Judgment :- 1. The accused in SC No. 93 of 1987 of Sessions Court, Quilon, has been found guilty of offence punishable under S.302 of the Indian Penal Code and is sentenced to death subject to confirmation by the High Court. The appellant challenges the conviction and sentence. 2. The accused Aravindakshan Pillai and his wife and two children were residing in a house in Kottankara Village within the jurisdiction of Kundara police station. The house consists of two rooms and a varandah on its northern side. The parents of Santhakumari were residing in an adjacent house. The incident happened on 22-3-1987 at about 4 pm. It was a Sunday. Deceased Santhakumari was a worker in a cashew out factory. Whenever she got time she would roll beedies to earn livelihood. On the date of the incident the accused demanded money from the deceased. She declined to pay. Accused got angry. Deceased Santhakumari later went to collect some water from the nearby well. PW. 2 Ushakumari is the daughter of the accused. She saw accused taking a chopper from the kitchen and sharpening the same. PW. 2 asked the accused why be was sharpening the chopper. Accused replied that the season for trade in cadjan leaves has commenced. The accused then said that if mother sees the chopper she would use it for dehusking coconuts and so he wanted to conceal the chopper in the northern varandah. PW. 2 also went for collecting water. Then Pw. 2 and deceased returned after bringing water. Then accused told the deceased to collect the husk from the courtyard. She went to the northern varandah. Accused then followed her. The deceased tied a rope in the varandah and placed all the husks in the rope. At that time PW. 2 was reading books. Then her younger sister came and caused some disturbance. She asked her younger sister to go to the bouse of her grand parents. After her younger sister left the bouse PW. 2 beard a crying sound from the northern varandah. She ran to that spot. Then she saw the accused inflicting cut injuries on the neck of deceased Santhakumari. Santhakumari fell on the eastern courtyard. PW. 2 cried aloud. The mother's sister of Santhakumari came to the place of incident. The mother of Santhakumari tried to intervene but she was pushed aside by the accused. She ran to that spot. Then she saw the accused inflicting cut injuries on the neck of deceased Santhakumari. Santhakumari fell on the eastern courtyard. PW. 2 cried aloud. The mother's sister of Santhakumari came to the place of incident. The mother of Santhakumari tried to intervene but she was pushed aside by the accused. Accused again inflicted cut injuries on the neck of the deceased. Accused severed the bead from the rest of the body and took the same in his left hand and chopper in the right band and proceeded westwards. 3. PW.1 Surendran who was in Vilayikal junction beard an outcry from the house of the deceased. He immediately came to the place of incident and saw the body of deceased Santhakumari. He took a cycle from the neary shop and proceeded to Kundra police station where he gave Ext. P1 statement. PW. 11 recorded the statement and Crime No. 89 of 1987 was registered on the basis of the information given by PW. 1. PW. 11, the Sub Inspector held the inquest on the dead body on 22-3-1987 itself and accused was arrested on the same day. PW. 12 continued the investigation and later filed a final report. 4. pws. 2 to 5 were examined as eye witnesses. PW. 7 is a photographer who took Exts. P2 and P4 series of photographs. PW. 8 was examined to prove that the accused bad married the deceased on 5-11-1979. PW. 9 conducted the post mortem examination. PW. 10 is a Village Officer who prepared Ext. P8 plan. Pws.11 and 12 are the investigating officers. The accused when questioned under S.313 Cr. P. C. feigned ignorance about the whole incident and the case set up by way of defence is plea of insanity claiming exemption under S.84 of the Indian Penal Code. 5. The fact that deceased Santhakumari died on 22-3-1987 is beyond pale of any controversy. The port mortem certificate issued by PW. 9 shows that the neck of the deceased was cut and the edges were clean. There were about 8 injuries. PW. 9 also deposed that all these injuries could be caused with a weapon like M.O.1. The medical evidence is unassailable and we accepted the same. 6. As regards the occurrence also the prosecution has given very strong and unimpeachable evidence. PW. 2 is the 10 year old daughter of the accused. There were about 8 injuries. PW. 9 also deposed that all these injuries could be caused with a weapon like M.O.1. The medical evidence is unassailable and we accepted the same. 6. As regards the occurrence also the prosecution has given very strong and unimpeachable evidence. PW. 2 is the 10 year old daughter of the accused. She bad given details of the overt acts perpetrated by the accused. She was present in the house at 4pm. on 22-3-1987. She saw the accused sharpening the M. 0.1 weapon by grinding it against a stone. She smelt a rat in the conduct of the accused and asked why he had been sharpening the chopper. The accused gave an evasive reply. She saw her mother going to the northern varandah and collecting the coconut busks which were spread in the courtyard. Then she heard the outcry of her mother and saw the accused catching hold of the deceased and inflicting cut injuries on the neck. Inspite of searching and lengthy cross examination, this child witness emerged as truthful and reliable witness. The evidence of Pw. 2 is credible and acceptable. 6A. However we are not satisfied with the manner in which the examination of PW. 2 was conducted. Pw. 2 being a child witness the court should have followed certain procedural formalities. Under S.118 of the Evidence Act, it is the duty of the court to test the capacity of the witness. If the witness is of tender age, the court must put questions and ascertain the extent of his intellectual capacity and understanding. It is desirable that the court should record the questions and answers so that the appellate court might consider whether the decision as to the competency of the child witness was right. Here the witness was asked few questions regarding her name and age. It is seen that oath was administered to the witness. When the witness is a child under 12 years of age the court shall ascertain whether the witness understands the duty of speaking the truth or does he understand nature and significance of the oath or affirmation. It is always desirable that judges should record the opinion that the child understands the duty of speaking the truth. When the witness is a child under 12 years of age the court shall ascertain whether the witness understands the duty of speaking the truth or does he understand nature and significance of the oath or affirmation. It is always desirable that judges should record the opinion that the child understands the duty of speaking the truth. Under S.4 of the Oaths Act (Act 44 of 1969) if the witness is a child below 12years of age and the court is of opinion that though the witness understands the duty of speaking the truth, be does not understand the nature of an oath or affirmation, no oath need be administered to such witness. That will not affect the admissibility of evidence of such a witness. 7. Pw. 3 is the mother of deceased Santhakumari. She was residing in another house on the eastern side. There is open space in between the two houses. The occurrence took place on the eastern courtyard of the accused's house. On hearing the crying sound of deceased Santhakumari PW. 3 Gouri Amma and PW. 4 came to the eastern courtyard of the accused's bouse. They saw the deceased lying on the courtyard and the accused in a crouched position and inflicting cut injuries on the neck of deceased Santhakumari. PW. 4 tried to prevent the accused from causing further injury but the accused pushed her aside. 8. PW. 4 is the sister of deceased Santhakumari. She is also an eye witness. She has narrated the whole incident. PW. 5 is another independent witness who is residing on the southern side of the bouse of PW. 3. He beard an outcry from the place of the incident. He saw the accused inflicting incised and cut injuries on the body of deceased Santhakumari. By the time be reached there, the bead of the deceased was already severed from the rest Of the body. All cried aloud and the accused took the chopper in his right hand and the head in the left band and walked towards west. From the evidence of pws. 2 to 5 it is clearly established beyond all reasonable doubt that the accused inflicted injuries and caused the sudden death of deceased Santhakumari. 9. The next question that would arise is that whether the accused can successfully raise the plea of insanity. From the evidence of pws. 2 to 5 it is clearly established beyond all reasonable doubt that the accused inflicted injuries and caused the sudden death of deceased Santhakumari. 9. The next question that would arise is that whether the accused can successfully raise the plea of insanity. As it is well established that the law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be dangerous to admit a defence of insanity upon arguments merely derived from the character of the crime. The offenders may sometime show strange and excentric behaviour before or after the commission of the offence but this does not necessarily take within the exemption contemplated under S.84 IPC. and it will not absolve him from the liability. In order to earn immunity from criminal liability the decease, disorder or disturbance of mind must be of such a degree which would obliterate perceptual or volitional capacity. Feeble mindedness, mere frenzy, emotional imbalance or uncontrollable anger, jealousy, moral depravity, lack of self control, excentricity and other similar manifestations do not offer relief from criminal responsibility, Dahayabhai v. State of Gujarat (AIR. 1964 SC. 1563) the legal position with regard to the burden of proof in this context has been stated by the Supreme Court in the following propositions: (i) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea and the burden of proving that always rests upon the prosecution from the beginning to toe end of the trial. (ii) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down in S.84; the accused may rebut it by placing before the Court all relevant evidence, oral, documentary and circumstantial, but the burden of proof upon him is no higher than that which rests upon a party in civil proceedings. (iii) Even if the accused is not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case, the Court would be entitled to acquit the accused on the ground that the general burden resting on the prosecution has not been discharged". The same principles have been reiterated by the subsequent decisions. (Bhikari v. State of Uttar Pradesh (AIR. 1966 SC. 1), Ratan Lal v. State of M.P. (AIR. 1971 SC 778), S.W. Mohammed v. State of Maharashtra (AIR. 1972 SC 2443). 10. The real question is whether the accused at the time of commission of the offence was suffering from any legal insanity. The evidence in this case consists of the oral testimony of Dws.1 to 4 coupled with the case sheet Exts. Dl to D4. Ext. D2 is the document on which the accused placed reliance to show that he was treated in a mental hospital at Trichur and that he was suffering from mental disease known as schizophernia. dw.2 is the superintendent of mental hospital, Trichur. He bad not seen the accused. He bad only stated some general details regarding the illness, schizophrenia. There is no evidence that the accused had been suffering from mental disease even after 1981. Dw. 2 is a person alleged to have treated the accused in 1981. According to dw. 2 he prepared Ext D2 case sheet. But the accused was not treated in the hospital of dw. 2. dw.4 the father of the accused came to the hospital and wanted to discharge the accused. According to dw. 4, the accused was treated by some country physicians but no evidence is forthcoming as to the nature of the treatment or the nature of illness suffered by the accused, Even though dw. 4 attempted to prove that the accused was suffering from some hallucination but the evidence is not convincing or probable. The evidence of PW. 2, the daughter of the accused has been accepted by the Sessions Court to prove the conduct of the accused before the crime. The motive for the crime has been spoken to by PW. 2. 4 attempted to prove that the accused was suffering from some hallucination but the evidence is not convincing or probable. The evidence of PW. 2, the daughter of the accused has been accepted by the Sessions Court to prove the conduct of the accused before the crime. The motive for the crime has been spoken to by PW. 2. The accused demanded money from deceased Santhakumari. Deceased Santhakumari was a worker in the cashew nut factory and she also used to roll beedi to earn some money. PW. 2 also has deposed that her mother used to conduct some kuri transactions. During the relevant period the accused also bad some trade in cadjan leaves. However he used to demand money from the deceased and whenever deceased refused to pay money be would pick up quarrel with her and threaten her with dire consequence. The conduct of the accused does not in any way prove that be was suffering from any insanity at the time of the commission of the crime. There must be some direct proof of mental illusion or intellectual aberration existing immediately before or at the time of commission of the crime. The accused should have adduced some evidence that at the time of the evidence be bad unsoundness of mind to such an extent that be was incapable of knowing all that he was doing at the time or that he was incapable of knowing what he was doing was wrong or contrary to law. Learned counsel for the accused Sri. Abraham Lal pointed out that the prosecution should have proved the mental condition of the accused and he should have been subjected to medical examination. Reliance was placed on the decision reported in Kuttappan v. State of Kerala (1986 KLT. 364). It is true that although there is no burden cast on the prosecution to establish negatively that the accused was not of unsound mind when he committed the act of violence resulting in the death of a person, and where the accused has a previous history of mental disease of lunacy and it is revealed during the course of investigation that the accused bad such previous history of lunacy, fairness of investigation does require an enquiry into that aspect with an unbiased approach. In the instant case none of the witnesses bad given any information to the police that the accused was a person of unsound mind and the investigating officer bad no occasion to suspect that the accused was suffering from any mental aberration or hallucination. 11. From the evidence adduced by the accused we are unable to hold the accused was suffering from any insanity and was entitled to the exemption contemplated under S.84 IPC. The criminal acts committed were proved beyond all reasonable doubt. 12. However we do not think that the case cannot be said to be one of the rarest of the rare cases warranting death penalty. The deceased is the wife of the accused. It is true that the act committed by the accused is gruesome. The relationship between the deceased and accused was generally cordial. The reason for the sudden quarrel is said to be the refusal of the deceased to pay money. There may be several other reasons for the quarrel. The evidence shows that the accused committed the crime in a fit of anger. The manner in which be carried the bead of the deceased and the chopper for a considerable distance, alone cannot be taken as a ground to award the capital punishment. The accused cannot be said to be a menace to the society. He bad not involved himself in any other criminal case. According to PW. 2 his antecedents and conduct also was not of violent nature. On a consideration of the over all circumstances of the case we commute the death sentence to life imprisonment. With the above modification in sentence Crl. R.T. No.1 of 1988 and Crl. Appeal No. 8 of 1988 are disposed of.