JUDGMENT M. Fathima Beevi, J. 1. Kundathil Aboobacker, the accused in Sessions Case No. 5 of 1986 before the Sessions Judge, Kalpetta was convicted under S.302 IPC and awarded the capital punishment. The reference is for confirmation of the death sentence.The appeals have been preferred against the conviction, one by counsel for the appellant and the other by the appellant himself from the jail. 2. Kuruman, a tribal, his mother Vellachi, sister Kembi and sister's two children were killed on 7-1-1982 at about 7.30 P.M. The appellant was tried on the charge of murder. He was also charged under S.3 read with S.25(1)(a) of the Indian Arms Act. 3. The appellant Aboobaker aged 36 was living near the tribal colony at Vellimadukunnu along with his two wives and thirteen children. Kuruman, a labourer lived close by. He used to work for the appellant. The prosecution alleged that of late the appellant was infuriated by the refusal of Kuruman to work for the appellant. On the date of the occurrence at about 7.30 P. M. Kuruman was going towards his house along the foot path. The appellant armed with an unlicensed gun and a dagger dashed against him from behind, first administered a blow using the gun which was then broken and thereafter inflicted stabs using the dagger. Vellachi and Kembi attracted by the outcry of Kuruman rushed out of the house and while advancing towards Kuruman were attacked by the appellant with the same weapon. Kembi was holding the baby and her 3 year old daughter Lakshmi accompanied her. These children were also injured. All except the children died on the spot. The injured children though rushed to the hospital, later succumbed to the injuries. The appellant moved away from the place when neighbours came. He was overpowered and restrained by his brother and others and later handed over to the police. PW 4 Ibrahim, a neighbour of the appellant had witnessed the whole occurrence. 4. The crime was registered against the appellant by PW 19 on the same day at 21.00 hours on recording Ext. P1 statement of PW 1, an autorikshaw driver, who happened to visit the scene of occurrence and removed the injured children to the hospital. The appellant was arrested the same night by PW 23, the Circle Inspector, and in the course of investigation the appellant was referred to the mental Hospital for observation. P1 statement of PW 1, an autorikshaw driver, who happened to visit the scene of occurrence and removed the injured children to the hospital. The appellant was arrested the same night by PW 23, the Circle Inspector, and in the course of investigation the appellant was referred to the mental Hospital for observation. PW 23 had seized on 7-1-1982 at 22.30 hours under Ext. P2 MO 1 knife, MO 2 broken barrel of the gun, MO 19 empty cartridge case. The inquest on the dead bodies was held on 8-1-1982 and Exts. P17, 18, 19, 25 and 26 reports were drawn up. MOs 18 and 19 broken parts of the gun were recovered from the scene. On a search in the house of the appellant, PW 23 also seized MO 6 Udukku, iron pellets, text books, besides empty cartridges, pellets etc. seen lying scattered in the courtyard. After the inquest on the dead body autopsy was conducted by PWs 9 and 22. The final report was filed on completing the investigation. 5. The plea of the appellant was one of insanity. The trial court accepted the testimony of the eye witness, rejected the plea raised by the appellant and found him guilty. 6. What is urged before us in the appeal is that there were sufficient materials to probablise the plea that the appellant by reason of unsoundness of mind was incapable of knowing the nature of the act or that what he was doing, was wrong or contrary to law and that the conviction is therefore bad. 7. There had been no serious challenge that the five members of a tribal family were killed, that the appellant was the assailant and that the incident happened as alleged. What is to be considered is whether the appellant acted without the requisite means read when he was deprived of the cognate faculties of the mind and whether the circumstances preceding the event, what transpired in the course of the incident and subsequent events when taken into consideration would probablise the plea of the appellant. The learned counsel for the appellant referred to the recent decision of this court in Kuttappan v. State of Kerala. The learned counsel for the appellant referred to the recent decision of this court in Kuttappan v. State of Kerala. 1986 KLT 364 and argued that it is not for the appellant to prove beyond reasonable doubt the fact that he was insane and if there is preponderance of probability in favour of the accused he is entitled to be acquitted. 8. The learned Public Prosecutor maintained that when the appellant has set up a specific plea of insanity it is for the appellant to satisfactorily prove the same by tendering evidence in support of the plea and that the evidence on record does not satisfactorily prove legal insanity as envisaged in S.84 of the Indian Penal Code. 9. If upon the evidence 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 he is entitled to be acquitted. The burden of proving an offence is always on the prosecution and it never shifts. The state of mind of a person can ordinarily only be inferred from circumstances. S.84 of the Indian Penal Code can be invoked by a person for nullifying the evidence adduced by the prosecution. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused by reason of unsoundness of mind was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. This is a matter of inference from proved circumstances. 10. Dealing with the question of burden of proof in such cases it is pointed out in Kuttappan v. State of Kerala, 1986 KLT 364 that in order to decide this question, the court has to examine the available material such as oral and documentary evidence and should have due regard to admissions, presumptions and even the prosecution evidence. The burden which rests on the accused is however not higher than that which rests upon a party in a civil litigation. The crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed. The burden which rests on the accused is however not higher than that which rests upon a party in a civil litigation. The crucial point of time at which unsoundness of mind should be established is the time when the crime was actually committed. For this purpose, the state of his mind, both before and after the commission of the act, is also relevant, the court has to pay due regard to the circumstances which preceded, attended and followed the act. It would not be proper to assume that the investigating officer is to direct his attention only to the act but not to the means read. Of course, ordinarily the attention of the investigator would be directed to the act, particularly in the absence of circumstances throwing any doubt on the sanity of the perpetrator of the act. But where the investigator comes across any suggestion or material throwing any such doubt it would be his duty to investigate the mental condition of the accused also and place the material before court. Noticing the facts of that case, the court observed thus: "Shortly before the occurrence, he told PW 4 and others that there was somebody in his house, evidently suggesting that somebody in his house was dallying with his wife, a statement which was verified by PW 12 and found to be absolutely untrue. Even a perfectly normal person could entertain unfounded suspicion about his wife's chastity. But in the background of the medical evidence placed before the court, we are justified in coming to the conclusion that in the instant case it was only a paranoid delusion on the part of the appellant. We have no reason to doubt the evidence to the effect that he was a person of unsound mind suffering from paranoid schizophrenia. The disease leads to disintegration of personality and disorientation of mind as well as emotional disturbances, though for all outward purposes the patient would appear to be normal." According to learned counsel for the appellant the facts are similar in the present case and the medical evidence would lead to the inference that the appellant was under paranoid delusion when he committed the act. 11. Though the prosecution has alleged that it is a motivated act the evidence is not satisfactory to prove the alleged motive. 11. Though the prosecution has alleged that it is a motivated act the evidence is not satisfactory to prove the alleged motive. We do not see any motive alleged either in the first information report or when the inquest was drawn up. The allegation was that for some unknown reason the appellant had acted in that manner. It is only in the final report that the allegation is made that the appellant wanted to wreak vengeance on account of the refusal of Kuruman to work under him. The appellant had no land. He had disposed of his bullocks long prior to the incident. There is no direct evidence that there had been refusal on the part of Kuruman to work when required to do so by the appellant. There is only a surmise on the part of the villagers that the appellant had been entertaining hatred towards the deceased person. It is a case where adequate motive for the crime is not proved. That, of ccourse, is a relevant factor in the circumstances of this case. 12. As soon as the crime was registered against the appellant, he was placed under medical observation on the basis of the report of PW 23, the investigating Officer. The occurrence happened at 7.30 P.M. He remained at the scene even after all the five persons received the fatal injuries. The neighbours gathered. He was overpowered by his brother and PW 2 and kept by them until the police arrived. He was handed over to the police officer who effected the arrest at 10 P.M. He was admitted in the mental hospital on 13-1-1982 and released on bail on 24-6-1982. He was again admitted in the mental hospital on 23-12-1982 and discharged on 22-1-1983. Again he was admitted in the mental hospital on 26-1-1984 and was under observation and treatment until 29-6-1984. He was again admitted on 23-3-1985 and produced in court on 17-7-1985. The trial commenced only after 31-7-1985 on which day the medical officer certified that he was in a fit condition to stand the trial. 13. The case history thus reveals that the appellant, soon after the incident was round to be mentally deranged and had been under prolonged treatment. CWs 1, 2 and 3 are the doctors examined to prove the mental condition of the appellant. Exts. C1, C2 and C3 are the reports. 13. The case history thus reveals that the appellant, soon after the incident was round to be mentally deranged and had been under prolonged treatment. CWs 1, 2 and 3 are the doctors examined to prove the mental condition of the appellant. Exts. C1, C2 and C3 are the reports. PW 18 is also one of the doctors who had examined the appellant. Ext. C2 dated 29-1-1982 is the first report sent by CW 2, Dr. Santhakumar who was then the Superintendent, Mental Hospital, Calicut. Ext. C2 is to the effect that the appellant was kept under observation from 13-1-1982 till 29-1-1982 and that a definite clinical diagnosis is not possible in the absence of a reliable history from his close relatives or friends as the EEG to rule out psychomotor epilepsy could not be conducted. It was further pointed out that the clinical psychometric studies revealed psychopathic personality characteristics and depressive features. CW 1, Shri. K. Purushothaman Unnithan was the psychologist to whom the appellant was referred by Dr. Santhakumar. In Ext. C1 report CW 1 stated that the appellant kept complete amnesia about the incident. CW 1 deposed that if a patient is found as psychopathic and if it is also found that he is suffering from amnesia for a particular period, it is safe to assume that during the time with respect to which he is suffering amnesia he must have been suffering from some severe type of emotionally traumatic experience. If subsequently it is found that he was suffering from schizophrenia it is possible that he may have been suffering from schizophrenia during the period with respect to which he was unable to remember. In such conditions a man might not have been responsible for his own actions. CW 1 further deposed: "If the individual had dirty habits, no caring for his food, moody in temperament, wandering into the forest and not remembering the same, feeling that he is surrounded by enemies having a delusion that enemy aeroplanes are hovering over his head, shooting at aeroplanes etc. that person might have been suffering from schizophrenia." CW 1 is not a psychiatrist. In cross examination he said that the patient was not having any intellectual deterioration and not much psychiatric failures were detected in his tests, that is to say, disorientation, irrelevant 5 incoherent talk, intellectual deterioration etc. that person might have been suffering from schizophrenia." CW 1 is not a psychiatrist. In cross examination he said that the patient was not having any intellectual deterioration and not much psychiatric failures were detected in his tests, that is to say, disorientation, irrelevant 5 incoherent talk, intellectual deterioration etc. CW 1 added that if a patient is found to be psychopathic there is a possibility that he was suffering from schizophrenia sometime. 14. CW2 stated that he made some general observations and referred the accused to the clinical psychologist and neurologist. The witness had no doubt that he was suffering from schizophrenia. He formed the opinion from case history and confirmed from his own observation. In his opinion it is possible that the mental illness noticed was there a week or ten days prior to his admission or prior to that. From the fact that he had been given long continued treatment it is extremely likely that he was suffering from the condition sometime prior to his admission. It is possible that it is a neglected schizophrenia. CW 2 affirmed that the appellant was being treated in the hospital for a very long time. From his original admission on 13-1-1982, he was suffering from schizophrenia. When he was brought in he was a mental patient, and the witness is positive that he was a mental patient. CW 3, Dr. T. Suresh is a qualified psychologist. Ext. C3 is the report CW 3 sent to CW 2. CW 3 affirms that the patient was suffering from schizophrenia. From the condition in which he found the appellant he was of the view that it is very likely that he was suffering from the illness in 1982 also, that is, he was suffering from the illness sometime back through he cannot say exactly from which date. 15. PW18, Dr. Mathew Cherian, is the Professor of Neurology, Medical College, Kottayam, The appellant was referred to him for diagnosing psycho - motor epilepsy Ext. P1 is the certificate issued by the witness to the effect that the patient has no organic neurological deficit clinically and EEG done on him do not show any evidence of seizure activity including that of temporal lobe. Ext. P11 certificate is dated 24-6-1982. P1 is the certificate issued by the witness to the effect that the patient has no organic neurological deficit clinically and EEG done on him do not show any evidence of seizure activity including that of temporal lobe. Ext. P11 certificate is dated 24-6-1982. PW 18 deposed that temporal lobe is one part of brain mainly concerned with memory mechanism, and temporal lobe epilepsy is a type of epilepsy which can manifest as episodic attacks of behavioural disturbance. The witness added that during the examination he did not find any abnormality in the accused clinically and electro graphically. In cross examination the witness said that in temporal lobe epilepsy the clinical manifestation could vary rarely may get prolonged for a few hours, but not days. The manifestation of this disease come of and on and in between the attacks the individual may look apparently normal. His opinion is based on case history, clinical examination and EEG. The witness, without referring to the case sheet, was unable to say how many days after the incident he treated the appellant. It is said that one cannot diagnose epilepsy if the clinical manifestation does not occur at the time of examination or the EEG does not bring out epilepsic discharges and one cannot diagnose epilepsy at that particular time. But if there is a valid and reliable history from an onlooker during the time of clinical attack, the possibility of temporal lobe epilepsy still exist. Ext. P12 report for referring the appellant for medical examination by PW 18 was filed on 2-5-1982 at the instance of CW 2. It is after obtaining Ext. P11 report that CW 2 has given evidence before court, that he had no doubt that the appellant was suffering from schizophrenia though he cannot say whether at the time of the incident the appellant was suffering from mental disorder or disease. But in his opinion it is possible that the mental illness noticed was there a week or 10 days before his admission or even prior to that and it is possible that it is a neglected schizophrenia. When this evidence of the medical witness is accepted, we have necessarily to see the action of the appellant as not that of a normal person. When this evidence of the medical witness is accepted, we have necessarily to see the action of the appellant as not that of a normal person. Therefore, the relevancy of an adequate motive, the behaviour of the appellant prior to and in the course of the incident and immediately there after are required to be anxiously scrutinised. 16. PW 1, an autorikshaw driver is the first informant. While he was returning after a trip at about 7.30 P.M. on 7-1-1982 he was approached by the persons at the place of occurrence to carry the child to the hospital. The child was in a critical condition and it had to be taken to the Medical College Hospital. He returned to the place of occurrence to give the information and there he saw Kuruman, Vellachi and Kembi lying dead. The broken pieces of the gun were lying closely. He reported the matter at the Battery Police Station. Ext. P1 is the statement recorded. Having gone to the scene of occurrence and collected whatever information he could get PW 1 gave the first information statement. Three persons have accompanied him. He could not furnish any information as to the circumstances under which the act was committed. Inquest on the dead bodies were held on 8-1-1982. Exts. P17, 18, 19, 25 and 26 are the reports. Ext. P17, the report relating to Kuruman shows that in the course of the inquest, Kakku and Mohammad, two neighbours were examined. Even at that stage no motive for the crime could be discovered. 17. PW2 is the nephew of the appellant. He was in the mosque when the incident happened. Noticing the commotion he rushed to the scene. He saw the appellant being held by his brother Kunhimoidu and a few others. The accused was still holding the knife in one hand and the broken piece of the gun in the other. PW 2 and the others removed the appellant to his brother's house and snatched the weapon from him PW 2 said that after the appellant was produced before court he was admitted in the mental hospital and from there he has been entrusted to the appellant's father and PW 2 on bond. PW 2 narrated the history of the appellant. He said that the appellant was taken to the place Earvadi. He was chained and bathed twice a day. PW 2 narrated the history of the appellant. He said that the appellant was taken to the place Earvadi. He was chained and bathed twice a day. He was also taken to one Aboobaker Moulavi at Calicut for treatment. The appellant behaved abnormally even earlier. He had two wives and several children. All of them were residing together. Until his second marriage he lived with his father, but shifted to the paniyar colony as the second marriage was not approved by his father. He had two bullocks. He worked under a contractor for carrying timber. He sold his bullocks. He was depressed. He did not like others visiting his house. He used to wander in the forest. His were abouts were not known for few days thereafter. He would not talk. Occasionally he would be excited. He would not take food or take his bath. This was aggravated a month before the incident. He was neglected by others. On the date of the occurrence he had been to the place where slaughtering was done and just before the incident an aeroplane was seen hovering over the area PW 2 and the appellant were residing on the slopes on either side of a hill. The adivasies used to work in both houses. PW 2 had accompanied the appellant to Earvadi. PW 2 looks after the cultivation in a small plot owned by the appellant. PW 2 was not declared hostile. His version supports the defence case that the appellant even before the incident, was abnormal in his behaviour and was under treatment. He was not properly attended to and there had been no attempt to diagnose his complaints or give adequate treatment. 18. PW3 Varghese is an inhabitant of the same locality. He came from his house only after the incident to see the appellant being kept in the house of his elder brother. PW 3 also saw the appellant holding MO 1 knife and MO 2 barrel and it is in the presence of PW 3 that PW 2 managed to take away these items from the appellant. PW 3 was questioned by the police on the date of the occurrence. PW 3 also saw the appellant holding MO 1 knife and MO 2 barrel and it is in the presence of PW 3 that PW 2 managed to take away these items from the appellant. PW 3 was questioned by the police on the date of the occurrence. He said that he was not aware that the appellant had any mental disease and added that the deceased used to work in the house of the appellant and sometime before the incident they were not going as they were not properly paid. PW 3 had no direct knowledge about these matters. He was neighbour for about 32 years but the houses are about half a kilometre apart. The appellant had to go infront of the house of the witness and he had no occasion to notice whether the appellant was insane. The witness pleaded ignorance to all matters concerning the appellant when pointed questions were put. It does not appear that PW 3 was in a position to speak anything about the mental or physical condition of the appellant either before the incident or at the crucial time and his evidence does not disprove the existence of any mental derangement. 19. PW4, Ibrahim, is the immediate neighbour of the appellant. He is an eye witness to the occurrence. He was in the house when he heard the sound of a gun shot. There was moon light. He came out and saw the appellant going along the pathway leading to the house of the deceased behind the deceased Kuruman. The witness walked behind the appellant who was holding the gun. He saw the appellant striking Kuruman on the head and then dropping the same and stabbing Kuruman on the back, chest and neck. Kuruman cried aloud. His mother Vellachi, sister Kembi and the children came out. They were stabbed by the appellant. Injury was caused to the baby held by Kembi. The injured fell down. PW 4 returned home being frightened and told his wife about the incident. He again went to the place of occurrence where neighbours were gathered. The appellant was still there and he was removed by PW 2 and Kunhimoidu. PW 4 added that the deceased ceased to work for the appellant as he did not pay and it is on account of that hatred that the appellant had done the act. He again went to the place of occurrence where neighbours were gathered. The appellant was still there and he was removed by PW 2 and Kunhimoidu. PW 4 added that the deceased ceased to work for the appellant as he did not pay and it is on account of that hatred that the appellant had done the act. He used to see the appellant quite often and he is not aware that the appellant had any disease. Though he pretends to be so close to the appellant he denies any knowledge whether the appellant had any work two or three months prior to the incident and whether he had been under treatment. He was not aware of his physical or mental condition and to his knowledge the deceased ceased to work for the appellant two years before the incident. His statement regarding the motive is thus without any basis, His narration of the incident would indicate that he did not react to the attack as though the appellant was doing a deliberate act. He did not make any hue and cry or persuade the appellant to desist. He immediately left the place and came back only after other persons reached there. He also affirmed that the appellant was quite rash in attacking the victims and he struck one after the other. The manner in which the act was accomplished by the appellant as narrated by the witness would only suggest that there was something abnormal and that the act was not a motivated one. PWs 5 and 6 are the two women who had been working together in a house nearby. They were attracted by the gun shot and loud cry. They ran towards the scene and saw Kembi struggling to get up. When asked as to what happened, Kembi said that the appellant had attacked. Just then the appellant intervened and asked the women to keep away. According to PW 6 the appellant advanced towards her. This evidence sounds artificial. There is no consistency in the statements of these two witnesses concerning the conduct of the appellant. The prosecution has failed to make out that the appellant was aware of the nature of his act at the crucial time. 20. PW7 Avaran had gone to the house of the appellant after the incident when the appellant advanced towards him violently but was desisted by Kunhimoideen. The prosecution has failed to make out that the appellant was aware of the nature of his act at the crucial time. 20. PW7 Avaran had gone to the house of the appellant after the incident when the appellant advanced towards him violently but was desisted by Kunhimoideen. According to PW 7 Kuruman used to work for the appellant even before the incident. The witness said that the appellant did not allow the inmates of his family to go out and he did not like others to see them. PW 8 is the attestor to Ext. P4 mahazar drawn up on 8-1-1982. These material objects include books in Arabic and cassettes, iron balls, empty cartridge cases and empty cartridge piece; mostly seen lying scattered in the premises of the appellant's house. 21. PW13 is the brother of deceased Kuruman. He was away when the incident happened. He believes that the appellant had committed the act because of the annoyance and sets up a new case that Kuruman demanded arrears of wages. He lived along with Kuruman. The appellant's house was only 50 feet away and there would have been numerous occasions for the appellant to see the deceased and if he had any such grudge he could have handled him even earlier. If there had been the least suspicion that the appellant had done the act on account of such enmity the fact would have been known to the persons who gathered at the scene immediately after the incident and that motive could have been discovered even at that stage. The statement of PW 13 cannot, therefore, carry conviction of truth in this matter. 22. PW17, the ballistic expert has examined the material objects seized and had opined that the barrel, the action block, the broken wooden stock and the broken wooden pieces together form a 12 Bore SBBL fire arm. While PW 17 thus identified the broken pieces as part of a 12 Bore SBBL fire arm and found that the cartridge and pellets could have been fired with the weapon he could not say whether the weapon was serviceable and in working condition prior to its disintegration. 23. PW23 the investigating officer has collected parts of the gun, the empty cartridge cases, used and unused pellets and other items soon after the arrest of the appellant. 23. PW23 the investigating officer has collected parts of the gun, the empty cartridge cases, used and unused pellets and other items soon after the arrest of the appellant. Most of these were seen lying scattered in the court yard and at the scene. PW 23 could not record the statement of the appellant. He made Ext. P20 report for referring the appellant to the Mental Hospital. According to PW 23 he did not suspect the mental condition of the appellant and was prompted to send him for observation only because of the press report. But the fact remains that the appellant could not be interrogated or his statement recorded in the course of investigation. The circumstance only probablise the case that PW 23 acted on his own volition and not on the basis of the press report. 24. The evidence thus reveals that the appellant was suspected to be insane at the time when the incident happened. was duly placed under medical observation and that he had been under prolonged treatment. The evidence also shows that he was not normal even before the incident, had resorted to some crude and primitive type of treatment, that he reacted in a violent manner on a festival day when an aeroplane was hovering over the area and he ran out shouting and keeping a gun and a dagger rashly and in an unusual and ferocious manner attacked several persons one after another without making any utterances or paying heed to what was happening. He did not try to escape or conceal the weapons. He continued to be violent even after he was overpowered. He was proved to be one with mental disorder. It is, therefore, quite probable that at the time when the atrocious act was committed, the appellant was not of sound mind, the cognate faculties of his mind were impaired and he did not know the nature of his act or what he was doing was wrong or contrary to law. The plea of insanity is clearly made out in this case. 25. The learned Sessions judge however has rejected the plea without proper scrutiny of the entire evidence and without a dispassionate consideration of the salient circumstances. The remarks made by the learned Judge suggests that there had been certain amount of bias on account of the fact, that some innocent lives had been lost. 25. The learned Sessions judge however has rejected the plea without proper scrutiny of the entire evidence and without a dispassionate consideration of the salient circumstances. The remarks made by the learned Judge suggests that there had been certain amount of bias on account of the fact, that some innocent lives had been lost. In Para.41 of the judgment the learned Judge states: "The prosecution has gone beyond the normal course in sending the accused to the mental hospital immediately after he was arrested on the reported allegation in a paper that the accused was suspected to be insane and PW 23, the investigating officer has filed Ext. P20 report. The report appearing in the press immediately after the ghastly killing of 5 innocent puniyas by the accused suggesting that the accused was suspected to be insane itself is a motivated one and that report was intended to misguide and misdirect the investigation officer and immediately after the incident there was an attempt to project that the accused was suffering from insanity by the forces behind the accused and actually PW 23 was initially groping in the darkness to find out the motive for the incident and he ultimately found out the motive after questioning other witnesses and that circumstance will probablise one fact that after the incident there was an attempt to project that the accused was insane from many quarters including press and that circumstance has to be assessed in ascertaining whether the accused was suffering from unsoundness of mind at the time of the commission of the offence". We find no basis for these comments when neither the press report has been produced nor other evidence adduced to show such extraneous interference. The learned Judge repeated the remarks in Para.42 of the judgment: "Coming of an aeroplane is stated to PW 23 by one of the Panchayatdars of Ext. P17 inquest report and inquest reports in respect of Vellachi and Kembi also contain the repetition of the coming of aeroplane. This version has to be assessed in the light of the object of the accused and his supporters to project a theory of unsoundness of mind immediately after the incident. P17 inquest report and inquest reports in respect of Vellachi and Kembi also contain the repetition of the coming of aeroplane. This version has to be assessed in the light of the object of the accused and his supporters to project a theory of unsoundness of mind immediately after the incident. The press report is a motivated report to project this defence immediately after the incident and the Panchayatdar who alone heard the accused shooting against an aeroplane is only a motivated statement given to PW 23 to influence and misdirect the investigation of PW 23." It has to be noticed that the appellant was overpowered by his close relations and handed over to the police immediately after the incident. If there had been an endeavour or design to screen the appellant from the clutches of law this conduct is inconsistent with such attempt on the part of the interested persons. It was, therefore, quite uncharitable on the part of the learned Judge to have made such aspersions without any proper basis. There had not been a proper approach to the question and the learned Judge has misdirected himself in appreciating the evidence and giving a verdict against the appellant. 26. On a reappraisal of the evidence in the case we hold that the appellant at the time of the occurrence was of unsound mind and by reason of such unsoundness he was incapable of knowing the nature of the act or what he was doing was either wrong or contrary to law. The appellant is therefore entitled under S.84 of the Indian Penal Code to be acquitted of the charge. We are clearly of the view that the circumstance of the case do not warrant the imposition of the extreme penalty under law even if the conviction is maintained. It is not the multiplicity of the murders that count in the matter of imposition of sentence. All relevant circumstances including the background of the incident and emotional disturbance of the culprit are matters for consideration. In this view we have expressed the reference has only to be rejected. In the result, we allow the appeal filed by the appellant, set aside the conviction and sentence entered against him and acquire him of the charges. We direct that the appellant has to be detained in safe custody under S.335 of the Code of Criminal Procedure. In this view we have expressed the reference has only to be rejected. In the result, we allow the appeal filed by the appellant, set aside the conviction and sentence entered against him and acquire him of the charges. We direct that the appellant has to be detained in safe custody under S.335 of the Code of Criminal Procedure. We therefore, direct the appellant to be detained in one of the mental hospitals in the State in accordance with the Rules, if any, framed by the State Government. It is open to the Government to direct the appellant to be delivered to any of his relatives or friends. A copy of this judgment will be sent to the State Government with report.