State Of Bihar v. Lilanand Pathak — 1976 DIGILAW 149 (PAT)

Judgment 1. The learned Additional Sessions Judge has referred this case under Sec.366 of the Code of Criminal Procedure, 1973, for confirmation of the death sentence on Lilanand Pathak for his conviction under S.302 of the Indian Penal Code for the murder of Ekwari Devi, wife of Punyanand Pathak (P.W.16) on 28th of October 1970 at 7 P.M. in the room which the appellant was occupying in the house belonging to him and P.W.16 in village Hardi, Police Station Supaul, in the district of Saharsa. Against his conviction and sentence, Lilanand Pathak (hereinafter referred to as the appellant) also filed an appeal from jail in this Court, and the same was registered as Criminal Appeal 59 of 1976. Subsequently presented appeal was also filed by him which was registered as Criminal appeal 58 of 1976. In that view of the matter, both the appeals and the death reference will be decided by this common judgment. 2. The prosecution case, in brief, was that the appellant is the cousin of P.W.16. Although they were messing separately, their property was joint. P.W.16 had half share in the ancestral land and the remaining half belonged to the three cousin brothers of P.W.16. They were living in the same angan of the house. In the share of P.W.16 there were two rooms - one on the west and the other on the south. At the relevant time, P.W.16 was at Durgasthan along with his uncle, Sheonandan Pathak (P.W.8). P.Ws.8 and 16 were priests of the Durgasthan. Indra Kant Pathak (P.W.15), son of P.W.16, went to the Durgasthan and told P.W.16 that P.W.15 had kept the goods in the house after returning from Market. P.W.15 further stated that his mother, namely, Ekwari Devi, the deceased, did not respond to his call when he went to the darwaza. Phulo Dai (P.W.5), the grand-mother of P.W.15, asked P.W.15 to go and call P.Ws.8 and 16. P.W.15 also stated that Renu Kumari (P.W.13), daughter of the deceased, told him that the appellant asked the deceased to mud-wash the ground in his room and killed her. Hearing the sad news, P.Ws.8 and 16 along with Juri Mandal (P.W.2) left for home. P.W.16 stayed at the darwaza, whereas P.Ws.2 and 8 went inside. Both of them came out and said that the appellant had killed the wife of P.W.16 with an axe. Hearing the sad news, P.Ws.8 and 16 along with Juri Mandal (P.W.2) left for home. P.W.16 stayed at the darwaza, whereas P.Ws.2 and 8 went inside. Both of them came out and said that the appellant had killed the wife of P.W.16 with an axe. They also said that the dead body was in the house, and the appellant neither allowed any one to enter the house nor did he allow them to remove the dead body. Thereupon, P.W.16 went to the house of Bhagwat Pd. Yadava (P.W.7), a cultivator of the village. With Tetar Sharma (P.W.1), the Chaukidar, and with P.W.7 they all came back. Then, they went to the angan. It seems that Sheonandan Pathak (P.W.8), father of the appellant informed about it to Moti Prasad Singh (P.W.12), the Mukhiya of the Gram Panchayat. Thereupon, P.W.12 along with the Up-Mukhiya, Ramji Pd. Yadav and Chaukidar Kishan Paswan went to the house of P.W.8, and saw that a considerable crowd had assembled at his darwaza. P.W.12 saw the deceased lying dead in one of the rooms of the appellant. Thereupon, P.W.12 asked if any information had been sent to the Police station or not. When it transpired that no information bad been sent, he sent P.W.1 to the police station along with some other person. Thereupon, P.W.1 went to the police station and lodged first information report (Ext.5) on 21st of October 1970 at 1 a.m., the occurrence having taken place on 20th of October 1970 at 7 p.m. the distance between the place of occurrence and the police station being 9 miles. The first information was recorded by Mahesh Pd. (P.W.17), the officer in charge of the Police Station. He went to the place of occurrence, and there he arrested the appellant. He sent the dead body for post-mortem examination along with P.W.1 to Supaul Subdivisional Hospital. On 22nd of October, Dr. B.L. Das (P.W.11), who was attached to the said hospital, held post-mortem examination on the dead body on the same date. i.e., 22nd of October, 1970 at 11 a.m. P.W.17, after completing the investigation, submitted charge-sheet against the appellant. After the usual enquiry, the appellant was committed to the Court of Session. 3. Before the Court of Session, on behalf of the prosecution as many as 17 witnesses, including those already mentioned, were examined to establish the prosecution case. i.e., 22nd of October, 1970 at 11 a.m. P.W.17, after completing the investigation, submitted charge-sheet against the appellant. After the usual enquiry, the appellant was committed to the Court of Session. 3. Before the Court of Session, on behalf of the prosecution as many as 17 witnesses, including those already mentioned, were examined to establish the prosecution case. Out of the witnesses, the evidence of P.Ws.5 and 14 was simply tendered by the prosecution. It may be noticed that among the witnesses, P.W.13 is the only eye-witness of the occurrence. It will be also relevant to mention here that P.W.1, P.W.2, P.W.3, Deobarat Tanti (P.W.4), Kamleshwari Pd. Yadav (P.W.6), Bhagwat Pd. Yadava (P.W.7), Sheonandan Pathak (P.W.8) and Moti Pd. Singh (P.W.12) were declared hostile. The prosecution has further relied on the confession (Ext.3) of the appellant which was recorded by Bindeshwari Pandey, Chief Administrative Officer (P.W.9). Abdul Alim Mohnair (P.W.10), the Second Officer, had recorded the earlier statement of P.Ws.8 and 16 under Sec.164 of the Old Code of Criminal Procedure. 4. In the statement under Sec.342 of the Code of Criminal Procedure before the committing court as well as before the Sessions Court, the appellant had confessed his guilt. However, from the suggestion made to the various witnesses examined in the Sessions Court on behalf of the prosecution, it appears that his defence was that he was insane at the time when the offence was committed. 5. The learned Sessions Judge, however, convicted and sentenced the appellant as stated above. Learned counsel appearing on behalf of the appellant and against the reference have assailed the impugned judgment of the learned Sessions Judge convicting the appellant under Sec.302 and imposing death penalty. Learned counsel have submitted that in the instant case the prosecution has failed to establish the guilt against the appellant. They have referred to the evidence of the sole eye-witness (P.W.13). She is, as mentioned already, the daughter of the deceased. At the time when she deposed before the Sessions Judge she was aged only ten years. The date of her deposition is 11th of December, 1975, whereas the date of occurrence is 20th of October 1970. Therefore, her age at the time of occurrence would be only about five years. Learned counsel drew our attention to her earlier statement in the committing court, where she said nothing on being questioned by the A.D.P.; she started simply weeping. Therefore, her age at the time of occurrence would be only about five years. Learned counsel drew our attention to her earlier statement in the committing court, where she said nothing on being questioned by the A.D.P.; she started simply weeping. Therefore, the cross-examination on behalf of the accused was declined. Before the Sessions Court, however, she stated that the appellant said to her mother to mud-wash the ground. He then caught hold of her and took her inside, and thereafter killed her with an axe. She identified the appellant in the dock, and pointed out to him. She further stated that Indrakant Pathak (P.W.15) is her elder brother. She also said that she told about the occurrence to her sister, Indu Kumari (P.W.14) and also to her grand-mother, Phulo Dai (P.W.5). In cross-examination she stated that she along with P.W.14 and other children was playing at the same place since noon on the day of the occurrence. When her brother (P.W.15) returned from market, he called her and took her home. He had returned when it had become very dark. Learned counsel has made a pointed reference to her statement in paragraph 4 of her deposition, where she stated that along with her father, brother and sister she was staying at Saharsa for the last three to four days. Probably, she means that she was staying in the Saharsa town; in other words, before making the deposition they had come to Saharsa town three or four days earlier. In that very paragraph she stated that she had deposed in the manner as she was told. The Hindi version of her deposition reads thus: "Jaisa jaisa kaha gaya hai maine beyan dia hai" In that view of the matter, learned counsel emphasised that her evidence should be completely discarded, as it goes to show that she was a thoroughly tutored witness, particularly, when she was aged about five years at the time of the occurrence. In our opinion, even if we discard her testimony on that ground there is other evidence on the record which lends full support to the prosecution story. On 26th of October 1970 the appellant made a confession before Sri Bindeshwari Pandey (P.W.9), the Chief Administrative Officer, who recorded his confessional statement under Sec.164 of the Code of Criminal Procedure. On being questioned, "What have you got to say about this case?", the appellant answered. On 26th of October 1970 the appellant made a confession before Sri Bindeshwari Pandey (P.W.9), the Chief Administrative Officer, who recorded his confessional statement under Sec.164 of the Code of Criminal Procedure. On being questioned, "What have you got to say about this case?", the appellant answered. "It was Tuesday. The sun was going to set. I called my Chacheri bhabhi (cousin brothers wife) to do chauka. (I called her to besmear the place of worship). When she came, I had dropped akshat at that place from before. I asked her to pick up the akshat. She picked up the akshat and kept the same in dibba. Again I asked her to bring water. She came with water and began to besmear. At that very moment I lifted an axe and assaulted her on her head. She died. There is one stroke on the throat also. The first two strokes are on the head and the subsequent one stroke is on the throat, I understood that she was dead". Another question was asked to the appellant- "Why did you do so?". To that he answered - "The conspiracy to kill me, which began, had started from the house of this bhabhi (brothers wife). Hence I did so. She played the part of heroine in it." The last question in this respect was - "Why did you decide to make statement here (in the court)?" To that he answered: "Previously I was never brought up in such environment in which there is fraud and deception and treatment against humanity. Secondly, it is also a crime to make unsuccessful attempt to conceal the crime after committing the same. Hence I made up my mind that whatever I would say, I would speak the truth.". 6. P.W.9 stated in his evidence that on 26th of October, 1970 he was posted as a Magistrate with first class power at Supaul. On that day he had recorded the confessional statement of the appellant as per order of the Subdivisional Officer. He further deposed that he had recorded the statement on observing all the rules. After recording his statement it was read over to the appellant, and after it was admitted by him to be correct his signature was obtained upon it; and P.W.9 has proved the confessional statement, which was marked as Ext.3. He further deposed that he had recorded the statement on observing all the rules. After recording his statement it was read over to the appellant, and after it was admitted by him to be correct his signature was obtained upon it; and P.W.9 has proved the confessional statement, which was marked as Ext.3. It may be noticed that in this particular case the appellant has not retracted his confession. On the contrary, in his statement before the committing court as well as before the Sessions Court under Sec.342 of the Code he had admitted his guilt. In the committing Court he stated to the question- "It is stated that on 20-10-1970 you killed the wife of Punyanand Pathak at village Hardi" "I killed the wife of Punyanand Pathak. I killed her by striking her on her head and neck with an axe. First I assaulted her on her head with an axe and probably she died of the first stroke. Even then as I was not definitely sure that she was dead I dealt blow with axe on her neck also. Prior to it she had tried to kill me by administering me pramar poison in curd. Hence I killed her. Finding my life in danger. I killed her." Before the cessions Court to the question- "It is stated that on 20-10-1970, in the evening, you called the wife of your own cousin brother Punyanand Pathak to do chauka and arrange articles for puja in your room and when she was besmearing chauka, you assaulted her on her head and neck with an axe (Kurher) as a result of which she died on the spot" - he answered. "Yes, sir. It is entirely true, I have committed the offence and I am guilty. "Another relevant question in this connection was asked - "It is stated that you were seen with an axe which was stained with blood by the side of the dead body-" and he answered, "yes, sir". A further question was asked - "Did the Magistrate record your statement u/s 164 Cr.P.C. in the court at Supaul on 22-10-1970"? (It appears that by mistake instead of 26th of October, 1970 the date was mentioned as 22nd of October, 1970.) The appellant answered- "yes, sir. A further question was asked - "Did the Magistrate record your statement u/s 164 Cr.P.C. in the court at Supaul on 22-10-1970"? (It appears that by mistake instead of 26th of October, 1970 the date was mentioned as 22nd of October, 1970.) The appellant answered- "yes, sir. "Another question relevant in this regard was asked- "Did you before making this statement, say, on being enquired by the Magistrate that you understood that you were making statement before the Magistrate in court that you had not been given any inducement or intimidation and that you further understood that you were making statement of your own free will, which would go against you in evidence?" The appellant emphatically answered - "Yes, sir." The other questions and answers read thus: "Q. On being enquired by the Magistrate as to what you had to say in connection with this case, did you say that on Tuesday at the time of sunset, you called your own cousin (chacheri) bhabhi to do Chauka. You called her to plaster the place of worship, that when she came, you had dropped akshat at that place from before, that you had asked her to pick up the same that she picked up akshat and kept the same in dibba, and that again you had asked her to bring water. She brought water and began to plaster. At that very time you lifted an axe and assaulted her on her head. She died. There was one stroke on the throat also. The first two strokes were on the head itself and the subsequent one stroke was on the throat. You took it that she was dead. Ans. Yes, sir. I made such a statement. Q. - On being enquired by the Magistrate as to why you did so you said that the conspiracy to kill you which began had started from the place of this bhabhi. Hence you did so. In it she played the part of the chief actress. Ans. - Yes, sir. Q. - Did you say, on being enquired by the Magistrate as to why you decided to make this statement here in the court that you were never before brought up in such environments where there would be fraud and deception and treatment against humanity. Secondly it was also a crime to make unsuccessful attempt to conceal the crime after committing the same. Secondly it was also a crime to make unsuccessful attempt to conceal the crime after committing the same. Hence you made up your mind that whatever you would say you would speak the truth. Ans.- Yes, sir, I made such a statement. Q.- Did you say in the statement after the evidence which the committing Magistrate Shri T. Narain had recorded at Supaul on 23.8.1971 that on 20-12-1970 you killed the wife of Punyanand Pathak by assaulting her on her head and neck with axe. You further said that at first you assaulted her on her head with an axe and probably she died of the first stroke. Even then on taking that she was not definitely dead you dealt blow on her neck also. Prior to it this woman tried to kill you by mixing paramar poison in curd. Hence you killed her. Finding your life in danger you killed her. Ans.- Yes, sir I made such a statement." 7. In Sarwan Singh Rattan Singh V/s. State of Punjab, AIR 1957 SC 637 = (1957 Cri LJ 1014), it was observed that in law it was always open to the court to convict an accused on his confession itself though he had retracted it at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case. We have already observed that in the instant case the confession was not retracted. Therefore, in this particular case the conviction of the appellant can be baaed on his confessional statement made under Ext.3. Reference may also be made to Hem Raj V/s. State of Ajmer ( AIR 1954 SC 462 ) = (1954 Cri LJ 1313) where it was observed at p.465 in para 12 (at p.1316 in Para 12 of 1954 Cri LJ); "A confession can be made even during a trial and the evidence already recorded may well be used to corroborate it. It may he made in the Court of the committing magistrate ........" Therefore, we have no doubt in our mind that the prosecution has been able to establish the guilt against the appellant, as we find by looking into the evidence on record that the confession of the appellant was voluntary and true. 8. Learned counsel for the appellant has also submitted before us that the prosecution story becomes doubtful as regards the manner of assault. He referred to the confessional statement (Ext.3) which we have quoted earlier to show that the appellant had dealt the blow while Ekwari Devi started besmearing, the ground with water. In other words, while she sat for besmearing, the assault was given on her. If that was so learned counsel contended, those injuries could not have been found on the parts of her body as deposed to by Dr. B.L. Das (P.W.11). He stated that on inspection and dissection one incised wound 5" x 1/2" x 4" was found on the face cutting the mouth in the left side, cutting the nostrils breaking the mandible bone, cutting the tongue, fracturing the mandible bone and seven upper and nine lower teeth, which were crushed in pieces. These pieces were found in the mouth. He also found one incised wound 4" x 2" x 3" on the front between the neck and the chin cutting the muscles and the vessels. Further, he found one incised wound 9" x 21/2" x 5" on the forehead and fracturing the frontal bone left parietal bone cutting through the brain substance up to 5" below. The brain matter was squeezed out due to pressure of the blow. Cranium cavity contained blood. A further injury, which was a bruise 1" x 1", was found on the left side buttock. By reference to the injuries as found by P.W.11, learned counsel emphatically contended that those injuries could not have been caused by the appellant while the deceased was in a sitting position. In our view, this submission of the learned counsel cannot be accepted. Even in that position the appellant could have easily dealt blows causing those very injuries, as it depended upon the angle under which the assaults were given. There could be no difficulty in changing the angle by the appellant by twisting his wrist while holding the axe in his hand. Even in that position the appellant could have easily dealt blows causing those very injuries, as it depended upon the angle under which the assaults were given. There could be no difficulty in changing the angle by the appellant by twisting his wrist while holding the axe in his hand. It may also be seen that P.W.11 has stated clearly in his evidence that the first three injuries mentioned above were caused by sharp weapon. It may be Kulhari. The fourth injury was caused by blunt substance, may be by fall. Earlier, this witness had stated that all the injuries were ante-mortem. Death, in his opinion, was caused due to shock and haemorrhage due to the above injuries. 9. Learned counsel for the appellant then submitted, alternatively, that the appellant at the time of the occurrence was insane and was incapable of distinguishing the right from the wrong. They have drawn our attention to S.84 of the Indian Penal Code, which reads thus. "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." In order to find support to their contention, they have referred to the evidence of P.W.1 who stated in cross-examination that the appellant had become insane. He was like an insane man since 11/2 years from before the date of occurrence. He further stated that one month prior to the occurrence the appellant had run for assaulting his wife also. His wife had fled away out of fear. He further said that the appellant was in military service. He was removed from service on account of insanity. He began to live in the village since then. Puragaman ceremony of the wife of the appellant had also been performed; still he did not recover. The appellant had also assaulted the wife of Anant (elder brother of the appellant). Lastly, in this connection, he stated that the appellant had attempted to cut his (appellants) neck also prior to the occurrence. He did not know whether he was punished or not. In this connection, learned counsel for the appellant drew our attention to Ext. The appellant had also assaulted the wife of Anant (elder brother of the appellant). Lastly, in this connection, he stated that the appellant had attempted to cut his (appellants) neck also prior to the occurrence. He did not know whether he was punished or not. In this connection, learned counsel for the appellant drew our attention to Ext. A, which is an order-sheet in G.P. 885/70 dated 22nd of March 1971, the relevant portion of which reads thus: "Accused Lilanand Pathak produced from custody. Heard on the question of framing charges and perused F.I.R. and case diary. There is charge against him that he cut and had injured his neck with a sharp weapon like Choora in an attempt to commit suicide. This is corroborated with statements of the witnesses made before the police officer. Accordingly a charge under Sec.309 I.P.C. is framed against him and its gist was read over and explained in Hindi and he has called himself guilty and admitted his guilt. In this regard his statement also recorded and in his statement also he stated that he was being declared a corrupt and neglected person in the society for no reason and that attempt to murder him was also made by other persons and that was why he in emotion attempted to commit suicide. I am also of opinion that due to loss of mental equilibrium owing to trouble and anxiety the accused in emotion committed such an offence. Therefore though I hold him guilty under Sec.309 I.P.C. I convict and sentence him to simple imprisonment for one month only for the above reasons. The accused sent to jail with conviction warrant." Learned counsel submitted that this happened prior to the occurrence, although the order was passed subsequent to the occurrence. On the basis of the said order, learned counsel submitted that it was clear that the appellant was suffering from insanity. In our opinion, nothing of importance in this connection, turned upon the evidence of P.W.1, as he was one of the hostile witnesses, and he was rightly declared hostile. In the Committing court he had not said anything about the insanity. In that court he had clearly stated that on arriving there he found the wife of Punyanand Pathak dead and there were cut injuries on her person. Lilanand Pathak was also present there. In the Committing court he had not said anything about the insanity. In that court he had clearly stated that on arriving there he found the wife of Punyanand Pathak dead and there were cut injuries on her person. Lilanand Pathak was also present there. Before the Sessions Court he stated that he did not see the injury on the person of the deceased as he did not go inside the room. Therefore, he was declared hostile before the Sessions Court. It seems that he was deliberately trying to conceal the truth and was out to help the appellant by saying that he was insane and, therefore, he had not committed the offence. Reference may be made to the case of Sat Paul V/s. Delhi Administration, ( AIR 1976 SC 294 ) = (1976 Cri LJ 295) where it was observed that even in a criminal prosecution when a witness was cross-examined and contradicted with the leave of the court by the party calling him, his evidence could not, as a matter of law, be treated as washed off the record altogether; and it was for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stood thoroughly discredited or could still be believed in regard to a part of his testimony. 10. Learned counsel also referred to the evidence of P.W.2. This witness was also declared hostile. He stated in cross-examination on behalf of the defence that he had seen the appellant assaulting his mother, father and others also. He further stated that he was unable to say if his mind was sound or not. We may also look to the evidence of P.W.2 before the Committing Court where he had stated in paragraph 1 of his deposition that in the evening when he learnt that the murder of the wife of Punyanand Pathak was committed, he came out of his house. He met with Sheonandan Pathak (P.W.8) and Punyanand Pathak (P.W.16) and went with them to the house of P.W.16. He saw that the appellant was sitting on a Chowki in his room on the ground. There were cut injuries on her person. One axe was lying at that very place. Blood had fallen there. This witness had resiled from this statement in the Sessions Court. He saw that the appellant was sitting on a Chowki in his room on the ground. There were cut injuries on her person. One axe was lying at that very place. Blood had fallen there. This witness had resiled from this statement in the Sessions Court. Therefore, he was also declared hostile, and much reliance cannot be placed on his testimony where he has tried to save the appellant on the ground of insanity. Therefore, from his evidence as well as from the evidence of P.W.1 it cannot be gathered that the appellant was suffering from legal insanity at the relevant time. The evidence on the record rather goes to show that he used to have lucid intervals. Therefore, in this particular case it cannot be said that at the time he committed the heinous crime he was suffering from insanity as enunciated in Section 84 of the Indian Penal Code. 11. *********** 12. *********** 13. ************ 14. 15. Learned counsel for the appellant also referred to the evidence of P.W.3 (After considering the evidence as to insanity their Lordships proceeded). 16. The last witness on the point is Moti Pd. Singh (P.W.12). As already mentioned, he was Mukhiya of Hardi Gram Panchayat. Like others, he was also declared hostile. He stated in examination-in-chief that he wanted to question the appellant, but seeing him in violent mood he did not do so. He saw the deceased lying dead there in the said very room. In cross-examination on behalf of the defence he stated that the appellant was mad. Therefore, he had directed that the family members should remain careful. It was just possible that he might assault some other person also. Whenever the appellant became insane he became violent. He used to become more violent than what he had seen him on that day. He had become insane several times before also. After returning from service he used to become insane. This witness also had stated that the appellant at times used to enjoy sound health also. He stated that he had asked the father of the appellant to keep him tied and to send him to Kanke or to some other place for treatment. Lastly, on this point he said that he saw the appellant quiet when the deponent went to the place of occurrence in presence of the Sub-Inspector of Police. He stated that he had asked the father of the appellant to keep him tied and to send him to Kanke or to some other place for treatment. Lastly, on this point he said that he saw the appellant quiet when the deponent went to the place of occurrence in presence of the Sub-Inspector of Police. The deponent further stated that he saw great difference in the condition of the appellant from what he had seen in the night. The Sub-Inspector of Police threatened the appellant when he had surrendered. 17. The evidence of the investigating officer (P.W.17) also indicates that when he went to the place of occurrence he saw in the Dalan of Sheonandan Pathak a crowd of 500 persons. The chain of the room of the house in which the accused, Lilanand was present was fastened. He unfastened the chain. He knocked the door. But it did not open. No sound was heard from inside either. In the said room on the opposite side on the east there was a window. He said that he pushed the leaves of the said window with a lathi and it opened. He saw the appellant (who was in the dock) standing inside the said room. He asked the appellant to open the door. Then the appellant came out. Thereafter, P.W 17 arrested him. 18. On this state of evidence it is contended that the appellant also did not try to away from the place of occurrence. That also, learned counsel for the appellant contended, was a conduct of the appellant which indicated that at the relevant time he was suffering from insanity which would absolve the criminal responsibility of the appellant under Section 84 of the Code. As against this stale of evidence there is the evidence of Punyanand Pathak (P.W.16), the husband of the deceased. He stated in his evidence, having been recalled by the prosecution, that the appellant never became mad. It was not a fact that he used to salute the deceased in the evening and morning. The appellant used to make hulla that the deceased gave poison to the applt. The deceased always said that there was irregularity in allotment of share. The survey operation was going on. He further stated that his wife used to complain about irregularity in the share. The appellant used to make hulla that the deceased gave poison to the applt. The deceased always said that there was irregularity in allotment of share. The survey operation was going on. He further stated that his wife used to complain about irregularity in the share. She used to ask the deponent to go to the camp to get the area of the land verified. He further stated in paragraph 21 of his evidence that 3 to 6 months prior to the occurrence the appellant used to raise hulla that the deponents wife used to administer poison to him. Therefore, in our view, it would be difficult to hold that the appellant is entitled to the benefit provided under Section 84 of the Code. 19. On behalf of the appellant, reliance was placed on Kamla Singh V/s. State, ( AIR 1955 Pat 209 ) = (1955 Cri LJ 825). Our attention was drawn to paragraphs 12 and 13 of the judgment. In paragraph 12 their Lordships have observed that in a case in which insanity is pleaded, two principles of onus run side by side but counter to each other; one covering the general principles of onus on the prosecution to prove the case beyond reasonable doubt and the other demanding from the accused to prove his special plea of insanity, that is, his case falls within the General Exception of law laid down in Section 84. These two principles, having opposite reactions, it is interesting to visualise as to where they meet and where the zone of one ends and the zone of the other begins. It was further observed that the prosecution would succeed only when it was found at the end of the trial that the circumstances necessary to prove the case beyond reasonable doubt were not in any way weakened by those in favour of the special plea of insanity. This test, if correct, suggests that the quantum of onus that is contemplated by Sec.105, Evidence Act, against the prisoner is that which should be enough to make the premise doubtful on the basis of which the prosecution has to discharge the onus, namely, that the prisoner was not of unsound mind and that he was capable of knowing the nature of the act alleged against him. In other words, the onus laid down in Sec.105 does not demand that the evidence of insanity if pleaded should be proved beyond reasonable doubt as it is required to be done by the prosecution in proving its case. In our view, nobody doubts this proposition of law laid down in the case referred to above. We agree that the onus for proving the case within the exception of Section 84 of the Indian Penal Code is not so rigorous as in the case of the prosecution proving its case beyond all reasonable doubt. None-the-less, there is some responsibility placed on the appellant under Sec.105 of the Evidence Act to bring his case under Section 84 of the Code. 20. On behalf of the appellant further reliance was placed on Etwa Oraon V/s. The State, ( AIR 1961 Pat 355 ) = (1961 (2) Cri LJ 357). In that case, their Lordships were considering the provisions of Sections 84 and 302 of the Indian Penal Code read with Sec.105 of the Evidence Act. It was observed that in order to succeed in a plea of insanity, the accused had to establish, firstly, that at the time of committing the offence he was of unsound mind, and, secondly, that the unsoundness of mind was of such a degree that he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The burden of proof in the matter rested upon the defence. The burden was not so onerous as the burden which rested upon the prosecution of affirmatively proving the guilt of the accused. The burden was discharged if the defence established facts and circumstances which might lead to a reasonable inference that at the time of the commission of the offence the accused was of unsound mind, the unsoundness of his mind being of the nature or extent mentioned in Sec.84. The burden was discharged if the defence established facts and circumstances which might lead to a reasonable inference that at the time of the commission of the offence the accused was of unsound mind, the unsoundness of his mind being of the nature or extent mentioned in Sec.84. It was not enough for the defence to rely upon a mere possibility that the accused might have been of unsound mind at the time when he committed the offence; what was required was that regard being had to the previous history of the accused, his behaviour before or at the time of the commission of the act and his subsequent conduct, coupled with other circumstances, the Court should be in a position to hold that there was a reasonable probability that at the time when the offence was committed the accused was suffering from unsoundness of mind of the nature or degree mentioned in Section 84. In our opinion, the above observation is of no avail to the facts and circumstances of the present case. As mentioned earlier, there is nothing on the record produced on behalf of the appellant to hold that there was reasonable probability that at the time when the offence was committed the appellant was suffering from unsoundness of mind of the nature or degree mentioned in Section 84. 21. Reference was also made to the case of U. Kannan V/s. State ( AIR 1960 Ker 24 ) = (1960 Cri LJ 73). In that case also Sections 84 and 300 of the Indian Penal Code came up for consideration. It was observed by their Lordships in that case that it would be puerile to hold that an occasional quarrel over the quality of meals would motivate a mature man to hack to death his old and defenceless mother. It was further held that the complete absence of motive or provocation, the nature and mutiplicity of the weapons used, the duration of attack, the maniacal fury with which the attack was delivered and his subsequent conduct were all indications that the accused was acting under some insane impulse, and, therefore, his act was saved by S.84 from constituting the offence. Learned counsel appearing against the reference has placed great reliance on the observation made by their Lordships in that case to show that the present case also has got facts similar. Learned counsel appearing against the reference has placed great reliance on the observation made by their Lordships in that case to show that the present case also has got facts similar. He submitted that the mind of the appellant was so excited over trifling matters like mud-washing of the ground and the direction to pick up akshat that without rhyme or reason several assaults were given by him to his cousins wife who was defenceless. On the evidence on the record of this particular case we find that there was some motive for the appellant to have committed the said crime. Reference may be made to the evidence of P.W.16 which we have already referred to. We may recall that P.W.16 has stated that his wife used to complain about the irregularity in the share and the appellant was apprehensive that the deceased was administering poison to him. This part of the evidence is corroborated from Ext.3, the confessional statement made by the appellant wherein he has stated, as mentioned earlier, that a conspiracy to kill him began and started from the house of the deceased. Hence, he killed her. He further stated that the deceased played the part of heroine in it. In his statement under Sec.342 before the committing Court also the appellant had made similar admission. Therefore, in our opinion, in the instant case there is evidence on the record to show that there was some motive for the murder. 22. On behalf of the appellant reliance was also placed on Dahyabhai V/s. State of Gujarat, ( AIR 1964 SC 1563 ) = (1964) (2) Cri LJ 472). But in that case, in our view, their Lordships have laid down the principles as regards the burden of proof, about which discussions have already been made. That apart, the observations made in the above case have also been made in Sheralli Wali Mohammad V/s. State of Maharashtra ( AIR 1972 SC 2443 ) = (1972 Cri LJ 1523) which, in our view, answers most of the contentions raised by learned counsel for the appellant. In that case, their Lordships observed in paragraph 13 at page 2446= (Para 13 at 1525 of Cri LJ) that it would be relevant to consider the evidence to see whether the accused was in an unsound state of mind at the time of the commission of the acts attributed to him. In that case, their Lordships observed in paragraph 13 at page 2446= (Para 13 at 1525 of Cri LJ) that it would be relevant to consider the evidence to see whether the accused was in an unsound state of mind at the time of the commission of the acts attributed to him. In that case also P.W.3, one of the brothers of the accused, had stated that the accused used to become excited and uncontrollable, that sometimes he behaved like a mad man and that he was treated by Dr. Deshpande and Dr. Malville. P.W 4, Hyderali, also a brother of the accused, had stated that the accused used to suffer from temporary insanity and that he was treated by Dr. Deshpande and Dr. Malville. The evidence of those two witnesses on the question of the insanity of the accused did not appeal to the trial court and the court did not place any reliance upon it. Their Lordships observed that the trial court rightly did so. No attempt was made by the defence to examine the two doctors. There was, therefore, no evidence to show that, at the time of the commission of the acts, the accused was not in a sound state of mind. 23. Learned counsel for the appellant have also contended that in the present case since the appellant had made a clean breast of the matter and had confessed his guilt under Ext.3 as well as admitted his guilt in his statement under Sec.342 of the Code of Criminal Procedure, it would also be indicative of the fact that he was of insane mind, and again it was reiterated that the occurrence took place on trifling matters. In our opinion, these submissions of the learned counsel for the appellant are not tenable. Reference may be made to the case of Oyami Ayatu V/s. State of Madhya Pradesh ( AIR 1974 SC 216 ) = (1974 Cri LJ 305) where their Lordships, inter alia, were considering the provisions contained under Section 84 of the Indian Penal Code. Their Lordships observed that the mere fact that the accused made a clean breast of the matter and admitted the various allegations of the prosecution would not go to show that he was of unsound mind. Their Lordships observed that the mere fact that the accused made a clean breast of the matter and admitted the various allegations of the prosecution would not go to show that he was of unsound mind. The further fact that the accused caused the death of the deceased over a trifling matter would also not warrant a conclusion that the accused was not a sane person. 24. Mr. Mishra, learned counsel appearing on behalf of the appellant, further contended that the trial of the appellant was vitiated due to non-compliance with the mandatory provisions contained under Sec. 465 of the Code of Criminal Procedure, 1898, equivalent to Sec.329(1) of the new Code of Criminal Procedure. The provisions contained under Sec. 465 of the Code read thus: "465.(1) If any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury, or the court shall, in the first instance, try the fact of such unsoundness and incapacity and if the jury or Court, as the case may be, is satisfied of the fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged. (2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of the trial before the Court." Mr. Mishra drew our attention to the order sheet of the Sessions Court D/-9-12-1975 wherein it was mentioned that a letter was received from the Superintendent of Saharsa Jail for permission to send the accused Lilanand Pathak to Hazaribagh Central Jail for psychic test. His mental condition did not remain normal. To that the Sessions Judge ordered that the hearing of the case had already been taken up and the case of accused was being defended by an eminent lawyer, Sri Haldhar Pd. Choudhary. The accused was attending the hearing duly. On the previous day on charge being explained the accused gave reply. Since the hearing had already commenced and there was nothing to indicate that the accused was incapable to make his defence, it was not desirable to accord permission for his removal to Hazaribagh Central Jail at present. Choudhary. The accused was attending the hearing duly. On the previous day on charge being explained the accused gave reply. Since the hearing had already commenced and there was nothing to indicate that the accused was incapable to make his defence, it was not desirable to accord permission for his removal to Hazaribagh Central Jail at present. It would amount to postponement of trial which was bound to cause harassment to the accused himself. The letter was, however, ordered to be kept on record. In order to find support to his contention, Mr. Mishra relied on the case of Chetu Mushar V/s. State, AIR 1954 Pat 129 =(1954 Cri LJ 196) and he drew our attention to paragraph 3 of the judgment at p.130 = (Para 3 at pp.196-197 of Cri LJ) where their Lordships observed that the trial held by the learned Sessions Judge in that case was completely vitiated, because the allegation as to the unsoundness of mind of the appellant was not investigated and the provisions of Sec. 465 of the Code were not complied with. It appears from the order-sheet of the learned Sessions Judge that during the cross-examination of the first witness Dhaneshwar Mushar it transpired that the accused was insane and that his insanity had continued up-till the day of the trial. The learned Sessions Judge observed that the trial could not proceed if he was insane even on that day, and he further noted in the order-sheet that after having put certain questions to the accused he was not able "to understand fully as to whether he was insane or sane at present". He further directed that the accused should be placed under medical observation, and the Civil Surgeon of Monghyr was asked to report about the sanity of the accused. The order of the learned Sessions Judge in that case was as follows: "It is, therefore, necessary to have him placed under medical observation with a view to understand his medical condition at present. The order of the learned Sessions Judge in that case was as follows: "It is, therefore, necessary to have him placed under medical observation with a view to understand his medical condition at present. If the Civil Surgeon, under whose observation the accused will be placed for a week, certifies that he is at present insane, then an inquiry is to be made under S.468, Cr.P.C. The Civil Surgeon will please keep the accused under his observation for a week or more, as he thinks necessary and report whether at present his mental condition is such as to make him unfit to follow the proceedings in this Court. The trial is adjourned to 16-5-1951. P.Ws. and assessors to reattend on that date and they have been so directed." In our opinion, the observations of their Lordships in that case would not be applicable to the instant case, as the very provisions contained under Sec. 465 clearly mention that the accused must appear to the court at his trial to be of unsound mind. In that case, it may be noticed that the learned Sessions Judge himself had observed that the accused was insane even on the day when the trial had begun. Their Lordships had also observed that the learned Sessions Judge was not able to understand fully as to whether he was insane or sane at that time. In that situation, their Lordships in that case had ordered that the whole trial was vitiated. The order-sheet of the learned Sessions Judge in the present case clearly shows that the learned Judge was of the view that there was nothing to indicate that the accused was incapable to make his defence. Therefore, the submission of Mr. Mishra in this regard is also unacceptable. 25 Now, the question arises whether this Court should confirm the death sentence on the appellant, as referred to by the learned Sessions Judge. Learned Counsel appearing against the death reference and on behalf of the appellant have relied upon Lachhman V/s. Emperor, (AIR 1924 All 413) = (25 Cri LJ 683) where it was observed that Section 84 did not apply to the case, but the capital sentence should not be passed. The proper course in such cases was to sentence the accused to transportation for life. The proper course in such cases was to sentence the accused to transportation for life. On the other hand, learned counsel for the State submitted that the instant case was a case of brutal murder, as it appears from the evidence of the doctor. He further pointed out that the appellant had given various strokes with the axe on the helpless lady in his own room. Therefore, according to him, the death sentence should be confirmed. On the facts and circumstances of the instant case and in view of the observations made in the case of Lachhman (AIR 1924 All 413) = (25 Cri LJ 683), we are of the view that, instead of confirming the death sentence of the appellant, we should award a sentence of rigorous imprisonment for life on the appellant. 26. In the result therefore, the reference is discharged, the two appeals filed by the appellant are dismissed, his conviction under Sec.302 of the Indian Penal Code is upheld and he is sentenced to rigorous imprisonment for life.