Judgment :- 1. A fairly delicate question arises for consideration in this case.The appellant aged over 35 years has been convicted by the Sessions Judge, Kozhikode under S.302,448 and 323 of the Penal Code and sentenced to imprisonment for life under the first count and to rigorous imprisonment for three months each on the other two counts directing all the sentences to run concurrently. The appellant entered the house of a Kurichian by name Raman at about 4 p. m. on 23rd February, 1968 and took an infant daughter of Raman by the legs and hit it against the bin and the wall on either side and ultimately threw it on the ground causing its death. The appellant also caused hurt to pw. 7. The defence of the appellant was that he was insane and was protected by S.84 of the Penal Code. As already indicated, the Sessions Judge rejected this plea and convicted and sentenced the appellant. The facts cannot be seriously disputed, nor has the counsel of the appellant tried to minimise the seriousness of the acts of the appellant. The appellant was admittedly treated by dw.1, an ayurvedic mental physician, in 1964. On the date of occurrence, the appellent chased a girl taking water from a well near the house of Raman, when she escaped into the house. The appellant pursued her and entered the house of Raman, when pw. 7 was rocking the cradle of the child inside a room. The appellant entered the room and caught hold of the neck of pw. 7, when she ran out of the room crying aloud. pw. 3, the mother of the child, the wife of Raman, who was pounding rice in the backyard, came running into the room followed by pw. 6, her husband's uncle. Both of them were pushed to a corner of the room by the appellant with his left hand while he held the child by its feet and hit its head against the bin and the wall on either side. pws. 3, 6 and 7 raised an alarm; and pw. 2, who was passing along in front of the house, rushed into the house and caught hold of the appellant. The appellant then threw the child on the ground, and the child died instantaneously. pw. 2 pushed the appellant into the courtyard where both of them fell down. pws. 3, 6 and 7 raised an alarm; and pw. 2, who was passing along in front of the house, rushed into the house and caught hold of the appellant. The appellant then threw the child on the ground, and the child died instantaneously. pw. 2 pushed the appellant into the courtyard where both of them fell down. In the struggle that followed, the appellant escaped, but people followed him and caught him. pw. 2 then went to the police station, and on the way he met the Sub Inspector. The Sub Inspector took a statement from pw. 2 and came to the scene and started investigation. The appellant was arrested and was sent to the Mental Hospital on 26th March, where pw. 1, the Superintendent, kept him under observation till 7th April 1968. Ultimately, pw.1 issued a certificate that the appellant was a lunatic, as a consequence of which he was detained in the Mental Hospital for treatment until 17th April 1968. pw.1 then certified that he was in a position to make his defence; and the trial followed. We do not propose to consider the evidence of the eye-witnesses regarding the truth of the occurrence. As we have already stated, the counsel of the appellant has not seriously questioned the truth of the incident, his only contention being that the appellant was protected by S.84 of the Penal Code. The Sessions Judge has considered the question in a fairly satisfactory manner except regarding one.fact, which we shall come to by and by. The Sessions Judge has said that the question to be decided in a case like this is whether the accused was incapable of knowing the nature of the act by reason of unsoundness of mind-that the act was neither wrong or contrary to law. The Sessions Judge has also pointed out that the relevant time at which the condition of the mind of the accused is to be considered is the time at which the occurrence took place: the fact that the accused was afflicted by unsoundness of mind previously and subsequently does not necessarily indicate that he was insane at the relevant time. The conclusion of the Sessions Judge that the appellant was not protected by S, 84 of the Penal Code is based mainly on one fact spoken to by pw. 1. The conclusion of the Sessions Judge that the appellant was not protected by S, 84 of the Penal Code is based mainly on one fact spoken to by pw. 1. The witness says "The symptoms may thus temporarily remain absent for a few hours or days-for less than a week." The appellant was arrested on the date of occurrence, 23rd February 1968, but was sent to pw.1 only on 26th March 1968. During the interval, so goes the reasoning of the Sessions Judge, the police or the jail authorities did not note any abnormality or violence in the behaviour of the appellant. From this the Sessions Judge reasons that the evidence of pw.1 that the temporary absence of symptoms may last only for one week has great significance. The result is that the ailment could not have been dormant for more than a week, and since the appellant was in judicial custody for very much more than a week when he appeared to be normal, the ailment could riot have been dormant and the appellant must have been normal during the time. The appellant, the reasoning of the Sessions Judge concludes, must have therefore been normal at the time of his arrest also, that is, he must have been having a lucid interval then. But, this reasoning of the Sessions Judge loses sight of the other evidence given by pw. 1. pw. 1. says: "J cannot deny or exclude the possibility of the accused having been suffering from an attack of mania on 23-2-68 (the date of occurrence, it may be noted). It is possible that the symptoms which are produced by an attack of mania could be developed all on a sudden. It is not necessary that in every case of mania there should be a prodromal stags-During the prodromal stage these symptoms may not be so pronounced so as to be observed by others. All on a sudden temporarily these symptoms may disappear but may again recur. Sometimes the person may look almost normal and answer questions properly but all the same the disease may be there in him." The witness also says "I cannot say from the observations made as to when exactly the then-attack of insanity had started. All on a sudden temporarily these symptoms may disappear but may again recur. Sometimes the person may look almost normal and answer questions properly but all the same the disease may be there in him." The witness also says "I cannot say from the observations made as to when exactly the then-attack of insanity had started. It can either be 2 or 3 days before my seeing him or even some weeks before it." From this it is clear that even an expert like pw.1 was not able to say whether the appellant could have been suffering from the ailment or not on the date of occurrence, 23rd February 1968. The witness is also not able to say whether the "then-attack", the attack he detected by his observation, started two or three days before he saw the appellant or some weeks before the appellant was brought to the hospital. The witness says that the prodromal (premonitory) stage might not always be there, and even during the prodromal stage, the symptoms might not be pronounced so as to be observed by others. In this state of the evidence of pw.1, it is not safe to attach all importance and undue significance to the one passage first extracted by us from his deposition. It is therefore clear that it is not possible to say with axactitute or without reasonable doubt that the appellant was free from the disease on the crucial day, 23rd February 1968. In this connection reference may be made to the decision of the Supreme Court in Dhayabhai Chhaganbhai Thakkar v. State of Gujarat (AIR. 1964 SC. 1563). The Supreme Court has recapitulated the principles of burden of proof in the context of a plea of insanity. The Supreme Court says: "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite metis 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 the 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." The Supreme Court also states in Para.5 of the judgment that 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. It is a well recognised principle-so well recognised that it does not require repetition (vide also S.105 of the Indian Evidence Act)-that the accused has to prove a general exception like private defence, insanity, consent, mistake, etc. But, the standard of proof necessary in such a case is not the degree that is required of the prosecution to establish a crime beyond all reasonable doubt. In the language of the Supreme Court, the accused will have to rebut the normal rebuttable presumption that he is not insane by placing material before the court sufficient to make it consider the existence of circumstances so probable that a prudent man would act upon them: in other words, the accused has only to satisfy the standard of a prudent man, and he need not establish his plea beyond all reasonable doubt: putting it still differently, the burden of proof upon him is no higher than that of a party to a civil proceeding, that is, a preponderance of probability alone is sufficient. The Supreme Court has also stated in the decision cited above that the entire conduct of the accused has to be taken into consideration to decide whether he was afflicted by unsoundness of mind. The Supreme Court has also stated in the decision cited above that the entire conduct of the accused has to be taken into consideration to decide whether he was afflicted by unsoundness of mind. (That was what the Supreme Court did in the particular case.) In the case before us, the appellant was under treatment under dw.1: he was found to be of unsound mind when pw.1 kept him under observation: his acts on the day in question did not stand to any reason-he had no motive for doing such acts, especially the act on the child of a few months. (We would however make haste to state that we are alive to the fact that from the mere absence of motive insanity cannot be presumed-that absence of motive does not necessarily indicate that the appellant was incapable of knowing the nature of his act, that it was either wrong or contrary to law.) The Sessions Judge quotes Bramwell and observes that if the appellant would not have yielded to his impulse if a policeman had been at his elbow, then he was not insane. We are in entire agreement with this proposition. But, does the evidence in this case show that if a policeman were present at the time, the appellant would not have done the act?. We are not sure of the answer. The Sessions Judge also thinks that the appellant ran away from the place as he felt that his act was wrong, Here also we are not sure. He might have left the place just to escape being caught and not because he felt what he did was wrong or contrary to law. We reiterate that there is considerable or at least reasonable doubt as to whether the appellant was afflicted by. unsoundness of mind or not: we feel that he might have been sane, might not have been sane: we are not certain that he was not insane-was capable of knowing that his act was wrong. In this state of the evidence, it is evident that the benefit of that reasonable doubt must go to the appellant. We therefore hold that the appellant was protected by S.84 of the Penal Code. The appeal is allowed and the convictions and sentences passed on the appellant are set aside. Then comes the question as to what we should do with the appellant. We therefore hold that the appellant was protected by S.84 of the Penal Code. The appeal is allowed and the convictions and sentences passed on the appellant are set aside. Then comes the question as to what we should do with the appellant. Under S.471 of the Code of Criminal Procedure we have the power to direct the appellant to be detained in safe custody: and under the proviso to that section the detention of the appellant in a lunatic asylum shall be in accordance with the rules framed by the State Government under the Indian Lunacy Act. Therefore, we direct that the appellant be detained in safe custody in one of the lunatic asylums in the State in accordance with the rules framed by the Government under the Lunacy Act. We venture to add that, unless the appellant is completely and fully cured of his ailment, it will be dangerous to society to release him: and we are confident that the authorities who take charge of the appellant will be alive to this. A.N. K. Allowed.