JUDGMENT 1. - In this appeal, Mr. Jain who has appeared as Amicus-curae has not disputed the principal fact that the death of deceased Gajanand was caused by the various injuries given by the accused, who happens to be his son. His only contention is that no offence is made out because of accused being of unsound mind and unable to understand the nature of his act at the relevant time, on account of which his case is covered by exceptions of Section 84 IPC. 2. Before we proceed to examine this submission of Mr. Jain, it would be proper to mention the brief facts of the case. The prosecution case, which is now not in dispute and which has been established by cogent and reliable evidence is that the deceased Gajanand was sleeping in his house and the accused happens to be his son. According to the FIR., which was lodged by Rameshwar S/o Gajanand on 23.11.1971, it was alleged that in the night about 3.00 Gajanands wife Smt. Dakhan and Gajanand cried and prayed for help then he rushed in the house. In Gajanands house he found that the dead body of Gajanand was lying on the ground and Ram Chandra, accused was standing with an axe in his hand. As soon as Ramchandra saw Rameshwar, he gave an axe blow to him, which, fall on his right hands fingers and Ram Chandra ran away from Bada in the Jungle Sri-Krishan, Jagdish, Lala, Birda, Devi and Gopal etc. came there. The mother of the accused, who was present at that time gave the full story, in which she said that Ram Chandra came in the night and entered the house for taking and eating milk and Ghee. Gajanand on this cried that who is the thief, Ram Chandra then came out and started giving blows on the person of deceased Gajanand, on account of which Gajanand fell down and as the injuries were very serious he died on the spot. Ram Chandra then gave an axe blow to Rameshwar and then ran away. 3. After usual investigation and filing of challan, the trial of the case remained suspended for some time because of the mental stage of the accused and he was sent to the Mental Hospital for treatment. The trial then proceeded when the medical opinion was received that the accused is fit to be tried. 4. 3. After usual investigation and filing of challan, the trial of the case remained suspended for some time because of the mental stage of the accused and he was sent to the Mental Hospital for treatment. The trial then proceeded when the medical opinion was received that the accused is fit to be tried. 4. The trial court on consideration of the evidence of P.W. 1 Rameshwar, P.W. 2 Ratna, P.W. 3 Gopal, P.W. 4 Kishan, P.W. 5 Narain Das, Chawand Singh P.W. 6 and P.W. 7 Mr. Bhanwar Singh and also after taking on record the statement of Dakhan, Ex.P. 18 u/s 207 Cr.P.C. on account of her death during the pendency of the trial, examined the accused. The accused in his defence examined D. W. 1 Dr. Bal Krishan. The trial court on conclusion of the trial came to the conclusion that Gajanand died on account of the injuries caused by Ram Chandra with axe. The death was and Ram Chandra was responsible and liable for this death. The trial court then discussed the defence submission whether the accused was of unsound mind and he was entitled to the benefit of Section 84 I.P.C. and came to the conclusion that the facts and circumstances of the case are not sufficient for giving benefit of Section 8 I.P.C. to the accused and consequently, the accused was convicted u/s 302 I.P.C. and sentenced to life imprisonment. 5. As mentioned at the very out-set of the judgement, Mr. Jain has not challenged the other findings of the trial court, but concentrated on the plea of insanity. According to him, u/s 84 the moment the accused is able to prove that he was of unsound mind, and in any case it becomes probable the benefit of Section 84 I.P.C. should be given to the accused. In this connection, Mr. Jain relied upon the statement of the brother of accused, P. W. 1 Rameshwar and P. W. 2 Ratna. Both of them have stated that Ram Chandra before the date of the occurrence used to act in unusual manner. It was stated that his engagement was broken before 12 months of the concurrence and on account of that Ram Chandra started talking in an incoherent manner and used to remain silent meetly. Both of them have stated that Ram Chandra before the date of the occurrence used to act in unusual manner. It was stated that his engagement was broken before 12 months of the concurrence and on account of that Ram Chandra started talking in an incoherent manner and used to remain silent meetly. Both these witnesses therefore, tried to prove that the previous conduct of the accused was such that he could be termed or of unsound mind. 6. Mr. Jain has also pointed out the evidence of D. W. 1 Dr. Vyas in support of his plea of insanity. According to Dr. Vyas he had an occasion to treat Ram Chandra accused after his arrest at 2-3 times and in his view after his arrest when he was produced he was not acting as the person of soundness mind. In cross-examination, Doctor Vyas submitted that he is not in a position to say whether on 23-11-1971 the accused was insane or not. According to him he treated the accused form 8.6.72. to 7.2.73., 27-10-73 to 4.1.1974., 31.1.74. to 2-12-75. The accused used to remain silent and used to talk in an incoherent manner. Dr. Vyas stated that he was not in a position to state that since how long the accused was in such state of mind and it was not possible to mention the duration. He expressed that it is possible that the accused may be of sound mind earlier and may not be of unsound earlier and may not be unsound mind and both possibilities are there. 7. Mr. Jain relied upon a decision of Sunder Bairagi v. State, 1984 Cr. L.J. 124 wherein, their Lordships of the Orissa High Court, in the facts and circumstances of that case held that the accused was of unsound mind. In that case, the accused killed his wife and then tried to commit suicide. His brother was half mad and his father killed his wife. The accused after commitment of murder tried to cut his penis and earlier to the act he was found moving like a mad man and was not particular about his food. In such circumstances, it was held that the accused was entitled to the benefit of Section 84. 8. His brother was half mad and his father killed his wife. The accused after commitment of murder tried to cut his penis and earlier to the act he was found moving like a mad man and was not particular about his food. In such circumstances, it was held that the accused was entitled to the benefit of Section 84. 8. We are of the opinion that the circumstances of the Orissa case mentioned above are very peculiar where the entire family of the accused; his father and brother were having insanity. The act of the accused in trying to cut his own penis inflicting injuries on the person of his wife coupled with his earlier conduct of moving like mad man through-out the day, and all that, resulted in the inference drawn by the court that he was insane and of unsound mind and therefore, his act was covered by Section 84 I. P. C. 9. Similarly, in Mahadeb Ghosh v. The State, 1983 Cr. L. J. Page 1854, their Lordships of the Calcutta High Court had an occasion to consider the implications of Section 84 and where it can be available. Their Lordships observed that motive is not necessary in criminal trial normally and often it remains discovered. However, in a case of the peculiar nature with which their Lordships were dealing, it was observed that the presence or absence of motive assume some importance. In this case, the principle laid down by their Lordships was that the failure of the accused to offer any explanation consistent with his innocence, in a case where the prosecution has not otherwise succeeded in establishing a chain of events which with reasonable certainty fixed the liability on the accused, should be considered as a circumstance against the accused by itself. 10. We find that this decision no where helps the accused. 11. Contrary to it, we find that their Lordships of the Hon'ble Supreme Court in S. W. Mohammad v. State of A.I.R. 1972 S. C. were concerned precisely with the case u/s 84 of the Indian Penal Code and they observed as under:- "In order to see whether the accused was insane at the time of the commission of the offence, the State of his mind before and after the commission of the offence is relevant. The law presumes every person of the age of discretion to be same 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. The 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 broken open, would not indicate that he was insane, or, that he did not have the necessary mensrea for the commission of the offence." In Para 12, their Lordships observed as under : "To establish that the acts done are not offences under S,. 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind was incapable of either knowing the nature of the act or that the acts were either merely wrong or contrary to law. The question to be asked is there evidence to show that, at the time of the commission of the offence, he labouring under any such incapacity ? On this question, the state of his mind before and after the commission of the offence is relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution." In State of Madhya Pradesh v. Ahmadulla AIR 1961 SC 998 , their Lordships of the Supreme Court are concerned with interpretation of Section 84 IPC. and they observed as under : "(a) Penal Code (1860), S. 84 Unsoundness of mind-Burden of proof-lies on accused. The burden of proof that the mental condition of the accused was at the crucial point of time, such as is described by S. 84 lies on the accused who claims the benefit of this exemption." Their Lordships considered the medical evidence and observed as under : "On behalf of the defence, in support of the plea of unsoundness of mind three witnesses were examined, two of them being medical man. The first witness- Mahabir Singh was the District Civil Surgeon and Superintendent of the Mental Hospital. He spoke of having treated the accused in August, 1982 as a Private Patient. The first witness- Mahabir Singh was the District Civil Surgeon and Superintendent of the Mental Hospital. He spoke of having treated the accused in August, 1982 as a Private Patient. His deposition was to the effect that the accused had an spileptice type of insanity, the last time that he saw him being in August, 1982. i. e. over two years before the date of the occurrence. His evidence there-fore, cannot be very material not to say decisive-on the question as to whether at the moment when the offence was committed the accused was insane as defined by Sec 84 of the Code or not. The other medical witness examined for the defence was then of the Mental Hospital, who had examined the accused on and after November 18, 1984 i. e. nearly two months after the occurrence. His deposition also was to the effect that the accused was suffering from epilaptic insanity. The witness testified that at the first stage of the attack of a fit the patient becomes spastic, that in the second stage the patient would have convulsion of hand and feet and in the testimony stage becomes unconsicious and at the last stage the patient might do acts like sleep walking. Obviously this was expert evidence about the nature of the disease which the doctor stated the accused was suffering from and not any evidence relating to the mental condition of the accused the time of the act. The other witness who spoke about the mental condition of the accused was his father. In this evidence he stated; The accused was in a of mind in the evening of September 28, 1954. He had not taken food for two days. When I went to the shop on the morning of September 29, 1954, at 7.30 or 7.45 I found the accused was unconscious and that his hands and feet were stiffened. In this evidence he stated; The accused was in a of mind in the evening of September 28, 1954. He had not taken food for two days. When I went to the shop on the morning of September 29, 1954, at 7.30 or 7.45 I found the accused was unconscious and that his hands and feet were stiffened. Just then the police came there and took away the accused." On the basis of this evidence the Learned Sessions Judge after correctly stating the law that under S. 84 of the Indian Penal Code the crucial point of time at which unsoundness of mind should be established, is the time when the act constituting the offence is committed and that the burden of proving that an accused is entitled to the benefit of this exemption is upon him, summarised the evidence which had been led in the case in these terms:- "The next thing therefore to consider is whether the accused was incapable of knowing the nature of the act. The fact that the accused went at night to the house of his mother in-law, deliberately cut her head and brought it to his house is too obvious to show that the accused was capable of knowing the nature of the act. To put it differently, the accused while killing Bismilla was not under the impression that he was breaking an earthen jar. Even the learned counsel for the defence laid no stress on this aspect of insanity. He, however, contended that the accused was incapable of knowing that what he was was either wrong or contrary to law. "The learned Judge, however, rested his decision to acquit the accused on the following reasoning. "There is the circumstance that soon after the Crime the accused was admitted to the mental hospital and the Superintendent of the Hospital at least confirms that the accused suffers from epilptic fits. Now epilaptic is a kind of disease which may use insanity. This is called epileptic insanity. In this insanity the patient commits brutal murders without knowing what he was doing. The accused who suffered from epilepsy has committed a brutal murder. There is thus ground to believe that he may have committed this murder in a fit of epilaptic insanity.............. Now epilaptic is a kind of disease which may use insanity. This is called epileptic insanity. In this insanity the patient commits brutal murders without knowing what he was doing. The accused who suffered from epilepsy has committed a brutal murder. There is thus ground to believe that he may have committed this murder in a fit of epilaptic insanity.............. These things give rise to the inference that the accused may have committed the crime in a fit of insanity and without knowing that what he was doing was either wrong or contrary to law. I, therefore, find that the accused Ahmedullah did kill Bismilla by severing her head from the body with a knife but that by reason of unsoundness of mind he was incapable of knowing that what he was doing was wrong or contrary to law and that he is, therefore, not guilty of the offence of murder with which he is charged under S. 302, Penal Code and direct that the said accused be acquitted". The learned Judge had definitely found that the accused know the nature of the act he was doing a finding which as we shall presently point out, was concurred in by the learned Judges of the High Court. In the face of it we find it rather difficult to sustain the reasoning upon which the last conclusion is rested on the facts of this case. Referring to Henry Parrys case (14 Cri. App. Rep 48) (5) their lordships of the Supreme Court observed as under : "In this connection we might refer to the decision of the Court of Criminal Appeal in England in Henry Parry 14 Cri, App Rep 48 where also the defence was that the accused had been prone to have fits of epileptic insanity. During the course of the argument Reading, C. J. observed : "The crux of the whole question is whether this man was suffering from epilepsy at the time he committed the crime. Otherwise it would be a most dangerous doctrine if a man could say, "I once had an epileptic fit, and everything that happens hereafter must be put down to that." In dismissing the appeal the learned Chief Justice said : "Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under section defect of reason as not to know the nature and quality of the act which he is committing that is, the physical nature and quality as distinguished from the moral or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong. There is, however, evidence of a Medical character before the jury, and there are statements made by the Prisoner himself, that he has suffered from epileptic fits. The Court has had further evidence, especially in the prison records, of his having had attacks of epilapsy. But to establish that is only one step; it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders; and that has not been proved." We consider that the situation in the present case is very similar and the observations extracted apply with oppositeness. We consider that there was no basis in the evidence before the Court for the finding by the Sessions Judge that at the crucial moment when the accused cut the of his mother in-law and severed her head, he was from un-soundness of mind incapable of knowing that what he was doing was wrong. Even the evidence of the father does not support such a finding. In this connection the Courts below have failed to take into account the circumstances in which the killing was compassed. The accused bore ill will to Bismilla and the act was committed at dead of night when he would not to be seen, the accused taking a torch with him, access to the house of the deceased being obtained by stealth by scaling over a wall. Then again, there was the mood of which the accused exhibited after he had put her out of her life. It was a crime committed not in a sudd:n mood of insanity but one that was preceded by careful, planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy. We may also here mention the principles which their Lordships of the Supreme Court laid down in Jai Lal v. Delhi Administration AIR 1969 SC 15 . We may also here mention the principles which their Lordships of the Supreme Court laid down in Jai Lal v. Delhi Administration AIR 1969 SC 15 . The plea of insunity was taken in this case also Their Lordships discussed the affect of the evidence or absence of evidence regarding the motive and observed as under:- "The thing in favour of the appellant is that though he had a motive for attacking Baburam, no clear motive for attacking the child Leela or Parbati is discernible. But there is clear evidence to show that he know that his act of stabbing and killing was wrong and contrary to law. He concealed the weapon of offence. The knife could not be recovered in spite of searcher. He bolted the front door of his house to prevent arrest. He then tried to run away by the back door. When an attempt was made to him he ran back to his house and bolted the door. He then tried to disperse the crowd by throwing brickbats from the roof. His conduct immediately after the occurrence displays consciousness of his guilt. He knew the physical nature of stabbing. He knew that the stabbing would kill and main his victims. On a comprehensive review of the entire evidence the two courts below concurrently found that the defence of insanity under section 84 was not made out. We are unable to say that the of the courts below is erroneous." It was held that it was not established that the appellant was suffering from this incapacity of unsoundness 8i mind being incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.In the instant case, we cannot ignore the facts that both witness P.W. 1 6. Jailal v. Delhi Administration ( AIR 1969 SC 15 ) Rameshwar and P,W. 2 Ratna are the brothers of the accused. The mother of the accused did not mention anything about the insanity or unsoundness of mind of accused Ram Chandra. No such allegations were made in the first information Report, which was lodged by none-else but by P.W. 1 Rameshwar himself. In view of this general and vague allegation that the accused used to have some depression and used to remain silent earlier to the Commission of offence, cannot be taken as sufficient to prove insanity or unsoundness of mind. No such allegations were made in the first information Report, which was lodged by none-else but by P.W. 1 Rameshwar himself. In view of this general and vague allegation that the accused used to have some depression and used to remain silent earlier to the Commission of offence, cannot be taken as sufficient to prove insanity or unsoundness of mind. The evidence of Dr. Vyas, D.W. 1 is also not clinching because he had clearly and categorically stated that he examined the accused after his arrest and nothing can be said about the duration of the ailment.Section 84 of the Indian Penal Code reads 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 incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." We are of the opinion that in heinous and serious offence of murder, a vague and general plea of insanity cannot be allowed to be accepted except on cogent and credible evidence. It is true that the accused takes the plea of insanity and in the facts and circumstances of the case shows and proves the ingredients of section 84 then it is the duty of the court to grant benefit of the same. However, in the instant case, we find that 14 injuries were caused by axe on the persons of the father of accused and the accused also caused one injury to his brother. The fact that accused run away, also goes to show that he was conscious of the guilt and tried to escape. This leads to drawing an inference that the accused was not insane.It is well known that section 84, IPC embodied the fundamental maxim of criminal law, i.e. "actus non facit rows nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention. In order to constitute an offence the intact and Act must concur) but in the case of insane persons, no culpability is fastened on them as they have no free will (furiosis mulla voluntereet). In order to constitute an offence the intact and Act must concur) but in the case of insane persons, no culpability is fastened on them as they have no free will (furiosis mulla voluntereet). If a person, 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, he cannot be guilty of any criminal intent. Such a person lacks the requisite mens rea and is entitled to an acquittal, because he is best punished by his own madness.A distinction is to be made between legal insanity and medical insanity.According to medical science, insanity is another name for mental abnormality due to various causes existing in various degree. But a man, whom the medical science would pronounce as insane, does not necessarily take leave of his emotions and feelings. Hope revenge and act may still govern his mind. It is not not every foam of insanity or madness that is recognised by law as a sufficient excuse, indeed nothing short of the particular degree of insanity as laid down in Section 84. IPC, would bring a case within the exception. All other forms of insanity, and other minor aberrations of mind, which are recognised by the Medical science as amounting to madness be excluded in the eye of law.In Sarka v. State (AIR 1969 Orissa P. 102) it has been emphasised and held that there can be no legal insanity unless cognitive faculties of mind are as a result of unsoundness of mind, so completely impaired as to render the offender incapable of knowing the nature of the act so that what he is doing is wrong or country to law. The law laid down by the Orissa High Court is that a person may by a fit subject for confirmanant in a mental hospital but that fact alone will not permit him to enjoy exemption from punishment and, crotchetiness of cranks, feeble mindedness, may mental responsibility, more frenzy, emotional India lence, heat of passion, uncontrollable anger or jealousy, fits of insensate hatred or revenue moral depravity, dethroning reason incurable perversions, hypersensitive excitability, ungovernable fits of temper, stupid obtuseness lack of self-control, gross eccentricity and indios-yncresy and other similar manifestations, evidencing derangement of mental functions' by themselves, do not offer relief from criminal responsibility. There are forms of mental deficiency which will not excuse the commission of the crime. It is only unsoundness of mind, which materially empire the cognitive faculties of the mind, that can from a ground of an exemption from criminal law, the emphasis is, therefore, on un-soundness of mind which incapacitates the person from knowing the nature of the act or that he is doing what is either wrong or contrary to law.In Tola Ram v. Emperor (AIR 1927 Lahore P. 675) the accused when questioned by the committing Magistrate whether he had killed his father and inflicted injuries on him with the intention of causing death, replied that he had, an attack of insanity at the time and therefore could not say whether he inflicted any injuries to his father or not. In that case, the learned judge relied on the observations made in I. N. Reward Edward Arnold (16 St. Ir. 696) wherein Iracy J., observed as under : "It is not every kind of frantic humour of something unaccountable in a mans actions that points him out to be such a mad man as is to be exempted from punishments, it must be a men that is totally deprived of his understanding and memory and does not know that he is doing no more than an infant, than a brute or a wild beast. It is only such persons who are not the object of punishment." The learned judges of Lahore High Court observed, what the law protects in the case of man in whom the guiding light that enables a man to distinguish between right and wrong and between legality and illegality in completing extinguished, where such light is still flickering, the benefit cannot be given.The Learned Public Prosecutor submitted that the burden of proving insanity lies on the accused and in support of her contentions Mrs. Jain placed reliance on the various decisions of the Supreme Court like, State of Madhya Pradesh v. Ahmadulla (supra), Jailal v. Delhi Admn (Supra), Oyami Ayutu v. State of Madhya Pradesh (AIR 1974 SC P. 216), Bhikari v. State of U. P. (AIR 66 SC PI and D. C. Thakkar v. State of Guj ( AIR 1964 SC 1563 ). Lastly, Mrs. Jain, to substantiate her argument?, invited our attention to the decision of this Court in Mst. Surjali v. State of Rajasthan (1962 Cr. Lastly, Mrs. Jain, to substantiate her argument?, invited our attention to the decision of this Court in Mst. Surjali v. State of Rajasthan (1962 Cr. L. R. (Raj ) p. 405. In Mst. Surjalis case (supra), the accused jumped in the well along with the children. The appellant was taken out from the well and two children were dead in the well in her confessional statement made to accused appellant categorically stated that she jumped along with her children in the well, and took the plea of insanity and, this court observed as under : "On perusal of the statements in our opinion , it is not made out that the appellant was of unsound mind and was incapable of knowing the consequences of her act. It is not worthy that when rope was putin the well the appellant caught hold of the rope and with the help of the rope she came out of the well and she also said to Bholaram P. W. 5 when she was asked as to why she fell into the well, that her husband does not provide food to her and beats her, she fell into the well. Her conduct is coming out of the well and her statement of Bholaram go to suggest that she was not insane and she knew the consequences of her act. Thus the plea of insanity is not borne out." It would thus be seen that what is common parlance is known as Insanity or unsoundness of mind and to certain extent, in medical science, insanity is medical unsoundness of mind. Insanity of mind is not necessarily analogous to the requirement of unsoundness of mind as contemplated in S. 84 IPC. The emphasis in S. 84 IPC to the degree of unsoundness is of superlatives from where the accused is incapable of knowing nature of the act which he intended to do or that he is doing what is either wrong or contrary to law.In our sense, in many of the heinous offences, the act or the offence is not an act of sane person but it is mostly an insane act which normally a sane person would not do in a civilised society. To illustrate, when an adult male commits rape on a minor child of one year or two years, lust of sex assuming proportion of insanity or when ghastly murders are committed, in a most barbarous and cruel manner. It is nothing but a fact of anger or revenge which partakes character of the insanity but, that cannot be insanity in law. The present act of the accused is common parlance would certainly be known as an act of insanity and even to a limited extent it were boarded on the thin line of medical insanity but it falls for short of legal insanity. We are convinced that it is not a case where the accused was unable to understand nature of the act at the relevant time. We are, therefore, convinced that in view of the statement of law regarding insanity as contemplated by S. 84 IPC as per the decisions of S. W. Mohammad (supra), State of Madhya Pradesh v. Ahmadulla (supra), Henry Parrys case (supra), Sarka v. State (supra), Tola Ram v. Emperor (supra), Mst. Surjalis case (supra), the present appellant Ram Chandra cannot be given benefit of S. 84 IPC. in the present set of circumstances.On a very thoughtful consideration of the entire evidence, we are convinced that it has not been proved that at the time the accused killed his father by giving successive blows by axe on the vital parts of his body, he was by reason of unsoundness of mind incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving it lies on the accused in order to entitle him to the exemption provided under S. 84 IPC. Since the accused has failed to prove the plea of insanity as contemplated by section 84 IPC, we have got no hesitation in expressing our agreement with the findings of the trial court and confirming the same.The result of the above discussion is that the appeal fails and hereby dismissed. The conviction of the accused under Section 302 IPC. and sentence of life imprisonment awarded by the trial court is maintained. *******