JUDGMENT 1. - By his judgment dated October 1, 1977, the learned Sessions Judge, Jodhpur convicted accused Manglaram under Section 302, I P. C. for committing the murder of his wife and sentenced him to imprisonment for life. The accused has come up in appeal to challenge his conviction and sentence. 2. Put briefly the prosecution is that Smt. Douli aged about 18 years was the wife of the accused He suspected her fidelity. At about 6p m. on 21. 5. 77, while she was grinding wheat in her Jhoopar, the accused went to her with a lathi and struck blows on her head and other limbs. She succumbed to the injuries instantaneously. The accused thereafter took to heels. His father Phoosaram (P. W. 4) seeing him running came to Jhoopa' and found Smt Douli lying dead. Ho collected P W. 1 Narainram, P.W. 2 Harjiram, P.W. 3 Bhuraram, P.W. 5 Manglatam and P.W. 6 Gehararam The accused was caught and brought to the Jhoopa. Before them, he admitted ihat he had killed his wife Smt. Douli as he suspected her fidelity. The report of the occurrence (Ex. P/I) was drawn up by Sarpanch Harjiram (P.W. 3) and was sent to police station, Osian with P.W. 1 Narainram. He reached there at about 10. a m on 22. 5 77 and presented the report Ex P/1. The police registered a case and proceeded with investigation. The Station House officer Shri Hukamsingh (P. W. 7) arrived at the spot in village Ghewada on the same day and prepared inquest report Ex. P/2. He inspected the site and prepared the site memo. The blood stained soil was seized and sealed. The blood stained clothes of the victim were also seized and sealed. The post mortem examination of the victim's dead body was conducted at about 5:30 p. m. by P. W. 10 Dr. K. C. Chopra the then Medical Officer In charge, Government Dispensary, Osian. The doctor found the following injuries on the victim's dead body : 1. Lacerated wound 2" x 1/4" x bony deep on the right parietal region of the scalp, 5" above the right ear opening. 2. Lacerated wound 1" x 1" x bony deep on the left frontal region 1" above the left eye brow. 3. Contusion 1" x 3,4" just leteral to injury No. 2. 4. Lacerated wound 2" x 1/4" x bony deep on the right parietal region of the scalp, 5" above the right ear opening. 2. Lacerated wound 1" x 1" x bony deep on the left frontal region 1" above the left eye brow. 3. Contusion 1" x 3,4" just leteral to injury No. 2. 4. Surrounding area of left eye and upper lid was swollen and bluish black in colour with abrasion of I" x 1/2" on the upper eye lid skin. 5. Lacerated wound 2%" x 1" bony deep and up to brain matter and fracture of occipital bone and compression in the brain matter at occipital region present with perfused bleeding and cloth's. Injury No. 5 already mentioned, the occipital bone fractured and compressed, the brain matter and brain matter was coming out. Best all the other organs were healthy. No other body injury were seen. The size of fracture of the occipital bone was 2- " x 2^*' bleeding an cloth were present over the fracture. 3. In the opinion of Doctor Chopra, the cause of death was coma resulting from head injury, fracture of occipital bone and compression of the brain matter and the brain injury. He was also of the opinion that injury to the occipital bone was sufficient in the ordinary course of nature to cause death. All the injuries were ante-mortem and the death should have occurred at about 6 30 p. m. on 21. 5. 77. The postmortem report issued by him is Ex. P/20. The accused was arrested on 27. 5. 77 vide arrest memo Ex. P/11. In consequence of the information furnished by the accused whilst under police custody, lathi (Art. 4) was recovered. It was seized and sealed and seizure memo Ex. P/13 was prepared. The articles were sent for Chemical examination. The human blood was found on all of them including lathi (Art. 4), as per report of the Forensic Science Laboratory and serologist. On the completion of investigation, the police presented a challan against the accused in the court of Munsif and Judicial Magistrate, Jodhpur District, Jodhpur, who committed the case for trial to the court of Sessions Judge. he learned Sessions Judge framed a charge under Section 302, IPC against the accused to which he pleaded not guilty. During trial, the prosecution examined 11 witnesses and filed some documents In defence, no evidence was adduced. he learned Sessions Judge framed a charge under Section 302, IPC against the accused to which he pleaded not guilty. During trial, the prosecution examined 11 witnesses and filed some documents In defence, no evidence was adduced. The accused took the plea of insanity. The evidence adduced by the prosecution against the accused consisted of two sets (1) extra judicial confession made by him before his father and other witnesses and, (II) recovery of lathi (Art. 4) at his instance, which was found stained with human blood. On the conclusion of trial, the learned Sessions Judge held the charge duly brought home to the accused. The defence of insanity was rejected. The accused was convicted and sentenced as mentioned at the very out set. 4. We have heard the learned Amicus Curiae and the Public Prosecutor. We have also gone through the case file carefully. 5. In assailling the conviction of the accused, the first ground taken by the learned Amicus Curiae is that the court below crept into an error in accepting the extra judicial confession and basing the conviction thereupon. It was argued that tie extra Judicial confession is a very week type of evidence and conviction should not have been based thereupon, in reply, it was submitted by the learned Public Prosecutor that the evidence relating to extra Judicial confession was fine and solid and cannot be dismissed on any count. The extra Judicial confession was made by the accused before bis father and other persons of his own site. One of them was sarpanch. They had no motive to falsely implicate the accused. The approach of the (rial Judge to their testimony was justified. We have taken the respective contentions into consideration. Admittedly, there is no ocular witness of the occurrence The case against the accused rests squarely on the extra Judicial confession alleged to have been made by him. The witnesses speaking about the extra judicial confession are P.W. 1 Narainram, P.W. 2 Harjiram, P.W. 3. Bhura Ram, P.W. 4 Phoosa Ram, P.W. 5 Manglha Ram and P.W. 6 Gehara Ram. Out of them, P.W. 4 Phoosa Ram is the father of the accused. P.W. 2 Harji Ram is the Sarpanch of Gram Panchayat Ghewada. Each of them stated that when the accused was caught, he was asked as to who had killed his wife Smt. Douli. Out of them, P.W. 4 Phoosa Ram is the father of the accused. P.W. 2 Harji Ram is the Sarpanch of Gram Panchayat Ghewada. Each of them stated that when the accused was caught, he was asked as to who had killed his wife Smt. Douli. He stated before them that he himself had killed his wife. All these witnesses were cross examined on this point, but nothing could be extracted from them which may make their testimony unworthy of credit. As stated above P.W. 4 Phoosa Ram is the leather of the accused. It is difficult that he would falsely implicate his own son. P W. 2 Harji Ram is the Sarpanch. It is not expected from him that he would falsely depose against the accused. The remaining four are the caste brother of the accused. They bear no animus against the accused and no motive to falsely implicate him. 6. The extra judicial confession must be proved like any other fact. The value of the evidence as to the extra judicial confession like any other evidence depends upon the veracity of the witnesses to whom it is made. If the witnesses to whom the extrajudicial confession is alleged to have been made, have no motive to implicate the accused falsely, no risk is involved in accepting it as true and voluntary, The accused can be safely convicted thereon. 7. In Magbar Singh v. State of Punjab (1975 (1) (S. C. M. R. 621) , it was observed by their Lordships of the the Supreme Court that the evidence furnished by the extra Judicial confession made by the accused to witnesses can not be termed to be a pained evidence and if corroboration is required, it is only by way of abundant caution. If the court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction tan be founded on such evidence alone. 8. Recently, in Har Dayal v. State of U.P., (A.I.R. 1978 S.C. 2055) , lie same view was reiterated and it was observed that even an extra judicial confession, if cogently proved to have made truly and voluntarily, is an effecious proof of guilt. 9. 8. Recently, in Har Dayal v. State of U.P., (A.I.R. 1978 S.C. 2055) , lie same view was reiterated and it was observed that even an extra judicial confession, if cogently proved to have made truly and voluntarily, is an effecious proof of guilt. 9. In Piara Singh and others v. State of Punjab, ( AIR 1977 S.C. 2274 ) , it was held that an extra Judicial confession could be made the basis of conviction without any corroboration, provided it satisfied the conscience of the court. 10. In the instant case, the accused made the extra judicial confession before these witnesses referred to above. They have no motive to implicate him falsely, to these circumstances, the accused can be safely convicted on the strength of his extra Judicial confession without any corroboration. The approach of the learned Sessions Judge was correct and justified. The first ground advanced by the learned Amicus Curiae, thus, holds no ground. It was next contended that the recovery of lathi (art. 4) at the instance of the accused, does not stand satisfactorily proved. The contention is without force. The Investigating Officer Hukamsingh (PW 7) deposed that he arrested the accused on 27-5-77 vide arrest memo Ex. P/11. He deposed that after his arrest, the accused gave him information, which he recorded in Ex. P/12. The information admissible in evidence under section 27 of the Evidence Act is to the extent that he had put the lathi (Art. 4) in his `parwa', which he would get recovered. The witness further stated that the accused took him and the motbirs to his `Parwa. There he took out a lathi (Art. 4) and presented it to him. P, W. 8 Bhagirath is the motbir witness of this recovery. He has fully supported the prosecution and deposed that the accused took him and the police to his 'Dhani'. There, he took out lathi (Art. 4) and presented it to the police. The police seized and sealed it then and there. The recovery, thus, stand proved. We entertained no suspicion about this recovery of lathi (Art. 4). It was sent for chemical examination. Human blood was found on it is disclosed by reports Ex. J/15 and Ex. P/16 of the Forensic Science Laboratory and Serologist. The police seized and sealed it then and there. The recovery, thus, stand proved. We entertained no suspicion about this recovery of lathi (Art. 4). It was sent for chemical examination. Human blood was found on it is disclosed by reports Ex. J/15 and Ex. P/16 of the Forensic Science Laboratory and Serologist. This recovery of blood stained lathi, in conseqennoe of the information furnished by the accused and at his instance affords a valuable piece of circumstantial evidence against the issued. 11. Taking the extra judicial confession and the recovery of the blood stained lathi (Art. 4), it can be said without any hesitation that the accused was perpetrator of the crime and he had committed the murder of his wife Smt. Douli. 12. The last contention, but not the least in importance, raised by the learned Amicus Curiae pertains to the defence plea of insanity. It was argued and at length that the court erred in dismissing the defence plea of insanity. It was submitted that there was enough material in the evidence of the prosecution witnesses to show that the accused was of unsound mind at the time of committing the crime. We have Liven our anxious consideration to the contention 13. Section 84, IPC speaking about insanity runs as under : 84. Act of a person of unsound mind. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is capable of knowing the nature of the act or that he is doing what is either wrong or contrary to law." 14. The provisions of the sections were borrowed from the principles enunciated by a unanimous opinion of Fifteen Judges given in R. v. Daniel Mc. Naghten's case 1843 (8) E. R. 718) . The exemption engrafted in the section embodies the fundamental maxim of criminal law "Actusnon Facit Reum Nisi Mes' Sit Rea" popularity abridged as mens rea. The exemption has come up because of the absence of mens rea on the part of the offender. An insane is granted exemption and no culpability is fastened on him as he has no free will "Fursis Nuiia Voluntas EST" and is unable to understand the nature of the act committed by him. Insanity cause the absence of mens rea. 15. An insane is granted exemption and no culpability is fastened on him as he has no free will "Fursis Nuiia Voluntas EST" and is unable to understand the nature of the act committed by him. Insanity cause the absence of mens rea. 15. How, a Dichotomy of the section reveals the following ingredients (1) that the accused was insane, (2) that he was insane at the time when he committed the act and not merely before or after the act, and (3) that as a result of unsound ness of mind, the accused was incapable of knowing the nature of the act or that b/ was doing what was really wrong or contrary to law. 16. As regards, the burden of proof of insanity every person is presumed li be sane and it lies on the offender to dislodge this presumption. Section 105 of the Evidence Act specifically lays down that the burden of proving the general exception of Penal Code or any other law is on the accused. Illustration attached to the Section, which further clarifies the position, reads as under : "(a). A. accused of murder, alleges that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A." 17. The reason for enacting Sec 105 is that every one is presumed to know the natural consequence of his act and so also, everyone is presumed to know the law. 18. No doubt, the burden of proof to bring the case with ID the exception rests upon the accused. But it is not so onerous as the burden, which rests upon the prosecution of affirmatively proving the guilt, of the accused, it is trite law that the accused is not required to prove his defence to the hilt. A respondence probability is sufficient to discharge the burden. This burden of proof resting of the accused is not higher than that which rests upon a party to civil proceeding The defence of insanity may be established by direct evidence. The accused cause also rely upon the evidence led by the prosecution and is not bound himself to lead any evidence on the point. It would be useful to notice the observations of which Lordships of the Supreme Court made on the point. The accused cause also rely upon the evidence led by the prosecution and is not bound himself to lead any evidence on the point. It would be useful to notice the observations of which Lordships of the Supreme Court made on the point. In Dahyabhai Chhajanbhai Thakkar v. State of Gujarat, (1965 (2) S. C J. 531) , it was observed "The doctrine of burden of proof in the context of the plea of insanity rani be stated in the following propositions; (1). The prosecution must pro beyond reasonable doubt that the accused had committed the offence with the requite mens rea; and the burden of proving that always rests of 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 commit * the crime in the sense laid down by Section 84 of the Indian Penal Code; accused may rebut it by placing before the Court all relevant evident oral, documentary circumstantial, but the burden of proof upon him is dm 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 the he committed the offence, evidence placed before the Court by accused or by the prosecution may raise a reasonable doubt in the mind of the Court ail regards one or more of the ingredients of the offence, including means a of the accused and in that case the Court could be entitled to acquit to. accused on the ground that the general burden of proof resting that prosecution was not discharged." 19. In Bhikari v. State of Uttar Pradesh, (AIR 1966 S.C. 01) , it was observed; ' "If upon the evidenced adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105, of the Evidence Act." 20. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105, of the Evidence Act." 20. In State of Madhya Pradesh v. Ahmadulla (AIR 1961 S C. 998) , it I ms observed: "The burden of proof that the mental condition of the accused was, at the crucial period of time, such as is described by this section lies on the accused who claims the benefit of this exemption." 21. Again, in Sherali Wali Mohammed v. State of Maharashtra, (1972 C.A.H. 1114) , their Lordships observed : "The law presumes that every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. 1 he mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broke open, would not indicate that he was insane or, that he did not have necessary mense rea for the commission of the offence. We see no reason to interfere with the concurrent findings on this point either." 22. The mere atrocity of crime is not sufficient to make out an exception order section 84 of the Indian Penal Code. So also, the absence of an adequate motive for a serious crime like murder is not itself by proving sanity. 23. The proof of insanity of the accused at the nick of time is highly improbable. As such, behaviour antecedent, attendant and subsequent to the commission of the offence is relevant and must be taken into consideration in finding the mental condition of the accused. 24. Turning to the instant case in hand, the accused has not taken defence unsoundness of mind in his statement under Section 313, Cr. P.C. but that is not much importance. The failure of the accused to raise the plea of insanity as defence does not preclude him from setting up such a plea, if it is borne out of [evidence. It is the duty of the Court to take the plea in to consideration, if the Circumstances of the case and the evidence adduced by the prosecution justifies such plea. The failure of the accused to raise the plea of insanity as defence does not preclude him from setting up such a plea, if it is borne out of [evidence. It is the duty of the Court to take the plea in to consideration, if the Circumstances of the case and the evidence adduced by the prosecution justifies such plea. 25. P. W. 1 Narain Ram deposed then that when he reach the place of to Occurrence, the accused was found detained and tied. He was told by the accused the P. W. 4 Phoosaram that the accused had become of unsound mind and was, therefore, detained and tied The testimony of the witness is purely hearsay and orders no help to the accused. P. W. 2 Harijiram who turned hostile to the prosecution, deposed in cross examination by the accused that P. W. 4 Phoosaram told him tat the accused had become of unsound mind and, therefore, he was detained and id. The testimony of this witness is also of hearsay nature and affords no material tip to the accused. In his police statement Ex. P/6 Portion A to B with which he is confronted, he stated that the accused had escaped in the morning and that he is not available throughout the day i.e. after the occurrence had rake place. P.W. moon Ram deposed that the accused took to heels after committing the offence And he along with other persons chased him and brought him back. In his police easement Ex. P/7 portion A to B, he stated that the accused told him that he had Ailed his wife because she was not a woman of good virtue and he suspected hit Ideality. He further stated that when the accused was chased and caught, he put resistance and tried the escape. P.W. 5 Mangala Ram simply deposed that to accused while confessing the guilt, told him that he finished his wife because he felt giddy. There is nothing more in this statement. P.W. 6 Gehraram in his cion examination deposed that the accused was not up proper senses and used to tali irrelevant matters. P.W. 4 Phoosaram is the father of the accused. He state that the accused had become of unsound mind before the occurrence. He was detained and tied. There is nothing more in this statement. P.W. 6 Gehraram in his cion examination deposed that the accused was not up proper senses and used to tali irrelevant matters. P.W. 4 Phoosaram is the father of the accused. He state that the accused had become of unsound mind before the occurrence. He was detained and tied. In cross examination, he stated that at times, he used to take food and at other times he refused to take food. The accused used to tell him that he was visited by ghosts and evil spirits. 26. This is the entire evidence relating to insanity of the accused, on the basis of the above material, we are unable to accept the contention of the learnt(Amicus Curiae that the accused was become of unsound, when he committed to murder of his wife. 27. The accused was not found insane in the course of trial. His conduct also belies his defence of insanity. After committing the murder, he escaped and was brought back. When he was caught, he put resistance again to escape. Ask been stated by P. W. 3 Bhooraram, in his police statement Ex. P/7, the accused killed his wife because he suspected her virtue and fidelity. Though, the witness denied this part of statement during trial, yet the fact remains that he did state the fact during investigation. 28. It does not appear that any medical treatment to the accused to cure his insanity was given. It is expected that when a person goes mad, medical treatment is given to him to cure him. 29. The evidence relating to the insanity of the accused is not consisted One witness says that the accused felt giddy and the other says that they were to by the accused's father P. W. 4 Phoosaram that he had become insane. These facts are not sufficient to make out a defence of insanity. 30. It may be pointed out that the accused was medically examined by Dr. Pramod Bhardwaj and expert in Mental Disease. His report is Ex. P/19, Tb police got the accused examined as an abundant caution whether the accused was unsound mind. Dr. Bhardwaj was of the opinion that the patient was not suffering from any mental illness. It is true that the accused was kept under observation by Dr. Bhardwaj for the period from 23. 6. 77 to 29. 6. 77. P/19, Tb police got the accused examined as an abundant caution whether the accused was unsound mind. Dr. Bhardwaj was of the opinion that the patient was not suffering from any mental illness. It is true that the accused was kept under observation by Dr. Bhardwaj for the period from 23. 6. 77 to 29. 6. 77. No traces mental illness were detected in the accused by Dr. Bhardwaj. 31. The unsoundness of mind referred to in Section 84, IPC is a disease of the brain and not merely a disorder of the senses. The unsoundness is an inherent ai organic affliction. The material available on record does not induce us to hold this the accused was of unsound mind at the time of his committing the crime. 32. The learned Amicus Curie invited our attention to the observations the Supreme Court made in Ratan Lal v. State of M.P., (AIR 1971 SC. 118) . the observation made by the their Lordships are of no help to the accused. The accused was found insane on medical examination made on 29. 3. 65, while the offence was committed on 22. 6. 1965. The doctor opined that the accused was unsound mind. On the basis of this information and the other evidence, the Lordships held that when the accused was of unsound mind after the commission offence. He could be of insane mind at the time of committing the offence in view of the evidence of his near relations. That is not the position in the instant case in hand. The opinion of Dr. Bhardwaj speaks against the accused. There is thus no material to establish that the accused was a person, who could be held "Non Compos Mentis" at the time of the committing the murder of his wife. 33. As a result of the above discussion, we find on force in this appeal accused Manglaram. He was rightly convicted and sentenced. The appeal is consequently dismissed.Appeal dismissed. *******