Judgment :- (This Criminal Appeal has been preferred against the judgment and conviction passed by the Learned Principal District and Sessions Judge, Pudukottai District in S.C.No.102 of 2000, dated 11.9.2001.) S. Ashok Kumar, J. The appellant, sole accused in S.C.No.102 of 2000, on the file of the Principal Sessions Judge, Pudukottai was convicted for offence under Sections 302 IPC to undergo imprisonment for life and for offence under Section 326 IPC (3 counts) to undergo rigorous imprisonment for four years on each count, for the offence under section 324 IPC (2 counts) to undergo rigorous imprisonment for one year on each count, all the sentences to run concurrently. 2. The brief facts of the prosecution case is as follows: - (a) PW.1, Rangan is the father of the accused Ponnan. Because, P.W.1, the father of the accused failed to arrange his marriage with the daughter of one Ammasi of Saralapatti Village, the accused was in a fit of anger. On 26.4.1999 at 6.45 a.m., he caused grievous injuries to his father by using M.O.3 Aruval. Thereafter he proceeded to a cotton field belonging to Andi Gounder @ Krishnan, where he cut on the right side ear and head of one Chittammal at 7.30 a.m., with his aruval. Thereafter he attacked P.W.3, Meena at 7.45 a.m., when she was standing near the water tap at Pasumettupatti. Thereafter he attacked P.W.4 Rathinam by the said aruval near the water tank. Thereafter he attacked a school boy, P.W.6 by name Thangaraj, on his left hand, on the mud road near the Virudhapatti Village by the said Aruval and thereafter he also assaulted on the right hand of P.W.5, Andi Gounder @ Krishnan, in the same transaction and caused grievous injuries to him. P.W.1, Mukkan who is the President of Viruthapatti Panchayat lodged Ex.P.1 complaint at Viralimalai Police Station on 26.4.1999 at 10.00 a.m., Natesan (since deceased), Inspectorof Police, Viralimalai Police Station registered the case in Cr.No.251 of 1999 under sections 302 and 324 IPC and the printed FIR is Ex.P.18. (b) P.W.13, Kannadasan, Inspector of Police visited the place of occurrence on 26.4.1999 at 10.30 a.m., and prepared observation mahazar Ex.P.8 in the presence of witnesses P.W.9, Chinnappa and one Alagarswamy.He also prepared a rough plan Ex.P.19. He collected the blood stained earth in M.O.1 and ordinary earth in M.O.2 under a cover of mahazar Ex.P.9. (b) P.W.13, Kannadasan, Inspector of Police visited the place of occurrence on 26.4.1999 at 10.30 a.m., and prepared observation mahazar Ex.P.8 in the presence of witnesses P.W.9, Chinnappa and one Alagarswamy.He also prepared a rough plan Ex.P.19. He collected the blood stained earth in M.O.1 and ordinary earth in M.O.2 under a cover of mahazar Ex.P.9. He conducted an inquest over the body of the deceased Chittammal and prepared an inquest report in Ex.P.20. He examined the witnesses P.W.1 Mookkan, P.W.2 Rangan, P.W.3 Meena, P.W.4 Rathinam, P.W.5 Andigounder @ Krishnan and recorded their statements. He also prepared another rough plans in Exs.P.21 and 22. He also prepared observation mahazars in Exs.P.10 and 11. (c). P.W.7, Dr.Karunanithi, Government Hospital, Manapparai, received requisition letter from the Inspector of Police, Viralimalai on 26.4.1999 and conducted an autopsy over the deceased body of Chittammal on 26.4.1999 at 3.00 p.m., The rigor mortis present in all four limbs. He found the following external injuries: - "Injuries: 1. 6" cut wound oblique in direction cutting the right side pinna at the middle ear depth up to the peritotemporal occipital skin of the bone cutting mastoid process bone exposing the brain matter -severe bleeding right side skull. 2. 2" inches oblique cut injury present in the right side angle of the mandively. 3. 5" inches length upper part of the right side neck with bleeding. Opening the skull. Internal: 1" inches circular bone chip fragment present in the mastoid area right side present in temporal occipital bone right side over the brain matter blood clots present. Blood collected in the skull cavity. Brain cut section pale. 1" in the tempo parietal and temporal occipital bone. Hyoid bone intact. Internal organs: liver cut, pale, kidney pale. Stomach empty. Lungs pale." The Doctor opined that the death was caused due to the injuries to the vital organs, Head injures, Injuries to the brain Haemorrhage and shock. He issued postmortem certificate in Ex.P.2. (d) P.W.7 also examined the injured person P.W.2, Rangan on 26.4.1999 at 6.45 p.m., and he found the following external injuries on his body: 1. Cut and 2 ½ " x 1 " x 1" put in the left writ joint oblipn gnit; 2. 2" x ½ " x ½ " cut and put in the top of the head; 3. Cut and 2 ½ " x 1 " x 1" put in the left writ joint oblipn gnit; 2. 2" x ½ " x ½ " cut and put in the top of the head; 3. 1" x ¼" x ¼ " cut and put in the right side of the top of the head. The Doctor who issued the wound certificate opined that the injuries are simple in nature. He issued a wound certificate in Ex.P.3. (e) The same Doctor also examined the witnesses P.W.3, Meena on 26.4.1999 at 9.30 a.m., morning and found the following external injuries on her body: 1.Cut injury 6" x ½ " x ½" part in the entire of the bead; 2. 3" x ½" x ¼" cut wound below the chin, in the neck. The Doctor gave opinion that the first injury is grievous and other is simple. He issued a wound certificate in Ex.P.4. (f) P.W.7, Doctor examined the witness P.W.4 Rathinam on 26.4.1999 at 10.50 a.m., morning and found the following external injuries on his body: 1. Cut injury ½" x1/4" x ¼" in the left thumb; 2. ½" x ½" skin depth cut and portion left index finger; 3. ½" x ½" skin depth put in the left middle finger; 4. ½" x1/2" depth put in the right arm; 5. Cut injury in the left and right upper arm. The Doctor opined that the injuries are simple in nature. He also issued a wound certificate in Ex.P.5. (g) P.W.7, Doctor also examined P.W.5, Mr.Andi Gounder on the same day at 10.45 a.m., morning and he found the following external injuries on his body: "A cut injury on the left behind the right hand finger and a middle finger 5" x 1" x ¾" heeling injury". The Doctor opined that the injury is grievous in nature. He issued a wound certificate in Ex.P.6. (h) P.W.7, Doctor examined the witnesses P.W.6 Mr.Thangaraj on the same day at 10.30 a.m., morning and he found the following external injuries on his body: 1. Cut and 27 ½ x bone depth present in the left arm middle arm; 2. Leg 1" x ½ " cut injury at left thigh. He opined that the injuries are grievous in nature. He issued a wound certificate in Ex.P.7." (i). Cut and 27 ½ x bone depth present in the left arm middle arm; 2. Leg 1" x ½ " cut injury at left thigh. He opined that the injuries are grievous in nature. He issued a wound certificate in Ex.P.7." (i). Continuing his investigation P.W.13 arrested the accused near Chellandi Amman Temple at 4.00 pm., on the same evening and seized M.O.3, blood stained Aruval under a cover of mahazar Ex.P.12. He examined P.W.7, Dr.Karunanithi, P.W.7, P.W.14 and other witnesses and recorded their statements. He sent requisition for chemical analysation of case properties. The chemical analyst reports are Exs.P.16 and P.17. After completing the investigation P.W.13 laid the charge sheet against the accused for offences under sections 302, 324 and 326 IPC in the Judicial Magistrate Court, Keeranur on 30.7.1999. (3). Before the Sessions Court, the prosecution examined P.Ws 1 to 14 and marked Exs. P.1 to P.22 and M.Os 1 to 9. No witness was examined on behalf of the accused. Dr.Elangovan, Assistant Professor of Kilpauk Mental Health Institute, Chennai was examined as CW.1 and the case summary recorded at the Institute of Mental Health, Kilpauk, was marked as Ex.C.1. (4). When the accused was questioned with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused admitted having caused the death of Chittammal and injuries to P.W.2, his father P.W.3, Meena, P.W.4 Rathinam, P.W.5 Andi Gounder and P.W.6 Thangaraj. He also admitted the time of arrest and recovery of bloodstained Aruval, M.O.3 under a cover of mahazar Ex.P.12. He has also stated that he was not conscious when he committed the offence and has forgotten everything and also admitted that he is suffering from some mental disorder as told by Dr.Kumar, Professor of KAP Medical College, Trichy. (5). The accused seems to be suffering from some abomination for his father since he did not arrange for his marriage with the daughter of one Ammasi and on that score he started cutting his father first, then Chittammal, the deceased and thereafter P.W.s 3, 4, 5 and 6 one by one at various places. P.W.s 2 to 6 are injured eye witnesses and P.W.2 is none other than the father of the accused. P.W.s 2 to 6 are injured eye witnesses and P.W.2 is none other than the father of the accused. The series of attack by the accused against whom he had no motive at all like Chittammal, Meena and School boy Thangaraj would show that the accused should have been labouring from some mental disorder at the time of occurrence. In fact, before the Sessions Court, P.W.14, Dr.Kumar, Professor of KAP Medical College, Trichy, was examined, who has deposed that he examined the accused from 15.6.1999 to 26.9.1999 in a separate cell and in the beginning of the examination the accused was always thinking about something and after treatment for a period of one week there were no symptoms of mental disorder and even though he was aware of the incidence, he was not able to understand the effect or consequences of the incidence in which he was involved and he has also come to the conclusion that the accused requires further examination with regard to his mental disorder. P.W.14, was once again examined on 27.4.2001 and he has confirmed his earlier findings. From the nature of occurrence that the accused went on attacking whoever came on his way itself shows that the was suffering from some mental disorder. (6). Since the accused had been suffering from some mental disorder, he is entitled for the protection under section 84 of the Indian Penal Code. Section 84 IPC reads as follows: - "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". 7. Under Section 105 of the Indian Evidence Act "when a person is accused of any offence, the burden of proving the existence of circumstances bringing the cause within any of the General exceptions in the Indian Penal Code 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, and the court shall presume the absence of such circumstances." 8. In Dahyabhai V. State of Gujarat, reported in AIR 1967 SC 1563, the Hon'ble Supreme Court has held thus:- "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 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 S.299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, S.84 of the Indian Penal Code 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 that he is doing what is 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 S.105 of the Evidence Act, read with the definition of "shall presume" in S.4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstance 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 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 he burden under S.105of 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." 9. In Shrikant Anandrao Bosale Vs. State of Maharashtra, reported in AIR 2002 SC 3399 , their Lordships of the Supreme Court have held thus: - "In the instant case the accused, Police Countable alleged to have hit his wife with grinding tone on 24thApril 1994. The accused took the plea of insanity. However, the prosecution relied on anger theory. The circumstances that stand proved: (a) the appellant has a family history his father was suffering from psychiatric illness. (b) Cause of ailment not known hereditary plays a part. (c.) Accused was being treated for unsoundness of mind since 1992. Diagnosed as suffering from paranoid schizophrenia. Within a short span, soon after the incident from 27th June to 5th December, 1994, he had to be taken for treatment of ailment 25 times to hospital. (d) Accused was under regular treatment for the mental ailment. (e) The motive of killing of wife was weak being that she was opposing the idea of the resigning the job of a Police Constable. (f) Killing a wife in a daylight made no attempt to hide or run away. (d) Accused was under regular treatment for the mental ailment. (e) The motive of killing of wife was weak being that she was opposing the idea of the resigning the job of a Police Constable. (f) Killing a wife in a daylight made no attempt to hide or run away. Though the facts that the accused did not make any attempt to run away or that he committed crime in day light and did not try to hide it or that motive to kill his wife was very weak would not itself indicate insanity, however, it would not only the aforesaid facts but it would be the totality of the circumstances seen in the light of the evidence on record, rove that the accused was suffering from paranoid schizophrenia. The unsoundness of mind before and after incident would be a relevant fact. From the circumstances of the case clearly an inference can be reasonable drawn that the accused was under a delusion at the relevant time. He was under an attack of the ailment. The anger theory on which reliance has been placed by prosecution cannot be ruled out under schizophrenia attack. Having regard to the nature of burden on the accused, the accused can be said to have proved the existence of circumstances as required by S.105 of the Evidence Act so as to get benefit of S.84, IPC. In the circumstance, it cannot be said that the crime was committed as a result of extreme fit of anger. A reasonable doubt can be raised that at the time of commission of the crime, the accused was incapable of knowing the nature of the act by reason of unsoundness of mind and, thus, he would be entitled to the benefit if S.84 IPC. Hence the conviction and sentence of the accused would be liable to be set aside." 10. As already held, in this case the evidence of P.W.14, Dr.Kumar would prove that the accused was suffering from some mental disorder and he was not able to understand the effect or consequence of the incident in which he was involved. The accused apart from killing the deceased Chittammal against whom he had no enmity or any motive, has also attacked his own father, P.W.2 and other witnesses P.Ws.3 to 6 against whom he has no motive or enmity. The accused apart from killing the deceased Chittammal against whom he had no enmity or any motive, has also attacked his own father, P.W.2 and other witnesses P.Ws.3 to 6 against whom he has no motive or enmity. The accused has not spared even the girl who was taking water in the tap and a small school going boy, Thangaraj. The very nature of the occurrence that the accused went on attacking whoever came on his way itself would show that the accused should have been labouring from some mental disorder at the time of occurrence. The rule of burden of proof in the context of the plea of insanity are (a) that the prosecution must prove beyond reasonable doubt that the offence was committed by the accused that the requisite "mens rea" and the burden continues from the beginning till the end of the trial (b) that it is a rebuttable presumption that the prisoner was not insane when he committed an offence in the sense set forth in Section 84 Indian Penal Code, (C) that the accused may rebut the presumption of sanity at the relevant time bringing the case within Section 84, IPC, by producing oral, documentary, circumstantial and other materials and he may discharge the burden by establishing a reasonable probable case. The accused is not called upon to establish the element of Section 84, IPC by producing evidence beyond reasonable doubt and (d) that even the accused fails to establish affirmatively or conclusively that he was of unsound mind and committed the act under the circumstances set out in Section 84, IPC, but raises a reasonable doubt in the mind of the Court as regards presence of essential ingredients of the offence, which of course includes, `mens rea' the requisite criminal intention, l the Court would be entitled to acquit the accused the ground that the general burden of proof resting on the prosecution was not discharged. Therefore, applying the above principle, we can safely conclude that the accused is entitled for protection under Section 84 of the Indian Penal Code and the conviction and sentence of the accused is liable to be set aside. At this stage, we are not aware whether the accused who is confined in jail has been cured of the mental disorder. 11. At this stage, we are not aware whether the accused who is confined in jail has been cured of the mental disorder. 11. The materials placed before us establish that the accused has no criminal intention at the relevant time and as such the case squarely falls under Section 84 IPC. By preponderance of probability also it has been established that the accused was mentally unsound and at the time of commission of the acts he was incapable of knowing the nature of acts and/or that what he was doing was either wrong or contrary to law and accordingly we set aside the conviction and findings passed against the appellant. We are acquitting the accused on the ground that at the time at which he was alleged to have committed the offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the acts alleged as constituting the offences and/or that they were wrong or contrary to law, but we record the finding that it was the accused who committed the act. Now, it would be the statutory obligation of the learned District and Sessions Judge, Pudukottai District to follow meticulously the provisions of Section 335 of the Cr.P.C., The learned Judge may direct detention of the accused in safe custody in such manner as he thinks fit or may order the accused to be delivered to any relative or friend of the accused on such terms and conditions as he thinks just and prudent. The accused may be detained in the lunatic asylum however, in accordance with the provisions of the Rules framed under the Indian Lunacy Act, 1912. We direct the Learned District and Sessions Judge to follow the provisions of S.338 of the Code carefully and cautiously to protect the interest of the society. The accused shall not be released from the safe custody until the concerned Civil Surgeon or the Chief Medical Officer or the Commission certified that the appellant is fit to live in the society and could no longer be a hazard to the society. The learned District and Sessions Judge, Pudukottai shall report to the State Government the action taken by him under Section 335(1) of the Code. We draw the attention of the learned District and Sessions Judge and the authorities to the mandatory provisions contained in S.338 of the Code. 12. The learned District and Sessions Judge, Pudukottai shall report to the State Government the action taken by him under Section 335(1) of the Code. We draw the attention of the learned District and Sessions Judge and the authorities to the mandatory provisions contained in S.338 of the Code. 12. In the result, the appeal is allowed to the extent indicated above. 13. Before parting with the case, we record the valuable assistance rendered by Mr.M.Deivanandam, learned counsel for the appellant, who was appointed as Amicus Curiae, and we fix his remuneration as Rs.2000/= to be paid by the Legal Services Authority.