In Re: Thangavelu Asari

K.N. Mudallar, J

Thangavelu Asari, the appellant herein, appeals against his conviction for an offence under S. 302 of the Indian Penal Code for committing the

murder of his wife Dhanalakshmi on 16th January 1969 at about 10 p.m.

In our view, the best way of presenting the prosecution case would be to summarise the evidence of P.W. 2, the daughter of the appellant and

Dhanalakshmi, the murdered victim. P.W. 2 Narasammal went to bed along with her parents on the night of 16th January 1969 at about 10 p.m.

She has two younger sisters and one younger brother. P.W. 2 woke up on hearing the sound of a passing bus. Then she saw her mother with

blood coming from her chest. Her father Thangavelu Asari (the appellant) was sitting near the feet of his wife with a knife on his right hand. When

P.W. 2 attempted to cry, the appellant appeased her saying that she need not get frightened and that he himself had stabbed her mother with the

knife. The appellant laid his daughter P.W. 2 on the bed and asked her to go to sleep. At down, P.W. 2 got up and found her father sitting on the

threshold of the froat door steps. The door was bolted from outside. She states further in her evidence that the appellant went to Tirupathi about

one month prior to the occurrence, and on his return, he was ""off his mental balance"". About fifteen days thereafter, be became normal. No doubt,

she asserts that at the time of the occurrence, be was mentally normal. We will later advert to the other portions of her evidence during the

discussion of the nature of the offence, if any.

On the following morning (17th January 1969) at about 7 a.m. P.W. 3 saw the appellant sitting on the threshold of his house. He was gloomy. She

asked him as to why he gloomy. He told her that he had stabbed his wife to death.

P.W. 4 is another witness who went to his field and returned to the village at about 7 a.m. on 17th January 1969. He saw a crowd at the

Mariamman temple and he was told that the appellant had murdered his wife. While there, the appellant himself called him, took him inside his

house and showed him the dead body of his wife, and he saw a bleeding injury in the middle portion of the chest. P.W. 5 is a native of that village

who was returning from the village at about 7 a.m. He saw a crowd near the house of the appellant. The appellant called him and asked him to

engage four men to carry the dead body of his wife to the police station at Pennagaram, saying that he had stabbed his wife to death.

The village Munsif, P.W. 7, came to the spot at about 9 a.m. on 17th January 1969. He get the appellant tied to a pole, and he recorded a

statement Ex P. 1, from P.W. 1. He went and saw the dead body of Dhanalakshmi with bleeding injuries on the chest. The village munsif mentions

about his questioning the appellant and the appellant replying that because his (appellant''s) wife refused access to him on the previous night, he

stabbed her to death. On the same evening at about 7.30 or 8 p.m. the police came and recorded the statement of the appellant attested by

P.W.7, the admissible portion of which is Ex-P.4. Accordingly the police seized M.O.1 knife from the appellant. There was blood thereon, and the

subsequent chemical analysis proved that the weapon M.O.1 was stained with human blood. All the villagers requested P.W. 1 who is studying in

XI standard to proceed to Rangapuram where the village munsif was residing. He made the journey a second time, met the village munsif and gave

him the information. As already stated P.W. 7 recorded the statement, Ex. P. 1 from P.W. 1. It is unnecessary for as to notice in detail the various

stages of investigation conducted by P.W. 13. However, there is one other important piece of evidence, namely, a judicial confession recorded by

P.W. 12. The said confession statement is marked as Ex-P. 15 in this case. M.O. 1 knife was also recovered from the accused as a result of Ex-

P. 4.

The plea of the appellant in the trial court is either one of complete ignorance of the crime or one of denial.

We will deal with the evidence in this case to find out whether the offence of murder hat been made out on the basis of the persecution evidence.

The real question that falls for out determination is whether the appellant was, by reason of unsoundness of mind, incapable of knowing the nature

of the act or that he was doing what was either wrong or contrary to law. In other words, whether the exception provided in S. 84 of the Indian

Penal Code would avail the appellant.

The evidence of the daughter of the appellant P.W. 2 Narasammal is that the appellant and his wife never quarreled and that they were leading a

happy life. She states that some time prior to the occurrence, the accused appellant was suffering from mental disease and he used to break pots in

his house and ran along the street. According to P.W. 2 the appellant went to Tirupathi to get it cured and on his return, no was off his mental

balance, and when he was off his, he used to break mud pets in the house and threaten to do away passers-by. According to her, at times, he was

even kept under chains. She further states that has mother used to brood ever it, weep and even starve most of the days. According to P.W. 2,

some fifteen days after he retained from Tirupathi, he became normal and at that time he was attending to his avocation, namely, the avocation of a

goldsmith. Whoa P.W. 2 met him on the next morning, he was very gloomy. The appellant never attempted to ran away or escape.

P.W. 6 the mother of the deceased Dhanalakshmi states in her evidence that there was absolute cordiality between the husband and the wife.

According to her, the appellant was insane for some time. She went and saw her son-in-law (the appellant). Her daughter, the deceased

Dhanalakshmi, was very much worried over it. Even P.W. 3 states that she found the appellant to be gloomy seated on the threshold of his house.

P.W. 4 states that the appellant and his wife never quarreled and that they were leading a happy life. Sometime prior to the occurrence, the

appellant was suffering from mental disease and heated to break pots in his house and run along the street. P.W. 5 is a villager belonging to

Nallapurampatti and he knew the appellant and his wife for the pass eight years. According to him, their relationship was very cordial.

It is imported to notice the testimony given by Dr. Habibullah, P.W. 9. His evidence is that he examined the appellant as to his mental condition.

The appellant was kept under observation from 28th January 1969 to 15th February 1969. According to the doctor, the appellant is a

schizephrenie with a tendency to turn maniac. Ex-P. 9 it the certificate.

In his cross examination, it has been elicited that a case sheet was maintained wherein the condition of the patient was noted every day. This case

sheet has not been produced before the court, as the same was not asked for. The doctor was also questioned by the court. The doctor said that

the onset of schizophrenic can never be sudden and that it is gradual either on account of hereditary characteristics or on account of environmental

effects.

P.W. 12, the Sub Magistrate, Harur, recorded the confession statement of the appellant which is marked as Ex. P. 15. In cross-examination, he

states that ho was not Informed that the inspector of Police had moved the Sub Magistrate, Dharmapuri for examining the accused as to his mental

condition. According to him, even on the date when he recorded Ex. P. 15, he was not made aware of the fact. The Sub Magistrate frankly states

that had be known about it, he would not have recorded the confessional statement of the appellant.

P. W. 13, the Inspector of Police, Dharmapuri, speaks to Ex. D. 1, dated 21st January 1969 which is the requisition sent by him for seeding the

appellant for medical examination. P.W. 13 admits that the appellant was insane for a fortnight prior to the occurrence. He further states that even

at the inquest it was brought to his notice that the appellant was suffering from mental disease prior to the occurrence. In his appeal to this Court,

the appellant states that on his return from Tirupathi, he was afflicted with some sort of insanity and as such he was not even aware of what he was

doing. According to him, he was taken to a doctor for consultation and given treatment for fifteen days. On that night, himself, his wife and the child

went to bed and he was not aware of what he had done. His child got up and saw her mother dead and informed him that her mother was lying

speechless in a flood of blood. It is further stated in the petition that his daughter told him that no was on sitting at her mother''s feet with a knife in

his hand. He never knew anything and he pacified his child and put her to sleep. He says that some of the villagers like P. Ws. 3 set apart questions

to him and he had no memory power at all, and he was not aware of what he had done even. Even now he is not in a lucid state of mind and he did

not remember whether he had stabbed her. According to him, for the past one month, he had been mentally afflicted and he was incapable of

knowing even what he was doing. The appellant says that at present he is not in a sound state of mind.

The question is, in this state of evidence can it be said with some amount of certainly that the appellant has a right to invoke the benefit of S. 84 of

Indian Penal Code.

The principles of law regarding the defence of insanity in criminal law which fall within S. 84 of the Indian Penal Code have been summarized by

my learned brother with singular clarity and perspicacity and incisive and industrious research in the judgment in Navier Marolle In re 1970 M. L.

J. Cri. 718 to which I was a party. The relevant portion of the law governing this aspect of the matter is found at pages 720 and 721. It is

unnecessary for me to reproduce the same. The principles of law laid down in Dahyabhai v. State of Gujarat (1965) 2 S.C.J. 531, Bhikari v. State

of Utter Pradesh 1966 M. L. J. Cri. 561 Jayasena v. Regina (1970) 1 All. E. R. 219, have been called out and summarised in this judgment. In the

light of these principles of law and in the nature of the evidence which has been summarised in the earlier part of our judgment, we have no doubt in

our mind that the appellant by reason of 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. The evidence of the daughter of the appellant is of decisive importance to enable as to arrive at the conclusion that the

exception provided by S. 84 of the Indian Penal Code must ensure to the benefit of the appellant. We are inclined to hold at any rate that the

evidence placed before the court would raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence

including means rea of the appellant, and, therefore, we would be justified to acquit the accused on the ground that the general burden of proof

resting on the prosecution wee not discharged in the contest of the failure on the part of the prosecution to prove the mens rea of the appellant at

the time of committing the murder of his wife. The conviction and the sentence of the appellant under S. 302 of the Indian Penal Code are set

aside.

In view of our lading that the appellant committed the act while he was in a state of unsoundness of mind and incapable of knowing the nature of

the act he was doing, we direct that the appellant be detained in safe custody in the Government Mental Hospital, Madras under S. 471 of the

Code of Criminal Procedure. The Superintendent of the said institution shall report the action taken by him in the matter to the Government.