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Judgment
M. Karpagavinayagam, J.—This revision filed by the Petitioner is against the judgment dated 4-10-1991 in C.A. No. 61 of 1989, on the file of Sessions Judge, South Arcot, Confirming the convictions under Sections 326 and 324 I.P.C., and Section 27 of the Indian Arms Act, and sentence of R.I. for two years and fine of Rs. 300/- in default to undergo imprisonment for three months for the offence u/s 326 I.P.C., R.I. for one year for the offence u/s 324 I.P.C., and R.I. for two years u/s 27 of the Indian Arms Act, imposed by the Principal Assistant Sessions Judge, Cuddalore, with a direction for the sentences to run concurrently, by judgment dated 26-6-1989, in S.C. No. 189 of 1988.
Brief facts are:
The Petitioner who was posted as security guard at the residence of Principal Sessions Judge, South Arcot District at Cuddalore, on 5-3-1988, being a Police Constable, at about 2.15 A.M. - midnight, came out of the said residence, and stood in front of the Cosmopolitan club, situate in the main road, and stopped an autorickshaw bearing registration No. TMR 181, and asked the two occupants of the said autorickshaw, Lalitha (P.W.2) and Mahalingam (P.W.3), to run away from the place, or else he would kill them and so saying, he fired shots for ten rounds, due to which Lalitha sustained grievous injuries and Mahalingam sustained simple injuries. Apart from this, he also threatened P.W.1 Ramanujam, Grade I police Constable, attached to Sub-Jail, Cuddalore, who was going in a bi-cycle, and fired a shot at him, causing injuries on his right thigh and left small finger, thereby the Petitioner was charged for the offences under Sections 307, 326 and 324 I.P.C., and Section 27 of the Indian Arms Act.
However, on consideration of the evidence of P.Ws.1 to 12 and Exs. p1 to p20, and the evidence of D.W.1 and Exs. D1 to D3, learned trial Judge, rendered the verdict as above.
Aggrieved over this judgment of the Assistant Sessions Judge, the Petitioner filed an appeal before the Sessions Court in C.A. No. 61 of 1989. However at the time of final disposal of the appeal, counsel appeared on behalf of the Petitioner confined his argument only for consideration of reduction of sentence, without arguing the merits of the case. But the learned Sessions Judge, having regard to the manner in which the occurrence had taken place, the seriousness of the incident and the fact the accused/Petitioner being a security guard, did not think it fit to reduce the sentence and confirmed the conviction and sentence imposed by the trial Court. Aggrieved over the said judgment, the present revision has been filed before this Court.
Learned Counsel for the revision Petitioner seeks permission of this Court to argue the revision on merits, though the same was not done before the lower appellate Court. On such permission granted by this Court, learned Counsel for the revision Petitioner elaborately argued by referring to the depositions of all the witnesses, more particularly of D.W.1, the Doctor examined on behalf of the defence, and contended that the conviction imposed on the Petitioner cannot be said to be valid in law, since the Petitioner is entitled to acquittal u/s 84 of the Indian Penal Code.
On the strength of Section 84 of the Indian Penal Code, which reads 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 that he is doing what is either wrong or contrary to law", learned Counsel for the Petitioner would further argue, by referring to the evidence of D.W.1, the Doctor, that the Courts below could come to the conclusion that at the time of commission of the offence, the accused was insane.
Though this aspect has not been canvassed and discussed by the lower Appellate Court, the trial Court considered this question in detail, and came to the conclusion, that there is no material to show that at the time of commission of the offence, the Petitioner was in unsoundness of mind. So the said argument of learned Counsel for the Petitioner appeared before the trial Court, was rejected as devoid of merits.
In this Revision, learned Counsel for the revision Petitioner read out the evidence of D.W.1, to show that the accused was taking treatment for his mental illness from 12-11-1987 to 15-2-1988. D.W.1 was not able to say that on 5-3-1988, the date of occurrence, the Petitioner was suffering from such mental illness or he was an insane. Moreover, D.W. 1 admits in his chief examination itself, that due to the said suffering, the accused could not have developed the intention of attacking or killing any person. The relevant evidence of D.W.1 is as follows:
Learned Counsel for the Revision Petitioner as well as the Government Advocate, representing the State, relied on the decision in Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, wherein the Court has observed as follows:
When a plea of legal insanity is set up the Court has to consider whether at the time of commission of the offence the accused, 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 crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed, whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.
The same view has been expressed by the Division Bench of the Kerala High Court in Kannakunnummal Ammed Koya Vs. State of Kerala, and by a Division Bench of this Court in Murthy In re. 1987 L.W. (Crl.) 170.
Learned Government Advocate, has placed reliance on yet another decision of the Kerala High Court, in Kuttappan v. State of Kerala 1986 (1) Cri The general burden never shifts and it always rests on the prosecution. However, it has to be pointed out that there is a presumption of sanity though the presumption is rebuttable. Everyone is presumed to know the natural consequences of his acts....
What Section 84 I.P.C., provides is defence of legal insanity as distinguished from medical insanity. A person is legally insane when he is incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. Incapacity of the persons on account of insanity must be of the nature which attracts the operation of Section 84 of I.P.C.
Under Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the exception contemplated u/s 84 Indian Penal Code lies on the accused and the Court has to presume the absence of such circumstances....Accused has to rebut the presumption that such circumstances did not exist by placing material before Court or relying on materials already before the Court, sufficient to make it consider the existence of such circumstances so probable that a prudent man would act upon them.
On the very same aspect, law has been laid down by the Supreme Court in Bhikari Vs. State of Uttar Pradesh, .
Applying the above referred to principle of law, I am unable to hold that the Petitioner/accused has established his case of insanity at the time of commission of offence, so as to attract Section 84 of I.P.C. In that view of the matter, I see no reason to interfere with the concurrent findings of the Court below.
In the result, the revision is dismissed.
While pronouncing the order, learned Counsel represented that since the Petitioner is entitled to the benefit of remission for a period of two years as per G.O. Ms. Nos. 81, Home (PR.C) Dept., dated 11.4.1990, 279, Home (PR.C) Dept., dated 23.2.1992, 296, Home (PR. IV) Dept., dated 20.2.1993 and 205, Home (PR. IV) Dept., dated 23.2.1994, the two years R.I., imposed upon the Petitioner is wiped out. Learned Government Advocate does not dispute the same. Since the Petitioner is entitled to the benefit of remission for two years as per the above said four G.Os., he need not surrender before the prison authorities.