  appellant’s  mother  PW3  had  also  

suffered six injuries and her little and index fingers in  

the  right  hand  had  been  amputated  in  the  course  of  

treatment on 8th January, 2001.  

13. In the light of the above evidence and in the absence  

of any challenge to the veracity of the witnesses produced  

by the prosecution we have no manner of doubt in our mind  

that the appellant alone was responsible for the assault on  

his wife PW2, Dhanlakshmi and baby Abrami who lost her life  

as a result of the injuries sustained by her in the said  

incident.  Left  at  that  there  can  be  no  escape  from  the  

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conclusion  that  the  appellant  was  guilty  of  committing  

culpable  homicide  of  his  daughter  Abirami  aged  about  1½  

year  and  an  attempt  to  commit  the  murder  of  his  wife  

Dhanlakshmi,  even  if  the  assault  on  the  mother  of  the  

appellant is taken as doubtful on account of the injured  

turning hostile at the trial and attempting to attribute  

the injuries sustained by her to a fall.    

14. The question, however, is whether the appellant was  

entitled to the benefit of Section 84 of Indian Penal Code  

which provides that nothing is an offence which is done by  

a  person  who,  at  the  time  of  doing  it,  by  reason  of  

unsoundness of mind, is incapable of knowing the nature of  

the act or who is incapable of knowing that what he is  

doing, is either wrong or contrary to law. Before adverting  

to the evidence on record as regards the plea of insanity  

set up by the appellant, we consider it necessary to refer  

to two aspects that bear relevance to cases where a plea of  

insanity  is  raised  in  defence  by  a  person  accused  of  a  

crime. The first aspect concerns the burden of proving the  

existence of circumstances that would bring the case within  

the purview of Section 84 of the I.P.C. It is trite that  

the  burden  of  proving  the  commission  of  an  offence  is  

always on the prosecution and that the same never shifts.  

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Equally well settled is the proposition that if intention  

is an essential ingredient of the offence alleged against  

the accused the prosecution must establish that ingredient  

also. There is no gainsaying that intention or the state of  

mind  of  a  person  is  ordinarily  inferred  from  the  

circumstances of the case. This implies that, if a person  

deliberately assaults another and causes an injury to him  

then depending upon the weapon used and the part of the  

body  on  which  it  is  struck,  it  would  be  reasonable  to  

assume that the accused had the intention to cause the kind  

of injury which he inflicted. Having said that, Section 84  

can be invoked by the accused for nullifying the effect of  

the evidence adduced by the prosecution. He can do so by  

proving that he was incapable of knowing the nature of the  

act or of knowing that what he was doing was either wrong  

or  contrary  to  law.  But  what  is  important  is  that  the  

burden of bringing his/her case under Section 84 of the IPC  

lies squarely upon the person claiming the benefit of that  

provision.   Section  105  of  the  Evidence  Act  is  in  this  

regard relevant and may be extracted:    

“105. Burden of proving that case of accused  comes  within  exceptions.-When  a  person  is  accused of any offence, the burden of proving  the  existence  of  circumstances  bringing  the  case within any of the General Exceptions in  the Indian Penal Code, (45 of 1860) or within  

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any special exception or proviso contained in  any other part of the same Code, or in any law  defining  the  offence,  is  upon  him,  and  the  Court  shall  presume  the  absence  of  such  circumstances.”

15. A careful reading of the above would show that not  

only  is  the  burden  to  prove  an  exception  cast  upon  the  

accused  but  the  Court  shall  presume  the  absence  of  

circumstances which may bring his case within any of the  

general exceptions in the Indian Penal Code or within any  

special exception or provision contained in any part of the  

said Code or in law defining the offence. The following  

passage  from  the  decision  of  this  Court  in  Dahyabhai  

Chhaganbhai Thakkar  v. State of Gujarat, (1964) 7 SCR 361  

may serve as a timely reminder of the principles governing  

burden  of  proof  in  cases  where  the  accused  pleads  an  

exception:

“The doctrine of burden of proof in the context  of the plea of insanity may be stated in the  following propositions:

(1)  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.  (2)  There  is  a  rebuttable  presumption that the accused was not insane,  when he committed the crime, in the sense laid  down by Section 84 of the Indian Penal Code:  

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the accused may rebut it by placing before the  court  all  the  relevant  evidence  oral,  documentary or circumstantial, but the burden  of proof upon him is no higher than that rests  upon a party to civil proceedings. (3) Even if  the  accused  was  not  able  to  establish  conclusively that he was insane at the time he  committed  the  offence,  the  evidence  placed  before  the  court  by  the  accused  or  by  the  prosecution may raise a reasonable doubt in the  mind of the court as regards one or more of the  ingredients of the offence, including mens rea  of the accused and in that case the court would  be entitled to acquit the accused on the ground  that the general burden of proof resting on the  prosecution was not discharged.”

16. The second aspect which we need to mention is that the  

standard of proof which the accused has to satisfy for the  

discharge of the burden cast upon him under Section 105  

(supra) is not the same as is expected of the prosecution.  

A long line of decisions of this Court have authoritatively  

settled the legal proposition on the subject.  Reference in  

this connection to the decision of this Court in  State of  

U.P.  v. Ram  Swarup  and  Anr., (1974) 4  SCC  764  should  

suffice where this court observed:

“The burden which rests on the accused to  prove the exception is not of the same rigour  as the burden of the prosecution to prove the  charge beyond a reasonable doubt. It is enough  for the accused to show, as in a civil case,  that the preponderance of probabilities is in  his favour.”

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17. To the same effect is the decision of this Court in  

Bhikari v. State of Uttar Pradesh (AIR 1966 SC 1).

18. Let  us  now  consider  the  material  on  record  in  the  

light of the above propositions to determine whether the  

appellant had discharged the burden of bringing his case  

under  Section  84  of  the  IPC.  The  appellant  has  led  no  

evidence in defence to support the plea of legal insanity.  

That  may  be  a  significant  aspect  but  by  no  means  

conclusive, for it is open to an accused to rely upon the  

material brought on record by the prosecution to claim the  

benefit  of  the  exception.  Evidence  in  defence  may  be  a  

surplusage in cases where the defence can make out a case  

for  the  acquittal  of  the  accused  based  on  the  evidence  

adduced by the prosecution.

19. What falls for consideration in the light of the above  

is whether the present is one such case where the plea of  

insanity - is proved or even probablised by the evidence  

led by the prosecution and the court witnesses examined at  

the Trial. Depositions of two prosecution witnesses viz.  

PW2,  Dhanalakshmi  and  PW3,  Valli  immediately  assume  

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significance  to  which  we  may  at  this  stage  refer.  PW2,  

Dhanalakshmi  has,  apart  from  narrating  the  sequence  of  

events leading to the incident, stated that her husband is  

a government servant getting a monthly salary of Rs.4000/-  

which  he  would  hand  over  to  the  witness  to  meet  the  

household expenses. She further stated that the couple had  

a  peaceful  married  life  for  five  years  but  there  was  a  

dispute  between  the  appellant  and  his  maternal  uncle  by  

name Kannan in regard to the property a part of which the  

appellant had already sold and the remainder he wanted to  

sell. The appellant had according to the witness started  

the quarrel around 12 p.m. but assaulted her an hour later.  

The  witness  further  stated  that  for  sleeplessness,  the  

appellant used to take some medicine but she did not recall  

the  name  of  the  Clinic  from  where  he  was  taking  the  

treatment.  According to the witness, the Psychiatrist who  

was  treating  the  appellant  had  diagnosed  his  medical  

condition  to  be  the  effect  of  excessive  drinking  and  

advised that if the appellant took the medicines regularly  

he would get cured.   

20. That brings us to the deposition of PW3, Smt. Valli,  

the mother of the appellant. This witness has in cross-

examination  stated  that  the  appellant  was  working  as  a  

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Watchman at PWD bungalow and that she used to deliver his  

lunch at the appellant’s office. She also referred to the  

dispute  between  the  appellant  and  his  paternal  uncle  

regarding  family  properties  in  which  connection  he  had  

filed a complaint to the police station. On the date of the  

incident, the family had their dinner at around 9 p.m. and  

gone to bed. But the couple started quarreling around 1  

p.m.  leading  to  an  assault  on  PW2,  Dhanalakshmi.  The  

witness stated that the appellant was undergoing treatment  

with a Psychiatrist in a clinic situated at Perumal Kovi  

street and that the doctor had diagnosed the appellant to  

be a case of mental disorder because of which he could get  

angry very often.

21. From  the  deposition  of  the  above  two  witnesses  who  

happen to be the close family members of the appellant it  

is not possible to infer that the appellant was of unsound  

mind at the time of the incident or at any time before  

that.   The  fact  that  the  appellant  was  working  as  a  

government servant and was posted as a Watchman with no  

history  of  any  complaint  as  to  his  mental  health  from  

anyone  supervising  his  duties,  is  significant.  Equally  

important is the fact that his spouse Smt. Dhanalakshim who  

was  living  with  him  under  the  same  roof  also  did  not  

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suggest  any  ailment  afflicting  the  appellant  except  

sleeplessness which was diagnosed by the doctor to be the  

effect of excessive drinking. The deposition of PW3, Valli  

that her son was getting treatment for mental disorder is  

also much too vague and deficient for this Court to record  

a  finding  of  unsoundness  of  mind  especially  when  the  

witness had turned hostile at the trial despite multiple  

injuries sustained by her which she tried to attribute to a  

fall inside her house.  The statement of the witness that  

her  son  was  getting  treatment  for  some  mental  disorder  

cannot in the circumstances be accepted on its face value,  

to rest an order of acquittal in favour of the appellant on  

the  basis  thereof.   It  is  obvious  that  the  mother  has  

switched  sides  to  save  her  son  from  the  consequences  

flowing from his criminal act.   

22. That  leaves  us  with  the  deposition  of  two  medical  

experts who examined the appellant under the orders of the  

Court during the course of the trial. Dr. B. Srinivasan,  

Specialist in Psychiatry, in his deposition stated that the  

appellant was admitted to the government hospital, Karaikal  

on 29th July, 2002 pursuant to an order passed by the Trial  

Court directing his medical examination so as to evaluate  

his mental condition and ability to converse. The witness  

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further  stated  that  the  appellant  was  kept  under  

observation on and from the afternoon of 29th July 2000 till  

6th August,  2002  during  which  time  he  found  him  to  be  

conscious, ambulant dressed adequately and able to converse  

with the examiner.  The doctor has described the condition  

of the appellant during this period in the following words:  

“He  has  restlessness,  suspicious  looking  around  at  time  inappropriate  smile  has  complaints of some innervoice telling to him  (abusive  in  nature  at  times),  has  fear  and  worries about others opinion about him, wants  to be left alone, says he needs a few pegs of  alcohol to sleep peacefully at night.  He has  confusion  at  times  about  the  whisper  within  him, feels some pulling connection between his  chest and brain, that prevents him from taking  freely with people and with the examiner.  I am  of the opinion that the above individual is of  unsound mind.  The possible medical dispenses  being  psychosis:  (The  differential  diagnosis  considered in this case are

1. Paranoid Psychosis (Schizophrenia)

2.   Substance  induced  Psychosis  (Alcohol  

induced)

3. Organic  Psychosis  /organic  mental  

disorder

    (Head injury sequelae & personality  

changes)

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I, therefore, request this Hon’ble Court be  kindly  arrange  for  a  second  opinion  by  another  consultant  Psychiatrist  in  this  case and also Psychological assessment by a  clinical psychologist.”

                             (Emphasis  supplied)

23. The appellant was, in the light of the recommendations  

made by Dr. B. Srinivasan referred to JIPMAR hospital at  

Pondicherry, where he remained under the observation of Dr.  

R.  Chandrashekhar,  CW2  who  happened  to  be  Professor  and  

Head of the Department of Psychiatry in that Hospital.  In  

his  deposition  before  the  Court  Dr.  Chandrashekhar  has  

stated that the appellant was admitted on 30th September,  

2002 but escaped from the hospital on 1st October, 2002 in  

which  connection  the  doctor  made  a  report  marked  Ex.P1.  

After  examining  the  relevant  record  the  witness  deposed  

that the appellant did not have any Psychataxia symptoms.  

In the detailed report proved by the witness and marked  

Ex.P2 the medical condition of the appellant is described  

as under:        

“He  was  well  groomed.   Rapport  was  established.  No abnormal motoric behavior was  present. He was cooperative.  His mood appeared  

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euthymic and speech was normal.  There was no  evidence of formal thought disorder or disorder  of  possession  or  thought  content.   No  perceptual disorder was evident. Attention was  arousable and concentration well sustained.  He  was  oriented  to  time,  place,  person.   The  immediate recall, recent and remote memory was  intact.  Abstraction was at functional level.  Judgement was preserved.  Insight was present.”

  24. In the final report the doctor has drawn the following  

pen picture about the appellant’s mental health and psycho-

diagnostic evaluation.           

PSYCHO-DIAGOSTIC EVALUATION:

Patient’s  perception,  memory  and  intelligence  were  slightly  impaired  (Memory  Quotient was 70 and performance quotient was  72).   Mixed  psychotic  picture  with  predominantly affective disturbances was seen.  He  requires  further  support  and  guidance  in  occupational area.  

The  examination  is  suggestive  of  a  life  time  diagnosis  of  Psychosis  (not  otherwise  specified) and currently in remission.  Patient  was  on  treatment  with  vitamins  and  chlorpromazine 100 mg. per day during his stay  in the ward.  The course in the hospital was  uneventful  except  for  the  fact  that  he  absconded from the ward on 1.10.2002.  I am of  the opinion that the above individual does not  currently suffer from any mental symptom, which  can interfere with the capability of making his  defense.             

  Sd/- XXX (DR. R. CHANDRASHKARAN)

H/D of Psychiatry

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Dt. 5th October, 2002. JIPMER,     Pondicherry-6. “

25. What is important is that the depositions of the two  

doctors examined as court witnesses during the trial deal  

with the mental health condition of the appellant at the  

time  of  the  examination  by  the  doctors  and  not  the  

commission of the offence which is the relevant point of  

time  for  claiming  the  benefit  of  Section  84  I.P.C.  The  

medical opinion available on record simply deals with the  

question  whether  the  appellant  is  suffering  from  any  

disease, mental or otherwise that could prevent him from  

making  his  defence  at  the  trial.  It  is  true  that  while  

determining whether the accused is entitled to the benefit  

of  Section  84  I.P.C.  the  Court  has  to  consider  the  

circumstances  that  proceeded,  attended  or  followed  the  

crime but it is equally true that such circumstances must  

be established by credible evidence.  No such evidence has  

been  led  in  this  case.  On  the  contrary  expert  evidence  

comprising  the  deposition  and  certificates  of  Dr.  

Chandrashekhar of JIPMER unequivocally establish that the  

appellant  did  not  suffer  from  any  medical  symptoms  that  

could interfere with his capability of making his defence.  

There is no evidence suggesting any mental derangement of  

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the appellant at the time of the commission of the crime  

for  neither the wife nor even his mother have in so many  

words  suggested  any  unsoundness  of  mind  leave  alone  a  

mental debility that would prevent him from understanding  

the nature and consequences of his actions.  The doctor,  

who is alleged to have treated him for insomnia, has also  

not been examined nor has anyone familiar with the state of  

his mental health stepped into the witness box to support  

the plea of insanity. There is no gainsaying that insanity  

is a medical condition that cannot for long be concealed  

from friends and relatives of the person concerned. Non-

production  of  anyone  who  noticed  any  irrational  or  

eccentric behaviour on the part of the appellant in that  

view is noteworthy.  Suffice it to say that the plea of  

insanity taken by the appellant was neither substantiated  

nor probablised.  

26. Mr. Mani, as a last ditch attempt relied upon certain  

observations  made  in  Mahazar  Ex.P3  in  support  of  the  

argument that the appellant was indeed insane at the time  

of  commission  of  the  offences.  He  submitted  that  the  

Mahazar referred to certain writings on the inner walls of  

the appellant’s house which suggested that the appellant  

was insane.  A similar argument was advanced even before  

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the Courts below and was rejected for reasons which we find  

to be fairly sound and acceptable especially when evidence  

on record establishes that the appellant was an alcoholic,  

who could scribble any message or request on the walls of  

his house while under the influence of alcohol. The Courts  

below were, therefore, justified in holding that the plea  

of insanity had not been proved and the burden of proof  

cast upon the appellant under Section 105 of the Evidence  

Act  remained  undischarged.  The  High  Court  has  also  

correctly held that the mere fact that the appellant had  

assaulted his wife, mother and child was not ipso facto  

suggestive of his being an insane person.   

27. So, also the fact that he had not escaped from the  

place of occurrence was no reason by itself to declare him  

to be a person of unsound mind incapable of understanding  

the nature of the acts committed by him. Experience has  

shown that different individuals react differently to same  

or similar situations. Some may escape from the scene of  

occurrence, others may not while some may even walk to the  

police station to surrender and report about what they have  

done. Such post event conduct may be relevant to determine  

the  culpability  of  the  offender  in  the  light  of  other  

evidence on record, but the conduct of not fleeing from the  

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spot would not in itself show that the person concerned was  

insane at the time of the commission of the offence.

28. That brings us to the nature of offence committed by  

the appellant and the quantum of sentence that would meet  

the  ends  of  justice.  The  courts  below  have  found  the  

appellant guilty of murder of baby Abirami and awarded a  

life sentence to the appellant apart from 10 years rigorous  

imprisonment  for  the  offence  of  attempt  to  murder  

Dhanalakshmi and imprisonment of one year under Section 342  

of the I.P.C. In the circumstances of the case we see no  

reason to alter the conviction or sentence under Section  

342 of the I.P.C. We also see no reason to interfere with  

the conviction of the appellant under Section 307 of the  

I.P.C.  except  that  instead  of  10  years  rigorous  

imprisonment of 7 years, should in our view suffice. The  

conviction of the appellant under Section 302 of the I.P.C.  

is not, however, justified.  We say so for reasons more  

than one.  In the first place there was no pre-meditation  

in the assault upon the deceased. The evidence on record  

shows that the family had gone to bed after dinner around 9  

p.m.  The  quarrel  between  the  appellant  husband  and  

Dhanalakshmi  his  wife  started  around  12  midnight  and  

escalated into an assault on the later around one a.m. That  

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the quarrel was sudden and without any premeditation, is  

evident from the deposition of the two injured witnesses.  

29. Secondly,  because  in  the  assault  following  the  

quarrel, the appellant used a sharp edged cutting weapon  

against his wife and mother.  Incised wounds sustained by  

the  said  two  ladies  bear  testimony  to  this  part  of  the  

prosecution case.   The deceased Abirami was at this stage  

of the occurrence, in another room wholly unconnected to  

the incident.   

30. Thirdly,  because  the  appellant  had  because  of  the  

sudden fight with his wife assaulted her in the heat of  

passion and injured his mother who intervened to save her.  

The noise and wails of the injured woke up the deceased  

sleeping in the adjacent room who started crying thereby  

attracting the appellant’s attention towards her.

31. Fourthly, because the assault on the deceased caused  

only two injuries with a resultant fracture. The injuries  

were described by the doctor as under:

“1.  Lacerated injury measuring 2 x 0.5  cm. x 0.5 cm.  Seen on middle of (R) Eyebrow.  Lesion covered with blood clots.

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2.   Contusion  –  faint  reddish  blue  in  colour seen on (L) side of face and temporal  region of head.  8 cm. x 8 cm. inside.  Lesions  are antemortem in nature.  Faint suggilations  fixed on back of trunk.”

32. Fifthly, because the appellant did not evidently use  

the sharp edged weapon for causing injuries to the deceased  

as he had done in the case of Dhanalakshmi and Valli, PWs 2  

and 3 respectively.  In the circumstances we are inclined  

to hold that there was no intention on the part of the  

appellant  to  cause  the  death  of  the  deceased,  though  

looking  to  the  nature  of  the  injuries  suffered  by  the  

deceased,  the  appellant  must  be  presumed  to  have  the  

knowledge that the same were likely to cause death. The  

fact remains that the appellant committed culpable homicide  

without premeditation in a sudden fight and in the heat of  

passion.  The fact that the appellant did not use the sharp  

edged weapon with which he was armed also shows that he did  

not act in a cruel or unusual manner nor did he take an  

undue  advantage.  It  is  evident  from  the  deposition  of  

Dhanalakshmi, that she did not see the appellant assaulting  

the deceased. It is, therefore, just possible that a hard  

blow given to the deceased by his bare hand itself threw  

the  child  down  from  the  bed  causing  the  injuries  that  

proved fatal.

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33. In the result, we allow this appeal in part, and in  

modification  of  the  judgments  and  orders  under  appeal  

convict  the  appellant  under  section  304  Part-II  and  

sentence him to undergo rigorous imprisonment for a period  

of ten years. The reduced sentence of seven years rigorous  

imprisonment awarded to the appellant for the offence of  

attempt to murder and one year rigorous imprisonment for  

the offence punishable under Section 342 I.P.C. shall all  

run concurrently with the sentence awarded under Section  

304-Part II. The sentence awarded in default of payment of  

fine shall stand affirmed. The appellant shall be entitled  

to the benefit of Section 428 of the Criminal Procedure  

Code.

……………………..………J. (V.S. SIRPURKAR)

……………………..………J. (T.S. THAKUR)

New Delhi July 5, 2011

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