{"id":217176,"date":"2011-07-05T00:00:00","date_gmt":"2011-07-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/elavarasan-vs-state-rep-by-inspector-of-police-on-5-july-2011"},"modified":"2018-01-24T09:27:04","modified_gmt":"2018-01-24T03:57:04","slug":"elavarasan-vs-state-rep-by-inspector-of-police-on-5-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/elavarasan-vs-state-rep-by-inspector-of-police-on-5-july-2011","title":{"rendered":"Elavarasan vs State Rep.By Inspector Of Police on 5 July, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Elavarasan vs State Rep.By Inspector Of Police on 5 July, 2011<\/div>\n
Author: T Thakur<\/div>\n
Bench: V.S. Sirpurkar, T.S. Thakur<\/div>\n
                                                                  REPORTABLE\n\n\n\n                   IN THE SUPREME COURT OF INDIA\n                                   \n                  CRIMINAL APPELLATE JURISDICITION\n                                   \n                  CRIMINAL APPEAL NO.1250 OF 2006\n \n \nElavarasan                                        ...Appellant\n \n       \n      Versus \n       \n \nState Rep. by Inspector of Police                   ...Respondent\n \n \n\n\n  \n \n                          J U D G M E N T\n<\/pre>\n
T.S. THAKUR, J.\n<\/p>\n
1.    This appeal by special leave arises out of a judgment <\/p>\n
and   order   passed   by   the   High   Court   of   Madras   whereby <\/p>\n
Criminal Appeal No.1215 of 2003 has been dismissed and the <\/p>\n
conviction of the appellant and sentence awarded to him for <\/p>\n
offences punishable under Sections 302, 307 and 342 of the <\/p>\n
I.P.C. upheld.\n<\/p>\n
2.    Briefly   stated   the   prosecution   case   is   that   the <\/p>\n
appellant was residing in a house situate at Yadwal Street, <\/p>\n
                                     2<\/span><\/p>\n
Poovam   Koticherri,   Distt.   Karaikal,   Tamil   Nadu.   Apart   from <\/p>\n
his   wife   Smt.   Dhanalakshmi,   PW2   and   his   daughter   Abirami, <\/p>\n
aged about 1= years, his mother Smt. Valli, PW3 also lived <\/p>\n
with   him.     On   the   fateful   night   intervening   11-12   of <\/p>\n
December, 2000 at about 1 p.m. the appellant is alleged to <\/p>\n
have started a quarrel with his wife accusing her of having <\/p>\n
brought   misfortune   to   him   ever   since   she   got   married   to <\/p>\n
him.   The   immediate   provocation   for   making   that   accusation <\/p>\n
was his inability to sell the property owned by his mother, <\/p>\n
as the Revenue entries relating the same stood in the name <\/p>\n
of   Kannan,   the   paternal   uncle   of   the   appellant,   who   it <\/p>\n
appears was not agreeable to the sale of the property. The <\/p>\n
quarrel between the husband and the wife took an ugly turn <\/p>\n
when   the   appellant   made   a   murderous   assault   on   his   wife, <\/p>\n
Dhanalakshmi   causing   several   injuries   to   her   including <\/p>\n
those   on   her   head,   left   hand,   right   cheek   and   other   parts <\/p>\n
of   the   body.   Intervention   of   PW3,   Vali   who   is   none   other <\/p>\n
than   the   mother   of   the   appellant   also   did   not   stop   the <\/p>\n
appellant from assaulting his wife. In the process injuries <\/p>\n
were caused even to the mother. Due to the ruckus caused by <\/p>\n
the   quarrel   and   the   assault   on   the   two   women,   Abirami   who <\/p>\n
was   sleeping   in   the   adjacent   room   woke   up   and   started <\/p>\n
crying. The appellant at that stage is alleged to have gone <\/p>\n
                                      3<\/span><\/p>\n
inside   the   room   and   hit   the   deceased   resulting   in   her <\/p>\n
death.\n<\/p>\n
3.    The prosecution case further is that the appellant did <\/p>\n
not allow the injured to go out of the house and bolted the <\/p>\n
doors from inside.   In the morning at about 7 a.m. Shri R.\n<\/p>\n
Parvathi,   PW5   is   said   to   have   gone   to   the   house   of   R.\n<\/p>\n
Natarajan,   PW1   –   a   resident   of   the   same   street   in   the <\/p>\n
village and told him about the quarrel at the house of the <\/p>\n
appellant   the   previous   night.     Both   of   them   then   came   to <\/p>\n
the spot and found a pool of blood near the outer door of <\/p>\n
the house of the appellant. Since the door was bolted from <\/p>\n
inside, PW1 called the appellant by his name, who responded <\/p>\n
to   the   call   and   said   that   he   had   cut   his   mother   and   wife <\/p>\n
and   wanted   to   commit   suicide   for   which   he   demanded   some <\/p>\n
poison   from   them.     A   large   number   of   villagers   in   the <\/p>\n
meantime gathered on the spot but the appellant refused to <\/p>\n
open   the   door.   The   Police   was   informed   about   the   incident <\/p>\n
on   telephone  and   soon  arrived   at  the   spot  to   knock  at   the <\/p>\n
doors of the appellant’s house asking him to open the same.\n<\/p>\n
The appellant refused to do so and threatened that he would <\/p>\n
murder   anyone   who   ventured   to   enter   the   house.   Since   the <\/p>\n
appellant remained adamant in this resolve, the Police with <\/p>\n
the   help   of   PWs   1,   8   and   others   forced   the   door   open   and <\/p>\n
                                    4<\/span><\/p>\n
found the appellant inside the house armed with an Aruval, <\/p>\n
and his mother and wife lying inside the house with serious <\/p>\n
cut injuries and blood all over the place.  In the adjacent <\/p>\n
room   they   found   Abirami   in   an   injured   condition.   Not <\/p>\n
knowing   whether   she   was   dead   or   alive,   she   was   picked   up <\/p>\n
and rushed to the hospital alongwith the other two injured, <\/p>\n
where   the   doctor   pronounced   the   child   brought   dead.   On <\/p>\n
completion of the investigation, the police filed a charge-\n<\/p>\n
sheet   against   the   appellant   for   offences   punishable   under <\/p>\n
Sections 342, 307 (2 counts) and 302 IPC. He was committed <\/p>\n
to the sessions at Karaikal where the appellant pleaded not <\/p>\n
guilty and claimed a trial.\n<\/p>\n
4.    Before   the   Trial   Court   the   prosecution   examined   as <\/p>\n
many   as   21   witnesses   in   support   of   its   case   while   the <\/p>\n
accused-appellant who set up unsoundness of mind in defence <\/p>\n
did   not   lead   any   evidence   except   making   a   request   for <\/p>\n
medical   examination   which   request   was   allowed   and   Dr.   R.\n<\/p>\n
Chandrasekaran   and   Dr.   P.   Srinivasan   who   examined   the <\/p>\n
appellant summoned as court witnesses to depose about their <\/p>\n
observations   and   conclusions   as   regards   the   mental   health <\/p>\n
of the appellant.\n<\/p>\n
                                     5<\/span><\/p>\n
5.    The   Trial   court   eventually   rejected   the   plea   of <\/p>\n
insanity   and   found   the   appellant   guilty   of   the   charges <\/p>\n
framed   against   him   and   sentenced   him   to   undergo <\/p>\n
imprisonment   for   life   for   the   murder   of   his   child   baby <\/p>\n
Abirami and to undergo 1 year rigorous imprisonment for the <\/p>\n
offence   punishable   under   Section   342   IPC   and   10   years <\/p>\n
rigorous   imprisonment   together   with   a   fine   of   Rs.1,000\/-\n<\/p>\n
for   each   of   the   offences   punishable   under   Section   307   (2 <\/p>\n
counts).  The sentences were ordered to run concurrently.\n<\/p>\n
6.    Aggrieved by the judgment and order of the Trial Court <\/p>\n
the   appellant   filed   an   appeal   before   the   High   Court   of <\/p>\n
Madras,   who   dismissed   the   same   and   affirmed   the   findings <\/p>\n
recorded   by   the   Trial   Court   as   already   noticed   by   us.   The <\/p>\n
High   Court   held   that   the   appellant   had   been   caught   red <\/p>\n
handed   with   the   weapon   of   offence   inside   the   house   in   the <\/p>\n
presence of PWs 1, 7, 8 and others.   Besides, there was no <\/p>\n
reason why his wife PW2, who was an injured eye-witness to <\/p>\n
the   entire   incident,   should   have   falsely   implicated   the <\/p>\n
appellant.   The   High   Court   also   took   the   view   that   since <\/p>\n
PW3, the mother of the appellant who had also been injured <\/p>\n
in the incident had turned hostile and stated that she had <\/p>\n
sustained   the   injuries   accidently   because   of   a   fall,   the <\/p>\n
appellant’s   conviction   for   the   attempted   murder   of   his <\/p>\n
                                      6<\/span><\/p>\n
mother   punishable   under   Section   307   was   liable   to   be   set <\/p>\n
aside.     The   fact   that   PW3   had   turned   hostile   did   not, <\/p>\n
opined   the   High   Court,   make   any   dent   in   the   prosecution <\/p>\n
case   in   so   far   as   the   same   related   to   the   murder   of   the <\/p>\n
innocent child and an attempt made by the appellant on the <\/p>\n
life   of   his   wife   Dhanalakshmi.   The   plea   of   insanity   was <\/p>\n
rejected by the High Court on the ground that there was no <\/p>\n
material to show that the appellant was insane at the time <\/p>\n
of   the   commission   of   the       offences.   The   present   appeal <\/p>\n
assails the correctness of the above judgment and order as <\/p>\n
already noticed by us.\n<\/p>\n
7.    Appearing for the appellant, Mr. Mani, learned counsel <\/p>\n
urged   a   solitary   point   in   support   of   the   appeal.   He <\/p>\n
submitted   that   the   material   on   record   sufficiently   proved <\/p>\n
the plea of insanity set up by the appellant at the trial.\n<\/p>\n
Reliance in support was placed by the learned counsel upon <\/p>\n
the deposition of Dr. P. Srinivasan, CW1, according to whom <\/p>\n
the   appellant  was   a  person   of  unsound   mind.    He  also   drew <\/p>\n
our attention to the deposition of other witnesses to argue <\/p>\n
that   the   appellant   had   been   treated   by   a   Psychiatrist   and <\/p>\n
had   been   taking   medicines   for   his   illness.   Reliance   in <\/p>\n
particular   was   placed   by   the   learned   counsel   upon   the <\/p>\n
contents of Ex.P.3 the observation Mahazar which refers to <\/p>\n
                                     7<\/span><\/p>\n
certain   writings   on   the   walls   of   the   appellant’s   house <\/p>\n
suggesting that the appellant was mentally unsound even at <\/p>\n
the time of commission of crime.  From the graffiti, it was <\/p>\n
according   to   Mr.   Mani   evident   that   the   appellant   suffered <\/p>\n
from   insanity   before   and   at   the   time   of   the   incident.   Mr. <\/p>\n
Mani further argued that murderous assault on his wife, his <\/p>\n
mother   and   child   without   any   ostensible   reason   was   itself <\/p>\n
suggestive   of   the   appellant   being   an   insane   person.   The <\/p>\n
appellant’s   conduct   after   the   event   was   also,   argued   Mr. <\/p>\n
Mani,   suggestive   of   his   being   of   unsound   mind,   which <\/p>\n
aspects   the   courts   below   had   failed   to   appreciate   in   the <\/p>\n
process denying to the appellant the benefit of Section 84 <\/p>\n
of the Indian Penal Code, legitimately due to him.\n<\/p>\n
8.    On behalf of the respondent Mr. Venkataramani, learned <\/p>\n
senior   counsel   contended   that   the   trial   court   as   also   the <\/p>\n
High Court had correctly found the plea of insanity set up <\/p>\n
by   the   appellant   as   not   proved   and   held   the   appellant <\/p>\n
guilty   of   the   offences   with   which   he   stood   charged.     Mr. <\/p>\n
Ventakaramani argued that there was no credible evidence to <\/p>\n
establish   legal   insanity   at   the   time   of   the   commission   of <\/p>\n
the   offence   so   as   to   entitle   the   appellant   to   the   benefit <\/p>\n
of   Section  84   of  IPC.   The  fact   that  the   appellant  did   not <\/p>\n
run   away   from   the   place   of   occurrence   or   that   he   had <\/p>\n
                                     8<\/span><\/p>\n
attacked   his   wife   and   child   without   any   reason   did   not <\/p>\n
establish   that   the   appellant   was   of   unsound   mind,   hence <\/p>\n
unable to understand the nature of the act or that what he <\/p>\n
was   doing   was   either   wrong   or   contrary   to   law.     Reliance <\/p>\n
was   placed   by   Mr.   Venkatarmani   upon   the   deposition   of   CW2 <\/p>\n
Dr. R. Chandrasekaran in support of his submission that the <\/p>\n
appellant   was   not   an   insane   person   at   the   time   of   the <\/p>\n
incident   or   at   the   time   he   was   tried   for   the   offences <\/p>\n
committed by him.\n<\/p>\n
9.    There   was   before   the   courts   below   and   even   before   us <\/p>\n
no   challenge   to   the   factual   narrative   given   by   the <\/p>\n
prosecution and the witnesses examined on its behalf.  That <\/p>\n
the   appellant   lived   with   his   mother,   wife   and   minor   child <\/p>\n
in   the   house   owned   by   him   was   not   disputed.   That   he <\/p>\n
assaulted   his   wife,   who   was   in   family   way   and   caused <\/p>\n
several injuries to her and to his mother who intervened to <\/p>\n
save the former is also not in dispute. That injuries were <\/p>\n
caused   even   to   Abirami   who   succumbed   to   the   same   was   also <\/p>\n
not   challenged   before   us   by   Mr.   Mani.   The   appellant’s <\/p>\n
mother PW3, no doubt turned hostile at the trial and tried <\/p>\n
to attribute the injuries sustained by her to a fall in the <\/p>\n
house, but the deposition of PW2, the wife of the appellant <\/p>\n
completely   supported   the   prosecution   case   and   the   sequence <\/p>\n
                                     9<\/span><\/p>\n
of events leading to the heartless killing of the innocent <\/p>\n
child   Abirami,   who   was   sleeping   in   the   adjacent   room   and <\/p>\n
whose   only   fault   was   that   she   woke   up   hearing   the   shrieks <\/p>\n
and   wails   of   the   mother   and   started   crying.   That   the <\/p>\n
appellant   was   arrested   from   the   house   from   where   the <\/p>\n
injured   witnesses   PW2   and   PW3   and   Abirami   were   removed   in <\/p>\n
an   injured   condition,   was   also   not   disputed.   Even <\/p>\n
independent of the line of arguments adopted by the learned <\/p>\n
counsel,   we   are   satisfied   that   there   is   no   reason <\/p>\n
whatsoever   to   disbelieve   the   deposition   of   Dhanalakshmi, <\/p>\n
PW2   who   unlike   Abirami   not   only   suffered   the   murderous <\/p>\n
assault   but   survived   to   tell   the   tale   in   all   its   details <\/p>\n
that   leave   no   room   for   any   doubt   in   our   mind   about   her <\/p>\n
version   being   completely   reliable.   That   Shri   R.   Natarajan, <\/p>\n
PW1   and   Shri   J.   Ashokan,   PW8   also   support   and   corroborate <\/p>\n
the version of PW2, Dhanalakshmi, only goes to show that it <\/p>\n
was the appellant and the appellant alone who attacked not <\/p>\n
only   his   wife   but   his   daughter   of   tender   age   resulting   in <\/p>\n
the   death   of   the   later.   Superadded   to   the   above   is   the <\/p>\n
depositions   of   PW19,   Dr.   Ramamurthy,   who   conducted   the <\/p>\n
post-mortem of the dead body of Abirami and who proved the <\/p>\n
post-mortem   report   marked   as   Ex.P.25   enumerating   the <\/p>\n
injuries   found   on   the   body   of   the   unfortunate   child.   The <\/p>\n
doctor   opined   that   death   was   due   to   coma   as   a   result   of <\/p>\n
                                     10<\/span><\/p>\n
head   injuries   within   24   to   36   hours   prior   to   post-mortem <\/p>\n
and that the blunt side of a weapon like M.O.27 could have <\/p>\n
caused the injuries found on the dead body.\n<\/p>\n
10.    Similarly,   the   deposition   of   PW16,   Dr.   Anni   Pula <\/p>\n
Juilet   who   was   posted   as   Assistant   Surgeon   in   the <\/p>\n
Government   Hospital   at   Karaikal   proved   the   injury   report <\/p>\n
marked   Ex.P19   that   listed   the   injuries   sustained   by <\/p>\n
Dhanalakshmi, PW2, as under:\n<\/p>\n
       (1)    Injury of 3 cms. x 3 cms. Right side of leg.
\n       (2)    Injury of 3 cms. x 3 cms. Lt. side of elbow.
\n       (3)    Injury on left side of forearm of 7 cms. x 7 cm.\n<\/p><\/blockquote>\n
              Suspected fracture on it. Forearm.\n<\/p><\/blockquote>\n
       (4)    Injury Lt. side of hand 3 cms. x 3 cms. \n       (5)    Injury Lt. Side of hand 3 cms. x 3 cms.\n       (6)    Injury on the palm.\n       (7)    Injury all the fingers.\n       (8)    Injury chest 4 cms. x 4 cms.\n       (9)    24 weeks foetus.\n<\/pre>\n
       (10) Injury face angle from Lt. Side measuring 7 cms. x
\n              7 cms.\n<\/p><\/blockquote>\n
       (11) Injury scale back side of 8 cms. x 8 cms.
\n       (12) Deep cut on the scale 10 cms. x 12 cms.  Deep cut
\n              extending to the back 3 cms. x 3 cms.
\n       (13) Abrasion frontal side of scalp.
\n       (14) Injury Rt. Side of the hand.  Lacerated injury Rt.\n<\/p><\/blockquote>\n
              Index finger extending bone.\n<\/p><\/blockquote>\n
       (15) Deep cut injury on the scalp 6 cms. x 6 cms.\n<\/p><\/blockquote>\n
11.    Injuries found on the person of PW3, the mother of the <\/p>\n
appellant   were   described   in   Ex.P20   proved   by   the   same <\/p>\n
witness, as under:\n<\/p>\n
                                       11<\/span><\/p>\n
       (1)    Cut injury Lt. Side of forearm hand.\n       (2)    Cut injury Rt. Side of hand near the Wrist 7 cms. \n              x 6 cms.\n       (3)    Deep   cut   injury   on   the   forehead   5   cms.   x   5   cms. \n              Lt. Side above ridge bone.\n       (4)    Deep   cut   injury   Lt.   Side   of   forearm   7   cms.   x   7 \n              cmx. near wrist.\n       (5)    Deep cut injury on the Lt. Side of forearm 5 cms. \n              x 5 cms. \n       (6)    Deep   cut   injury   on   the   scalp   exposing   the   bones \n              about 16 cms. x 16 cms. \n\n\n\n<\/pre>\n
12.    PW15, Dr. Shriramulu, was the Assistant Surgeon in the <\/p>\n
General   Hospital   at   Karaikal   who   found   15   injuries   on   the <\/p>\n
person   of   PW2,   stated   that   PW2   remained   admitted   to   the <\/p>\n
hospital   from   12th  December,   2000   till   28th  January,   2001.\n<\/p>\n
According   to   him   the   appellant’s   mother   PW3   had   also <\/p>\n
suffered   six   injuries   and   her   little   and   index   fingers   in <\/p>\n
the   right   hand   had   been   amputated   in   the   course   of <\/p>\n
treatment on 8th January, 2001.\n<\/p>\n
13.    In the light of the above evidence and in the absence <\/p>\n
of any challenge to the veracity of the witnesses produced <\/p>\n
by   the  prosecution   we  have   no  manner   of  doubt   in  our   mind <\/p>\n
that the appellant alone was responsible for the assault on <\/p>\n
his wife PW2, Dhanlakshmi and baby Abrami who lost her life <\/p>\n
as   a   result   of   the   injuries   sustained   by   her   in   the   said <\/p>\n
incident.   Left   at   that   there   can   be   no   escape   from   the <\/p>\n
                                     12<\/span><\/p>\n
conclusion   that   the   appellant   was   guilty   of   committing <\/p>\n
culpable   homicide   of   his   daughter   Abirami   aged   about   1= <\/p>\n
year   and   an   attempt   to   commit   the   murder   of   his   wife <\/p>\n
Dhanlakshmi,   even   if   the   assault   on   the   mother   of   the <\/p>\n
appellant   is   taken   as   doubtful   on   account   of   the   injured <\/p>\n
turning   hostile   at   the   trial   and   attempting   to   attribute <\/p>\n
the injuries sustained by her to a fall.\n<\/p>\n
14.    The   question,   however,   is   whether   the   appellant   was <\/p>\n
entitled to the benefit of Section 84 of Indian Penal Code <\/p>\n
which provides that  nothing is an offence which is done by <\/p>\n
a   person   who,   at   the   time   of   doing   it,   by   reason   of <\/p>\n
unsoundness of mind, is incapable of knowing the nature of <\/p>\n
the   act   or   who   is   incapable   of   knowing   that   what   he   is <\/p>\n
doing, is either wrong or contrary to law. Before adverting <\/p>\n
to   the   evidence   on   record   as   regards   the   plea   of   insanity <\/p>\n
set up by the appellant, we consider it necessary to refer <\/p>\n
to two aspects that bear relevance to cases where a plea of <\/p>\n
insanity   is   raised   in   defence   by   a   person   accused   of   a <\/p>\n
crime. The first aspect concerns the burden of proving the <\/p>\n
existence of circumstances that would bring the case within <\/p>\n
the   purview   of   Section   84   of   the   I.P.C.   It   is   trite   that <\/p>\n
the   burden   of   proving   the   commission   of   an   offence   is <\/p>\n
always   on   the   prosecution   and   that   the   same   never   shifts.\n<\/p>\n
                                    13<\/span><\/p>\n
Equally   well   settled   is   the   proposition   that   if   intention <\/p>\n
is   an   essential   ingredient   of   the   offence   alleged   against <\/p>\n
the   accused   the   prosecution   must   establish   that   ingredient <\/p>\n
also. There is no gainsaying that intention or the state of <\/p>\n
mind   of   a   person   is   ordinarily   inferred   from   the <\/p>\n
circumstances   of   the   case.   This   implies   that,   if   a   person <\/p>\n
deliberately   assaults   another   and   causes   an   injury   to   him <\/p>\n
then   depending   upon   the   weapon   used   and   the   part   of   the <\/p>\n
body   on   which   it   is   struck,   it   would   be   reasonable   to <\/p>\n
assume that the accused had the intention to cause the kind <\/p>\n
of injury which he inflicted. Having said that, Section 84 <\/p>\n
can be invoked by the accused for nullifying the effect of <\/p>\n
the   evidence   adduced   by   the   prosecution.   He   can   do   so   by <\/p>\n
proving that he was incapable of knowing the nature of the <\/p>\n
act   or  of   knowing  that   what  he   was  doing   was  either   wrong <\/p>\n
or   contrary   to   law.   But   what   is   important   is   that   the <\/p>\n
burden of bringing his\/her case under Section 84 of the IPC <\/p>\n
lies squarely upon the person claiming the benefit of that <\/p>\n
provision.     Section   105   of   the   Evidence   Act   is   in   this <\/p>\n
regard relevant and may be extracted:\n<\/p>\n
         “105.   Burden   of   proving   that   case   of   accused
\n         comes   within   exceptions.-When   a   person   is
\n         accused of any offence, the burden of proving
\n         the   existence   of   circumstances   bringing   the
\n         case   within   any   of   the   General   Exceptions   in
\n         the Indian Penal Code, (45 of 1860) or within <\/p>\n
                                     14<\/span><\/p>\n
          any special exception or proviso contained in
\n          any other part of the same Code, or in any law
\n          defining   the   offence,   is   upon   him,   and   the
\n          Court   shall   presume   the   absence   of   such
\n          circumstances.”\n<\/p><\/blockquote>\n
15.    A   careful   reading   of   the   above   would   show   that   not <\/p>\n
only   is   the   burden   to   prove   an   exception   cast   upon   the <\/p>\n
accused   but   the   Court   shall   presume   the   absence   of <\/p>\n
circumstances   which   may   bring   his   case   within   any   of   the <\/p>\n
general   exceptions   in   the   Indian   Penal   Code   or   within   any <\/p>\n
special exception or provision contained in any part of the <\/p>\n
said   Code   or   in   law   defining   the   offence.   The   following <\/p>\n
passage   from   the   decision   of   this   Court   in  Dahyabhai <\/p>\n
Chhaganbhai   Thakkar  v.  State   of   Gujarat,<\/a>  (1964)   7   SCR   361 <\/p>\n
may serve as a timely reminder of the principles governing <\/p>\n
burden   of   proof   in   cases   where   the   accused   pleads   an <\/p>\n
exception:\n<\/p>\n
          “The doctrine of burden of proof in the context
\n          of   the   plea   of   insanity   may   be   stated   in   the
\n          following propositions:\n<\/p><\/blockquote>\n
          (1)   The   prosecution   must   prove   beyond
\n          reasonable doubt that the accused had committed
\n          the   offence   with   the   requisite   mens   rea,   and
\n          the burden of proving that always rests on the
\n          prosecution   from   the   beginning   to   the   end   of
\n          the   trial.   (2)   There   is   a   rebuttable
\n          presumption   that   the   accused   was   not   insane,
\n          when he committed the crime, in the sense laid
\n          down   by   Section   84   of   the   Indian   Penal   Code:\n<\/p><\/blockquote>\n
                                       15<\/span><\/p>\n
            the accused may rebut it by placing before the
\n            court   all   the   relevant   evidence   oral,
\n            documentary   or   circumstantial,   but   the   burden
\n            of proof upon him is no higher than that rests
\n            upon a party to civil proceedings. (3) Even if
\n            the   accused   was   not   able   to   establish
\n            conclusively that he was insane at the time he
\n            committed   the   offence,   the   evidence   placed
\n            before   the   court   by   the   accused   or   by   the
\n            prosecution may raise a reasonable doubt in the
\n            mind of the court as regards one or more of the
\n            ingredients of the offence, including mens rea
\n            of the accused and in that case the court would
\n            be entitled to acquit the accused on the ground
\n            that the general burden of proof resting on the
\n            prosecution was not discharged.”\n<\/p><\/blockquote>\n
16.    The second aspect which we need to mention is that the <\/p>\n
standard of proof which the accused has to satisfy for the <\/p>\n
discharge   of   the   burden   cast   upon   him   under   Section   105 <\/p>\n
(supra) is not the same as is expected of the prosecution.\n<\/p>\n
A long line of decisions of this Court have authoritatively <\/p>\n
settled the legal proposition on the subject.  Reference in <\/p>\n
this   connection   to   the   decision   of   this   Court   in  State  of <\/p>\n
U.P.  v.  Ram   Swarup   and   Anr.,<\/a>  (1974)  4   SCC   764   should <\/p>\n
suffice where this court observed:\n<\/p>\n
                 “The   burden   which   rests   on   the   accused   to
\n            prove   the   exception   is   not   of   the   same   rigour
\n            as   the   burden   of   the   prosecution   to   prove   the
\n            charge beyond a reasonable doubt. It is enough
\n            for   the   accused   to   show,   as   in   a   civil   case,
\n            that   the   preponderance   of   probabilities   is   in
\n            his favour.”\n<\/p><\/blockquote>\n
                                      16<\/span><\/p>\n
17.    To   the   same   effect   is   the   decision   of   this   Court   in <\/p>\n
Bhikari v. State of Uttar Pradesh (AIR<\/a> 1966 SC 1).\n<\/p>\n
18.    Let   us   now   consider   the   material   on   record   in   the <\/p>\n
light   of   the   above   propositions   to   determine   whether   the <\/p>\n
appellant   had   discharged   the   burden   of   bringing   his   case <\/p>\n
under   Section   84   of   the   IPC.   The   appellant   has   led   no <\/p>\n
evidence in defence to support the plea of legal insanity.\n<\/p>\n
That   may   be   a   significant   aspect   but   by   no   means <\/p>\n
conclusive,   for  it   is  open   to  an   accused  to   rely  upon   the <\/p>\n
material brought on record by the prosecution to claim the <\/p>\n
benefit   of   the   exception.   Evidence   in   defence   may   be   a <\/p>\n
surplusage   in   cases   where   the   defence   can   make   out   a   case <\/p>\n
for   the   acquittal   of   the   accused   based   on   the   evidence <\/p>\n
adduced by the prosecution.\n<\/p>\n
19.    What falls for consideration in the light of the above <\/p>\n
is   whether  the   present  is   one  such   case  where   the  plea   of <\/p>\n
insanity   –   is   proved   or   even   probablised   by   the   evidence <\/p>\n
led by the prosecution and the court witnesses examined at <\/p>\n
the   Trial.   Depositions   of   two   prosecution   witnesses   viz.\n<\/p>\n
PW2,   Dhanalakshmi   and   PW3,   Valli   immediately   assume <\/p>\n
                                     17<\/span><\/p>\n
significance   to   which   we   may   at   this   stage   refer.   PW2, <\/p>\n
Dhanalakshmi   has,   apart   from   narrating   the   sequence   of <\/p>\n
events leading to the incident, stated that her husband is <\/p>\n
a government servant getting a monthly salary of Rs.4000\/-\n<\/p>\n
which   he   would   hand   over   to   the   witness   to   meet   the <\/p>\n
household expenses. She further stated that the couple had <\/p>\n
a   peaceful   married   life   for   five   years   but   there   was   a <\/p>\n
dispute   between   the   appellant   and   his   maternal   uncle   by <\/p>\n
name   Kannan  in   regard  to   the  property   a  part   of  which   the <\/p>\n
appellant   had   already   sold   and   the   remainder   he   wanted   to <\/p>\n
sell.   The   appellant   had   according   to   the   witness   started <\/p>\n
the quarrel around 12 p.m. but assaulted her an hour later.\n<\/p>\n
The   witness   further   stated   that   for   sleeplessness,   the <\/p>\n
appellant used to take some medicine but she did not recall <\/p>\n
the   name   of   the   Clinic   from   where   he   was   taking   the <\/p>\n
treatment.   According to the witness, the Psychiatrist who <\/p>\n
was   treating   the   appellant   had   diagnosed   his   medical <\/p>\n
condition   to   be   the   effect   of   excessive   drinking   and <\/p>\n
advised that if the appellant took the medicines regularly <\/p>\n
he would get cured.\n<\/p>\n
20.    That   brings   us   to   the   deposition   of   PW3,   Smt.   Valli, <\/p>\n
the   mother   of   the   appellant.   This   witness   has   in   cross-\n<\/p>\n
examination   stated   that   the   appellant   was   working   as   a <\/p>\n
                                     18<\/span><\/p>\n
Watchman   at   PWD   bungalow   and   that   she   used   to   deliver   his <\/p>\n
lunch   at   the   appellant’s   office.   She   also   referred   to   the <\/p>\n
dispute   between   the   appellant   and   his   paternal   uncle <\/p>\n
regarding   family   properties   in   which   connection   he   had <\/p>\n
filed a complaint to the police station. On the date of the <\/p>\n
incident, the family had their dinner at around 9 p.m. and <\/p>\n
gone   to   bed.   But   the   couple   started   quarreling   around   1 <\/p>\n
p.m.   leading   to   an   assault   on   PW2,   Dhanalakshmi.   The <\/p>\n
witness   stated   that   the   appellant   was   undergoing   treatment <\/p>\n
with   a   Psychiatrist   in   a   clinic   situated   at   Perumal   Kovi <\/p>\n
street   and   that   the   doctor   had   diagnosed   the   appellant   to <\/p>\n
be a case of mental disorder because of which he could get <\/p>\n
angry very often.\n<\/p>\n
21.    From   the   deposition   of   the   above   two   witnesses   who <\/p>\n
happen   to   be   the   close   family   members   of   the   appellant   it <\/p>\n
is not possible to infer that the appellant was of unsound <\/p>\n
mind   at   the   time   of   the   incident   or   at   any   time   before <\/p>\n
that.     The   fact   that   the   appellant   was   working   as   a <\/p>\n
government   servant   and   was   posted   as   a   Watchman   with   no <\/p>\n
history   of   any   complaint   as   to   his   mental   health   from <\/p>\n
anyone   supervising   his   duties,   is   significant.   Equally <\/p>\n
important is the fact that his spouse Smt. Dhanalakshim who <\/p>\n
was   living   with   him   under   the   same   roof   also   did   not <\/p>\n
                                    19<\/span><\/p>\n
suggest   any   ailment   afflicting   the   appellant   except <\/p>\n
sleeplessness   which   was   diagnosed   by   the   doctor   to   be   the <\/p>\n
effect of excessive drinking. The deposition of PW3, Valli <\/p>\n
that   her   son   was   getting   treatment   for   mental   disorder   is <\/p>\n
also much too vague and deficient for this Court to record <\/p>\n
a   finding   of   unsoundness   of   mind   especially   when   the <\/p>\n
witness   had   turned   hostile   at   the   trial   despite   multiple <\/p>\n
injuries sustained by her which she tried to attribute to a <\/p>\n
fall   inside   her   house.     The   statement   of   the   witness   that <\/p>\n
her   son   was   getting   treatment   for   some   mental   disorder <\/p>\n
cannot in the circumstances be accepted on its face value, <\/p>\n
to rest an order of acquittal in favour of the appellant on <\/p>\n
the   basis   thereof.     It   is   obvious   that   the   mother   has <\/p>\n
switched   sides   to   save   her   son   from   the   consequences <\/p>\n
flowing from his criminal act.\n<\/p>\n
22.    That   leaves   us   with   the   deposition   of   two   medical <\/p>\n
experts who examined the appellant under the orders of the <\/p>\n
Court   during   the   course   of   the   trial.   Dr.   B.   Srinivasan, <\/p>\n
Specialist in Psychiatry, in his deposition stated that the <\/p>\n
appellant was admitted to the government hospital, Karaikal <\/p>\n
on 29th  July, 2002 pursuant to an order passed by the Trial <\/p>\n
Court   directing   his   medical   examination   so   as   to   evaluate <\/p>\n
his   mental   condition   and   ability   to   converse.   The   witness <\/p>\n
                                   20<\/span><\/p>\n
further   stated   that   the   appellant   was   kept   under <\/p>\n
observation on and from the afternoon of 29th July 2000 till <\/p>\n
6th  August,   2002   during   which   time   he   found   him   to   be <\/p>\n
conscious, ambulant dressed adequately and able to converse <\/p>\n
with the examiner.   The doctor has described the condition <\/p>\n
of the appellant during this period in the following words:\n<\/p>\n
              “He   has   restlessness,   suspicious   looking
\n         around   at   time   inappropriate   smile   has
\n         complaints   of   some   innervoice   telling   to   him
\n         (abusive   in   nature   at   times),   has   fear   and
\n         worries   about   others   opinion   about   him,   wants
\n         to be left alone, says he needs a few pegs of
\n         alcohol   to   sleep   peacefully   at   night.     He   has
\n         confusion   at   times   about   the   whisper   within
\n         him, feels some pulling connection between his
\n         chest and brain, that prevents him from taking
\n         freely with people and with the examiner.  I am
\n         of the opinion that the above individual is of
\n         unsound   mind.     The   possible   medical   dispenses
\n         being   psychosis:   (The   differential   diagnosis
\n         considered in this case are<\/p>\n<\/blockquote>\n
              1.      Paranoid Psychosis (Schizophrenia)<\/p>\n<\/blockquote>\n
              2.     Substance   induced   Psychosis   (Alcohol <\/p>\n
                    induced)<\/p>\n<\/blockquote>\n
              3. Organic   Psychosis   \/organic   mental <\/p>\n
                    disorder<\/p>\n
                        (Head   injury   sequelae   &   personality <\/p>\n
                    changes)<\/p>\n
                                     21<\/span><\/p>\n
               I, therefore, request this Hon’ble Court be
\n               kindly   arrange   for   a   second   opinion   by
\n               another   consultant   Psychiatrist   in   this
\n               case and also Psychological assessment by a
\n               clinical psychologist.”\n<\/p><\/blockquote>\n
                                                  (Emphasis
\n               supplied)<\/p>\n<\/blockquote>\n
23.    The appellant was, in the light of the recommendations <\/p>\n
made   by   Dr.   B.   Srinivasan   referred   to   JIPMAR   hospital   at <\/p>\n
Pondicherry, where he remained under the observation of Dr. <\/p>\n
R.   Chandrashekhar,   CW2   who   happened   to   be   Professor   and <\/p>\n
Head of the Department of Psychiatry in that Hospital.   In <\/p>\n
his   deposition   before   the   Court   Dr.   Chandrashekhar   has <\/p>\n
stated   that   the   appellant   was   admitted   on   30th  September, <\/p>\n
2002   but   escaped   from   the   hospital   on   1st  October,   2002   in <\/p>\n
which   connection   the   doctor   made   a   report   marked   Ex.P1.\n<\/p>\n
After   examining   the   relevant   record   the   witness   deposed <\/p>\n
that   the   appellant   did   not   have   any   Psychataxia   symptoms.\n<\/p>\n
In   the   detailed   report   proved   by   the   witness   and   marked <\/p>\n
Ex.P2   the   medical   condition   of   the   appellant   is   described <\/p>\n
as under:\n<\/p>\n
               “He   was   well   groomed.            Rapport   was
\n          established.   No abnormal motoric behavior was
\n          present. He was cooperative.  His mood appeared <\/p>\n
                                    22<\/span><\/p>\n
         euthymic   and   speech   was   normal.     There   was   no
\n         evidence of formal thought disorder or disorder
\n         of   possession   or   thought   content.                    No
\n         perceptual disorder was evident. Attention was
\n         arousable and concentration well sustained.  He
\n         was   oriented   to   time,   place,   person.     The
\n         immediate recall, recent and remote memory was
\n         intact.     Abstraction   was   at   functional   level.
\n         Judgement was preserved.  Insight was present.”\n<\/p>\n
24.    In the final report the doctor has drawn the following <\/p>\n
pen picture about the appellant’s mental health and psycho-\n<\/p>\n
diagnostic evaluation.\n<\/p>\n
         PSYCHO-DIAGOSTIC EVALUATION:\n<\/p>\n
              Patient’s          perception,         memory         and
\n         intelligence   were   slightly   impaired   (Memory
\n         Quotient   was   70   and   performance   quotient   was\n<\/p>\n
         72).         Mixed   psychotic   picture   with
\n         predominantly   affective   disturbances   was   seen.
\n         He   requires   further   support   and   guidance   in
\n         occupational area.\n<\/p>\n
              The   examination   is   suggestive   of   a   life
\n         time   diagnosis   of   Psychosis   (not   otherwise
\n         specified) and currently in remission.  Patient
\n         was   on   treatment   with   vitamins   and
\n         chlorpromazine 100 mg. per day during his stay
\n         in   the   ward.     The   course   in   the   hospital   was
\n         uneventful   except   for   the   fact   that   he
\n         absconded from the ward on 1.10.2002.   I am of
\n         the opinion that the above individual does not
\n         currently suffer from any mental symptom, which
\n         can interfere with the capability of making his
\n         defense.\n<\/p>\n
                                             Sd\/- XXX
\n                                   (DR. R. CHANDRASHKARAN)
\n                                            H\/D of Psychiatry<\/p>\n
                                     23<\/span><\/p>\n
          Dt. 5th October, 2002.             JIPMER,
\n                                          Pondicherry-6.        ”\n<\/p>\n
25.    What   is   important   is   that   the   depositions   of   the   two <\/p>\n
doctors   examined   as   court   witnesses   during   the   trial   deal <\/p>\n
with   the   mental   health   condition   of   the   appellant   at   the <\/p>\n
time   of   the   examination   by   the   doctors   and   not   the <\/p>\n
commission   of   the   offence   which   is   the   relevant   point   of <\/p>\n
time   for   claiming   the   benefit   of   Section   84   I.P.C.   The <\/p>\n
medical   opinion   available   on   record   simply   deals   with   the <\/p>\n
question   whether   the   appellant   is   suffering   from   any <\/p>\n
disease,   mental   or   otherwise   that   could   prevent   him   from <\/p>\n
making   his   defence   at   the   trial.   It   is   true   that   while <\/p>\n
determining whether the accused is entitled to the benefit <\/p>\n
of   Section   84   I.P.C.   the   Court   has   to   consider   the <\/p>\n
circumstances   that   proceeded,   attended   or   followed   the <\/p>\n
crime   but   it   is   equally   true   that   such   circumstances   must <\/p>\n
be established by credible evidence.   No such evidence has <\/p>\n
been   led   in   this   case.   On   the   contrary   expert   evidence <\/p>\n
comprising   the   deposition   and   certificates   of   Dr. <\/p>\n
Chandrashekhar  of   JIPMER   unequivocally   establish   that   the <\/p>\n
appellant   did   not   suffer   from   any   medical   symptoms   that <\/p>\n
could interfere with his capability of making his defence.\n<\/p>\n
There   is   no   evidence   suggesting   any   mental   derangement   of <\/p>\n
                                     24<\/span><\/p>\n
the   appellant   at   the   time   of   the   commission   of   the   crime <\/p>\n
for   neither the wife nor even his mother have in so many <\/p>\n
words   suggested   any   unsoundness   of   mind   leave   alone   a <\/p>\n
mental   debility   that   would   prevent   him   from   understanding <\/p>\n
the   nature   and   consequences   of   his   actions.     The   doctor, <\/p>\n
who   is   alleged   to   have   treated   him   for   insomnia,   has   also <\/p>\n
not been examined nor has anyone familiar with the state of <\/p>\n
his   mental   health   stepped   into   the   witness   box   to   support <\/p>\n
the plea of insanity. There is no gainsaying that insanity <\/p>\n
is   a   medical   condition   that   cannot   for   long   be   concealed <\/p>\n
from   friends   and   relatives   of   the   person   concerned.   Non-\n<\/p>\n
production   of   anyone   who   noticed   any   irrational   or <\/p>\n
eccentric   behaviour   on   the   part   of   the   appellant   in   that <\/p>\n
view   is   noteworthy.     Suffice   it   to   say   that   the   plea   of <\/p>\n
insanity   taken   by   the   appellant   was   neither   substantiated <\/p>\n
nor probablised.\n<\/p>\n
26.    Mr. Mani, as a last ditch attempt relied upon certain <\/p>\n
observations   made   in   Mahazar   Ex.P3   in   support   of   the <\/p>\n
argument   that   the   appellant   was   indeed   insane   at   the   time <\/p>\n
of   commission   of   the   offences.   He   submitted   that   the <\/p>\n
Mahazar referred to certain writings on the inner walls of <\/p>\n
the   appellant’s   house   which   suggested   that   the   appellant <\/p>\n
was   insane.     A   similar   argument   was   advanced   even   before <\/p>\n
                                     25<\/span><\/p>\n
the Courts below and was rejected for reasons which we find <\/p>\n
to be fairly sound and acceptable especially when evidence <\/p>\n
on record establishes that the appellant was an alcoholic, <\/p>\n
who   could   scribble   any   message   or   request   on   the   walls   of <\/p>\n
his house while under the influence of alcohol. The Courts <\/p>\n
below   were,   therefore,   justified   in   holding   that   the   plea <\/p>\n
of   insanity   had   not   been   proved   and   the   burden   of   proof <\/p>\n
cast   upon   the   appellant   under   Section   105   of   the   Evidence <\/p>\n
Act   remained   undischarged.   The   High   Court   has   also <\/p>\n
correctly   held   that   the   mere   fact   that   the   appellant   had <\/p>\n
assaulted   his   wife,   mother   and   child   was   not   ipso   facto <\/p>\n
suggestive of his being an insane person.\n<\/p>\n
27.    So,   also   the   fact   that   he   had   not   escaped   from   the <\/p>\n
place of occurrence was no reason by itself to declare him <\/p>\n
to   be   a   person   of   unsound   mind   incapable   of   understanding <\/p>\n
the   nature   of   the   acts   committed   by   him.   Experience   has <\/p>\n
shown   that   different   individuals   react   differently   to   same <\/p>\n
or   similar   situations.   Some   may   escape   from   the   scene   of <\/p>\n
occurrence, others may not while some may even walk to the <\/p>\n
police station to surrender and report about what they have <\/p>\n
done. Such post event conduct may be relevant to determine <\/p>\n
the   culpability   of   the   offender   in   the   light   of   other <\/p>\n
evidence on record, but the conduct of not fleeing from the <\/p>\n
                                     26<\/span><\/p>\n
spot would not in itself show that the person concerned was <\/p>\n
insane at the time of the commission of the offence.\n<\/p>\n
28.    That   brings   us   to   the   nature   of   offence   committed   by <\/p>\n
the   appellant   and   the   quantum   of   sentence   that   would   meet <\/p>\n
the   ends   of   justice.   The   courts   below   have   found   the <\/p>\n
appellant   guilty   of   murder   of   baby   Abirami   and   awarded   a <\/p>\n
life sentence to the appellant apart from 10 years rigorous <\/p>\n
imprisonment   for   the   offence   of   attempt   to   murder <\/p>\n
Dhanalakshmi and imprisonment of one year under Section 342 <\/p>\n
of   the   I.P.C.   In   the   circumstances   of   the   case   we   see   no <\/p>\n
reason   to   alter   the   conviction   or   sentence   under   Section <\/p>\n
342   of  the   I.P.C.  We   also  see   no  reason   to  interfere   with <\/p>\n
the   conviction   of   the   appellant   under   Section   307   of   the <\/p>\n
I.P.C.   except   that   instead   of   10   years   rigorous <\/p>\n
imprisonment   of   7   years,   should   in   our   view   suffice.   The <\/p>\n
conviction of the appellant under Section 302 of the I.P.C.\n<\/p>\n
is   not,   however,   justified.     We   say   so   for   reasons   more <\/p>\n
than   one.     In   the   first   place   there   was   no   pre-meditation <\/p>\n
in   the   assault   upon   the   deceased.   The   evidence   on   record <\/p>\n
shows that the family had gone to bed after dinner around 9 <\/p>\n
p.m.   The   quarrel   between   the   appellant   husband   and <\/p>\n
Dhanalakshmi   his   wife   started   around   12   midnight   and <\/p>\n
escalated into an assault on the later around one a.m. That <\/p>\n
                                    27<\/span><\/p>\n
the   quarrel   was   sudden   and   without   any   premeditation,   is <\/p>\n
evident from the deposition of the two injured witnesses.\n<\/p>\n
29.    Secondly,   because   in   the   assault   following   the <\/p>\n
quarrel,   the   appellant   used   a   sharp   edged   cutting   weapon <\/p>\n
against   his   wife   and   mother.     Incised   wounds   sustained   by <\/p>\n
the   said   two   ladies   bear   testimony   to   this   part   of   the <\/p>\n
prosecution case.     The deceased Abirami was at this stage <\/p>\n
of   the   occurrence,   in   another   room   wholly   unconnected   to <\/p>\n
the incident.\n<\/p>\n
30.    Thirdly,   because   the   appellant   had   because   of   the <\/p>\n
sudden   fight   with   his   wife   assaulted   her   in   the   heat   of <\/p>\n
passion and injured his mother who intervened to save her.\n<\/p>\n
The   noise   and   wails   of   the   injured   woke   up   the   deceased <\/p>\n
sleeping   in   the   adjacent   room   who   started   crying   thereby <\/p>\n
attracting the appellant’s attention towards her.\n<\/p>\n
31.    Fourthly,   because   the   assault   on   the   deceased   caused <\/p>\n
only   two   injuries   with   a   resultant   fracture.   The   injuries <\/p>\n
were described by the doctor as under:\n<\/p>\n
                 “1.     Lacerated   injury   measuring   2   x   0.5
\n            cm. x 0.5 cm.   Seen on middle of (R) Eyebrow.
\n            Lesion covered with blood clots.\n<\/p><\/blockquote>\n
                                      28<\/span><\/p>\n
                2.     Contusion   –   faint   reddish   blue   in
\n          colour   seen   on   (L)   side   of   face   and   temporal
\n          region of head.  8 cm. x 8 cm. inside.  Lesions
\n          are   antemortem   in   nature.     Faint   suggilations
\n          fixed on back of trunk.”\n<\/p><\/blockquote>\n
32.    Fifthly,   because   the   appellant   did   not   evidently   use <\/p>\n
the sharp edged weapon for causing injuries to the deceased <\/p>\n
as he had done in the case of Dhanalakshmi and Valli, PWs 2 <\/p>\n
and   3   respectively.     In   the   circumstances   we   are   inclined <\/p>\n
to   hold   that   there   was   no   intention   on   the   part   of   the <\/p>\n
appellant   to   cause   the   death   of   the   deceased,   though <\/p>\n
looking   to   the   nature   of   the   injuries   suffered   by   the <\/p>\n
deceased,   the   appellant   must   be   presumed   to   have   the <\/p>\n
knowledge   that   the   same   were   likely   to   cause   death.   The <\/p>\n
fact remains that the appellant committed culpable homicide <\/p>\n
without premeditation in a sudden fight and in the heat of <\/p>\n
passion.  The fact that the appellant did not use the sharp <\/p>\n
edged weapon with which he was armed also shows that he did <\/p>\n
not   act   in   a   cruel   or   unusual   manner   nor   did   he   take   an <\/p>\n
undue   advantage.   It   is   evident   from   the   deposition   of <\/p>\n
Dhanalakshmi, that she did not see the appellant assaulting <\/p>\n
the   deceased.   It   is,   therefore,   just   possible   that   a   hard <\/p>\n
blow   given   to   the   deceased   by   his   bare   hand   itself   threw <\/p>\n
the   child   down   from   the   bed   causing   the   injuries   that <\/p>\n
proved fatal.\n<\/p>\n
                                      29<\/span><\/p>\n
33.    In   the   result,   we   allow   this   appeal   in   part,   and   in <\/p>\n
modification   of   the   judgments   and   orders   under   appeal <\/p>\n
convict   the   appellant   under   section   304   Part-II   and <\/p>\n
sentence him to undergo rigorous imprisonment for a period <\/p>\n
of ten years. The reduced sentence of seven years rigorous <\/p>\n
imprisonment   awarded   to   the   appellant   for   the   offence   of <\/p>\n
attempt   to   murder   and   one   year   rigorous   imprisonment   for <\/p>\n
the   offence   punishable   under   Section   342   I.P.C.   shall   all <\/p>\n
run   concurrently   with   the   sentence   awarded   under   Section <\/p>\n
304-Part II. The sentence awarded in default of payment of <\/p>\n
fine shall stand affirmed. The appellant shall be entitled <\/p>\n
to   the   benefit   of   Section   428   of   the   Criminal   Procedure <\/p>\n
Code.\n<\/p>\n
                                             ……………………………..J.
\n                                             (V.S. SIRPURKAR)<\/p>\n
                                             ……………………………..J.
\n                                             (T.S. THAKUR)
\nNew Delhi
\nJuly 5, 2011<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Elavarasan vs State Rep.By Inspector Of Police on 5 July, 2011 Author: T Thakur Bench: V.S. Sirpurkar, T.S. Thakur 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-217176","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nElavarasan vs State Rep.By Inspector Of Police on 5 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/elavarasan-vs-state-rep-by-inspector-of-police-on-5-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Elavarasan vs State Rep.By Inspector Of Police on 5 July, 2011 - 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