REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELL ATE JURISDICTION

CRIMINAL APPEAL NO. 389 OF 2007

Sudhakaran … Appellant

VERSUS

State of Kerala …Respondent

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1.The present appeal is directed against the judgment

and final order in Criminal Appeal No. 1092 of 2003

dated 21.10.2005 whereby the High Court of Kerala

at Ernakulum dismissed the criminal appeal filed

by the appellant and thereby affirmed his conviction

under Section 302 IPC as held by the trial court

vide judgment dated 30.11.2002.

2.Shorn of unnecessary details, the facts essential for

adjudication of the present appeal are:

1

The appellant herein was convicted and sentenced to

rigorous imprisonment for life under Section 302 IPC for

murdering his wife on 3.11.2000 at about 7.30 p.m. He

had killed his wife by assaulting her with a chopper on

her neck in the bedroom of his house. There is no direct

evidence of the murder. However, the factum of death of

the appellant’s wife by the injuries noticed in post

mortem report (Exb.P5) is not disputed. The appellant

had taken the defence of insanity based on

Section 84 IPC. He had examined four witnesses in

support of his defence. Now, the appellant had claimed

the defence of insanity at the time of murder; no such

plea was taken at the time of the trial. Aggrieved by the

judgment of the trial court, the appellant had approached

the High Court in Criminal Appeal No.1092 of 2003. The

aforesaid appeal was dismissed by the Division Bench of

the Kerala High Court by the judgment dated

21.10.2005. It is this judgment which is impugned before

us in the present appeal.

2

3.We may now notice the prosecution version as it

emerges through the evidence of PW1 and PW5. It

was alleged that on 3.11.2000 at about 7.30 p.m.

The appellant with the intention of killing his wife,

namely, Ajitha @ Poonamma had struck her on her

neck with a chopper when she was in the bedroom

of his house which is named ‘Kallumkuzhi’, bearing

No.289 situated in ward No. IX of Kanjikuzhy

panchayat. After committing the murder, the

appellant came out of the house and met PW1 and

PW5 who were sitting in front of their house. PW1 is

the son of PW5. At the time when the appellant

approached them he was carrying his child in one

arm. He asked PW5 as to whether he could hold the

child. When PW5 stepped towards the appellant to

take the child, he saw that the appellant was

carrying a chopper in the other hand. Immediately

PW1 and his father rushed into their house and

closed the door. At that time the appellant was seen

roaming around their house. He was trying to lay

3

down the child in a lean-to attached to their house.

At that stage, PW1 had pointed the beam of a torch

on to the appellant, through the window. He saw, in

the torch light, that the shirt of the appellant was

blood stained and he was also carrying a blood

stained chopper. PW1 then came out of his house

and went to the nearby house of PW2 and narrated

the entire incident to him. Thereafter PW1 and PW2

together went to the adjacent house of PW3. When

they came back together, they saw that appellant

had left the house of PW1. At that stage they were

told by PW5 that the appellant had come after

killing his wife. According to PW5, the appellant had

confessed to the crime. Thereafter all the people in

the nearby houses got together and went to the

house of the appellant where they found that his

wife Ajitha was lying on a cot in her bedroom with

blood splattered all over her. They also found that

there was no movement in the body of Ajitha. It is

further the case of the prosecution that when all the

4

neighbours had gathered in the house of the

appellant he had confessed to all of them that he

had killed his wife.

4.The FIR was registered on the basis of the statement

Exb.P1 made by PW1 wherein he narrated the

incident as stated above. This witness PW1 has also

identified M.O.1 knife which he had seen in the

hand of the appellant on the evening of 3.11.2000.

PW2 also gave a similar statement. He further

stated that the appellant had come to him and

asked him to look after the child as he was going to

the police station. He is alleged to have stated to

PW2 that –

“I have child in my hand. Kindly hold him. I

am going to the police station.”

5.PW2 further stated that the appellant had put the

knife on the ground in the verandah on being asked by

one of the neighbours. While putting the knife down the

appellant said “till today she had been cheating upon

5

me.” After putting the knife down the appellant went to

the house of PW3. He is stated to have entrusted the

child to PW3. Thereafter the appellant had gone to a

place named Aippara City. PW4 is another neighbour

who stated that the appellant had come to the house of

PW1 with his 8 months old child in one hand and the

knife in the other hand. He came to know about the

incident when PW1 and PW2 came to his house and

narrated the story. Thereafter he saw the appellant in the

residential compound of Poonamakkal Thomas. He also

deposed that on the request of his father and Narayan,

appellant had put the knife on the floor. PW5 also

corroborated the statement given by PW1 to PW4. PW6 is

another witness who came to know about the incident

while he was in the Aippara City. According to him, he

came to know about the murder of the wife of appellant

at about 8 o’clock on 3.11.2000. According to PW11,

Sub-Inspector of Police Kanjikuzhi police, the appellant

was produced early in the morning by PW2, 3 and 4. He

was arrested by PW12, C.I. of Police.

6

6.The trial court notices that the prosecution has

relied on the oral evidences given by PW1 to PW12. The

prosecution had also produced the blood stained chopper

which had been recovered from the appellant. After

examining the dead body of the deceased, inquest report

was prepared by PW11 in the presence of the witnesses.

The chopper had been seized by him as per Ext.P2

Mahaska. Ext.P3 is the Mahaska prepared by him for

seizure of the shirt and dhoti worn by the appellant.

These materials were produced before the court as Ext.P7

and P8. The articles recovered from the body of the

deceased were produced as M.O.3 to 10 and 10(a). These

included night gown, and other under garments, gold

ornaments worn by the deceased at the time of the

murder. All the recovered articles were sent for Forensic

Examination. The Forensic Report was relied upon by the

prosecution at the trial. Ext.P10 is the Forensic Science

Report. This report revealed that all the items examined,

contained human blood belonging to group A.

7

7.Taking note of the evidence adduced by the

prosecution, the trial court noticed that Ext.P5 post

mortem certificate revealed nine injuries on the body of

the deceased. These injuries may be tabulated as

under :-

1. Incised wound, 14x4x6 cm horizontal, on

the middle of back of neck, 6 cm below

occipital protuberance. The muscles of the

back of neck found but and vertebral

column was found cut and separated

between 2

nd

and 3

rd

cervical vertebra.

Spinal cord underneath and vertebral

arteries were found several.

2. Incised wound 9x2x2cm oblique, on right

side of back of head upper inner end at the

level of occipital protuberance and lower

outer and just above right ear.

3. Incised wound 5x1x1cm oblique on right

side of neck, upper outer end just below

right ear and lower inner end 1cm, below

right angle of mandible.

4. Incised wound, 2x1cm oblique on pine of

right ear involving its entire thickness.

8

5. Incised wound 5x1x2 cm oblique on the

back of chest over right shoulder blade.

6. Incised wound 2x1x0.5 cm oblique on the

outer aspect of left shoulder.

7. Incised wound 3x1x0.5 cm oblique on the

out aspect of left shoulder 2 cm below

injury No.6.

8. Incised wound 5.5x1 cm. oblique on the

back of left little finger, 3 cm above its trip

with distal potion connected by skin only.

9. Incised wound, 5x4x1cm on the left

palmate the root of thumb.”

8.PW9, the doctor who conducted the post mortem

opined that the injuries noted by him could be caused by

an attack with a chopper such as M.O.1. The doctor also

opined that there were wounds on palm and fingers of

the deceased. This would indicate that she was defending

herself, therefore, she was attacked while she was awake

and not when she was asleep. The injuries noted by the

doctor in Ext.P5 also indicate that the appellant had

caused the death of his wife by attacking her with

chopper M.O.1.

9

The trial court upon consideration of the entire evidence

observed that the entire sequence of events led to the

only conclusion that the appellant had killed his wife by

striking her on her neck with a chopper. The trial court

specifically held that it did not find any missing link fatal

to the prosecution case.

9.The trial court thereafter considered the defence

pleaded by the appellant under Section 84 IPC. Upon

examination of the entire medical evidence, the trial court

concluded that there is no material to indicate that at the

time of the commission of the offence or immediately

before the occurrence of the incident, the appellant was

suffering from any mental illness. Although he had taken

some treatment in the year 1985 for mental illness but

he had fully recovered from that. Subsequently, long after

that he had married the deceased. Even though they

were living a disturbed married life, a child was born out

of the wedlock. The child was 8 months old at the time

when the crime was committed. The trial court also

10

noticed that, although the appellant was irregular, he

used to take on casual jobs for his sustenance. The trial

court concluded that even after taking note of the

evidence produced by the defence, the conclusion was

that the appellant was capable of understanding the

nature of the act and the consequences thereof.

10.The High Court, in appeal, re-examined the entire

issue and concluded that the evidence given by PW1 to

PW5 is unimpeachable. Therefore, the conclusions

reached by the trial court were duly affirmed by the

Division Bench of the High Court. The defence under

Section 84 was held to be not proved.

11.We have heard the learned counsel for the parties.

12.Learned counsel for the appellant submitted that

the entire story is unbelievable. The appellant was living

with his wife in a thickly populated locality. The houses

11

of the neighbours are in a close proximity. The defence of

the appellant has been illegally discarded by the trial

court as well as by the High Court. The appellant had

produced expert witnesses. In support of the medical

history of his mental illness, DW2 and DW4 had

produced the record relied upon by them which shows

that the appellant had been treated for paranoid

schizophrenia, 11 days after the alleged murder. Even

during the trial, the appellant had to be taken to the

mental hospital on 15.11.2000.

13.According to the learned counsel, both the courts

below have failed to appreciate the exact nature of the

disease “paranoid schizophrenia”. Such patients

experience an extremely rapid change of emotion within a

matter of seconds and minutes, they may be angry,

depresses, perplexed, ecstatic and anxious. Therefore, it

is not possible to say that at the time of the murder the

appellant was in his senses.

12

14.We are unable to accept the submissions made by

the learned counsel for the appellant. So far as the actual

physical murder is concerned, all the circumstances

adverted to above, chillingly point towards the guilt of the

appellant. PW1 and PW5 have clearly stated how the

appellant had approached them with a chopper soaked in

blood in one hand and his 8 months old son in other

arm. The blood stained chopper remained in the

possession of the appellant till he was asked to put the

same on the ground. PW1 actually saw the blood stained

chopper in the hand of the appellant when he pointed the

torchlight on the appellant through the window. After

entrusting the child to PW3, the appellant went away.

The dead body of his wife was discovered by the

neighbours which was soaked in blood. According to the

PW3 there was so much blood on the body that she

seemed to have taken a bath in a pool of blood. The

ocular evidence has been corroborated by medical

evidence. The doctor, PW9, who conducted the post

mortem, has clearly stated that the injuries which were

13

found on the body of the deceased could have been

caused with a weapon which was seized from the

appellant.

15.Therefore, in our opinion, both the courts below

have correctly concluded that the circumstances lead to

the only conclusion that the appellant has committed the

murder of his wife.

16.As far as, the defence under Section 84 is

concerned, we also see no reason to differ with the

opinion expressed by the trial court as also the High

Court. The evidence given by DW1, Assistant Surgeon of

Idduki District Hospital has been rightly discarded by the

High Court. It is true that DW1 had stated on the basis of

the out patient register that the appellant had come for

consultation. However, no records were produced as to

what treatment had been given to him. Even the out

patient ticket was not produced. Ultimately, this doctor

admitted that he cannot say that the appellant had come

14

there for psychiatric treatment. He did not even

remember the medicine which had been given to the

appellant. Similarly, the evidence of Superintendent of

Jail DW2 also only indicates that the appellant had been

sent to Medical Health Centre. Even the evidence of the

Health Centre was incomplete and wholly unreliable. The

entire medical evidence produced was not sufficient to

show that at the time of the commission of the murder

the appellant was medically insane and incapable of

understanding the nature of the consequences of the act

performed by him.

17.The defence of insanity has been well known in the

English Legal System for many centuries. In the earlier

times, it was usually advanced as a justification for

seeking pardon. Over a period of time, it was used as a

complete defence to criminal liability in offences involving

mens rea. It is also accepted that insanity in medical

terms is distinguishable from legal insanity. In most

cases, in India, the defence of insanity seems to be

15

pleaded where the offender is said to be suffering from

the disease of Schizophrenia. The plea taken in the

present case was also that the appellant was suffering

from “paranoid schizophrenia”. The term has been

defined in Modi’s Medical Jurisprudence and Toxicology

1

as follows:

“Paranoia is now regarded as a mild form of

paranoid schizophrenia. It occurs more in

males than in females. The main characteristic

of this illness is a well-elaborated delusional

system in a personality that is otherwise well

preserved. The delusions are of persecutory

type. The true nature of this illness may go

unrecognized for a long time because the

personality is well preserved, and some of

these paranoiacs may pass off as a social

reformers or founders of queer pseudo-

religious sects. The classical picture is rare

and generally takes a chronic course.

Paranoid Schizophrenia, in the vast majority of

case, starts in the fourth decade and develops

insidiously. Suspiciousness is the

characteristic symptom of the early stage.

Ideas of reference occur, which gradually

develop into delusions of persecution. Auditory

hallucinations follow which in the beginning,

start as sound or noises in the ears, but later

change into abuses or insults. Delusions are at

first indefinite, but gradually they become fixed

and definite, to lead the patient to believe that

he is persecuted by some unknown person or

1

[23

rd

Ed. Page 1077]

16

some superhuman agency. He believes that his

food is being poisoned, some noxious gases are

blown into his room and people are plotting

against him to ruin him. Disturbances of

general sensation give rise to hallucinations

which are attributed to the effects of

hypnotism, electricity, wireless telegraphy or

atomic agencies. The patient gets very irritated

and excited owing to these painful and

disagreeable hallucinations and delusions. ”

The medical profession would undoubtedly treat the

appellant herein as a mentally sick person. However, for

the purposes of claiming the benefit of the defence of

insanity in law, the appellant would have to prove that

his cognitive faculties were so impaired, at the time when

the crime was committed, as not to know the nature of

the act. Section 84 of the Indian Penal Code recognizes

the defence of insanity. It is defined as under:-

“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.”

A bare perusal of the aforesaid section would show that

in order to succeed, the appellant would have to prove

17

that by reason of unsoundness of mind, he was incapable

of knowing the nature of the act committed by him. In

the alternate case, he would have to prove that he was

incapable of knowing that he was doing what is either

wrong or contrary to law. The aforesaid section clearly

gives statutory recognition to the defence of insanity as

developed by the Common Law of England in a decision

of the House of Lords rendered in the case of R. Vs.

Daniel Mc Naughten

2

. In that case, the House of Lords

formulated the famous Mc Naughten Rules on the basis

of the five questions, which had been referred to them

with regard to the defence of insanity. The reference

came to be made in a case where Mc Naughten was

charged with the murder by shooting of Edward

Drummond, who was the Pvt. Secretary of the then Prime

Minister of England Sir Robert Peel. The accused Mc

Naughten produced medical evidence to prove that, he

was not, at the time of committing the act, in a sound

state of mind. He claimed that he was suffering from an

2

[1843 RR 59: 8ER 718(HL)]

18

insane delusion that the Prime Minister was the only

reason for all his problems. He had also claimed that as

a result of the insane delusion, he mistook Drummond

for the Prime Minister and committed his murder by

shooting him. The plea of insanity was accepted and Mc

Naughten was found not guilty, on the ground of

insanity. The aforesaid verdict became the subject of

debate in the House of Lords. Therefore, it was

determined to take the opinion of all the judges on the

law governing such cases. Five questions were

subsequently put to the Law Lords. The questions as

well as the answers delivered by Lord Chief Justice

Tindal were as under:-

“Q.1What is the law respecting alleged crimes

committed by persons afflicted with

insane delusion in respect of one or more

particular subjects or persons: as, for

instance, where at the time of the

commission of the alleged crime the

accused knew he was acting contrary to

law, but did the act complained of with a

view, under the influence of insane

delusion, of redressing a revenging some

supposed grievance or injury, or of

producing some public benefit?

19

Answer

“Assuming that your lordships’ inquiries are

confined to those persons who labour under

such partial delusions only, and are not in

other respects insane, we are of opinion, that,

notwithstanding the party did the act

complained of with a view, under the influence

of insane delusion, of redressing or revenging

some supposed grievance or injury, or of

producing some public benefit, he is

nevertheless punishable, according to the

nature of the crime committed, if he knew, at

the time of committing such crime, that he was

acting contrary to law, by which expression we

understand your lordships to mean the law of

the land.

Q.2.What are the proper questions to be

submitted to the jury when a person

alleged to be afflicted with insane

delusion respecting one or more

particular subjects or persons, is charged

with the commission of a crime (murder,

for example), and insanity is set up as a

defence?

Q.3.In what terms ought the question to be

left to the jury as to the prisoner’s state of

mind at the time when the act was

committed?

Answers – to the second and third questions

That the jury ought to be told in all cases that

every man is presumed to be sane, and to

possess a sufficient degree of reason to be

responsible for his crimes, until the contrary

be proved to their satisfaction; and that, to

establish a defence on the ground of insanity,

20

it must be clearly proved that, at the time of

the committing of the act, the party accused

was labouring under such a defect of reason,

from disease of the mind, as not to know the

nature and quality of the act he was doing, or

if he did know it, that he did not know he was

doing what was wrong. The mode of putting

the latter part of the question to the jury on

these occasions has generally been, whether

the accused, at the time of doing the act, knew

the difference between right and wrong, which

mode, though rarely, if ever, leading to any

mistake with the jury, is not, as we conceive,

so accurate when put generally, and in the

abstract, as when put as to the party’s

knowledge of right and wrong in respect to the

very act with which he is charged. If the

question were to be put as to the knowledge of

the accused, solely and exclusively with

reference to the law of the land, it might tend

to confound the jury, by inducing them to

believe that an actual knowledge of the law of

the land was essential in order to lead to a

conviction, whereas the law is administered

upon the principle that every one must be

taken conclusively to know it without proof

that he does know it. If the accused was

conscious that the act was one which he ought

not to do, and if that act was at the same time

contrary to the law of the land, he is

punishable; and the usual course, therefore,

has been to leave the question to the jury,

whether the party accused had a sufficient

degree of reason to know that he was doing an

act that was wrong: and this course, we think,

is correct, accompanied with such

observations and explanations as the

circumstances of each particular case may

require.

21

Q.4.If a person under an insane delusion as

to the existing facts commits and offence

in consequence thereof, is he thereby

excused?

Answer

The answer must, of course, depend on the

nature of the delusion, but making the same

assumption as we did before, that he labours

under such partial delusion only, and is not in

other respects insane, we think he must be

considered in the same situation as to

responsibility as if the facts with respect to

which the delusion exists were real. For

example, if, under the influence of his

delusion, he supposes another man to be in

the act of attempting to take away his life, and

he kills that man, as he supposes in self-

defence, he would be exempted from

punishment. If his delusion was that the

deceased had inflicted a serious injury to his

character and fortune, and he killed him in

revenge for such supposed injury, he would be

liable to punishment.

Q.5.Can a medical man, conversant with the

disease of insanity, who never saw the

prisoner previously to the trial, but who

was present during the whole trial, and

the examination of all the witnesses, be

asked his opinion as to the state of the

prisoner’s mind at the time of the

commission of the alleged crime, or his

opinion whether the prisoner was

conscious, at the time of doing the act,

that he was acting contrary to law, or

whether he was labouring under any and

what delusion at the time?

22

Answer

We think the medical man, under the

circumstances supposed, cannot in strictness

be asked his opinion in the terms above stated,

because each of those questions involves the

determination of the truth of the facts deposed

to, which it is for the jury to decide; and the

questions are not mere questions upon a

matter of science, in which case such evidence

is admissible. But where the facts are

admitted or not disputed, and the question

becomes substantially one of science only, it

may be convenient to allow the question to be

put in that general form, though the same

cannot be insisted on as a matter of right.”

3

A comparison of answers to question no. 2 and 3 and the

provision contained in Section 84 of the IPC would clearly

indicate that the Section is modeled on the aforesaid

answers.

18.This Court has on several occasions examined the

standard of proof that is required to be discharged by the

appellant to get the benefit of Section 84 IPC. We may

make a reference here to the observation made in

Dahyabhai Chhaganbhai Thakkar Vs. State of

3

[Archbold 2010 Ed. Pg. No. 1880-1881]

23

Gujarat

4

. The relevant aspects of the law and the

material provisions relating to the plea of insanity were

noticed and considered as follows:-

“ Indian Penal Code

299. Whoever causes death by doing an act

with the intention of causing death, or with the

intention of causing such bodily injury as is

likely to cause death, or with the knowledge

that he is likely by such act to cause death,

commits the offence of culpable homicide.

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.

Indian Evidence Act

105. When a person is accused of any offence,

the burden of proving the existence of

circumstances bringing the case within any of

the General Exceptions in the Indian Penal

Code (45 of 1860) or within any special

exception or proviso contained in any other

part of the same Code, or in any law defining

the offence, is upon him, and the Court shall

presume the absence of such circumstances.

4. Shall presume.—Whenever it is directed by

this Act that the Court shall presume a fact, it

shall regard such facts as proved unless and

until it is disproved.

4

[AIR 1964 SC 1563]

24

Proved.—A fact is said to be ‘proved’ when after

considering the matters before it, the Court

either believes it to exist, or considers its

existence so probable that a prudent man

ought, under the circumstances of the

particular case, to act upon the supposition

that it exists.

Disproved.—A fact is said to be disproved

when, after considering the matters before it,

the Court either believes that it does not exist,

or considers its non-existence so probable that

a prudent man ought, under the

circumstances of the particular case, to act

upon the supposition that it does not exist.

101. Whoever desires any Court to give

judgment as to any legal right or liability

dependent on the existence of fact which he

asserts, must prove that those facts exist.

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 a 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 of homicide

shall prove beyond reasonable doubt that the

accused caused death with the requisite

intention described in Section 299 of the

Indian Penal Code. This general burden never

shifts and it always rests on the prosecution.

But, as Section 84 of the Indian Penal Code

provides that nothing is an offence if the

25

accused at the time of doing that act, by

reason of unsoundness of mind was incapable

of knowing the nature of his act or what he

was doing was either wrong or contrary to law.

This being an exception, 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 Section 105 of the

Evidence Act, read with the definition of “shall

presume” in Section 4 thereof, the court shall

regard the absence of such circumstances as

proved unless, after considering the matters

before it, it believes that said circumstances

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 such, 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 the burden under Section 105 of 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

26

whether the accused had the requisite

intention laid down in Section 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.”

Thereafter, upon further consideration, this Court

defined the doctrine of burden of proof in the context of

the plea of insanity in the following propositions:-

“(1) The prosecution must prove beyond

reasonable doubt that the appellant had

committed the offence with the requisite mens

rea; and the burden of proving that always

rests on the prosecution from the beginning to

the end of the trial.

(2) There is a rebuttable presumption that the

appellant was not insane, when he committed

the crime, in the sense laid down by Section

84 of the Indian Penal Code: the appellant may

rebut it by placing before the court all the

relevant evidence – oral, documentary or

circumstantial, but the burden of proof upon

him is no higher than that rests upon a party

to civil proceedings.

(3) Even if the appellant was not able to

establish conclusively that he was insane at

27

the time he committed the offence, the

evidence placed before the court by the

appellant or by the prosecution may raise a

reasonable doubt in the mind of the court as

regards one or more of the ingredients of the

offence, including mens rea of the appellant

and in that case the court would be entitled to

acquit the appellant on the ground that the

general burden of proof resting on the

prosecution was not discharged.”

19.It is also a settled proposition of law that the crucial

point of time for ascertaining the existence of

circumstances bringing the case within the purview of

Section 84 is the time when the offence is committed. We

may notice here the observations made by this Court in

the case of Ratan Lal Vs. State of Madhya Pradesh

5

. In

Paragraph 2 of the aforesaid judgment, it is held as

follows:-

“It is now well-settled that the crucial point of

time at which unsoundness of mind should be

established is the time when the crime is

actually committed and the burden of proving

this lies on the appellant.”

5

[1970 (3) SCC 533]

28

20.The High Court on examination of the evidence

before it, came to the conclusion that the appellant had

failed to prove that he was suffering from such mental

illness that would enable him to take benefit of Section

84 IPC.

21.The High Court took into consideration the totality

of the circumstances and came to the conclusion that

there was no evidence indicating that appellant was

suffering from mental illness at the crucial time. The only

evidence placed on record shows that the appellant had

been treated in a Psychiatric Hospital for 13 days in the

year 1985 even at that time the doctor had diagnosed the

disease as psychotic disorder. The record did not indicate

that the patient was suffering from such mental disability

which incapacitated him to know the nature of the act

that he had committed. The High Court further observed

that there was no evidence to indicate that the appellant

suffered from mental illness post 1985. The High Court,

in our opinion, rightly concluded that the appellant was

29

capable of knowing the nature of the act and the

consequences thereof on the date of the alleged incident.

Whilst he had brutally and callously committed the

murder of his wife, he did not cause any hurt or

discomfort to the child. Rather he made up his mind to

insure that the child be put into proper care and custody

after the murder. The conduct of the appellant before and

after the incident was sufficient to negate any notion that

he was mentally insane, so as not to be possessed of the

necessary mens rea, for committing the murder of his

wife.

22.In such view of the matter, we see no reason to

interfere with the concurrent findings recorded by the

courts below. The appeal is dismissed.

……………………… .……J.

[B.SUDERSHAN REDDY]

30

.………………………………J.

[SURINDER SINGH NIJJAR]

NEW DELHI;

OCTOBER 26, 2010.

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