{"id":26110,"date":"2005-03-31T00:00:00","date_gmt":"2005-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ponnan-vs-state-rep-by-on-31-march-2005"},"modified":"2017-02-03T07:35:43","modified_gmt":"2017-02-03T02:05:43","slug":"ponnan-vs-state-rep-by-on-31-march-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ponnan-vs-state-rep-by-on-31-march-2005","title":{"rendered":"Ponnan vs State Rep. By on 31 March, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Ponnan vs State Rep. By on 31 March, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 31\/03\/2005\n\ncoram\nTHE HON'BLE MR. JUSTICE  P.D. DINAKARAN\nAND\nTHE HON'BLE MR. JUSTICE S. ASHOK KUMAR\n\nCRIMINAL APPEAL No.1012 OF 2001\n\nPonnan\t\t\t\t..Appellant\n\t\t\t\t  (Accused)\n\n\nVs.\n\n\nState rep. By\nThe Inspector of Police,\nViralimalai Police Station\nPudukottai District\t\t.. Respondent\n\t\t\t\t   Complainant\n\n\n\tThis Criminal Appeal has been preferred against the  judgment and\nconviction passed by the Learned Principal District and Sessions Judge,\nPudukottai District in S.C.No.102 of 2000, dated 11.9.2001.\n\n\n!For appellants ...  Mr.M.Deivanandam, Amicus curiae\n\n^For respondent ...  Mr.K.Chellapandian\n\t\t     Additional Public Prosecutor\n\n:JUDGMENT\n<\/pre>\n
S.ASHOK KUMAR,J.,\t<\/p>\n
\tThe appellant, sole accused in S.C.No:102 of 2000, on the file of the
\nPrincipal Sessions Judge, Pudukottai was convicted for offence under Sections
\n302 IPC to undergo  imprisonment for life and for offence under Section 326 IPC
\n(3 counts) to undergo rigorous imprisonment for four years on each count, for
\nthe offence under section 324 IPC (2 counts) to undergo rigorous imprisonment
\nfor  one year on each count, all the sentences to run concurrently.\n<\/p>\n
\t2. The brief facts of the prosecution case is as follows:-\n<\/p>\n
\t(a) PW.1, Rangan is the father of the accused Ponnan. Because, P.W.1, the
\nfather of the accused failed to arrange his marriage with the daughter of one
\nAmmasi of Saralapatti Village, the accused  was in a fit of anger. On 26.4.1999
\nat 6.45 a.m., he caused   grievous injuries to his father by using M.O.3 Aruval.
\nThereafter he proceeded to a cotton field belonging to Andi Gounder @ Krishnan,
\nwhere he cut on the right side ear and  head of one Chittammal at 7.30 a.m.,
\nwith his aruval. Thereafter he attacked P.W.3, Meena at 7.45 a.m.,  when she was
\nstanding near the water tap at Pasumettupatti. Thereafter he attacked P.W.4
\nRathinam by the said aruval near the water tank. Thereafter he  attacked a
\nschool boy, P.W.6 by name Thangaraj,  on his left hand, on the mud road near the
\nVirudhapatti Village by the said Aruval and thereafter he also assaulted on the
\nright hand of P.W.5, Andi Gounder @ Krishnan, in the same transaction and caused
\ngrievous injuries to him.  P.W.1, Mukkan who is the President of Viruthapatti
\nPanchayat lodged Ex.P.1 complaint at Viralimalai Police Station on 26.4.1999 at
\n10.00 a.m., Natesan (since deceased), Inspectorof Police, Viralimalai Police
\nStation registered the case in Cr.No.251 of 1999 under sections 302 and 324 IPC
\nand the printed FIR is Ex.P.18.\n<\/p>\n
\t\t(b) P.W.13, Kannadasan, Inspector of Police visited the place of
\noccurrence on 26.4.1999 at 10.30 a.m., and prepared observation mahazar Ex.P.8
\nin the presence of witnesses P.W.9, Chinnappa and one Alagarswamy.He also
\nprepared a rough plan Ex.P.19. He collected the blood stained earth in M.O.1 and
\nordinary earth in M.O.2 under a cover of mahazar Ex.P.9. He conducted an inquest
\nover the body of the deceased Chittammal and prepared an inquest report in
\nEx.P.20. He examined the witnesses P.W.1 Mookkan, P.W.2 Rangan, P.W.3 Meena,
\nP.W.4 Rathinam, P.W.5 Andigounder @ Krishnan and recorded their statements. He
\nalso prepared another rough plans in Exs.P.21 and 22. He also prepared
\nobservation mahazars in Exs.P.10 and 11.\n<\/p>\n
\t(c). P.W.7, Dr.Karunanithi, Government Hospital, Manapparai, received
\nrequisition letter from  the Inspector of Police, Viralimalai on 26.4.1999 and
\nconducted an autopsy over the deceased body  of Chittammal on 26.4.1999 at 3.00
\np.m., The rigor mortis present in all four limbs. He found  the following
\nexternal injuries:-\n<\/p>\n
\t“Injuries:\n<\/p>\n
\t1. 6″ cut wound oblique in direction cutting the right side pinna at the
\nmiddle ear depth  up to the peritotemporal occipital skin of the bone cutting
\nmastoid process bone exposing the brain matter -severe bleeding right side
\nskull.\n<\/p>\n
\t2. 2″ inches oblique cut injury present in the right side angle of the
\nmandively.\n<\/p>\n
\t3. 5″ inches length upper part of the right side neck with bleeding.
\nOpening the skull.\n<\/p>\n
\tInternal:\n<\/p>\n
\t1″ inches circular bone chip  fragment present in the mastoid area right
\nside  present in temporal occipital bone right side over the brain matter blood
\nclots present. Blood collected in the skull cavity. Brain cut section pale. 1″
\nin the tempo parietal and temporal occipital bone. Hyoid bone intact. Internal
\norgans: liver cut, pale, kidney pale. Stomach empty. Lungs pale.”\n<\/p>\n
The  Doctor opined that the death was caused due to the injuries to the vital
\norgans, Head injures, Injuries to the brain Haemorrhage and shock. He issued
\npostmortem certificate in Ex.P.2.\n<\/p>\n
\t(d) P.W.7 also examined the injured person P.W.2, Rangan on 26.4.1999 at
\n6.45 p.m., and he found the following external injuries on his body:\n<\/p>\n
1. Cut and 2 . ” x 1 ” x 1″ put in the left writ joint oblipn gnit;\n<\/p>\n
2. 2″ x . ” x . ” cut and put in the top of the head;\n<\/p>\n
3. 1″ x ” x  ” cut and put in the right side of the top of the head.
\nThe Doctor who issued the wound certificate opined that the injuries are simple
\nin nature. He issued a wound certificate in Ex.P.3.\n<\/p>\n
\t(e) The same Doctor also examined the witnesses P.W.3, Meena on 26.4.1999
\nat 9.30 a.m., morning and found the following external injuries on her body:\n<\/p>\n
1.Cut injury  6″ x . ” x .”  part in the entire of the bead;\n<\/p>\n
2. 3″ x .” x ” cut wound below the chin, in the neck.\n<\/p>\n
The Doctor gave opinion that  the first injury is grievous and other is simple.
\nHe issued  a wound certificate in Ex.P.4.\n<\/p>\n
\t(f) P.W.7, Doctor examined the witness P.W.4 Rathinam on 26.4.1999 at
\n10.50 a.m., morning and found  the following external injuries on his body:\n<\/p>\n
1. Cut injury .” x1\/4″ x ” in the left thumb;\n<\/p>\n
2. .” x .” skin depth cut and portion left index finger;\n<\/p>\n
3. .” x .” skin depth put in the left middle finger;\n<\/p>\n
4. .” x1\/2″ depth put in the right arm;\n<\/p>\n
5. Cut injury in the left and right upper arm.\n<\/p>\n
The Doctor opined that the injuries are simple in nature. He also issued a wound
\ncertificate in Ex.P.5.\n<\/p>\n
\t(g) P.W.7, Doctor also examined P.W.5, Mr.Andi Gounder on the same day at
\n10.45 a.m., morning and he found the following external injuries on his body:
\n“A cut injury on the left behind the right hand finger and  a middle finger 5″ x
\n1” x “” heeling injury”.\n<\/p>\n
The Doctor opined that the injury is grievous in nature. He issued a wound
\ncertificate in Ex.P.6.\n<\/p>\n
\t(h) P.W.7, Doctor examined the witnesses P.W.6 Mr.Thangaraj on the same
\nday at 10.30 a.m., morning and he found  the following external injuries on his
\nbody:\n<\/p>\n
1. Cut and 27 . x bone depth present in the left arm middle arm;\n<\/p>\n
2. Leg 1″ x . ” cut injury at left thigh. He opined that the injuries are
\ngrievous in nature. He issued a wound certificate in Ex.P.7.”\n<\/p>\n
\t(i). Continuing his investigation P.W.13 arrested the accused near
\nChellandi Amman Temple at 4.00 pm., on the same evening and seized M.O.3 , blood
\nstained Aruval under a cover of mahazar Ex.P.12. He examined P.W.7,
\nDr.Karunanithi, P.W.7, P.W.14 and other witnesses and recorded their statements.
\nHe sent requisition for chemical analysation of   case properties. The chemical
\nanalyst reports are Exs.P.16 and P.17. After completing the investigation P.W.13
\nlaid the charge  sheet against the accused for offences under sections 302, 324
\nand 326 IPC in the Judicial Magistrate Court, Keeranur on 30.7.1999.
\n\t(3). Before the Sessions Court, the prosecution examined P.Ws 1 to 14 and
\nmarked Exs. P.1 to P.22 and M.Os 1 to 9. No witness was examined on behalf of
\nthe accused. Dr.Elangovan, Assistant Professor of Kilpauk Mental Health
\nInstitute, Chennai was examined as CW.1 and the case summary recorded at the
\nInstitute of Mental Health, Kilpauk, was marked as Ex.C.1.
\n\t(4). When the accused was questioned with regard to the incriminating
\ncircumstances appearing in the evidence of the prosecution witnesses, the
\naccused admitted having caused the death of Chittammal and injuries to P.W.2,
\nhis father P.W.3, Meena, P.W.4 Rathinam, P.W.5 Andi Gounder and P.W.6 Thangaraj.
\nHe also admitted  the time of arrest and recovery of  bloodstained Aruval, M.O.3
\nunder a cover of mahazar Ex.P.12. He has also stated that he was not conscious
\nwhen  he committed the offence and has forgotten everything and also admitted
\nthat  he is suffering from some mental disorder as told by Dr.Kumar, Professor
\nof KAP Medical College, Trichy.\n<\/p>\n
\t(5). The accused  seems to be suffering from some  abomination for his
\nfather since he did not arrange for his marriage with the daughter of one Ammasi
\nand on that score he started cutting his father first, then Chittammal, the
\ndeceased and thereafter P.W.s  3, 4, 5 and 6 one by one at various places.
\nP.W.s 2 to 6 are injured eye witnesses and P.W.2 is none other than the father
\nof the accused. The series of attack by the accused against whom he had no
\nmotive at all like Chittammal, Meena and School boy Thangaraj would show that
\nthe accused should have been labouring from some mental disorder at the time of
\noccurrence.  In fact, before the Sessions Court,   P.W.14, Dr.Kumar, Professor
\nof KAP Medical College, Trichy, was examined, who has deposed  that he examined
\nthe accused from 15.6.1999 to 26.9.1999 in a separate cell and in the beginning
\nof the examination the accused was always thinking about something and after
\ntreatment for a period of one week there were no symptoms of mental disorder and
\neven though he was aware of the incidence, he was not able to understand the
\neffect or consequences of the incidence in which he was involved and he has also
\ncome to the conclusion that the accused requires further examination with regard
\nto his mental disorder.  P.W.14,  was once again examined on 27.4.2001 and he
\nhas confirmed his earlier findings. From the nature of occurrence that the
\naccused went on attacking whoever came on his way itself shows that the was
\nsuffering from some mental disorder.\n<\/p>\n
\t(6). Since the accused had been suffering from some mental disorder, he is
\nentitled for the protection under section 84 of the Indian Penal Code. Section
\n84 IPC reads as follows:-\n<\/p>\n
“84. Nothing is an offence which is done by a person who, at the time of doing
\nit by reason of unsoundness of mind, is incapable of knowing the nature of the
\nact,or that he is doing what is either wrong  or contrary to law”.\n<\/p>\n
\t7. Under Section 105 of the Indian Evidence Act “when a person is accused
\nof any offence, the burden of proving the existence of circumstances bringing
\nthe cause within any of the General exceptions in the Indian Penal Code or
\nwithin any special exception or proviso contained in any other part of the same
\nCode, or in any law defining the  offence is upon, and the court shall presume
\nthe absence of such circumstances.”\n<\/p>\n
\t8. In Dahyabhai V. State of Gujarat, reported in AIR 1967 SC 1563,  the
\nHon’ble Supreme Court has held thus:-\n<\/p>\n
\t“When a person is bound to prove the existence  of any fact, it is said
\nthat the burden of proof lies on that person.\n<\/p>\n
\tIt is fundamental principle of criminal  jurisprudence  that an accused is
\npresumed  to be innocent and, therefore, the burden lies on the prosecution to
\nprove the guilt of the accused beyond reasonable doubt. The prosecution,
\ntherefore, in a case of homicide shall prove beyond reasonable doubt that the
\naccused caused death with the requisite intention described in S.299 of the
\nIndian Penal Code. This general burden never shifts and it always rests on the
\nprosecution. But, S.84 of the Indian Penal Code provides that nothing is an
\noffence which is done by a person who, at the time of doing it by reason of
\nunsoundness of mind, is incapable of knowing the nature of the act,or that he is
\ndoing what is either wrong  or contrary to law. This being an exception, under
\nSection 105 of the Evidence Act the burden of  proving the existence  of
\ncircumstances bringing the case within the said exception lies on the accused,
\nand the court shall presume the absence of such circumstances. Under S.105 of
\nthe Evidence Act, read with the definition of “shall presume” in S.4 thereof,
\nthe court shall regard the absence of such circumstances as proved unless, after
\nconsidering the matters before it, it believes that the said circumstance
\nexisted or their existence was so probable that a prudent man ought, under the
\ncircumstances of the particular case to act upon the supposition that they did
\nexist. To put it in other words, the accused will have to rebut the presumption
\nthat such circumstances did not exist, by placing material before the court
\nsufficient to make it consider  the existence of the said circumstances so
\nprobable that a prudent man would act upon  them. The accused has to satisfy the
\nstandard of a “prudent man”. If the material placed before the court , such as,
\noral and documentary evidence, presumptions, admissions or even the prosecution
\nevidence, satisfies the test of “prudent man”, the accused will have discharged
\nhis burden. The evidence so placed may not be sufficient to discharge he burden
\nunder S.105of the Evidence Act, but it may raise a reasonable doubt in the mind
\nof a judge as regards one or other of the necessary ingredients of the offence
\nitself. It may, for instance, raise a reasonable doubt in the mind of the judge
\nwhether the accused had the requisite intention laid down in S.299 of the Indian
\nPenal Code. If the judge has such reasonable doubt,he has to acquit the accused
\nfor in that event the prosecution  will have failed to prove conclusively the
\nguilt of the accused. There is no conflict between the general burden, which is
\nalways on the prosecution and which never shifts,and the special burden that
\nrests on the accused to make out  his defence of insanity.”\n<\/p>\n
\t9. In Shrikant Anandrao Bosale Vs. State of Maharashtra, reported in AIR
\n2002 SC 3399, their Lordships of the Supreme Court have held thus:-\n<\/p>\n
\t“In the instant case the accused, Police Countable alleged to have hit his
\nwife with grinding tone on 24thApril 1994. The accused took  the plea of
\ninsanity. However,the prosecution relied on anger theory. The circumstances that
\nstand proved: (a) the appellant has a family history his father was suffering
\nfrom psychiatric illness. (b) Cause of  ailment not known hereditary plays a
\npart. (c.) Accused was  being treated for unsoundness of mind since 1992.
\nDiagnosed as suffering from paranoid schizophrenia. Within a short span, soon
\nafter the incident from 27th June to 5th December, 1994, he had to be taken for
\ntreatment of ailment 25 times to hospital. (d) Accused was under regular
\ntreatment for the mental ailment. (e) The motive of killing of wife was weak
\nbeing that  she was opposing the idea of the resigning the job of a Police
\nConstable. (f) Killing a wife in a day light made no attempt to hide or run
\naway.  Though the facts that the accused did not make any attempt  to run away
\nor that he committed crime in day light and did not try to hide it or that
\nmotive to kill his wife was very weak would not itself indicate insanity,
\nhowever, it would not only the aforesaid facts but it would be the totality of
\nthe circumstances seen in the light of the evidence on record, rove that the
\naccused was suffering from paranoid schizophrenia. The unsoundness of mind
\nbefore  and after  incident would be a relevant fact. From the circumstances of
\nthe case clearly an inference can be reasonable drawn that the accused was under
\na delusion at the relevant time. He was under an attack of the ailment. The
\nanger theory on which reliance has been placed by prosecution cannot be ruled
\nout under  schizophrenia attack. Having regard to the nature of burden on the
\naccused, the accused can be said to have proved the existence of circumstances
\nas required  by S.105 of the Evidence Act so as to get benefit of S.84, IPC . In
\nthe circumstance, it cannot be said that the crime was committed as a result of
\nextreme fit of anger. A reasonable doubt can be raised  that at the time of
\ncommission of the crime, the accused was incapable of knowing the nature of the
\nact by reason of unsoundness of mind and, thus, he would be entitled to the
\nbenefit if S.84 IPC. Hence the conviction and sentence of the accused would be
\nliable to be set aside.”\n<\/p>\n
\t10. As already held, in this case the evidence of P.W.14, Dr.Kumar would
\nprove that  the accused was suffering from some mental disorder and he was not
\nable to understand the effect or consequence of the incident in which he was
\ninvolved. The accused apart from killing the deceased Chittammal against whom he
\nhad no enmity or any motive, has also attacked  his own father, P.W.2 and other
\nwitnesses P.Ws.3 to 6 against whom he has no motive or enmity. The accused has
\nnot spared even the girl who was taking water in the tap and a small school
\ngoing boy, Thangaraj. The very nature of the occurrence that the accused went on
\nattacking whoever came on his way itself would show that the accused  should
\nhave been labouring from some mental disorder at the time of occurrence.  The
\nrule of burden of proof in the context  of the plea of insanity are (a) that the
\nprosecution must prove beyond reasonable doubt that the offence was committed by
\nthe accused that the requisite “mens rea” and the burden continues from the
\nbeginning till the end of the trial (b) that it is a rebuttable presumption that
\nthe prisoner was not insane  when he committed an offence in the sense set forth
\nin Section 84 Indian Penal Code, (C) that the accused may rebut the presumption
\nof sanity at the relevant time bringing the case within Section 84, IPC, by
\nproducing oral, documentary, circumstantial and other materials and he may
\ndischarge the burden by establishing a reasonable probable case. The accused is
\nnot called upon to establish the element of Section 84, IPC by producing
\nevidence beyond reasonable doubt and (d) that  even the accused fails to
\nestablish affirmatively or conclusively that he was of unsound mind and
\ncommitted the act under the circumstances set out in Section 84, IPC, but raises
\na reasonable doubt in the mind of the Court as regards presence of essential
\ningredients of the offence, which of course  includes, `mens rea’ the requisite
\ncriminal intention,l the Court would be entitled to acquit the accused the
\nground that the general burden of proof resting on the prosecution was not
\ndischarged.  Therefore, applying the above principle,  we can safely conclude
\nthat the accused is entitled for protection under Section 84 of the Indian Penal
\nCode and the conviction and sentence of the accused is liable to be set aside.
\nAt this stage, we are not aware whether the accused who is confined in jail has
\nbeen cured of the mental disorder.\n<\/p>\n
\t11. The materials placed before us establish that the accused  has no
\ncriminal intention at the relevant time and as such the case squarely falls
\nunder Section 84 IPC. By preponderance of probability also it has been
\nestablished that the accused  was mentally unsound and at the time of commission
\nof the acts he was incapable of knowing the nature of acts and\/or that what he
\nwas doing  was either wrong or contrary to law and accordingly we set aside the
\nconviction and findings passed against the  appellant.  We are acquitting the
\naccused on the ground that at the time at which he was alleged  to have
\ncommitted the offence, he was, by reason of unsoundness of mind, incapable of
\nknowing the nature of the acts alleged as constituting the offences and\/or that
\nthey were wrong or contrary to law, but we record the finding that it was the
\naccused  who committed the act. Now, it would be  the statutory obligation of
\nthe learned  District and Sessions Judge,  Pudukottai District  to follow
\nmeticulously the provisions of Section 335 of the  Cr.P.C., The learned Judge
\nmay direct detention of the accused in safe custody in such manner as he thinks
\nfit or may order the accused to be delivered to any relative or friend of the
\naccused on such terms and conditions as he thinks just  and prudent. The accused
\nmay be detained in the lunatic asylum however, in accordance with the provisions
\nof the Rules framed under the Indian Lunacy Act, 1912. We direct the Learned
\nDistrict and Sessions Judge to follow the provisions of S.338 of the Code
\ncarefully and cautiously to protect the interest of the society. The accused
\nshall not be released from the safe custody until the concerned Civil Surgeon or
\nthe Chief Medical Officer or the Commission certified that the appellant is fit
\nto live in the society and could no longer be a hazard to the society. The
\nlearned District and Sessions Judge, Pudukottai shall report to the State
\nGovernment the action taken by him under Section 335(1) of the Code. We draw the
\nattention of the learned District and Sessions Judge and the  authorities to the
\nmandatory provisions contained in S.338 of the Code.\n<\/p>\n
\t12. In the result, the appeal is allowed to the extent indicated above.\n<\/p>\n
\t13. Before parting with the case, we record the valuable assistance
\nrendered by Mr.M.Deivanandam, learned counsel for the appellant, who was
\nappointed as Amicus Curiae, and we fix his remuneration as Rs.2000\/= to be paid
\nby the Legal Services Authority.\n<\/p>\n
To\n<\/p>\n
1. The Principal District and Sessions Judge,
\n   Pudukottai.\n<\/p>\n
2. The superintendent, Central Prison, Trichy.\n<\/p>\n
3. The Inspector of Police, Viralimalai Police Station,
\n   Pudukottai District.\n<\/p>\n
4. The Superintendent of Police, Pudukottai.\n<\/p>\n
5. The District Collector, Pudukottai.\n<\/p>\n
6. The Director Generla of Police, Chennai – 4.\n<\/p>\n
7. The Chief Medical Officer,
\n   Govt. General Hospital, Pudukottai.\n<\/p>\n
8. The Public Prosecutor,
\n   Maduai Bench of Madras High Court, Madurai.\n<\/p>\n
9. The Secretary, The Legal Service Authority,
\n   Madras High Court Buildings, Chennai-104.\n<\/p>\n
+ 1 cc to Mr.M. Deivanandam, Advocate, SR No.9829\/05.\n<\/p>\n
GM.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ponnan vs State Rep. By on 31 March, 2005 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31\/03\/2005 coram THE HON’BLE MR. JUSTICE P.D. DINAKARAN AND THE HON’BLE MR. JUSTICE S. ASHOK KUMAR CRIMINAL APPEAL No.1012 OF 2001 Ponnan ..Appellant (Accused) Vs. State rep. By The Inspector of Police, Viralimalai Police […]<\/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":[8,13],"tags":[],"class_list":["post-26110","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nPonnan vs State Rep. 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