In Re: Marimuthu

Venkataraman, J.—The Appellant has been convicted of murdering his own sister, Lakshmi, and his five year old child Dayalan, though he

was very much attached to them. We might at once state that consequently the sole question before the court is whether at the time of the attack

on these persons, the Appellant was of unsound mind and by reason of that unsoundness of mind was incapable of knowing the nature of the act or

that he was doing what was either wrong or contrary to law, and would therefore be entitled to the benefit of S. 84 of the Indian Penal Code. The

learned Sessions Judge answered this question against the Appellant in view of some circumstances. But, on a consideration of all the

circumstances, we feel constrained to differ from him, and we have no hesitation in holding that the Appellant is entitled to the benefit of S. 84 of

the Indian Penal Code.

The facts really lie in a narrow compass. The Appellant was living in a portion of the out-house in No. 66 Lloyds Road, Royapettah, Madras,

with his wife (P.W. 5) and five year old child. His widowed sister, Lakshmi was also living with him. For some six months prior to the occurrence

(the occurrence was on 3rd April 1968 at 2-30 p.m.) Lakshmi had been ill in particular, she complained of some stomach-ache The Appellant

himself got her admitted in the hospital. She became better. However, she fell ill again. The Appellant himself was not well. The Appellant seems to

have believed that his ill-health and that of his sister were due to the result of some black magic. His maternal uncle applied sacred ash to the

Appellant and his sister. They became slightly better. However, about four days prior to the occurrence Lakshmi complained of stomach pain.

From that time the Appellant began to worship Kali. There was a picture of Kali in his house and there was also a picture of Muruga. The

Appellant, according to the evidence of his wife, P.W. 5 used to offer worship to those pictures and offer sacred ash to Lakshmi.

On the night of Tuesday 2nd April 1968, about 11 p.m. according to the wife, the Appellant was dancing, as if possessed by spirits. He was

shouting the names of Muruga, Kali and Parasakthi, and asked Lakshmi to leave the place. The Appellant was also saying that Lakshmi would be

cut. In fact he addressed Lakshmi and stated "" "".

(I shall cut you. I shall stab you. You had better disappear). P.W. 5 advised Lakshmi to go out of sight. Lakshmi went to the main house of the

landlord, (P.W. 3) and stayed there. P.W. 5 caught hold of her husband and tried to pacify him. Some time after Lakshmi left, the Appellant

cooled down.

In the morning of Wednesday (3rd April 1968) the Appellant washed his face and left his house saying that he was going for work. P.W. 5

followed him. The Appellant went to a tea shop. P.W. 5 stood near him. The Appellant asked her why she had come there. She replied that she

had no particular purpose. Their son Dayalan(sic) had also followed P.W. 5. The Appellant got P.W. 5 a. cup of tea and two dosais for Dayalan.

Thereafter the Appellant took P.W: 5 and Dayalan. back to their house. He did not go for work, he stayed in the house. P.W. 5 also valid(sic) not

go for work. However, about 11 a.m. she went to the Subramania Swarai temple at Teynampet and spent some time in worship. When she left the

house the Appellant was lying inside the house. By the time she returned home, about 4 p.m. the gruesome murders had taken place. P.W. 5

affirms that the Appellant was very fond of his sister, Lakshmi, and his son Dayalan.

P.W. 2 a neighbour also states, like P.W. 5, that on the night of Tuesday 2nd April 1968, from about 11 p.m. till about 2-30 a.m. she heard the

Appellant intermittently crying ""Muruga, Om Prasakthi"". She then says that about 2-30 p.m, on Wednesday (3rd April 1968) she again heard the

Appellant shouting from inside the room ""Muruga, Om Parasakthi"". She sent a girl, Sudha, to inform Doraiswami Iyengar, the landlord who was

living in the main premises of the house. At that time P.W. 1, the brother of Lakshmi, who was also living with the Appellant, returned. P.W. 2 told

him that there was noise inside the room of the Appellant and asked him to see what the matter was. P.W. 1 went to the room of the Appellant but

found the door having been locked from inside. That was a single room and there was no other access to the room. P.W. 1 heard the cries of

Lakshmi and Dayalan. He banged the door, but there was no response from inside. Then as instructed by P.W. 2, P.W. 1 climbed over the tiled

roof of the room and after removing some tiles he looked in. He then saw the Appellant indiscriminately giving cuts to Lakshmi with aruval (M.O.

1). He adds that on noticing P.W. 1 the Appellant showed the aruval (M.O. 1) towards him in a threatening posture. In cross-examination he

makes it clear that he only thought that it was a threatening posture. P.W. 1 got down.

In the meantime, P.W. 3 had sent a phone message to the police station at Royapettah. P.W. 3 himself sent in a car to bring the police to the

scene quickly. The Head Constable P.W. 4 came to the scene. He found the door of the room in the occupation of the Appellant bolted from

inside. He asked the door to be opened, but there was no response from inside. He heard noise of movement from inside the room. He forced the

door open. The Appellant was inside the room having the aruval (M.O. 1) in his hand. As soon as the door was broken open, the Appellant

waved the weapon at P.W. 4 proclaiming

Muruga, if you come, I shall cut you. Do not come"" P.W. 4 asked him to surrender the weapon and come out, but the Appellant did not come out.

Hence P.W. 4 went inside the room to apprehend him. At that stage the Appellant gave him a cut with M.O. 1 on his, left hand. P.W. 4 gave the

Appellant some blows with his lathi and wrested the weapon (aruval) from him. With the help of a constable who had accompanied him, he tied

the hands and legs of the Appellant. Because of the struggle the Appellant also received some minor injuries.

Then P.W. 4 went inside and saw the dead bodies of Lakshmi and Dayalan lying in pools of blood with a number of injuries.

P.W. 4 went to the house of P.W. 3 and informed the Inspector (P.W. 12), over the telephone. This was at 3-30 p.m. P.W. 12 came over to the

scene at 3-45 p.m. He says that as soon as he went to the scene of occurrence and recorded the complaint of P.W. 4, he questioned the

Appellant.

He was in a dazed condition. He was unable to understand my questions and he did not give any answer except invoking the name of Goddess

Parasakthi. He also invoked God Muruga. Except uttering the words, Parasakthi and Muruga, he could not say anything else. I suspected that the

accused was suffering from some mental disorder. So in my remand report itself I requested that the accused may be sent for medical observation.

But from the records I find that the accused had not been sent for such observation.

P.W. 12 held the inquest between 4-30 p.m. and 10-30 p.m. examining P. Ws. 1 to 6 and others.

The corpses were then sent for autopsy. The autopsy was conducted by the doctor, P.W, 7. It is unnecessary to refer in detail to the numerous

injuries found on the corpses; it is sufficient to say that there were as many as ninteen injuries, most of them incised wounds, on Lakshmi and as

many as twenty five injuries, most of them incised wounds, on the five year old child, and there was several necessarily fatal injuries on Lakshmi

and the boy Dayalan.

P.W. 10, another doctor has spoken to the minor injuries found on the person of P.W. 4 and the Appellant.

In the Committal Court the Appellant stated that he was innocent and that he did not do anything.

In the Court of Session the trial commenced on 13th February, 1969 and continued on 14th February, 1969. In paragraph 17 of the judgment

under appeal the learned Sessions Judge states that on 14th February, 1969, when the doctor (P. W. 7) was in the witness box, the Appellant

swooned and therefore the trial had to be adjourned. It was resumed on 26th February, 1969 and the recording of evidence was completed. The

Appellant was questioned u/s 342, Crl. P.C. He, however, did not answer the questions properly. Hence the learned Sessions Judge suspected

that he might be of unsound mind and referred him for medical examination, after adjourning the case. The report dated 11th April, 1969 was

received stating:

Patient is of unsound mind and unfit to stand trial"". Accepting that report the learned Sessions Judge passed an order on 19th April, 1969

adjourning the case sine die. The Appellant was kept under medical observation and towards the end of July, 1970, a report was received that the

Appellant was fit to stand the trial. Accordingly the trial was resumed in August, 1970. By this we mean that on the basis of the evidence which

had been recorded earlier, questions were put u/s 342 Code of Criminal Procedure and the Appellant was convicted.

It is clear from the evidence that it was the Appellant who delivered the cuts found on the two bodies, and he must have done so with the

aruval (M.O.1) which was bloodstained and which was recovered from him. There is the direct evidence of P.W. 1 who saw him inflicting cuts on

Lakshmi. There was no other person inside the room except the Appellant and the two victims. The door was bolted from inside. Hence it is quite

clear that it was the Appellant who had delivered the cuts on the child Dayalan also. Normally he would be guilty of murder S. 302 I.P.C. But the

crucial question is whether he is entitled to invoke S. 84, I.P.C. The learned Sessions Judge considered the points in favour of the Appellant,

namely, that he was very much attached to his sister and the child and also the brutal nature of the attack, with the infliction of so many injuries. Still

he thought, in view of three circumstances, that the Appellant must have known that he was killing Lakshmi and his child and that he must have

done so with the idea that he was offering human sacrifice to please Goddess Kali. The three circumstances referred to by him are (i) the door of

the room had been bolted from inside before the commission of the crime; (ii) when P. W. 1 peeped into the room from the roof, the Appellant

showed the weapon (M.O.1) in a threatening posture; and (iii) he had also cut P. W. 4, saying "" "". The learned Sessions Judge had not referred to

the important evidence of the Inspector and the other witnesses. Before we discuss the evidence, we might as well notice the law on the point. The

law on the point has been authoritatively summarised in the decision of the Supreme Court in Dahyabhai Chhaganbhai Thakker Vs. State of

Gujarat, . Their Lordships have pointed out, in the first place, that there is no inconsistency between the proposition that the general burden of

proving the ingredients of the offence, including the mens rea of the accused, is always on the prosecution, and the provisions of S. 105 of the

Evidence Act which lays the burden of proving the existence of circumstances bringing his case within any of the exceptions including S. 84, I.P.C.

on the accused. After referring to Sections 3 and 4 of the Evidence Act, their Lordships observe:

The accused has to satisfy the standard of a ''prudent man''. If the material placed before the court, such as oral and documentary evidence,

presumption, 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 u/s 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 whether the accused had the requisite intention laid down in S. 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.

Lower down their Lordship observe, (pp 367-368):

The doctrine of burden of proof in the context of the plea of the insanity may be stated in the following propositions:

(i)The prosecution must prove beyond reasonable doubt that the accused 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 accused was

not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal 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 he was insane at the time he committed the offence, the

evidence placed before he 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 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.

Their Lordships further observed When the accused was in such a stale of mind as to be entitled to the benefit of S. 84 of the Indian Penal

Code can only be established from the circumstances which preceded, attended and followed the crime.

To be same effect is the passage in the later decision of the supreme Court in Bhikari Vs. State of Uttar Pradesh, .

These decisions were quoted with approval by their Lordships of the Privy Council in Jayesena v. Regina (1970) I. All. Eng. R. 219 and have

been followed by a Bench of this Court (Sadasivam and K.N. Mudaliyar, JJ.,) in two decisions: Navier Marolle In re 1970 M.L.J. Cri. 718 In and

Thangaveln Asari in re. 1971. L.W. Cri. 54. It may be noted that in the last mentioned case the learned Judges rest their conclusion on the

proposition that the evidence placed before the court raised 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 at the time of the commission of the offence.

As pointed out by their Lordships of the Supreme Court, the state of mind of the Appellant at the time of the commission of the offence can

only be established from the circumstances which preceded, attended and followed the crime. Now, taking the circumstances which preceded the

crime, P. W. 1 says that the Appellant was not well for about two months prior to the occurrence and it was believed that some black magic had

been played against Lakshmi as well as the Appellant. The wife (P. W. 5) says that on the previous night (Tuesday, 2nd April 1968) about 11 p.m.

the Appellant was dancing inside the room as if possessed by spirits "". He was shouting the names of Muruga, Kali, Parasakthi and asked Lakshmi

to leave the place, threatening to cut her and stab her and he calmed down after Lakshmi went out of his sight. Normally he was very much

attached to his sister Lakshmi. The way in which he asked his sister Lakshmi to get out suggests that he was under the belief that by asking her to

get out he was exercising some evil spirit that had possessed her. The evidence of P.W. 5 as to what happened on the night of Tuesday receives

corroboration from the evidence of P. W. 2 to some extent, for she says that she heard the Appellant intermittently crying, ""Muruga, Om

Parasakthi"", etc.

Again, on the morning of Wednesday (3rd April 1968), according to the evidence of the wife, when they returned from the tea shop, the

Appellant told her that it would be better if they shifted their residence, because the place was haunted.

Again shortly after the occurrence, when the Inspector went there and questioned him, he was in a dazed condition. He was unable to answer

the questions of the Inspector. He did not give any answer except to invoke the name of Goddess Parasakthi and God Muruga. The Inspector, in

fact, suspected that the Appellant was his suspicion (? sic) that he requested that the Appellant might be sent for medical observation.

If that was the condition of the Appellant immediately after the attack, it is legitimate to project it backwards and hold that that must have been

his condition even when he committed the crime, which is otherwise wholly inexplicable. In fact, the suspicion of the Inspector that the accused

was of unsound mind was specifically confirmed by the medical examination. The report dated 11th April 1969 states:

""Patient is of unsound mind and unfit to stand trial"". The report itself shows that the Appellant as out-patient No. 908 had been attending the

psychiatric out-patient department from 17th June, 1968 till 29th July, 1968 and all opinion was given by Dr. Balan. We have sent for the

concerned file and satisfied ourselves that it confirms the final finding that the patient was of unsound mind.

Again, as the learned Sessions Judge himself notices, in paragraph 17 of his judgment, the Appellant swooned during the examination of P.W.

7 on 14th February 1969. on 26th February 1969 he did not answer the questions u/s 342 Code of Criminal Procedure properly and the learned

Sessions Judge himself suspected that he might be of unsound mind. He adjourned the case and referred the Appellant for medical observation.

The final report was on 28th July 1970, when no doubt, after treatment he was in a fit condition to stand the trial. But the report and the case sheet

themselves show that he had been treated for insanity, and the type of insanity he was suffering from has been described as schizophrenia. The

definition of schizophrenia given in Butterworth''s medical Dictionary is this:

A mental disorder characterized by a special type of disintegration of the personality: thought processes are directed by apparently random

personal association rather than logically to a goal, there is incongruity between the content of thought and the corresponding emotion and an

impaired relation to reality. Delusioms, hallucinations, and catatonia may be predominant features.

We have underlined the words, ""there is incongruity between the content of thoughts and the corresponding emotion, and an impaired relation

to reality,"" ""because it seems to us that, when the Appellant attacked his sister and his child so brutally and mercilessly, he did not realise that they

were his sister and his son, and therefore there was an impaired relation to reality, that is, to the real state of things. He was evidently imagining that

he was exercising some evil spirit in Lakshmi and Dayalan. The fact that in June to July, 1968, and later, between February, 1969, and July 1970,

he was suffering from a particular type of insanity, taken along with the circumstances preceding and attending the crime, renders legitimate the

conclusion that at the time of the commission of the Act itself he was of unsound mind by reason of that unsoundness of mind, was incapable of

knowing the nature of the act or that he was doing what was either wrong or contrary to law.

But the learned Sessions Judge seems to think that the Appellant knew that he was murdering Lakshmi and Dayalan thinking that Goddess Kali

would be propitiated by such sacrifice. That conclusion ,however, is totally inconsistent with the evidence of P. Ws. 1 and 5 that the Appellant

himself had been getting Lakshmi treated and was performing pooja just four or five days before the occurrence praying that Lakshmi should be

cured of her stomach-ache. If the intention of the Appellant was to cure Lakshmi of her stomach-ache, it would be clear that he would not have

intended to murder her. If it was a sacrifice for propitiating Kali there must be an objective; the objective was the cure of Lakshmi, and that

objective itself would be frustrated by offering Lakshmi herself as sacrifice.

The learned Sessions Judge has missed this point in his reasoning. Dayalan was his beloved child to whom he had given dosais earlier in the

day, and the absolute want of motive to kill Dayalan or his sister is itself the strongest indication of his insanity. The fact that he bolted the door

from inside and that he showed the weapon in what P.W. 1 thought to be a threatening attitude is not inconsistent with the behaviour of an insane

person. So too, the fact that he did not give up the weapon readily and aimed a cut on P.W.4, who tried to disarm him, would not be in(sic) sistent

with the behaviour of an insane pe(? sic) We have to take all pieces of evidence and circumstances together, including those which preceded the

act, those which attended the act and those which followed the act.

We, therefore, hold that, while the Appellant inflicted the cuts in question on Lakshmi and Dayalan, he did not have the necessary knowledge

that he was killing Lakshmi and Dayalan; much less did he have the intention to kill them. He would, therefore, be entitled to the benefits of S 84 of

the Indian Penal Code. He is hereby acquitted of the offence of murder and similarly of the offence u/s 332 of the Indian Penal Code for causing

hurt to P.W. 4. But as required u/s 471 of the Criminal Procedure Code, we order him to be detained in the Government Mental Hospital,

Madras. This will be reported to the State Government, along with a copy of the judgment.