BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (JUDICATURE)
DATED: 31/03/2005
CORAM
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
AND
THE HON'BLE MR.JUSTICE S.ASHOK KUMAR
CRL. APPEAL No. 1012 OF 2001
Ponnan ..Appellant
-Vs-
State rep. By
The Inspector of Police,
Viralimalai Police Station
Pudukottai District .. Respondent
This Criminal Appeal has been preferred against the judgment and
conviction passed by the Learned Principal District and Sessions Judge,
Pudukottai District in S.C.No.102 of 2000, dated 11.9.2001.
!For appellants :: Mr.M.Deivanandam, Amicus curiae
^For respondent:: Mr.K.Chellapandian
Additional Public Prosecutor
:JUDGMENT
S.ASHOK KUMAR,J.,
The appellant, sole accused in S.C.No:102 of 2000, on the file of the
Principal Sessions Judge, Pudukottai was convicted for offence under Sections
302 IPC to undergo imprisonment for life and for offence under Section 326 IPC
(3 counts) to undergo orous imprisonment for four years on each count, for the
offence under section 324 IPC (2 counts) to undergo rigorous imprisonment for
one year on each count, all the sentences to run concurrently.
2. The brief facts of the prosecution case is as follows:-
(a) PW.1, Rangan is the father of the accused Ponnan. Because, P.W.1,
the father of the accused failed to arrange his marriage with the daughter of
one Ammasi of Saralapatti Village, the accused was in a fit of anger. On
26.4.1999 at 6.45 a.m., he sed grievous injuries to his father by using M.O.3
Aruval. Thereafter he proceeded to a cotton field belonging to Andi Gounder @
Krishnan, where he cut on the right side ear and head of one Chittammal at
7.30 a.m., with his aruval. Thereafter he attacked P.W.3, Meena at 7.45 a.m.,
when she was standing near the water tap at Pasumettupatti. Thereafter he
attacked P.W.4 Rathinam by the said aruval near the water tank. Thereafter he
attacked a school boy, P.W.6 by name Thangaraj, on his left hand, o n the mud
road near the Virudhapatti Village by the said Aruval and thereafter he also
assaulted on the right hand of P.W.5, Andi Gounder @ Krishnan, in the same
transaction and caused grievous injuries to him. P.W.1, Mukkan who is the
President of Viru thapatti Panchayat lodged Ex.P.1 complaint at Viralimalai
Police Station on 26.4.1999 at 10.00 a.m., Natesan (since deceased),
Inspectorof Police, Viralimalai Police Station registered the case in
Cr.No.251 of 1999 under sections 302 and 324 IPC and the printed FIR is
Ex.P.18.
(b) P.W.13, Kannadasan, Inspector of Police visited the place of
occurrence on 26.4.1999 at 10.30 a.m., and prepared observation mahazar Ex.P.8
in the presence of witnesses P.W.9, Chinnappa and one Alagarswamy.He also
prepared a rough plan Ex.P.19. ollected the blood stained earth in M.O.1 and
ordinary earth in M.O.2 under a cover of mahazar Ex.P.9. He conducted an
inquest over the body of the deceased Chittammal and prepared an inquest
report in Ex.P.20. He examined the witnesses P.W.1 Mookkan, P. W.2 Rangan,
P.W.3 Meena, P.W.4 Rathinam, P.W.5 Andigounder @ Krishnan and recorded their
statements. He also prepared another rough plans in Exs.P.21 and 22. He also
prepared observation mahazars in Exs.P.10 and 11.
(c). P.W.7, Dr.Karunanithi, Government Hospital, Manapparai, received
requisition letter from the Inspector of Police, Viralimalai on 26.4.1999 and
conducted an autopsy over the deceased body of Chittammal on 26.4.1999 at 3.00
p.m., The rigor mort resent in all four limbs. He found the following
external injuries:-
“Injuries:
1. 6″ cut wound oblique in direction cutting the right side pinna at
the middle ear depth up to the peritotemporal occipital skin of the bone
cutting mastoid process bone exposing the brain matter -severe bleeding right
side skull.
2. 2″ inches oblique cut injury present in the right side angle of
the mandively.
3. 5″ inches length upper part of the right side neck with bleeding.
Opening the skull.
Internal:
1″ inches circular bone chip fragment present in the mastoid area
right side present in temporal occipital bone right side over the brain matter
blood clots present. Blood collected in the skull cavity. Brain cut section
pale. 1″ in the tempo pari and temporal occipital bone. Hyoid bone intact.
Internal organs: liver cut, pale, kidney pale. Stomach empty. Lungs pale.”
The Doctor opined that the death was caused due to the injuries to the vital
organs, Head injures, Injuries to the brain Haemorrhage and shock. He issued
postmortem certificate in Ex.P.2.
(d) P.W.7 also examined the injured person P.W.2, Rangan on 26.4.1999
at 6.45 p.m., and he found the following external injuries on his body:
1. Cut and 2 + ” x 1 ” x 1″ put in the left writ joint oblipn gnit;
2. 2″ x + ” x + ” cut and put in the top of the head;
3. 1″ x ,” x , ” cut and put in the right side of the top of the head.
The Doctor who issued the wound certificate opined that the injuries are
simple in nature. He issued a wound certificate in Ex.P.3.
(e) The same Doctor also examined the witnesses P.W.3, Meena on
26.4.1999 at 9.30 a.m., morning and found the following external injuries on
her body:
1.Cut injury 6″ x + ” x +” part in the entire of the bead;
2. 3″ x +” x ,” cut wound below the chin, in the neck.
The Doctor gave opinion that the first injury is grievous and other is simple.
He issued a wound certificate in Ex.P.4.
(f) P.W.7, Doctor examined the witness P.W.4 Rathinam on 26.4.1999 at
10.50 a.m., morning and found the following external injuries on his body:
1. Cut injury +” x1/4″ x ,” in the left thumb;
2. +” x +” skin depth cut and portion left index finger;
3. +” x +” skin depth put in the left middle finger;
4. +” x1/2″ depth put in the right arm;
5. Cut injury in the left and right upper arm.
The Doctor opined that the injuries are simple in nature. He also issued a
wound certificate in Ex.P.5.
(g) P.W.7, Doctor also examined P.W.5, Mr.Andi Gounder on the same day
at 10.45 a.m., morning and he found the following external injuries on his
body:
“A cut injury on the left behind the right hand finger and a middle finger 5″
x 1″ x s” heeling injury”.
The Doctor opined that the injury is grievous in nature. He issued a wound
certificate in Ex.P.6.
(h) P.W.7, Doctor examined the witnesses P.W.6 Mr.Thangaraj on the
same day at 10.30 a.m., morning and he found the following external injuries
on his body:
1. Cut and 27 + x bone depth present in the left arm middle arm;
2. Leg 1″ x + ” cut injury at left thigh. He opined that the injuries are
grievous in nature. He issued a wound certificate in Ex.P.7.”
(i). Continuing his investigation P.W.13 arrested the accused near
Chellandi Amman Temple at 4.00 pm., on the same evening and seized M.O.3 ,
blood stained Aruval under a cover of mahazar Ex.P.12. He examined P.W.7,
Dr.Karunanithi, P.W.7, P.W.14 and er witnesses and recorded their statements.
He sent requisition for chemical analysation of the case properties. The
chemical analyst reports are Exs.P.16 and P.17. After completing the
investigation P.W.13 laid the charge sheet against the accused for offences
under sections 302, 324 and 326 IPC in the Judicial Magistrate Court, Keeranur
on 30.7.1999.
(3). Before the Sessions Court, the prosecution examined P.Ws 1 to 14
and marked Exs. P.1 to P.22 and M.Os 1 to 9. No witness was examined on
behalf of the accused. Dr.Elangovan, Assistant Professor of Kilpauk Mental
Health Institute, Chennai was ex ed as CW.1 and the case summary recorded at
the Institute of Mental Health, Kilpauk, was marked as Ex.C.1.
(4). When the accused was questioned with regard to the incriminating
circumstances appearing in the evidence of the prosecution witnesses, the
accused admitted having caused the death of Chittammal and injuries to P.W.2,
his father P.W.3, Meena, P. Rathinam, P.W.5 Andi Gounder and P.W.6 Thangaraj.
He also admitted the time of arrest and recovery of bloodstained Aruval, M.O.3
under a cover of mahazar Ex.P.12. He has also stated that he was not
conscious when he committed the offence and has forgo tten everything and also
admitted that he is suffering from some mental disorder as told by Dr.Kumar,
Professor of KAP Medical College, Trichy.
(5). The accused seems to be suffering from some abomination for his
father since he did not arrange for his marriage with the daughter of one
Ammasi and on that score he started cutting his father first, then Chittammal,
the deceased and thereaft .W.s 3, 4, 5 and 6 one by one at various places.
P.W.s 2 to 6 are injured eye witnesses and P.W.2 is none other than the father
of the accused. The series of attack by the accused against whom he had no
motive at all like Chittammal, Meena and School b oy Thangaraj would show that
the accused should have been labouring from some mental disorder at the time
of occurrence. In fact, before the Sessions Court, P.W.14, Dr.Kumar,
Professor of KAP Medical College, Trichy, was examined, who has deposed th at
he examined the accused from 15.6.1999 to 26.9.1999 in a separate cell and in
the beginning of the examination the accused was always thinking about
something and after treatment for a period of one week there were no symptoms
of mental disorder and e ven though he was aware of the incidence, he was not
able to understand the effect or consequences of the incidence in which he was
involved and he has also come to the conclusion that the accused requires
further examination with regard to his mental di sorder. P.W.14, was once
again examined on 27.4.2001 and he has confirmed his earlier findings. From
the nature of occurrence that the accused went on attacking whoever came on
his way itself shows that the was suffering from some mental disorder.
(6). Since the accused had been suffering from some mental disorder,
he is entitled for the protection under section 84 of the Indian Penal Code.
Section 84 IPC reads as follows:-
“84. 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 that he is doing what is either wrong or contrary to law”.
7. Under Section 105 of the Indian Evidence Act “when a person is
accused of any offence, the burden of proving the existence of circumstances
bringing the cause within any of the General exceptions in the Indian Penal
Code or within any special exc on or proviso contained in any other part of
the same Code, or in any law defining the offence is upon, and the court shall
presume the absence of such circumstances.”
8. In Dahyabhai V. State of Gujarat, reported in AIR 1967 SC 1563,
the Hon’ble Supreme Court has held thus:-
“When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.
It is fundamental principle of criminal jurisprudence that an accused
is presumed to be innocent and, therefore, the burden lies on the prosecution
to prove the guilt of the accused beyond reasonable doubt. The prosecution,
therefore, in a case o micide shall prove beyond reasonable doubt that the
accused caused death with the requisite intention described in S.299 of the
Indian Penal Code. This general burden never shifts and it always rests on
the prosecution. But, S.84 of the Indian Penal Code 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 that he
is doing what is either wrong or contrary to law. This being an except ion,
under Section 105 of the Evidence Act the burden of proving the existence of
circumstances bringing the case within the said exception lies on the accused,
and the court shall presume the absence of such circumstances. Under S.105 of
the Evidence Act, read with the definition of “shall presume” in S.4 thereof,
the court shall regard the absence of such circumstances as proved unless,
after considering the matters before it, it believes that the said
circumstance existed or their existence was so probable that a prudent man
ought, under the circumstances of the particular case to act upon the
supposition that they did exist. To put it in other words, the accused will
have to rebut the presumption that such circumstances did not exist, by
placing material before the court sufficient to make it consider the existence
of the said circumstances so probable that a prudent man would act upon them.
The accused has to satisfy the standard of a “prudent man”. If the material
placed before the court , s uch as, oral and documentary evidence,
presumptions, admissions or even the prosecution evidence, satisfies the test
of “prudent man”, the accused will have discharged his burden. The evidence
so placed may not be sufficient to discharge he burden under S.105of the
Evidence Act, but it may raise a reasonable doubt in the mind of a judge as
regards one or other of the necessary ingredients of the offence itself. It
may, for instance, raise a reasonable doubt in the mind of the judge whether
the accused h ad the requisite intention laid down in S.299 of the Indian
Penal Code. If the judge has such reasonable doubt,he has to acquit the
accused for in that event the prosecution will have failed to prove
conclusively the guilt of the accused. There is no conflict between the
general burden, which is always on the prosecution and which never shifts,and
the special burden that rests on the accused to make out his defence of
insanity.”
9. In Shrikant Anandrao Bosale Vs. State of Maharashtra, reported in
AIR 2002 SC 3399, their Lordships of the Supreme Court have held thus:-
“In the instant case the accused, Police Countable alleged to have hit
his wife with grinding tone on 24thApril 1994. The accused took the plea of
insanity. However,the prosecution relied on anger theory. The circumstances
that stand proved: (a) th pellant has a family history his father was
suffering from psychiatric illness. (b) Cause of ailment not known hereditary
plays a part. (c.) Accused was being treated for unsoundness of mind since
1992. Diagnosed as suffering from paranoid schizophreni a. Within a short
span, soon after the incident from 27th June to 5th December, 1994, he had to
be taken for treatment of ailment 25 times to hospital. (d) Accused was under
regular treatment for the mental ailment. (e) The motive of killing of wife
was weak being that she was opposing the idea of the resigning the job of a
Police Constable. (f) Killing a wife in a day light made no attempt to hide
or run away. Though the facts that the accused did not make any attempt to
run away or that he committe d crime in day light and did not try to hide it
or that motive to kill his wife was very weak would not itself indicate
insanity, however, it would not only the aforesaid facts but it would be the
totality of the circumstances seen in the light of the ev idence on record,
rove that the accused was suffering from paranoid schizophrenia. The
unsoundness of mind before and after incident would be a relevant fact. From
the circumstances of the case clearly an inference can be reasonable drawn
that the accu sed was under a delusion at the relevant time. He was under an
attack of the ailment. The anger theory on which reliance has been placed by
prosecution cannot be ruled out under schizophrenia attack. Having regard to
the nature of burden on the accused, the accused can be said to have proved
the existence of circumstances as required by S.105 of the Evidence Act so as
to get benefit of S.84, IPC . In the circumstance, it cannot be said that the
crime was committed as a result of extreme fit of anger. A reasonable doubt
can be raised that at the time of commission of the crime, the accused was
incapable of knowing the nature of the act by reason of unsoundness of mind
and, thus, he would be entitled to the benefit if S.84 IPC. Hence the
conviction an d sentence of the accused would be liable to be set aside.”
10. As already held, in this case the evidence of P.W.14, Dr.Kumar
would prove that the accused was suffering from some mental disorder and he
was not able to understand the effect or consequence of the incident in which
he was involved. The accuse art from killing the deceased Chittammal against
whom he had no enmity or any motive, has also attacked his own father, P.W.2
and other witnesses P.Ws.3 to 6 against whom he has no motive or enmity. The
accused has not spared even the girl who was takin g water in the tap and a
small school going boy, Thangaraj. The very nature of the occurrence that the
accused went on attacking whoever came on his way itself would show that the
accused should have been labouring from some mental disorder at the time of
occurrence. The rule of burden of proof in the context of the plea of
insanity are (a) that the prosecution must prove beyond reasonable doubt that
the offence was committed by the accused that the requisite “mens rea” and the
burden continues from the beginning till the end of the trial (b) that it is a
rebuttable presumption that the prisoner was not insane when he committed an
offence in the sense set forth in Section 84 Indian Penal Code, (C) that the
accused may rebut the presumption of sanit y at the relevant time bringing the
case within Section 84, IPC, by producing oral, documentary, circumstantial
and other materials and he may discharge the burden by establishing a
reasonable probable case. The accused is not called upon to establish th e
element of Section 84, IPC by producing evidence beyond reasonable doubt and
(d) that even the accused fails to establish affirmatively or conclusively
that he was of unsound mind and committed the act under the circumstances set
out in Section 84, IP C, but raises a reasonable doubt in the mind of the
Court as regards presence of essential ingredients of the offence, which of
course includes, `mens rea’ the requisite criminal intention,l the Court would
be entitled to acquit the accused the ground t hat the general burden of proof
resting on the prosecution was not discharged. Therefore, applying the above
principle, we can safely conclude that the accused is entitled for protection
under Section 84 of the Indian Penal Code and the conviction and sentence of
the accused is liable to be set aside. At this stage, we are not aware
whether the accused who is confined in jail has been cured of the mental
disorder.
11. The materials placed before us establish that the accused has no
criminal intention at the relevant time and as such the case squarely falls
under Section 84 IPC. By preponderance of probability also it has been
established that the accused wa ntally unsound and at the time of commission
of the acts he was incapable of knowing the nature of acts and/or that what he
was doing was either wrong or contrary to law and accordingly we set aside the
conviction and findings passed against the appell ant. We are acquitting the
accused on the ground that at the time at which he was alleged to have
committed the offence, he was, by reason of unsoundness of mind, incapable of
knowing the nature of the acts alleged as constituting the offences and/or t
hat they were wrong or contrary to law, but we record the finding that it was
the accused who committed the act. Now, it would be the statutory obligation
of the learned District and Sessions Judge, Pudukottai District to follow
meticulously the pro visions of Section 335 of the Cr.P.C., The learned Judge
may direct detention of the accused in safe custody in such manner as he
thinks fit or may order the accused to be delivered to any relative or friend
of the accused on such terms and conditions a s he thinks just and prudent.
The accused may be detained in the lunatic asylum however, in accordance with
the provisions of the Rules framed under the Indian Lunacy Act, 1912. We
direct the Learned District and Sessions Judge to follow the provisions of
S.338 of the Code carefully and cautiously to protect the interest of the
society. The accused shall not be released from the safe custody until the
concerned Civil Surgeon or the Chief Medical Officer or the Commission
certified that the appellant is fit to live in the society and could no longer
be a hazard to the society. The learned District and Sessions Judge,
Pudukottai shall report to the State Government the action taken by him under
Section 335(1) of the Code. We draw the attention of the le arned District
and Sessions Judge and the authorities to the mandatory provisions contained
in S.338 of the Code.
12. In the result, the appeal is allowed to the extent indicated
above.
13. Before parting with the case, we record the valuable assistance
rendered by Mr.M.Deivanandam, learned counsel for the appellant, who was
appointed as Amicus Curiae, and we fix his remuneration as Rs.2000/= to be
paid by the Legal Services Authority.
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Copy to:
1) The Public Prosecutor
Madurai Bench of Madras High Court.
Madurai.
2. The Principal District and Sessions Judge,
Pudukottai.
3) The Public Prosecutor,
High Court, Madurai