ELAVARASANversusSTATE REP. BY INSPECTOR OF POLICE

                  [2011] 10 S.C.R. 1147


                      ELAVARASAN                              A
                             v.
        STATE REP. BY INSPECTOR OF POLICE
           (Criminal Appeal No. 1250 of 2006)
                       JULY 5, 2011
                                                              B
       [V.S. SIRPURKAR AND T.S. THAKUR, JJ.]

     Penal Code, 1860 - ss. 84, 304-11, 307 and 342 - Murder
and attempt to murder - Defence of insanity - Tenability of -
Accused-appellant assaulted his wife(PW2) and C
mother(PW3) with a sharp edged weapon; caused the death
of his 1~ year old daughter ('A J and thereafter wrongfully
confined PWs2 and 3 within the house - Plea of insanity set
up by the appellant at the trial rejected - PW3 turned hostile
- Conviction of appellant u/s.302 for murder of 'A' with life D
sentence, u/s.307 for attempt to murder PW2 with 10 years
RI and u/s.342 with 1 year imprisonment - On appeal, held:
Appellant was guilty of committing culpable homicide of 'A'
and an attempt to commit the murder of PW2, even if the
assault on PW3 is taken as doubtful on account of her turning E
hostile at the trial and attempting to attribute the injuries
sustained by her to a fall - The fact that the appellant was
working as a government servant and was posted as a
Watchman with no history of any complaint as to his mental
health from anyone supervising his duties, is significant - F
PW2 who was living with him under the same roof also did
not suggest any ailment afflicting the appellant except
sleeplessness which was diagnosed by the doctor to be the
effect of excessive drinking - Deposition of PW3, that her son
was getting treatment for mental disorder is also much too G
vague and deficient for this Court to record a findit?g of
unsoundness of mind especially when the witness had turned
hostile - Depositions of the doctors dealt with the mental
health condition of the appellant at the time of the examination
                           1147                               H
    1148     SUPREME COURT REPORTS                  [2011] 10 S.C.R


A    by the doctors and not the commission of the offence which
    1s the· relevant point of time for claiming the benefit of s.84
     /PC - Insanity 1s a medical cond1t1on that cannot for long be
    concealed from fnends and relatives of the person concerned
     and m that view of the matter non-production of anyone who
B    noticed any irrational or eccentnc behaviour on the part of the
     appellant 1s noteworthy - Wntmgs on the inner walls of the
    appellant's house did not substantiate the plea of insanity
    especially when evidence on record established that
     appellant was an alcoho/1c. who could scnbble any message
C    or request on the walls of his house while under the influence
     of alcohol - Plea of insamty taken by the appellant was thus
     neither substantiated nor probabl1sed - The Courts below
     were. therefore, 1ust1f1ed m holdtng that the plea of insanity had
    not been proved and the burden of proof cast upon the
     appellant uls.105 of the Evidence Act remamed undischarged
0
    - The High Court also correctly held that the mere fact that
     the appellant had assaulted his wife, mother and child was not
     ipso facto suggestive of his being an insane person - So, also
     the fact that the appellant had not escaped from the place of
    occurrence was no reason by itself to declare him to be a
E   person of unsound mind incapable of understanding the
     nature of the acts committed by him inasmuch as different
     md1v1duals react differently to same or similar situations -
     Consequently, no reason to alter the conviction or sentence
     u/s 342 - Also no reason to interfere with the conviction of
F    appellant uls.307 but sentence reduced from 10 years RI to
     7 years RI - Conviction of appellant u/s. 302 not. however.
    justified and altered to conviction u/s.304 Part-fl a/ongwith 10
    years Rt

G      Penal Code, 1860 - s. 84 - Principles governing burden
  of proof m cases where the accused pleads an exception -
  Defence of insamty - Burden of bringing case uls. 84 /PC -
  Standard of proof for discharge of burden uls. 105 - Held. The
  burden of bring mg his/her case uls. 84 of /PC lies squarely
H upon tt1e person claiming the benefit of that provision - The
 ELAVARASAN v. STATE REP. BY INSPECTOR OF 1149
                  POLICE
standard of proof which the accused has to satisfy for the           A
discharge of the burden cast upon him u/s.105 of the
Evidence Act is not the same as is expected of the
prosecution - Evidence Act, 1872 - s.105.

      Penal Code, 1860 - s. 304-11 or 302 - Culpable homicide
without pre-meditation - Accused-appellant caused death of
                                                                     8
his 1% year old daughter ('A') - Conviction of appellant ul
s.302 - Justification of - Held On facts, not justified - There
was no pre-meditation m the assault upon the child 'A· -
Evidence on record shows that pursuant to a sudden quarrel
between the appellant and his wife(PW2), the appellant               C
assaulted PW2 in the heat of passion and also injured his
mother(PW3) who intervened to save PW2 - The noise and
wails of the injured woke up 'A' sleeping in the ad1acent room
who started crying thereby attracting appellant's attention
towards her- Also, assault on 'A' caused only two injunes with       D
a resultant fracture - Appellant did not evidently use the sharp
edged weapon for causing injuries""lo 'A' with which weapon
he had assaulted PWs 2 and 3 - In the circumstances, there
was no intention on the part of the appellant to cause the death
of 'A', though looking to the nature of the injuries suffered by     E
'A', the appellant must be presumed to have the knowledge
that the same were likely to cause death - Appellant
committed culpable homicide without premeditation in a
sudden fight and in the heat of passion - The fact that the
appellant did not use the sharp edged weapon with which he           F
was armed also shows that he did not a.ct in a cruel or unusual
manner nor did he take an undue advantage - PW2 did not
see the appellant assaulting 'A· - It is, therefore, just possible
that a hard blow given to 'A· by his bare hand itself threw the
child down from the bed causing the injuries that proved fatal       G
- In the result, conviction of appellant modified to that uls. 304
Part-II with 10 years RI.

    The prosecution case was that the appellant picked
up a quarrel with his wife (PW2) and thereafter assaulted
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A her with a sharp edged weapon and when PW3, the
  mother of appellant, intervened to save PW2, she too was
  assaulted by the appellant and resultantly both PWs 2
  and 3 were rendered injured; that due to the ruckus
  caused by the quarrel and the assault, 'A', the 1Yz year
s old daughter of the appellant, who was sleeping in
  adjacent room, woke up and started crying, whereupon
  the appellant went inside that room and hit her causing
  her death and that thereafter the appellant did not allow
  PWs 2 and 3 to go out of the house and bolted the doors
c from inside. Next day, the police authorities with the help
  of PWs 1, 8 and others found the appellant inside his
  house armed with an Aruval.

          Charge-sheet was filed against the appellant for
     offences punishable under Sections 342, 307 (2 counts)
D    and 302 IPC. Before the Trial Court the accused-appellant
     set up the plea of unsoundness of mind but did not lead
     any evidence except making a request for medical
     examination which request was allowed. The two
     doctors- Dr. 'RC' and Dr. 'PS' who examined the appellant
·E   were summoned as court witnesses to depose about
     their observations and conclusions as regards the
     mental health of the appellant. The Trial court eventually
     rejected the plea of insanity and held the appellant guilty
     of the charges framed against him and sentenced him to
F    undergo imprisonment for life for the murder of his
     daughter 'A' and to undergo 1 year rigorous
     imprisonment for the offence punishable under Section
     342 IPC and 10 years rigorous imprisonment for each of
     the offences punishable under Section 307(2 counts) for
G    attempt to murder PWs2 and 3. The sentences were
     ordered to run concurrently.
         On appeal, the High Court held that the appellant had
     been caught red handed with the weapon of offence
     inside the house in the presence of PWs 1, 7, 8 and
H
 EV.VARASAN v. STATE REP. BY INSPECTOR OF 1151
                  POLICE

others and also that- there was no reason why PW2, an        A
injured eye-witness to ~e entire incident, should have
falsely implicated her husband i.e. the appellant. But the
High Court held that since PW3, who had also been
injured in the incident had turned hostile and stated that
she had sustained the injuries accidently because of a       B
fall, the appellant's conviction for the attempted murder
of PW3 punishable under Section 307 was liable to be set
aside. However, the High Court held that the fact that PW3
had turned hostile did not make any dent in the
prosecution case in so far as the same related to the        c
murder of 'A' and attempt made by the appellant on the
life of PW2. The plea of insanity was rejected by the High
Court on the ground that there was no material to show
that the appellant was insane at the time of the
commission of the oUences. The· High Court therefore
                                                             0
upheld the conviction of the appellant and sentence
awarded to him for offences punishable under Sections
302, 307 (one count- for attempted murder of PW2) and
342 of l.P.C.

     In the instant appeal, it was contended on behalf of    E
the appellant that the material on record sufficiently
proved that he was a person of unsound mind; that he
had been treated by a Psychiatrist and had been taking
medicines for his illness; that the contents of Ex.P.3 the
observation Mahazar which referred to certain writings       F
on the walls of the appellant's house suggested that the
appellant was mentally unsound even at the time of
commission of crime and that the murderous assault
made by the appellant on his wife, his mother and child
without any ostensible reason was itself suggestive of       G
the appellant being an insane person. The appellant's
conduct after the event was also argued to be suggestive
of his being of unsound mind, which aspects, it was
contended that the courts below had failed to appreciate
in the process denying to the appellant the benefi~ of       H
    1152    SUPREME COURT REPORTS                [2011] 10 S.C.R.


A Section 84 .of IPC, legitimately due to him.

       The question which arose for consideration was
  whether the appellant was entitled to the benefit of
  Section 84 of IPC which provides that nothing is an
B offence which is done by a person who, at the time of
  doing it, by reason of unsoundness of mind, is incapable
  of knowing the nature of the act or who is incapable of
  knowing that what he is doing, is either wrong or contrary
  to law.

C       Partly allowing the appeal, the Court

        · HELD:1.1. The appellant's mother PW3, no doubt
    turned hostile at the trial and tried to attribute the injuries
    sustained by her to a fall in the house, but the deposition
0   of PW2, the wife of the appellant completely supported
    the prosecution case and the sequence of events leading
    to the heartless killing of the innocent child 'A', who was
    sleeping in the adjacent room a'ld whose only fault was
    that she woke up hearing the shrieks and wails of the
E   mother and started crying. There is no reason
    whatsoever to disbelieve the deposition of PW2 who
    unlike 'A' not only suffered the murderous assault but
    survived to tell the tale in all its details that leave no room
    for any doubt about her version being completely reliable.
    That PW1 and PW8 also support and corroborate the
F   version of PW2, only goes to show that it was the
    appellant and the appellant alone who attacked not only
    his wife but his daughter of tender age resulting in the
    death of the later. Superadded to the above is the
    depositions of PW19, Dr. 'R', who conducted the post-
G   mortem of the dead body of 'A' and who proved the post-
    mortem report marked as Ex.P.25 enumerating the injuries
    found on the body of the unfortunate child. The doctor
    opined that death was due to coma as a result of head
    injuries within 24 to 36 hours prior to post-mortem and
H   that the blunt side· of a weapon like M.0.27 could have
  ELAVARASAN v. STATE REP. BY INSPECTOR OF 1153
                   POLICE

caused the injuries found on the dead body. [Para 9]            A
[1165-C-H; 1166-A]

     1.2. Similarly, the deposition of PW16, an Assistant
Surgeon in the Government Hospital proved the injury
report marked Ex.P19 that listed the injuries sustained by
                                                                8
PW2. Injuries found on the person of PW3, the mother of
the appellant were described in Ex.P20 proved by the
same witness. PW15, an Assistant Surgeon in the
General Hospital at Karaikal who found 15 injuries on the
person of PW2, stated that PW2 remained admitted to the         C
hospital for about one and a half months. According to
him the appellant's mother PW3 had also suffered six
injuries and her little and index fingers in the right hand
had been amputated in the course of treatment. [Paras
10,11 and 12] [1166-B-H; 1167-D]
                                                                D
     1.3. In the light of the above evidence and in the
absence of any challenge to the veracity of the witnesses
produced by the prosecution there is no manner of doubt
that the appellant alone was responsible for the assault
on his wife PW2 and baby 'A' who lost her life as a result      E
of the injuries sustained by her in the said incident. The
appellant was guilty of committing culpable homicide of
his daughter 'A' aged about 11/z year and an attempt to
commit the murder of his wife, even if the assault on the
mother of the appellant is taken as doubtful on account         F
of the injured turning hostile at the trial and attempting
to attribute the injuries sustained by her to a fall. [Para
13] [1167-E-G]

      2. There are two aspects that bear relevance to cases
where a plea of insanity is raised in defence by a person       G
accused of a crime. The first aspect concerns the burden
of proving the existence of circumstances that would
bring the case within the purview of Section 84 of the
l.P .C. It is trite that the burden of proving the commission
of an offence is always on the prosecution and that the         H
   1154    SUPREME COURT REPORTS              [2011] 10 S.C.R.


A same never shifts. Equally well settled is the proposition
    that if intention is an essential ingredient of the offence
    alleged against the accused the prosecution must
    establish that ingredient also. There is no gainsaying that
    intention or the state of mind of a person is ordinarily
B inferred from the circumstances of the case. This implies
    that, if a person deliberately assaults another and causes
    an injury to him then depending upon the weapon used
    and the part of the body on which it is struck, it would
    be reasonable to assume that the accused had the
c intention to cause the kind of injury which he inflicted.
    Having said that, Section 84 can be invoked by the
    accused for nullifying the effect of the evidence adduced
  · by the prosecution. He can do so by proving that he was
    incapable of knowing the nature of the act or of knowing
    that what he was doing was either wrong or contrary to
0
    law. But what is important is that the burden of bringing
    his/her case under Section 84 of the IPC lies squarely
    upon the person claiming the henefit of that provision.
    Section 105 of the Evidence Act is in this regard relevant.
    A careful reading of the above would show that not only
E is the burden to prove an exception cast upon the
    accused but the Court shall presume the absence of
    circumstances which may bring his case within any of the
    general exceptions in the Indian Penal Code or within any
    special exception or provision contained in any part of
F the said Code or in law defining the offence. The second
    aspect is that the standard of proof which the accused
    has to satisfy for the discharge of the burden cast upon
    him under Section 105 of the Evidence Act is not the
    same as is expected of the prosecution. [Paras 14, 15 and
G 16] [1168-B-G; 1169-B-C; 1170-B]
      Dahyabhai Chhaganbhai Thakkar v. State of Gujarat
  (1964) 7 SCR 361; State of U.P. v. Ram Swarup and Anr.
  (1974) 4 sec 764: 1975 (1) SCR 409; Bhikari v. State of
H Uttar Prapesh AIR 1966 SC 1: 1965 SCR 194 - referred to.
 ELAVARASAN v. STATE REP. BY INSPECTOR OF 1155
                  POLICE

    3.1. The appellant has led no evidence in defence to       A
support the plea of legal insanity. That may be a
significant aspect but by no means conclusive, for it is
open to an accused to rely upon the material brought on
record by the prosecution to claim the benefit of the
exception. Evidence in defence may be a surplusage in          B
cases where the defence can make out a case for the
acquittal of the accused based on the evidence adduced
by the prosecution. (Para 18] (1170-F-G]

     3.2. PW2, apart from narrating the sequence of events
leading to the incident, stated that her husband is a          C
government servant getting a monthly salary of Rs.4000/
- which he would hand over to the witness to meet the
household expenses. She further stated that the couple
had a peaceful married life for five years but there was a
dispute between the appellant and his maternal uncle in        D
regard to the property a part of which the appellant had
already sold and the remainder he wanted to sell. The
appellant had according to the witness started the quarrel
around 12 p.m. but assaulted her an hour later. The
witness further stated that for sleeplessness, the             E
appellant used to take some medicine but she did not
recall the name of the Clinic from where he was taking
the treatment. According to the witness, the Psychiatrist
who was treating the appellant had diagnosed his
medical condition to be the effect of excessive drinking       F
and advised that if the appellant took the medicines
regularly he would get cured. (Para 19] (1171-B-D]

     3.3. PW3 in cross-examination stated that the
appellant was working as a Watchman at PWD bungalow            G
and that she used to deliver his lunch at the appellant's
office. She also referred to the dispute between the
appellant and his paternal uncle regarding family
properties in which connection he had filed a complaint
to the police station. The witness stated that the appellant
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    1156    SUPREME COURT REPORTS              [2011) 10 S.C.R.


A   was undergoing treatment with a Psychiatrist and that the
    doctor had diagnosed the appellant to be a case of
    mental disorder because of which he could get angry
    very often. [Para 20] [1171-E-HJ

        3.4. From the deposition of the above two witnesses,
8
  who happen to be the close family members of the
  appellant, it is not possible to infer that the appellant was
  of unsound mind at the time of the incident or at any time
  before that. The fact that the appellant was working as a
  government servant and was posted as a Watchman with
C no history of any complaint as to his mental health from
  anyone supervising his duties, is significant. Equally
  important is the fact that his spouse who was living with
  him under the same roof also did not suggest any ailment
  afflicting the appellant except sleeplessness which was
D diagnosed by the doctor to be the effect of excessive
  drinking. The deposition of PW3, that her son was getting
  treatment for mental disorder is also much too vague and
  deficient for this Court to record a finding of
  unsoundness of mind especially when the witness had
E turned hostile at the trial despite multiple injuries
  sustained by her which she tried to attribute to a fall
  inside her house. The statement of PW3 that her son was
  getting treatment for some mental disorder cannot in the
  circumstances be accepted on its face value, to rest an
F order of acquittal in favour of the appellant on the basis
  thereof. It is obvious that the mother has switched sides
  to save her son from the consequences flowing from his
  criminal act. [Para 21 J [1172-A-E]

G       4. The two medical experts, who examined the
    appellant, deposed during the course of the trial.
    However, the depositions of the two doctors deal with the
    mental health condition of the appellant at the time of the
    ~xamination by the doctors and not the commission of
    the offence which is the relevant point of time for claiming
H
  ELAVARASAN v. STATE REP. BY INSPECTOR OF 1157
                   POLICE

 the benefit of Section 84 1.P .C. The medical opinion           A
 available on record simply deals with the question
·whether the appellant is suffering from any disease,
 mental or otherwise that could prevent him from making
 his defence at the trial. It is true that while determining
 whether the accused is entitled to the benefit of Section       B
 84 l.P.C. the Court has to consider the circumstances that
 proceeded, attended or followed the crime but it is
 equally true that such circumstances must be
 established by credible evidence. No such evidence has
 been led in this case. On the contrary expert evidence          c
 comprising the deposition and certificates of Dr. 'RC'
 unequivocally establish that the appellant did not suffer
 from any medical symptoms that could interfere with his
 capability of making his defence. There is no evidence
 suggesting any mental derangement of the appellant at
                                                                 D
 the time of the commission of the crime for neither the
 wife nor even his mother have in so many words
 suggested any unsoundness of mind leave alone a
 mental debility that would prevent him from
 understanding the nature and consequences of his
 actions. The doctor, who is alleged to have treated him         E
 for insomnia, has also not been examined nor has
 anyone familiar with the state of his mental health
 stepped into the witness box to support the plea of
 insanity. There is no gainsaying that insanity is a medical
 condition that cannot for long be concealed from friends        F
 and relatives of the person concerned. Non-production
 of anyone who noticed any irrational or eccentric
 behaviour on the part of the appellant in that view is
 noteworthy. Suffice it to say that the plea of insanity taken
 by the appellant was neither substantiated nor                  G
 probablised. [Para 251 [1175-B-G]

    5. Based on certain observations made in Mahazar
Ex.P3 which referred to certain writings on the inner waUs
OT UtE appellant's house, it was contended that the              H
     1158   SUPREME COURT REPORTS               [2011] 10 S.C.R.


 A appellant was indeed insane at the time of commission
    of the offences. A similar argument was advanced even
    before the Courts below and was rejected for reasons
   which is found to be fairly sound and acceptable
   especially when evidence on record establishes that the
 B appellant was an alcoholic, who could scribble any
   message or request on the walls of his house while under
   Jhe influence of alcohol. The Courts below were,
   therefore, justified in holding that the plea of insanity had
    not been proved and the burden of proof cast upon the
 c appellant under Section 105 of the Evidence Act remained
    undischarged. The High Court also correctly held that the
   mere fact that the appellant had assaulted his wife,
    mother and child was not ipso facto suggestive of his
   being an insane person. [Para 26) [1175-H; 1176-A-D]
 D        6. So, also the fact that the appellant had not escaped
     from the place of occurrence was no reason by itself to
   -declare him to be a person of unsound mind incapable
     of understanding the nature of the acts committed by
     him. Different individuals react differently to same or
 E . similar situations. Some may escape from the scene of
     occurrence, others may not while some may even walk
     to the police station to surrender and report about what
     they have done. Such post event conduct may be
     relevant to determine the culpability of the offender in the
 F light of other evidence on record, but the conduct of not
     fleeing from the spot would not in itself show that the
     person concerned was insane at the time of the
     commission of the offence. [Para 27) [1176-E-F]

         7. In the circumstances of the case there is no reason
 G to alter the conviction or sentence under Section 342 of
    the l.P.C. There is also no reason to interfere with the
    conviction of the appellant under Section 307 of the l.P.C.
    except that instead of 10 years rigorous imprisonment of
_H -?:' years, sho_uld suffice. The conviction .of-the appellant
 ELAVARASAN v. STATE REP. BY INSPECTOR OF 1159
                  POLICE

under Section 302 of the l.P.C. is not, however, justified, A
for reasons more than one. In the first place there was
no pre-meditation in the assault upon the deceased. The
evidence on record shows that the family had gone to
bed after dinner around 9 p.m. The quarrel between the
appellant husband and his wife started around 12 B
midnight and escalated into an assault on the later
around 1 a.m. That the quarrel was sudden and without
any premeditation, is evident from the deposition of the
two injured witnesses. Secondly, because in the assault
following the quarrel, the appellant used a sharp edged c
cutting weapon against his wife and mother. Incised
wounds sustained by the said two ladies bear testimony
to this part of the prosecution case. The deceased 'A'
was at this stage of the occurrence, in another room
wholly unconnected to the incident. Thirdly, because the
                                                            0
appellant had because of the sudden fight with his wife
assaulted her in the heat of passion and injured his
mother who intervened to save her. The noise and wails
of the injured woke up the deceased sleeping in the
adjacent room who started crying thereby attracting the
appellant's attention towards her.Fourthly, because the E
assault on the deceased caused only two injuries with a
resultant fracture. Fifthly, because the appellant did not
evidently use the sharp edged weapon for causing
injuries to the deceased as he had done in the case of
PWs 2 and 3 respectively. In the circumstances, there was F
no intention on the part of the appellant to cause the
death of the deceased, though looking to the nature of
the injuries suffered by the deceased, the appellant must
be presumed to have the knowledge that the same were
likely to cause death. The fact remains that the appellant G
committed culpable homicide without premeditation in a
sudden fight and in the'heat of passion. The fact that the
appellant did not use the sharp edged weapon with
which he was armed also shows that he did not act in a
cruel or unusual manner nor did he take an undue H
    1160    SUPREME COURT REPORTS                [2011) 10 S.C.R.


A advantage. It is evident from the deposition of PW2, that
  she did not see the appellant assaulting the deceased. It
  is, therefore, just possible that a hard blow given to the
  deceased by his bare hand itself threw the child down
  from the bed causing the injuries that proved fatal. [Paras
B 28, 29, 30, 31 and 32) [1177-A-G; 1178-B-E]

        8. In the result, in modification of the judgments
 . under appeal the appellant is convicted under section
   304 Part-II and sentenced to undergo rigorous
   imprisonment for a period of ten years. The reduced
C sentence of seven years rigorous imprisonment awarded
   to the appellant for the offence of attempt to murder and
   one year rigorous imprisonment for the offence
   punishable under Section 342 l.P.C. shall all run
   concurrently with the sentence awarded under Section
D 304-Part II. The appellant shall be entitled to the benefit
   of Section 428 of the Criminal Procedure Code. [Para 33)
   [1178-F-H]
                        Case Law Reference:
E       (1964) 7 SCR 361           referred to          Para 15
        1975 (1) SCR 409           referred to          Para 16
        1965 SCR 194               referred to          Para 17

F       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1250 of 2006.

        From the Judgment & Order dated 22.3.2006 of the High
    Court of Judicature at Madras in Criminal Appeal No. 1215 of
    2003.         .
G
        K.K. Mani, Abhishek Krishna, Mayur R. Shah for the
    Appellant.

       R. Venkatarmani, V.G. Pragasam, Aljo K. Joseph S.J.
H Aristotle, Prabu Ramasubramanian for the Respondent.
  ELAVARASAN v. STATE REP. BY INSPECTOR OF 1161
                   POLICE

    The Judgment of the Court was delivered by                       A
    T.S. THAKUR, J. 1. This appeal by special leave arises
out of a judgment and order passed by the High Court of
Madras whereby Criminal Appeal No.1215 of 2003 has been
dismissed and the conviction of the appellant and sentence
                                                                     B
awarded to him for offences punishable under Sections 302,
307 and 342 of the l.P.C. upheld.
     2. Briefly stated the prosecution case is that the appellant
was residing in a house situate at Yadwal Street, Poovam
Koticherri, Distt. Karaikal, Tamil Nadu. Apart from his wife Smt.    c
Dhanalakshmi, PW2 and his daughter Abirami, aged about 1%
years, his mother Smt. Valli, PW3 also lived with him. On the
fateful night intervening 11-12 of December, 2000 at about 1
p.m. the appellant is alleged to have started a quarrel with his
wife accusing her of having brought misfortune to him ever since
                                                                     0
she got married to him. The immediate provocation for making
that accusation was his inability to sell the property owned by
his mother, as the Revenue entries relating the same stood in
the name of Kannan, the paternal uncle of the appellant, who it
appears was not agreeable to the sale of the property. The           E
quarrel between the husband and the wife took an ugly turn
when the appellant made a murderous assault on his wife,
Dhanalakshmi causing several injuries to her including those
on her head, left hand, right cheek and other parts of the body.
Intervention of PW3, Vali who is none other than the mother of
the appellant also did not stop the appellant from assaulting his    F
wife. In the process injuries were caused even to the mother.
Due to the ruckus caused by the quarrel and the assault on the
two women, Abirami who was sleeping in the adjacent room
woke up and started crying. The appellant at that stage is
alleged to have gone inside the room and hit the deceased            G
resulting in her death.
     3. The prosecution case further is that the appellant did not
allow the injured to go out of the house and bolted the doors
from inside. In the morning at about 7 a.m. Shri R. Parvathi,
                                                                     H
    1162     SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A   PW5 is said to have gone to the house of R. Natarajan, PW1
    - a resident of the same street in the village and told him about
    the quarrel at the house of the appellant the previous night. Both
    of them then came to the spot and found a pool of blood near
    the outer door of the house of the appellant. Since the door was
B bolted from inside, PW1 called the appellant by his name, who
    responded to the call and said that he had cut his mother and
    wife and wanted to commit suicide for which he demanded
    some poison from them. A large number of villagers in the
    meantime gathered on the spot but the appellant refused to
c open the door. The Police was informed about the incident on
    telephone and soon arrived at the spot to knock at the doors
    of the appellant's house asking him to open the same. The
    appellant refused to do so and threatened that he would murder
    anyone who ventured to enter the house. Since the appellant
    remained adamant in this resolve, the Police with the help of
0
    PWs 1, 8 and others forced the door open and found the
    appellant inside the house armed with an Aruval, and his
    mother and wife lying inside the house with serious cut injuries
    and blood all over the place. In the adjacent room they found
    Abirami in an injured condition. Not knowing whether she was
E dead or alive, she was picked up and rushed to the hospital
    alongwith the other two injured, where the doctor pronounced
    the child brought dead. On completion of the investigation, the
    police filed a charge-sheet against the appellant for offences
    punishable under Sections 342, 307 (2 counts) and 302 IPC:
F · He was committed to the sessions at Karaikal where the
    appellant pleaded not guilty and claimed a trial.
      4. Before the Trial Court the prosecution examined as
  many as 21 witnesses in support of its case while the accused-
G appellant who set up unsoundness of mind in defence did not
  lead any evidence except making a request for medical
  examination which request was allowed and Dr. R.
  Chandrasej<aran and Dr. P. Srinivasan who examined the
  appellant summoned as court witnesses to depose about their
  observations and conclusions as regards the mental health of
H
   ELAVARASAN v. STATE REP. BY INSPECTOR OF 1163
            POLICE [T.S. THAKUR, J.]

 the appellant.                                                      A
      5. The Trial court eventually rejected the plea of insanity
 and found the appellant guilty of the charges framed against
 him and sentenced him to undergo imprisonment for life for the
 murder of his child baby Abirami and to undergo 1 year
 rigorous imprisonment for the offence punishable under Section      B
 342 IPC and 10 years rigorous imprisonment together with a
 fine of Rs.1,000/- for each of the offences punishable under
 Section 307 (2 counts). The sentences were ordered to run
 concurrently.
                                                                     c
        6. Aggrieved by the judgment and order of the Trial Court
  the appellant filed an appeal before the High Court of Madras,
  who dismissed the same and affirmed the findings recorded
  by the Trial Court as already noticed by us. The High Court held
  that the appellant had been caught red handed with the weapon
  of offence inside the house in the presence of PWs 1, 7, 8 and
                                                                     0
  others. Besides, there was no reason why his wife PW2, who
  was an injured eye-witness to the entire incident, should have
  falsely implicated the appellant. The High Court also took the
  view that since PW3, the mother of the appellant who had also
  been injured in the incident had turned hostile and stated that    E
  she had sustained the injuries accidently because of a fall, the
   appellant's conviction for the attempted murder of his mother
· punishable under Section 307 was liable to be set aside. The
  fact that PW3 had turned hostile did not. opined the High Court,
  make any dent in the prosecution case in so far as the same        F
   related to the murder of the innocent child and an attempt made
  by the appellant on the life of his wife Dhanalakshmi. The plea
  of insanity was rejected by the High Court on the ground that
  there was no material to show that the appellant was insane at
  the time of the commission of the offences. The present appeal     G
  assails the correctness of the above judgment and order as
  already noticed by us.
      7. Appearing for the appellant, Mr. Mani, learned counsel
 urged a solitary point in support of the appeal. He submitted
 that the material on record sufficiently proved the plea of         H
    1164    SUPREME COURT REPORTS                 [2011] 10 S.C.R.


A insanity set up by the appellant at the trial. Reliance in support
  was placed by the learned counsel upon the deposition of Dr.
  P. Srinivasan, CW1, according to whom the appellant was a
  person of unsound mind. He also drew our attention to the
  deposition of other witnesses to argue that the appellant had
B been treated by a Psychiatrist and had been taking medicines
  for his illness. Reliance in particular was placed by the learned
  counsel upon the contents of Ex.P.3 the observation Mahazar
  which refers to certain writings on the walls of the appellant's
  house suggesting that the appellant was mentally unsound even
c at the time of commission of crime. From the graffiti, it was
  according to Mr. Mani evident that the appellant suffered from
  insanity before and at the time of the incident. Mr. Mani further
  argued that murderous assault on his wife, his mother and child
  without any ostensible reason was itself suggestive of the
  appellant being an insane person. The appellant's conduct after
0
  the event was also, argued Mr. Mani, suggestive of his being
  of unsound mind, which aspects the courts below had failed to
  appreciate in the process denying to the appellant the benefit
  of Section 84 of the Indian Penal Code, legitimately due to him.
E       8. On behalf of the respondent Mr. Venkataramani, learned
  senior counsel contended that the trial court as also the High
  Court had correctly found the plea of insanity set up by the
  appellant as not proved and held the appellant guilty of the
  offences with which he stood charged. Mr. Ventakaramani ·
F argued that there was no credible evidence to establish legal
  insanity at the time of the commission of the offence so as to
  entitle the appellant to the benefit of Section 84 of IPC. The fact
  that the appellant did not run away from the place of occurrence
  or that he had attacked his wife and child without any reason
G did not establish that the appellant was of unsound mind, hence
  unable to' understand the nature of the act or that what he was
  doing was either wrong or contrary to law. Reliance was placed
  by Mr. Venkatarmani upon the deposition of CW2 Or. R.
  Chandrasekaran in support of his submission that the appellant
  was not an insane person at the time of t~e incident or at the
H
   ELAVARASAN v. STATE REP. BY INSPECTOR OF 1165
            POLICE [T.S. THAKUR, J.]

time he was tried for the offences committed by him.                   A
       9. There was before the courts below and even before us
 no challenge to the factual narrative given by the prosecution
  and the witnesses examined on its behalf. That the appellant
 lived with his mother, wife and minor child in the house owned
  by him was not disputed. That he assaulted his wife, who was         B
  in family way and caused several injuries to-her and to his
 mother who intervened to save the former is also not in dispute.
  That injuries were caused even to Abirami who succumbed to
 the same was also not challenged before us by Mr. Mani. The
  appellant's mother PW3. no doubt turned hostile at the trial and     C
  tried to attribute the injuries sustained by her to a fall in the
  house. but the deposition of PW2, the wife of the appellant
  completely supported the prosecution case and the sequence
  of events leading to the heartless killing of the innocent child
  Abirami. who was sleeping in the adjacent room and whose             D
  only fault was that she woke up hearing the shrieks and wails
  of the mother and started crying. That the appellant was
  arrested from the house from where the injured witnesses PW2
  and PW3 and Abirami were removed in an injured condition,
  was also not disputed. Even independent of the line of               E
  arguments adopted by the learned counsel, we are satisfied
  that there is no reason whatsoever to disbelieve the deposition
  of Dhanalakshmi, PW2 who unlike Abirami not only suffered the
  murderous assault but survived to tell the tale in all its details
  that leave no room for any doubt in our mind about her version       F
   being completely reliable. That Shri R. Natarajan, PW1 and Shri
   J. Ashokan, PW8 also support and corroborate the version of
   PW2, Dhanalakshmi, only goes to show that it was the appellant
  and the appellant alone who attacked not only his wife but his
  daughter of tender age resulting in the death of the later.          G
· Superadded to the above is the depositions of PW19, Dr.
   Ramamurthy, who conducted the post-mortem of the dead body
  ofAbirami and who proved the post-mortem report marked as
   Ex.P.25 enumerating the injuries found on the body of the
   unfortunate child. The doctor opined that death was due to
                                                                       H


                                                           ..
    1166     SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   coma as a result of head injuries within 24 to 36 hours prior to
    post-mortem and that_the blunt side of a weapon like M.0.27
    could have caused the injuries found on the dead body.
          10. Similarly, the deposition of PW16, Dr. Anni Pula Juilet
    who was posted as Assistant Surgeon in the Government
B   Hospital at Karaikal proved the injury report marked Ex.P19 that
    listed the injuries sustained by Dhanalakshmi, PW2, as under:
           (1)   Injury of 3 ems. x 3 ems. Right side of leg.
           (2)   Injury of 3 ems. x 3 ems. Lt. side of elbow.
c          (3)   Injury on left side of forearm of 7 ems. x 7 cm.
                 Suspected fracture on it. Forearm.
           (4)   Injury Lt. side of hand 3 ems. x 3 ems.
           (5)   Injury Lt. Side of hand 3 ems. x 3 ems.
D
           (6)   Injury on the palm.
           (7)   Injury all the fingers.
           (8)   Injury chest 4 ems. x 4 ems.

E          (9)   24 weeks foetus.
           (10) Injury face angle from Lt. Side measuring 7 ems. x
                7 ems.
           (11) Injury scale back side of 8 ems. x 8 ems.

F          (12) Deep cut on the scale 10 ems. x 12 ems. Deep cut
                extending to the back 3 ems. x 3 ems.
           (13) Abrasion frontal side of scalp.
           (14) Injury Rt. Side of the hand. Lacerated injury Rt. Index
                finger extending bone.
G
           (15) Deep cut injury on the scalp 6 ems. x 6 ems.
         11. Injuries found on the person of PW3, the mother of the
    appellant were described in Ex.P20 proved by the same
    witness, as under:
H
      ELAVARASAN v. STATE REP. BY INSPECTOR OF 1167
               POLICE [T.S. THAKUR, J.]

           (1)   Cut injury Lt. Side of forearm hand.                  A
           (2)   Cut injury Rt. Side of hand near the Wrist 7 ems. x
                 6 ems.
           (3)   Deep cut injury on the forehead 5 ems. x 5 ems. Lt.
                 Side above ridge bone.                                B
 ,J
           (4)   Deep cut injury Lt. Side of forearm 7 ems. x 7 cmx.
                 near wrist.
 '
           (5)   Deep cut injury on the Lt. Side of forearm 5 ems. x
 r•              5 ems.
                                                                       c
           (6)   Deep cut injury on the scalp exposing the bones
      f
                 about 16 ems. x 16 ems.
      12. PW15, Dr. Shriramulu, was the Assistant Surgeon in
the General Hospital at Karaikal who found 15 injuries on the
person of PW2, stated that PW2 remained admitted to the                D
hospital from 12th December, 2000 till 28th January, 2001.
According to him the appellant's mother PW3 had also suffered
six injuries and her little and index fingers in the right hand h~d
been amputated in the course of treatment on 8th Janua~
2001.                                                                  E
      13. In the light of the above evidence and in the absence
of any challenge to the veracity of the witnesses produced by
the prosecution we have no manner of doubt in our mind that
the appellant alone was responsible for the assault on his wife
PW2, Dhanlakshmi and baby Abrami who lost her life as a                F
result of the injuries sustained by her in the said incident. Left
at that there can be no escape from the conclusion that the
appellant was guilty of committing culpable homicide of his
daughter Abirami aged about 1Y:i year and an attempt to
commit the murder of his wife Dhanlakshmi, even if the assault         G
on the mother of the appellant is taken as doubtful on account
of the injured turning hostile at the trial and attempting to
attribute the injuries sustained by her to a fall.
          14. The question, however, is whether the appellant was
                                                                       H
    1168     SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A   entitled to the benefit of Section 84 of Indian Penal Code which
    provides that nothing is an offence which is done by a person
    who, at the time of doing it, by reason of unsoundness of mind,
    is incapable of knowing the nature of the act or who is
    incapable of knowing that what he is doing, is either wrong or
B contrary to law. Before adverting to the evidence on record as
    regards the plea of insanity set up by the appellant, we consider
    it necessary to refer to two aspects that bear relevance to
    cases where a plea of insanity is raised in defence by a person
    accused of a crime. The first aspect concerns the burden of
c proving the existence of circumstances that would bring the
    case within the purview of Section 84 of the l.P.C. It is trite that
    the burden of proving the commission of an offence is always
    on the prosecution and that the same never shifts. Equally well
    settled is the proposition that if intention is an essential
    ingredient of the offence alleged against the accused the
0
    prosecution must establish that ingredient also. There is no
    gainsaying that intention or the state of mind of a person is
    ordinarily inferred from the circL•mstances of the case. This
    implies that, if a person deliberately assaults another and
E causes an injury to him then depending upon the weapon used
    and the part of the body on which it is struck, it would be
    reasonable to assume that the accused had the intention to
    cause the kind of injury which he inflicted. Having said that,
    Section 84 can be invoked by the accused for nullifying the
  · effect of the evidence adduced by the prosecution. He can do
F so by proving that he was incapable of knowing the nature of
    the act or of knowing that what he was doing was either wrong
    or contrary to law. But what is important is that the burden of
    bringing his/her case under Section 84 of the IPC lies squarely
    upon the person claiming the benefit of that provision. Section
G 105 of the Evidence Act is in this regard relevant and may be
    extracted:
         "105. Burden of proving that case of accused comes within
         exceptions.-When a person is accused of any offence, the
         burden of proving the existence of circumstances bringing
H
  ELAVARASAN v. STATE REP. BY INSPECTOR OF 1169
           POLICE [T.S. THAKUR, J.)

    the case within any of the General Exceptions in the Indian A
    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."
      15. A careful reading of the above would show that not only   B
is the burden to prove an exception cast upon the accused but
the Court shall presume the absence of circumstances which
may bring his case within any of the general exceptions in the
Indian Penal Code or within any special exception or provision
contained in any part of the said Code or in law defining the       C
offence. The following passage from the decision of this Court
in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat,
(1964) 7 SCR 361 may serve as a timely reminder of the
principles governing burden of proof in cases where the
accused pleads an exception:                                        D
    "The doctrine of burden of proof in the context of the plea
    of insanity may be stated in the following propositions:
    ( 1) The prosecution must prove beyond reasonable doubt
    that the accused had committed the offence with the             E
    requisite mens rea, and the burden of proving that always
    rests on the prosecution from the beginning to the end of
    the trial. (2) There. is a rebuttable presumption that the
    accused was not insane, when he committed the crime,
    in the sense laid down by Section 84 of the Indian Penal
                                                                    F
    Code: the accused may rebut it by placing before the court
    all the relevant evidence oral,· documentary or
    circumstantial, but the burden of proof upon him is no higher
    than that rests upon a party to civil proceedings. (3) Even
    if the accused was not able to establish conclusively that      G
    he was insane at the time he committed the offence, the
    evidence placed before the court by the accused or by the
    prosecution may raise a reasonable doubt in the mind of
    the court as regards one or more of the ingredients of the
    offence, including mens rea of the accused and in that case
                                                                    .H
    1170     SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A        the court would be entitled to acquit the accused on the
         ground that the general burden of proof resting on the
         prosecution was not discharged."
       16. The second aspect which we need to mention is that
  the standard of proof which the accused has to satisfy for the
B discharge of the burden cast upon him under Section 105
  (supra) is not the same as is expected of the prosecution. A
  long line of decisions of this Court have authoritatively settled
  the legal proposition on the subject. Reference in this
  connection to the decision of this Court in State of UP. v. Ram
C Swarup and Anr., (1974) 4 SCC 764 should suffice where this
  court observed:
               'The burden which rests on the accused to prove the
         exception is not of the same rigour as the burden of the
         prosecution to prove the charge beyond a reasonable
D        doubt. It is enough for the accused to show, as in a civil
         case, that the preponderance of probabilities is in his
         favour."
        17. To the same effect is the decision of this Court in
E   Bhikari v. State of Uttar Pradesh (AIR 1966 SC 1).
        18. Let us now consider the material on record in the light
  of the above propositions to determine whether the appellant
  had discharged the burden of bringing his case under Section
  84 of the IPC. The appellant has led no evidence in defence to
F support the plea of legal insanity. That may be a significant
  aspect but by no means .conclusive, for it is open to an accused
  to rely upon the material brought on record by the prosecution
  to claim the benefit of the exception. Evidence in defence may
  be a surplusage in cases where the defence can make out a
G case for the acquittal of the accused based on the evidence
  adduced by the prosecution.
         19. What falls for consideration in the light of the above is
    whether the present is one such case where the plea of insanity
    - is proved or even probablised by the evidence led by the
H
  ELAVARASAN v. STATE REP. BY INSPECTOR OF 1171
           POLICE [T.S. THAKUR, J.]

prosecution and the court witnesses examined at the Trial.            A
Depositions of two prosecution witnesses viz. PW2,
Dhanalakshmi and PW3, Valli immediately assume
significance to which we may at this stage refer. PW2,
Dhanalakshmi has, apart from narrating the sequence of events
leading to the incident, stated that her husband is a government      B
servant getting a monthly salary of Rs.4000/- which he would
hand over to the witness to meet the household expenses. She
further stated that the couple had a peaceful married life for five
years but there was a dispute between the appellant and his
maternal uncle by name Kannan in regard to the property a part        c
of which the appellant had already sold and the remainder he
wanted to sell. The appellant had according to the witness
started the quarrel around 12 pm. but assaulted her an hour
later. The witness further stated that for sleeplessness, the
appellant used to take some medicine but she did not recall
                                                                      0
the name of the Clinic from where he was taking the treatment.
According to the witness, the Psychiatrist who was treating the
appellant had diagnosed his medical condition to be the effect
of excessive drinking and advised that if the appellant took the
medicines regularly he would get cured.
                                                                      E
     20. That brings us to the deposition of PW3, Smt. Valli,
the mother of the appellant. This witness has in cross-
examination stated that the appellant was working as a
Watchman at PWD bungalow and that she used to deliver his
lunch ·at the appellant's office. She also referred to the dispute    F
between the appellant and his paternal uncle regarding family
properties in which connection he had filed a complaint to the
police station. On the date of the incident, the family had their
dinner at around 9 p.m. and gone to bed. But the couple started
quarreling around 1 p.m. leading to an assault on PW2,                G
Dhanalakshmi. The witness stated that the appellant was
undergoing treatment with a Psychiatrist in a clinic situated at
Perumal Kovi street and that the doctor had diagnosed the
appellant to be a case of mental disorder because of which he
could get angry very often.
                                                                      H
    1172    SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A       21. From the deposition of the above two witnesses who
  happen to be the close family members of the appellant it is
  not possible to infer that the appellant was of unsound mind at
  the time of the incident or at any time before that. The fact that
  the appellant was working as a government servant and was
B posted as a Watchman with no history of any complaint as to
  his mental health from anyone supervising his duties, is
  significant. Equally important is the fact that his spouse Smt.
  Dhanalakshim who was living with him under the same roof
  also did not suggest any ailment afflicting the appellant except
c sleeplessness which was diagnosed by the doctor to be the
  effect of excessive drinking. The deposition of PW3, Valli that
  her son was getting treatment for mental disorder is also much
  too vague and deficient for this Court to record a finding of
  unsoundness of mind especially when the witness had turned
  hostile at the trial despite multiple injuries sustained by her
0
  which she tried to attribute to a fall inside her house. The
  statement of the witness that her son was getting treatment for
  some mental disorder cannot in the circumstances be accepted
  on its face value, to rest an order of acquittal in favour of the
  appellant on the basis thereof. It is obvious that the mother has
E switched sides to save her son from the consequences flowing
  from his criminal act.
        22. That leaves us with the deposition of two medical
  experts who examined the appellant under the orders of the
F Court during the course of the trial. Dr. B. Srinivasan. Specialist
  in Psychiatry, in his deposition stated that the appellant was
  admitted to the government hospital, Karaikal on 29th July, 2002
  pursuant to an order passed by the Trial Court directing his
  medical examination so as to evaluate his mental condition and
G ability to converse. The witness further stated that the appellant
  was kept under observation on and from the afternoon of 29th
  July 2000 till 6th August, 2002 during which time he found him
  to be conscious, ambulant dressed adequately and able to
  converse with the examiner. The doctor has described the
  condition of the appellant during this period in the following
H
 ELAVARASAN v. STATE REP. BY INSPECTOR OF 1173
          POLICE [T.S. THAKUR, J.]

words:                                                            A
          "He has restlessness, suspicious looking around at
    time inappropriate smile has complaints of some
    innervoice telling to him (abusive in nature at times), has
    fear and worries about others opinion about him, wants to
    be left alone, says he needs a few pegs of alcohol to sleep   8
    peacefully at night. He has confusion at times about the
    whisper within him, feels some pulling connection between
    his chest and brain, that prevents him from taking freely
    with people and with the examiner. I am of the opinion that
    the above individual is of unsound mind. The possible         C
    medical dispenses being psychosis: (The differential
    diagnosis considered in this case are
     1.    Paranoid Psychosis (Schizophrenia)
     2.    Substance induced Psychosis (Alcohol induced)          D
     3.    Organic Psychosis /organic mental disorder
           (Head injury sequelae & personality changes)
    I, therefore, request this Hon'ble Court be kindly arrange
    for a second opinion by another consultant Psychiatrist in    E ·
    this case and also Psychological assessment by a clinical
    psychologist."
                                         (Emphasis supplied)
     23. The appeliant was, in the light of the recommendations   F
made by Dr. B. Srinivasan referred to JIPMAR hospital at
Pondicherry, where he remained under the observation of Dr.
R. Chandrashekhar, CW2 who happened to be Professor and
Head of the Department of Psychiatry in that Hospital. In his
deposition before the Court Dr. Chandrashekhar has stated
that the appellant·was admitted oh 30th September, 2002 but       G
escaped from the hospital on 1st October, 2002 in which
connection the doctor made a report marked Ex.P1. After
examining the relevant record the witness deposed that the
appellant did not have any Psychataxia symptoms. In the
detailed report proved by the witness and marked Ex.P2 the        H
     1174   SUPREME COURT REPORTS                [2011] 10 S.C.R.

A   medical condition of the appellant is described as under:
              "He was well groomed. Rapport was established. No
        abnormal motor1c behavior was present. He was
        cooperative His mood appeared euthymic and speech
        was normal There was no evidence of formal thought
B       disorder or disorder of possession or thought content. No
        perceptual disorder was evident. Attention was arousable
        and concentration well sustained. He was oriented to time,
        place, person The immediate recall. recent and remote
        memory was intact Abstraction was at functional level.
c       Judgement was preserved. Insight was present."
        24. In the final report the doctor has drawn: the following
    pen picture about the appellant's mental health and psycho-
    diagnostic evaluation.

D       PSYCHO-DIAGOSTIC EVALUATION:
              Patient's perception, memory and intelligence were
        slightly impaired (Memory Quctien1 .:Was 70 and
        performance quotient was 72). Mixed psychotic picture with
        predominantly affective disturbances ~as seen. He
E       requires further support and guidance in occupational area.
               The examination is suggestive of a life time
        diagnosis of Psychosis (not otherwise specified) and
        currently in remission. Patient was on treatment with
        vitamins and chlorpromazine 100 mg. per day during his
F       stay in the ward. The course in the hospital was uneventful
        except for the fact that he absconded from the ward on
        1.10.2002. I am of the opinion that the above individual
        does not currently suffer from any mental symptom, which
        can interfere with the capability of making his defense.
G
                                                         Sd/- XXX
                                  (DR. R. CHANDRASHKARAN)
                                                 H/D of Psychiatry

H       Dt. 5th October,' 2002.                          JIPMER,
 ELAVARASAN v. STATE REP. BY INSPECTOR OF 1175
          POLICE (TS. THAKUR. J.]

     Pondicherry-6.                                                   A
      25. What is important is that the depositions of the two
doctors examined as court witnesses during the trial deal with
the mental health condition of the appellant at the time of the
examination by the doctors and not the commission of the
offence which is the relevant point of time for claiming the          B
benefit of Section 84 1.P.C. The medical opinion available on
record simply deals with the question whether the appellant is
suffering from any disease. mental or otherwise that could
prevent him from making his defence at the trial. It is true that
while determining whether the accused is entitled to the benefit      C
of Section 84 I. P. C. the Court has to consider the
circumstances that proceeded, attended or followed the crime
but it is equally true that such circumstances must be
established by credible evidence. No such evidence has been
led in this case. On the contrary expert evidence comprising          D
the deposition and certificates of Dr. Chandrashekhar of
JIPMER unequivocally establish that the appellant did not suffer
from any medical symptoms that could interfere with his
capability of making his defence. There is no evidence
suggesting any mental derangement of the appellant at the time        E
of the commission of the crime for neither the wife nor even his
mother have in so many words suggested any unsoundness of
mind leave alone a mental debility that would prevent him from
 understanding the nature and consequences of his actions. The
doctor, who is alleged to have treated him for insomnia, has          F
also not been examined nor has anyone familiar with the state
of his mental health stepped into the witness box to support the
plea of insanity. There is no gainsaying that insanity is a
medical condition that cannot for long be concealed from
friends and relatives of the person concerned. Non-production
of anyone who noticed any irrational or eccentric behaviour on        G
the part of the appellant in that view is noteworthy. Suffice it to
 say that the plea of insanity taken by the appellant was neither
 substantiated nor probablised.                                           =.·
     26. Mr. Mani, as a last ditch attempt relied upon certain        H
    1176    SUPREME COURT REPORTS                 [2011] 10 S.C.R.

A observations made in Mahazar Ex.P3 in support of the
  argument that the appellant was indeed insane at the time of
  commission of the offences. He submitted that the Mahazar
  referred to certain writings on the inner walls of the appellant's
  house which suggested that the appellant was insane. A similar
B argument was advanced even before the Courts below and was
  rejected for reasons which we find to be fairly sound and
  acceptable especially when evidence on record establishes
  that the appellant was an alcoholic, who could scribble any
  message or request on the walls of his house while under the
C influence of alcohol. The Courts below were, therefore, justified
  in holding that the plea of insanity had not been proved and the
  burden of proof cast upon the appellant under Section 105 of
  the Evidence Act remained undischarged. The High Court has
  also correctly held that the mere fact that the appellant had
  assaulted his wife, mother and child was not ipso facto
0
  suggestive of his being an insane person.
       27. So, also the fact that he had not escaped from the
  place of occurrence was no reason by itself to declare him to
  be a person of unsound mind incapable of understanding the
E nature of the acts committed by him. Experience has shown that
  different individuals react differently to same or similar
  situations. Some may escape from the scene of occurrence,
  others may not while some may even walk to the police station
  to surrender and report about what they have done. Such post
F event coRduct may be relevaflt-k> determine the culpability of
  the offender in the light of other evidence on record, but the
  conduct of not fleeing from the spot would not in itself show that
  the person concerned was insane at the time of the commission
  of the offence.
G      28. That brings us to the nature of offence committed by
  the appellant and the quantum of sentence that would meet the
  ends of justice. The courts below have found the appellant guilty
  of murder of baby Abirami and awarded a life sentence to the
  appellant apart from 10 years rigorous imprisonment for the
H offence of attempt to murder Dhanalakshmi and imprisonment
  ELAVARASAN v. STATE REP. BY INSPECTOR OF 1177
           POLICE [T.S. THAKUR, J.]

of one year under Section 342 of the l.P.C. In the circumstances       A
of the case we see no reason to alter the conviction or sentence
under Section 342 of the l.P.C. We also see no reason to
interfere with the conviction of the appellant under Section 307
of the l.P.C. except that instead of 10 years rigorous
imprisonment of 7 years, should in our view suffice. The               B
conviction of the appellant under Section 302 of the l.P.C. is
not, however, justified. We say so for reasons more than one.
In the first place there was no pre-meditation in the assault upon
the deceased. The evidence on record shows that the family
had gone to bed after dinner around 9 p.m. The quarrel                 c
between the appellant husband and Dhanalakshmi his wife
started around 12 midnight and escalated into an assault on
the later around one a.m. That the quarrel was sudden and
without any premeditation, is evident from the deposition of the
two injurec:fmitnesses.
                                                                       0
     .· 29. -Secondly, because in the assault following the quarrel,
 the ,appellant used a sharp edged cutting weapon against his
 wife and mother. Incised wounds sustained by the said two
 ladies bear testimony to this part of the prosecution case. The
 deceased Abirami was at this stage of the occurrence, in              E
·another room wholly unconnected to the incident.
    30. Thirdly, because the appellant had because of the
sudden fight with his wife assaulted her in the heat of passion
and injured his mother who intervened to save her. The noise
and wails of the injured woke up the deceased sleeping in the          F
adjacent room who started crying thereby attracting the
appellant's attention towards her.
     31. Fourthly, because the assault on the deceased caused
only two injuries with a resultant fracture. The injuries were
described by the doctor as under:                                      G
          "1. LaceratedJnjury measuring 2 x 0.5 cm. x 0.5 cm.
     Seen on m.iddle of (R) Eyebrow. Lesion covered with
     blood clots.
            2. Contusion - faint reddish blue in colour seen on        H
    1178     SUPREME COURT REPORTS               [2011] 10 S.C.R.


A       (L) side of face and temporal region of head. 8 cm. x 8
        cm. inside. Lesions are antemor,tem in nature. Faint
        suggilations fixed on back of trunk." -
       32. Fifthly, because the appellant did not evidently use the
  sharp edged weapon for causing injuries to the deceased as
8
  he had done in the case of Dhanalakshmi and Valli, PWs 2 and
  3 respectively. In-the circumstances we are inclined to hold that
  there was no intention on the part of the appellant to cause the
  death of the deceased, though- looking to the nature of the
C injuries suffered by the deceased, the appellant must be
  presumed to have the knowledge that the same were likely to
  cause death. The fact remains that the appellant committed
  culpable homicide without premeditation in a sudden fight and
  in the heat of passion. The fact that the appellant did not use
  the sharp edged weapon with which he was armed also shows
D that he did not act in a cruel or unusual manner nor did he take
  an undue advantage. It is evident from the deposition of
  Dhanalakshmi, that she did not see the appellant assaulting the
  deceased. It is, therefore, just possible that a hard blow given
  to the deceased by his bare hand itself threw the child down
E from the bed causing the injuries that proved fatal.
      33. In the result, we allow this appeal in part, and in
  modification of the judgments and orders under appeal convict
  the appellant under section 304 Part-II and sentence him to
F undergo rigorous imprisonment for a period of ten years. The
  reduced sentence of seven years rigorous· imprisonment
  awarded to the appellant for the offence of attempt to murder
  and one year rigorous imprisonment for the offence punishable
  under Section 342 1.P.C. shall all run concurrently with the
  sentence awarded under Section 304-Part II. The sentence
G awarded in default of payment of fine shall stand affirmed. The
  appellant shall be entitled to the benefit of Section 428 of the
  Criminal Procedure Code.
    B.B.B.                                 Appeal partly allowed.
H