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,
2
Poovam Koticherri, Distt. Karaikal, Tamil Nadu. Apart from
his wife Smt. Dhanalakshmi, PW2 and his daughter Abirami,
aged about 1= 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
3
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
4
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.
5
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
6
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
7
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
8
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
9
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
10
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:
11
(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
12
conclusion that the appellant was guilty of committing
culpable homicide of his daughter Abirami aged about 1=
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.
13
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
14
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:
15
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."
16
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
17
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
18
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
19
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
20
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)
21
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
22
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
23
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
24
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
25
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
26
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
27
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.
28
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.
29
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
