REPORTABLE

 IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE 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:

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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.  

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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  

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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  

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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  

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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.  

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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.  

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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  2nd and  3rd 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.

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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.  

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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  

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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  

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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.  

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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  

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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  

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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  

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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 Toxicology1  

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 [23rd Ed.  Page 1077]

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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  

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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 Naughten2.  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)]

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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.1 What 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?

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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,  

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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.

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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?

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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]

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Gujarat4.  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]

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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  

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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  

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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  

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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 Pradesh5. 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]

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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  

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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]

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  .………………………………J.  

[SURINDER SINGH NIJJAR] NEW DELHI; OCTOBER 26, 2010.

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