B. C. JAUHARI, J. ( 1 ) DHARAM Pal alias Dharam Deo has filed this appeal against his conviction under Section 302 Indian Penal Code and sentence of life imprisonment awarded to him by the judgment of the Sessions Judge, Moradabad, dated 3 1. 3. 1977. ( 2 ) THE occurrence relates to the murder of Rira Lal Kabar resident of village Maulagarh, P. S. Chandausi, District Moradabad in a most curious and strange fashion. It is said that the deceased Rira Lal had erected a hut on the out-skirts of the village in order to keep a watch on his field. On 9. 12. 1973 at about 7. 00 a. m. Rameshwar, P. W. 2, who belongs to the same village had gone to evacuate himself on the pond lying to the north of the hut. Be heard the groaning of Rira Lal and went to his hut. There he found Hira Lal tied with the pole of the hut. On making inquiries from Hira Lal, Hira Lal pointed out towards the accused who was sitting near him as the person who had tied him. When Rameshwar wanted to untie the strings, the accused rushed towards him with spear and accordingly Rameshwar came back to the village and alongwith Dhandhari, Asharfi P. W. 3 and Girdhari reached the hut. As they reached the hut, they found the appellant emerging from the hut and running away. He was given a chase and caught at a distance of about 100 paces and brought back to the hut. In the mean time, Hira Lal succumbed to the extensive burn injuries sustained by him. Leaving the accused in the custody of the villagers, Rameshwar dictated his report to Ram Chandra P. W. 4 and the report was taken to the Police Station Chandausi where it was lodged at 8. 45 a. m. On the basis of the written-report a formal F. I. R. was drawn up by the clerk constable Ram Ratan Singh P. W. 1 who registered a case in the General Diary copy of which Ex. ka. 2. The investigation of the case was conducted by Sub-Inspector Qazal Bash who is now dead and whose writings have been proved by Deengar Singh P. W. 6-who is acquainted with the handwritings of the deceased Investigating Officer Sri Qazal Bash. ka. 2. The investigation of the case was conducted by Sub-Inspector Qazal Bash who is now dead and whose writings have been proved by Deengar Singh P. W. 6-who is acquainted with the handwritings of the deceased Investigating Officer Sri Qazal Bash. The Investigating Officer visited the spot, took the accused in custody and held an inquest on the dead-body of Hira Lal in the presence of Mohan P. W. 5 son of the deceased and other Panches. After sealing the corpse and preparing the usual formal letters it was sent for post-mortem examination through constable Deengar Singh. The spear and samples of ashes with pieces of Dhoti and strings with which the deceased was tied. were collected and sealed and memos prepared. The Investigating Officer inspected the locality and prepared a site-plan which is Ex. Ka. 11. The Investigating Officer also interrogated the witnesses. Dr. J. P. Chaturvedi, P. W. 7, Medical Officer, District Hospital, Moradabad conducted an autopsy on the dead body of Hira Lal on 10. 12. 73 at about 3 p. m. The deceased. was found to have extensive first and second degree burns extending from the top of the head to the tip of the toes involving the front and back of the body, head, neck and thorax, abdomen, penis, scrotum, thighs, legs, arms, hands and feet. The internal organs were found congested, the stomach was empty. In the opinion of the doctor the death was due to shock and burns-vide the post-mortem report Ex. Ka. 13. After completing the investigation a charge- sheet -was submitted against the accused. ( 3 ) THE accused pleaded not guilty and in his statement in answer to a question whether he committed the murder, said that he was Dot in senses. Similarly he has feigned ignorance whether on an attempt of Rameshwar to release Hira Lal, he ran towards him with a spear. He again said that he did not know whether he ran from the hut on the arrival of the witnesses. Then he said that he did not know whether he was arrested after giving a beating. He also feigned ignorance whether the witnesses found Hint Lal tied, burnt and dead on the spot. In essence, therefore, the plea of the accused is one of insanity. Then he said that he did not know whether he was arrested after giving a beating. He also feigned ignorance whether the witnesses found Hint Lal tied, burnt and dead on the spot. In essence, therefore, the plea of the accused is one of insanity. ( 4 ) THE learned Sessions Judge after examining the evidence came to the conclusion that the appellant had failed to establish his plea of insanity and, therefore, he was not entitled to be acquitted or to the benefit of Section 94 Indian Penal Code being extended to him. ( 5 ) WE have heard the learned counsel for the appellant and the learned State counsel at great length and come to the conclusion that the plea of insanity must be accepted in this case and the accused-appellant be acquitted of the offence under Section 302 Indian Penal Code. As far as the factum of murder is concerned, there is absolutely no doubt in our mind that the murder was committed by the appellant. The evidence of Rameshwar P. W. 2 coupled with the statement of Ram Chandra P. W. 4 abundantly establishes that the deceased had been tied to a pole and when Rameshwar P. W. 2 tried to get him released, he was warded off by showing a spear and thereafter, he came with Dhandhari, Asharfi P. W. 3 and Girdhari and found the accused running away and the accused was then caught on the spot. Consequently, from the statements of the witnesses it is established beyond any shadow of reasonable doubt that the accused must have set fire to the deceased after tying him to a pole and was arrested on the spot. The statement of the accused quoted above also points in that direction. Consequently, the only point to determine is whether the murder was committed by the accused when he was possessed of his full faculties or that it was committed during a fit of madness and the case is covered by the exception provided in Section 84 of the Indian Penal Code. ( 6 ) THE accused in this case examined two defence witnesses. Tara Chand D. W. 1 is a clerk of the hospital for mental diseases at Shahadra, Delhi who has filed an extract Ex. kha. 1 about the admission of the accused in hospital for mental disease on 13. 12. 1971 and his discharge on 7. ( 6 ) THE accused in this case examined two defence witnesses. Tara Chand D. W. 1 is a clerk of the hospital for mental diseases at Shahadra, Delhi who has filed an extract Ex. kha. 1 about the admission of the accused in hospital for mental disease on 13. 12. 1971 and his discharge on 7. 2. 1972. Chaman La! D. W. 2 is the nephew of the accused. He has said. that the accused used to suffer from disorders of the mind and about seven years before he had also suffered from such a mental derangement. The accused used to tear his clothes and dance and run away from the house for 2 or 3 days the was admitted for treatment and electric shocks were given to him in the hospital. Thereafter he became alright. Then he again suffered from mental illness after a period of two years and was admitted to Shahadara Hospital under the orders of the Magistrate. On Sunday, i. e. , 2. 12. 1973 Tthe accused again suffered, from a fit of insanity and started tearing his clothes and beating the children. The witness went to Patel Nagar and lodged a report and two constables arrived. His aunt then intervened and the police, left with a warning that he should behave or else the accused would be confined in jail and directed him to hospitalise the accused. He was kept in confinement till 11 p. m. when he was released and then he escaped in the night and was not available despite a search. Relations were informed and later on it was learnt that he was implicated in a murder case in Chandausi. We have consequently to determine in this case as to how far this plea of insanity of the accused can be accepted. The learned Sessions Judge held that since the accused had failed to prove! that he was insane at the time of the occurrence and the burden lay on him, his plea of insanity should be repelled and it should be held to be a case of homicide. ( 7 ) THE question of burden of proof of insanity in a criminal prosecution has been the matter of consideration in several cases decided by the highest court. ( 7 ) THE question of burden of proof of insanity in a criminal prosecution has been the matter of consideration in several cases decided by the highest court. The learned Sessions Judge has referred to them in his judgment Section 84 of the Indian Penal Code read with Section 105 Illustration (A) of Indian Evidence Act lays down that the. burden of proof of the general exception is upon the accused and the court shall presume the. absence of such circumstance. There is also another principle that in criminal cases it is the duty of the prosecution to prove beyond all reasonable doubt the guilt of the accused. Section 105 of the Evidence Act which lays the onus of proof of general exception on the defence does not mean that such exception can be proved only from the evidence adduced by the prosecution itself. Burden can be discharged by leading evidence or by relyinq on the prosecution evidence itself. In the case of Ratan Lal v. State of M. P. it was held by Hon ble the Supreme Court that the crucial point of time at which unsoundness of mind has to be proved is the time when the crime was actually committed. The burden of proving this can be discharged by the accused from the circumstances which preceded, attended and followed the crime. In para 14 of the judgment it was held that the testimony of the defence witnesses as to unsoundness of mind of accused should not be disbelieved merely because they are relations of the accused. In the case of Abdul Latif v. State of Assam2, it was held that it is not justice to demand proof of insanity from a per son just recovered from mental derangement, and to demand of him to establish his mental faculties at the time of the offence. The insanity may be established only by preponderance of probabilities on the basis of some features fleaning from the conduct of the accused which point to a reasonable doubt that he had acted under circumstances set forth in Section 84. ( 8 ) SECTION 106 of the Evidence Act seems to be somewhat barsh in so far as proof of insanity is concerned. But Section 6 of the Penal Code must be treated as a Proviso to Section 106 of the Evidence Act. ( 8 ) SECTION 106 of the Evidence Act seems to be somewhat barsh in so far as proof of insanity is concerned. But Section 6 of the Penal Code must be treated as a Proviso to Section 106 of the Evidence Act. It imposes an obligation on the Court as well to consider the cases of exceptions on its own in so far as it relates to burden of proving legal insanity. Special knowledget envisaged in Section 106 of the Evidence Act is always imparied due to mental derangement. In this case the Supreme Court case refer red to above has been noticed. In 1963 Cri. L,j. Page 619 it was held that if the accused has a previous history of lunacy the burden shifts on the prosecution to establish negatively that the accused was not of unsound mind when he committed the offence. Lastly it may be observed that it has been held that even if the plea of the accused had not been affirmatively established and a reasonable doubt is created in the mind of the courts then too the accused is entitled to be acquitted. ( 9 ) APPLYING the principles of law laid down above, we find that in this case there is the evidence of the nephew of the accused that the accused was admitted to the mental hospital earlier. Even in this case a medical report was called from the doctor about the mental condition of the accused by the Chief Judicial Magistrate, Moradabad, on 3. 5. 1974 and thereafter the Chief Judicial Magistrate examined the doctor and the accused and passed a detailed order on 21. 10. 1974. The C. J. M. held that the accused was incapable of understanding the court proceedings and the doctor was of the opinion that he requires psychatric treatment. He was, therefore, released for treatment on the sureties undertaking to intimate about the condition of the patient. ( 10 ) APART from what has been stated above there are certain facts which speak for themselves and do not require any further comment. The first is that the murder was committed in very strange circumstances, viz. , by burning the deceased after tying him to a pole. The accused is a resident of district Rohtak and this murder was committed in the district of Moradabad far away from the house of the accused-appellant. The first is that the murder was committed in very strange circumstances, viz. , by burning the deceased after tying him to a pole. The accused is a resident of district Rohtak and this murder was committed in the district of Moradabad far away from the house of the accused-appellant. The accused had absolutely no motive whatsoever to commit this murder in this strange manner. According to the statement of Rameshwar he was not seen in the village prior to the date of occurrence. Though it was the oldest period of the winter as admitted by the witnesses, yet the accused was wearing an Angochha and had tied a Loong on his ears and was not wearing anything else. According to Rameshwar he was talking incoherently. From what has been stated above it is clear that the accused had a previous history of mental illness. He committed this murder \ in strange circumstances and in a strange fashion. He hd no motive to murder the deceased and had come along way away from his house. He was ill cland and scanity dressed in the oldest winter season. Then even the Chief Judicial Magistrate found him to be incapable of understanding the nature of the courts proceedings and released him as such. Under these circumstances the facts speak out for themselves and the plea of insanity must be accepted. In view of what has been said above, we would pass he following orders in this appeal. 4. In the result, the appeal is allowed. The accused is hereby given the benefit of exception of Section 84 Indian Penal Code and his plea of insanity is accepted and he is acquitted accordingly. Under Section 335 Criminal Procedure Code, however, we cannot release him without any strains attached to it. He shall, therefore, be taken into custody and examined by the doctor regarding his fitness to live in society. He may, however, be delivered to any relative or friend giving security to the satisfaction of C. J. M. Moradabad that the appellant shall be properly taken care of and prevented from doing injuries to himself or others and be produced for inspection before such officer as the State Government may direct. The C. J. M. shall report to the State Government the action taken by him. The C. J. M. shall report to the State Government the action taken by him. In case, however, the sureties fire not furnished, he shall be kept detained in jail until certified to be mntally fit. Appeal allowed.