A. P. RAVANI, V. H. BHAIRAVIA, J. ( 1 ) THE appellant-accused was charged with the offence of killing her own four children namely daughter Mina aged 11 years; son Vinod 5 years; another son Dilip aged 3 years and infant daughter Sonal aged about 8 months. The trial Court by its judgment and order dated 29/05/1984 held her guilty of offence of causing murders of all the four children convicted her under Sec. 302 of I. P. C. and ordered to undergo R. I. for life and pay a fine of Rs. 100. 00 in default of Simple Imprisonment for 15 days. It is against this judgment and order of conviction and sentence the appellant accused has preferred this appeal. ( 2 ) IT was the prosecution case that on 7/08/1983 between 12 to 12 30 noon time the accused was in her house situated in Old Krishnapura area of village Unjha and there in the house itself she intentionally inflicted axe blows on the head portions of four children and caused their unnatural death. The prosecution case as disclosed from the record is that the accused had married to PW 2-Manilal Ganeshbhai Patel Ex. 28) before about 13 years of the date of the incident; that out of that wedlock 4 children were born viz. daughter Mina aged about 11 years second son Vinod aged about 5 years third son Dilip aged about 3 years and fourth infant daughter Sonal aged about 8 months; that in the family there were three adult members namely husband wife and mother of husband Santokben (Ex. 40 ). The husband of the appellant-accused was serving in a private firm. The family had ancestral agricultural land half of which was being cultivated by Manilal Patel and another half had fallen to the share of his elder brother; that the agricultural work was being looked after by Santokben the mother of Manilal Patel; that the; duty hours of Manilal Patel commenced from 7. 00 a. m. and he used to come back for his lunch between 1100 to 12. 00 noon and that after staying at the house about half an hour he used to return to duty. On the day of the incident it was Sunday. Even though it was Sunday the husband of the accused had gone to attend his duty and had returned to the house at about 11. 00 noon and that after staying at the house about half an hour he used to return to duty. On the day of the incident it was Sunday. Even though it was Sunday the husband of the accused had gone to attend his duty and had returned to the house at about 11. 30 a. m. for taking his lunch. After taking lunch at about 12 noon he left the house. At that time in the house his wife the accused and four children were there. His mother Santokben had gone to the agricultural field as usual. This is also disclosed in the evidence of Santokben (Ex. 40) As usual the food was cooked by the accused and after taking lunch the Prosecution Witness Manilal Patel the husband of the accused left the house. He was required to go to the shop of his master as some relatives of the master bad come to the shop and they were to be served with fruits. Manilal Patel had purchased the fruits and had taken the same to the shop of his master. However the relatives of the master did not take any fruit as they had already taken their meals. He returned to his house after 1 Oclock. When he reached his house the doors of the house were closed from inside. He tried to open the same and shouted by calling the namo of his daughter Mina. Since nobody replied even after five minutes he called his neighbor Babubhai Patel (who is also examined at Ex. 29 ). Both of them opened the door by force and went inside. ( 3 ) IN the house there are three rooms in a straight row one after another. The description of the house is given by Manilal Patel and Navinchandra Patel who is the panch witness of the scene of offence (Ex. 30 ). When Manilal Patel entered into house he saw three of his children namely Vinod Dilip and Sonal lying on the floor in a pool of blood. The accused-Ramilaben was sitting by the side of the children and her clothes were also blood-stained and an axe was lying by her side. The cradle in which the infant was being kept was also stained with blood. The axe which was lying by the side of the accused was also stained with blood. The accused-Ramilaben was sitting by the side of the children and her clothes were also blood-stained and an axe was lying by her side. The cradle in which the infant was being kept was also stained with blood. The axe which was lying by the side of the accused was also stained with blood. Manilal Patel also saw blood flowing below the door of the another room. Thereupon he went to that room and saw her daughter Mina lying near the waterstand. She was also injured on the head and blood was oozing out. He thought that two of his children namely Vinod and Dilip had some life and he along with his neighbor took them to Unjha Hospital. Son Vinod died after 15 to 20 minutes while Doctor suggested that son Dilip be taken to Ahmedabad for further treatment. Thereupon his relatives had taken the child Dilip in a motor car to Ahmedabad. When the witness was in the hospital itself the Police Inspector reached there and he lodged the F. I. R which is produced at Ex. 51. Thereafter Manilal Patel returned to his house late in the night on the same day. He bad received the news that the child Dilip who was taken to Ahmedabad Hospital had also succumbed to injuries. ( 4 ) THE accused was immediately arrested on the same day. The Police carried out necessary investigation and submitted charge-sheet against the accused for the aforesaid offences. It appears that while in judicial custody the accused was sent to the Mental Hospital Ahmedabad and in fact she was kept under observation for some time. Ultimately she was committed to the Court of Sessions. The defence of the accused was that of insanity. She pleaded not guilty to the charge. The accused was not in a position to engage any lawyer and therefore the Court of Sessions had appointed an Advocate to assist the Court. The defence of the accused was that she did not know as to what she was doing and that she was suffering from insanity at the time when the incident took place. The trial Court has not believed the defence of the accused and has convicted her and sentenced her as stated hereinabove. The accused-appellant has preferred appeal through Jail. In this Court also the accused has not engaged any Advocate. The trial Court has not believed the defence of the accused and has convicted her and sentenced her as stated hereinabove. The accused-appellant has preferred appeal through Jail. In this Court also the accused has not engaged any Advocate. Having regard to the facts and circumstances of the case the Court thought it fit to appoint Senior Counsel Mr. A. J. Patel to appear as amicus curiae and assist the Court. ( 5 ) THE prosecution has relied upon the evidence of Manilal Patel the husband of the accused Babubhai Patel the neighbor and Santokben mother-in-law of the accused. Manilal Patel has stated that his marriage with the accused has taken place before 13 years of the date of the incident; that he had four children out of that wedlock; that the relations with the accused were quite cordial; that the accused was doing the household work and in fact on the day of the incident the accused had prepared food. His mother had gone to the agricultural field to attend the agricultural work. As per his evidence he had taken meals between 11. 30 a. m. and 12 noon and from 12 noon to 12. 30 p. m. he was away from the house. When he returned to the house he saw the door of the house closed from inside. His house has only one door through which one can enter in and come out of the house. This circumstance is also supported by the evidence of panch witness Navinchandra Patel (Ex. 30 ). He opened the door forcibly with the help of his neighbor Babubhai Patel and found his three children Vinod Dilip and Sonal in a pool of blood on the floor below the ceiling fan. His daughter Mina was found lying near the waterstand in another room. The accused was sitting in the first room by the side of the injured children and the axe which was blood-stained was found lying near the accused. Thereafter the witness Manilal Patel had tried to take his two sons namely Vinod and Dilip to Hospital. After 15-20 minutes son Vinod died while Dilip was taken to Hospital at Ahmedabad but he also died there late in the night. ( 6 ) THE prosecution case has been supported by Babubhai Patel (Ex. 29) the neighbor who was called by witness Manilal Patel for opening the door. After 15-20 minutes son Vinod died while Dilip was taken to Hospital at Ahmedabad but he also died there late in the night. ( 6 ) THE prosecution case has been supported by Babubhai Patel (Ex. 29) the neighbor who was called by witness Manilal Patel for opening the door. He had also seen the scene of offence and as he could not withstand he had gone back to his house. In short he has supported the prosecution case in material particulars. Witness Santokben the mother-in-law of the accused has stated that right from the morning on the day of the incident she was in the agricultural field. When in the evening she returned she came to know about the incident. According to her evidence also the accused was mentally quite fit and her relations with the accused was like that of mother and daughter. ( 7 ) IT was contended before the learned Sessions Judge that ass deposed by witness Manilal Patel before about three months of the Incident the accused was taken to a dispensary of one Doctor Shukla. Doctor Shukla was an expart in Cardiac diseases and mental discases. However Doctor Shukla had told that the accused was not suffering from any disease. Therefore learned trial Court Judge held that if the accused wanted to rely upon this piece of evidence to prove insanity Doctor Shukla should have been examined by the accused. ( 8 ) IT was contended before the learned Sessions Judge that the accused had tried to take poisonous drug before about 15 days of tie incident. This is also evident from the deposition of the witness Manilal Patel. But the learned Sessions Judge has not given much weightage to this circumstance. On over all consideration of the facts and circumstances of the cafe the learned Sessions Judge came to the conclusion that the accused had not proved that at the time of occurrence of incident and committing the crime the appellant-accused was suffering from insanity and on account of unsoundness of mind she was not knowing as to what she was doing or was incapable of knowing the nature of the act or what she was doing was either Wrong or contrary to law. In substance the learned Sessions Judge held that the accused had not discharged the burden. In substance the learned Sessions Judge held that the accused had not discharged the burden. ( 9 ) NO doubt the defence of insanity provided in Sec. 84 of I. P. Code is a special defence. Wherever the accused takes up the plea of insanity it is for the accused to discharge the burden and prove either by leading evidence or from the evidence led by the prosecution itself that on account of unsoundness of mind he was not knowing the nature of the act or that what he was doing was either wrong or contrary to law. This burden on the accused is certainly not as heavy as the burden on the prosecution to prove the guilt. But before this question arises the prosecution is never relieved of its burden to prove the case against the accused. The fundamental principle of criminal jurisprudence is that an accused is presumed to be innocent and therefore the burden to prove guilt of the accused beyond reasonable doubt lies on the prosecution. ( 10 ) IN this connection reference may be made to the decision of the Supreme Court in the case of Dahyabhai v. State of Gujarat reported in AIR 1964 SC 1563 : [1964 GLR 911 (SC)]. After referring to the provisions of Sec. 299 of Indian Penal Code and the provisions of Secs. ( 10 ) IN this connection reference may be made to the decision of the Supreme Court in the case of Dahyabhai v. State of Gujarat reported in AIR 1964 SC 1563 : [1964 GLR 911 (SC)]. After referring to the provisions of Sec. 299 of Indian Penal Code and the provisions of Secs. 4 and 105 of the Evidence Act the Supreme Court has observed as follows : (7) The doctrine of burden of proof in the context of the plea of instantly may be state in the following proposition : (1) 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 on the prosecution from the beginning to the end of the trial (2) There is a rebuttable presumption that the accused was not insane when be committed the crime in the sense laid down by Sec. 84 of the Indian Penal Code; the accused may rebut it by placing before the Court all the relevant evidence-oral documentary or circumstantial but the burden of proof upon him is no higher than that rests Upon a party to civil proceedings (3) Even if the accused was not able to establish conclusively that he was insane at the time be 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 ar 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 the ground that the general burden of proof resting on the prosecution was not discharged as laid down by the Supreme Court the Prosecution must prove beyond reasonable doubt that the accused has committed the offence with requisite mens rea. ( 11 ) IN this case even according to the prosecution case the accused was quite all right till 12. 00 Oclock. Nothing usual or untoward happend till then. It is not the prosecution case that the accused was inimically disposed towards her own children either on account of any illusion or suspicion. ( 11 ) IN this case even according to the prosecution case the accused was quite all right till 12. 00 Oclock. Nothing usual or untoward happend till then. It is not the prosecution case that the accused was inimically disposed towards her own children either on account of any illusion or suspicion. No quarrel whatsoever has taken-place either with her husband or with her mother-in-law or with her neighbors in which the children may have been involved and the wrath of the mother may have been directed towards the children. There is total absence of evidence as regards motive of the crime. Ordinarily the prosecution would be justified in telling the Court and the Court also would be justified in believing the prosecution case that from the nature of the act necessary knowledge and intention may be inferred. This is consistent with the normal human behaviour and the fundamental principle that everyone should be presumed to know the law of land. But having regard to the peculiar facts and circumstances of the case the normal human behaviour towards ones own children and the knowledge of necessary consequences of the Act alleged militates against the common sense. Therefore in the special and peculiar facts and circumstances of the case it was incumbent upon the prosecution to lead evidence against the accused as regards mens rea. In this case the prosecution has failed to establish this ingredient against the accused. ( 12 ) IN the case of Sanna Eranna v. State of Karnataka reported in 1983 Cri. LJ 649 a Division Bench of Karnataka High Court has taken the same view. In that case a Police Constable with a history of mental disease had fired gun-shots towards a person with whom he had no enmity. The Division Bench of Karnataka High Court has inter alia observed that in such cases it would be obligatory on the part of the instigating agency particularly when the accused is apprehended at about the time of the commission of the offence or shortly thereafter to subject the accused to medical examination at least to ensure itself that the accused was in fact a person of ordinary state of mind. Having to the facts and circumstances of this case also we are of the opinion that it was the duty of the prosecution to subject the accused to medical examination and obtain opinion as regards her mental state. True it may not be possible to knew the state of mind of the accused at the time of commission of the offence but the state of mind immediately after the incident could have been known. This would have shown some light on the state of mind of the accused at the time of commission of offence. ( 13 ) IN the instant case the Counsel appointed for the accused submitted in application Ex. 42 before the trial Court to the effect that the accused was kept under observation in Mental Hospital at Ahmedabad and the Doctor of the Mental Hospital who was in-charge has treated her and has submitted report also. Therefore the Doctor should be called and examined by the Court as Court witness. The learned P. P. objected to the aforesaid application (Ex. 44) on the ground that he did not require to examine the witness to prove his case. The trial Court rejected the application stating that the prosecution cannot be compelled to examine a person as witness and that the Court did not find it neither just nor proper to examine these Doctors as Court witnesses. The trial Court observed that it would be open to the accused to take a special defence of insanity and lead proper evidence and these Doctors could be examined by her in her defence. The learned Counsel for the appellant submitted that had the Doctors been examined that would have thrown the light on the mental state of the accused. The non-examination of these witnesses by the prosecution and objection to examine the same are the circumstances which should be treated as adverse to the prosecution. The learned Counsel further submitted that had this evidence been brought on record it would have proved that the accused was insane at the time of commission of offence and was not knowing the nature and consequences of her acts. ( 14 ) WE find much substance in the submission made by the learned Counsel for the appellant. For this reason we directed as per our order dated 8/02/1990 that those papers be called from the Mental Hospital Ahmedabad. ( 14 ) WE find much substance in the submission made by the learned Counsel for the appellant. For this reason we directed as per our order dated 8/02/1990 that those papers be called from the Mental Hospital Ahmedabad. The R. M. O. of the Mental Hospital had appeared before the Court and has produced the case papers. However we are told that the Doctor who examined the accused and who had taken the history and written the case of the accused is now no more in the service and he is not staying within the State of Gujarat. In this view of the matter we are not in a position to know the contents of the case papers and the opinion of the Doctor. However we are of the opinion that in the instant case it was the bounden duty of the prosecution to lead proper evidence to show that the accused had mens rea and therefore it was necessary to exclude the possibility that the accused was not of unsound mind at the time when the offence took place. Having regard to the special facts and circumstances of the case it was necessary for the prosecution to prove by leading positive evidence that the accused had requisite mens rea when she committed the crime ( 15 ) THE special and peculiar circumstances of the case are as follows:1 The accused is mother of all the four children who are the victim in this case. 2 There is no evidence of previous enmity between the accused ant her victims i. e. her children There is no evidence of enmity either on account of any misunderstanding or on account of psychological disorder. 3 Even the infant child of 8 months has been killed; another child aged 3 years and third one aged 5 years have been killed. Only one eldest who was about 11 years old Mina could have at the most tried to escape by running away or by hiding herself. But she could also not escape from axe-blows. The children were totally helpless and they were under the protection of their mother. The protector bad become assailant. It is against the normal human conduct that a mother would kill her own child. But she could also not escape from axe-blows. The children were totally helpless and they were under the protection of their mother. The protector bad become assailant. It is against the normal human conduct that a mother would kill her own child. For the aforesaid reasons it was the bounden duty of the prosecution to read evidence as regards the mental state of the accused for proving the requisite mens rea. As indicated hereinabove no evidence whatsoever has been led by the prosecution on this point. On the contrary the evidence which could have thrown light has been kept back and therefore adverse inference is required to be drawn. On this short ground alone the accused in entitled to benefit of doubt. ( 16 ) EVEN if it is assumed that it was not necessary for the prosecution to lead evidence to prove the requisite mens rea then also in the instant case the accused has on the basis of the prosecution evidence itself rebutted the presumption that the accused was sane and was of sound mind at the time of commission of offence. In the instant case the accused has discharged the burden. This is evident from the following facts and circumstances:1 Before about three months from the date of the incident the accused was taken to Dr. Shukla for some mental disorder or some other physical ailment. This is admitted by Manilal Patel the husband of the accused. Dr. Shukla opined that the accused was not suffering from any disease. Even Dr. Shukla prescribed some medicine and the medicine was taken by the accused for some time. . This circumstance indicates some previous mental disorder. 2 Before about 15 days of the incident the accused had taken poisonous drug. This is also deposed by Manilal Patel the husband of the accused. As stated by him the accused had told him that she had taken the drug by mistake. However thereafter the accused was treated at the local hospital. But these papers are not brought on record nor the Doctors who treated the accused have been examined by the prosecution. This circumstance together with the first one indicate that prior to some months of the incident the accused was not in perfect mental health. 3 In her statement under Sec. 313 of Cr. But these papers are not brought on record nor the Doctors who treated the accused have been examined by the prosecution. This circumstance together with the first one indicate that prior to some months of the incident the accused was not in perfect mental health. 3 In her statement under Sec. 313 of Cr. P. C. the accused has stated that after the birth of her youngest child Sonal (who was aged about 8 months at the time of incident) she had lost her mental stability and she was suffering from disease of insanity and there- fore she was not knowing what she was doing. 4 There is total absence of motive. Even according to the prosecution case no motive whatsoever is suggested. There is no cause whatsoever for quarrel and/or for killing her own children. There is absolutely no evidence suggesting any cause as to why the accused has taken this ghastly step of killing her own children. 5 Multiple murders i. e. four murders have taken place within an hour or so. Upto about 12 or 12. 30 noon the witness Manilal Patel was at his house. He has returned to his house at about 1. 30 p. m. and he has seen all his children dead. His wife the accused was sitting by the side of the three children the fourth one was lying inside the house in another room. This multiple murders without any cause whatsoever strongly suggest the insanity of the accused. 6 The short time during which the incident has taken place suggests the want of preparedness and pre-arrangement. There is absolutely no evidence whatsoever on record that either on account of suspecion hallucination or for any other cause the accused was at any time enimically exposed towards children. It is not even suggested that in past at any time she prepared herself or had given any indication even remotely that she would kill her own children. 7 Moreover everything has happened within a short span of one or one and half hours. Thus there was absolutely no premeditation or preparedness for commission of the crime. 8 Simply because the doors were closed from inside it cannot be said that the accused was knowing the consequences of her act. There is no accomplice in this case. The accused is alleged to have committed the crime herself and she alone is responsible for that. Thus there was absolutely no premeditation or preparedness for commission of the crime. 8 Simply because the doors were closed from inside it cannot be said that the accused was knowing the consequences of her act. There is no accomplice in this case. The accused is alleged to have committed the crime herself and she alone is responsible for that. Had she been sane enough to know the consequences of her acts she would have taken the help of someone or at any rate her conduct immediately after the incident would have been different. 9 The conduct immediately after the incident is also to be taken into consideration. She was found sitting just by the side of the injured children who were lying in the pool of blood. She did not respond to the questions put by her husband. Even in the Police Station where she was taken she was mute and cold and did not respond to any question. This is evident from the deposition of Manilal Patel (Exdh. 28 ). ( 17 ) THE aforesaid circumstances clearly show that the accused has discharged the burden of proving that she was incapable of knowing the nature of the act or that she was doing which was either wrong or contrary to law. In above view of the matter; we are of the opinion that the appellant accused is entitled to the benefit of doubt In the facts of the case it cannot be said that the prosecution has proved the guilt against the accused beyond reasonable doubt in as much as the requisite mens rea is not proved. Even assuming that the requisite mens rea is proved the accused has discharged the burden placed upon her within the exception carved out under Sec. 84 of the I. P. Code. ( 18 ) IN the result the appeal is allowed. The judgment and order of conviction and sentence passed by learned Additional Sessions Judge Mehsana directing the appellant-accused to undergo R. I. for life and to pay fine of Rs. 100. 00 in default of payment of fine to undergo simple imprisonment for 15 days is quashed and set aside. The appellant-accused is acquitted of the charges alleged against her. The accused is ordered to be released forthwith if not required in any other case. ( 19 ) LEARNED Counsel Mr. 100. 00 in default of payment of fine to undergo simple imprisonment for 15 days is quashed and set aside. The appellant-accused is acquitted of the charges alleged against her. The accused is ordered to be released forthwith if not required in any other case. ( 19 ) LEARNED Counsel Mr. A. J. Patel who has been appointed by the Court has rendered good service in this case and the Court highly appreciates the assistance rendered by the learned Counsel. (KMV) Appeal allowed. .