JUDGMENT - PATANKAR P.S., J.:—The appeal has been filed by the accused challenging his conviction under section 302 of Indian Penal Code and sentencing him to undergo imprisonment for life, by the learned Additional Sessions Judge, Kolhapur by his judgment and order dated 5-1-1988 passed in Sessions Case No. 68/1987. 2. A few facts in nutshell are as follows :— The appellant married P.W. 4 Tanubai nearly 15 years before the date of incident i.e. 4-11-1986. After marriage they were staying at Belgaum and the appellant was working as Coolie. 3 children were begotten out of said wedlock. Deceased Renuka was the second child of the appellant, aged 8 years at the time of incident. Nearly 2 years prior to the incident they left Belgaum and came to Hasurwadi i.e. native place of the appellant. However, they could not pull on at that place and therefore they came to stay at village Kundal where Tanubai's brother was staying. The distance between Hasurwadi and Kundal was about 1½ miles. The appellant was taking treatment in Mental Hospital at Ratnagiri when they were staying at Belgaum. Tanubai was devotee of deity Yellamma. The other name of the deity Yellamma is Renuka. Nearly 15 days prior to the date of incident the Appellant burnt the baskets of deity Yellamma, prepared tea on it and drank it. On the date of incident in the morning the appellant broke Darshan of deity Yellamma from the neck of his wife Tanubai. On that day Tanubai's brother went to fair of deity Yellamma which has been celebrated at village Kot and he has taken eldest daughter of Tanubai with him. Deceased Renuka was also insisting for going to the said fair. She was weeping. However, as there was rain, Renuka was not allowed. The appellant could not bear her weeping. He returned at his house at 10.00 a.m. and saw Renuka weeping. He took his meals and lifted Renuka by saying that she would be taken to deity. She was taken for some distance and appellant cut her head with sickle. He threw the body and carried her head in one hand and sickle in the other. This was seen by P.W. 2 Dhondiba Patil who was returning from his field. The Appellant at that time was holding the head of Renuka on his hand and blood stained sickle in another hand. He threw the body and carried her head in one hand and sickle in the other. This was seen by P.W. 2 Dhondiba Patil who was returning from his field. The Appellant at that time was holding the head of Renuka on his hand and blood stained sickle in another hand. Dhondiba informed this to others and the appellant was caught while walking. He was taken by bus to Gadhinglaj Police Station in the same position from village Hasurwadi. Dhondiba lodged F.I.R. Exh. 21 against the Appellant. Investigation followed. Appellant came to be prosecuted. 3. The trial Court has recorded a clear finding on appreciation of the entire evidence that appellant had killed his daughter Renuka and the learned Advocate appearing for the appellant conceded that the finding recorded is correct. However, in nutshell we are indicating the evidence on record so as to point out why we are agreeing with the trial Court. On record there is evidence of P.W. 2 Dhondiba Patil who is the Police Patil of village Kadal and step-brother of Tanubai. He has deposed that he had seen the appellant holding the head of Renuka in one hand and the sickle in another hand. He has deposed that the clothes of Appellant were smeared with blood and was caught. He had lodged F.I.R. Exh. 21. This version was not challenged in the cross-examination. F.I.R. says that appellant was seen holding head and sickle when he was returned from the field at 12-30. It is also mentioned that when he asked the appellant about it, he did not reply. Then about his informing the others and catching of the appellant. Then evidence of P.W. 3 Bhausaheb Patil who is the Police Patil of village Hasurwadi. He has also deposed about the seeing the appellant holding the head in one hand and sickle in another and the appellant was smeared with blood who was wearing bandi and pant. He has deposed that Subhana caught the appellant and sickle was snatched. He has also deposed that appellant did not speak when he was questioned about it. He has also stated that he had gone to S.T. bus station and went to Gadhinglaj Police Station. This version was also not challenged in the cross-examination. Then there is evidence of P.W. 4 Tanubai, she is wife of the appellant. He has also deposed that appellant did not speak when he was questioned about it. He has also stated that he had gone to S.T. bus station and went to Gadhinglaj Police Station. This version was also not challenged in the cross-examination. Then there is evidence of P.W. 4 Tanubai, she is wife of the appellant. She has deposed that appellant broke Darshan from her neck on the date of incident and that Renuka was crying as she wanted to go to fair of deity Yallamma at village Kot. She has deposed that appellant lifted Renuka by saying that she would be taken to the deity. Then she deposed that she has seen the appellant holding the head of Renuka and that appellant was caught by others and taken to Gadhinglaj Police Station. This version is also not challenged in the cross-examination. The P.W. 5 Subhana Chavan is examined. He is the cousin of the appellant. He has deposed that he caught right hand of the appellant in which he was holding the sickle. He snatched the sickle from his hand. The hands of the accused-appellant were tied. At that time the appellant was not speaking anything and said nothing except that he had cut and brought the head of his daughter. Nothing is there to disbelieve his evidence. Then there is panchanama at Exh. 8. It is in respect of clothes of appellant and head of Renuka. They came to be seized along with the towel which was covering the head. At Exh. 9 is panchanama in respect of attachment of sickle. It shows that same was blood stained. At Exh. 10 inquest panchanama showing that head of the dead body was removed from the rest of the body and there was big grievous injury. It also showed that there was clean cut injuries on the stomach and the intestines had come out. At Exh. 11 is a panchanama in respect of attachment of clothes and bangles of the deceased. At Exh. 33 is the report of the C.A. The report of C.A. shows that blood which was on the frock of the girl, bandi and half pant of the appellant was of O group. Similarly it shows that blade and handle of the sickle were blood stained and also chappal of the appellant. All this evidence clearly goes to show that the appellant has killed his daughter Renuka. Similarly it shows that blade and handle of the sickle were blood stained and also chappal of the appellant. All this evidence clearly goes to show that the appellant has killed his daughter Renuka. 4. The learned Advocate for the appellant submitted that the appellant had gone instance at that particular moment and was not in a position to know what he was doing was wrong or contrary to law and hence entitled to get the benefit of section 84 of Indian Penal Code. This point was also raised before the learned trial Judge. However, he disbelieved the evidence of insanity and found that the appellant was guilty of an offence of murder. 5. We shall first consider the law in respect of unsoundness of mind which has been settled by the Apex Court. Section 84 of Indian Penal Code which speaks of unsoundness of mind. From the evidence on record we have to see whether at the time of commission of act, the appellant was incapable of knowing the nature of the act or that he was doing was either wrong or contrary to law. Thus there are 2 situations contemplated viz. (1) incapacity of the accused of knowing the nature of the act or (2) The incapacity of the accused to know what he was doing is either wrong or contrary to law. Therefore, the crucial point for ascertaining the state of mind of the appellant is when the offence was committed. The Apex Court in the case of (Dahyabhai Chhanganbhai Thakkar v. State of Gujarat)1, A.I.R. 1964 S.C. Page 1563, has observed as follows :— “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 he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of section 84 of the Indian Penal Code can only be established from the circumstances which proceeded, attended and followed the crime.” It has been further observed by the Apex Court that — “The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions : (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 he committed the crime, in the sense laid down by section 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 rest upon a party to civil proceedings, (3) Even if the accused was 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 of proof resting on the prosecution was not discharged.” Therefore even though the accused may not adduce any evidence to prove his unsoundness of mind but he can take advantage of the evidence adduced by the prosecution and raise reasonable doubt in the mind of Court that at the time of committing the act, he was insane. From the circumstances and conduct of the appellant prior to the incident, at the time of incident and after the incident, if it is clear that the cognitive faculties of the appellant, were as a result of unsoundness of mind, completely impaired, his act of killing would not mean to be an offence and he would be entitled to acquittal in view of the provisions of section 84 of Indian Penal Code. 6. The question now is whether in the present case the appellant is entitled to get the benefit of section 84. For that purpose we shall scrutinize the evidence, to consider the circumstances and appellant's behaviour which preceded, attended and followed the incident. The record shows that the appellant was suffering from serious mental trouble prior to the date of incident. P.W. 8 Dr. Shashwant V. Shere, Medical Officer, Mental Hospital, Ratnagiri has deposed that appellant was admitted in the mental hospital on 14-12-1985. He was running away from the home and suffering from insomnia. He was talking irrelevantly and drinking excessively. Those symptoms were present for nearly 1 year 3 months prior to his admission. He has observed that the appellant was dishevelled and unkempt, muttering to self, talking irrelevantly, dully and apathetic. He had blunted affect. He as diagnosed as a case of Schizophrenia. He treated him upto 16-12-1985 and thereafter by another Doctor by name Dr. Vyavahare. He was discharged from the hospital on 10-1-1986 on the ground that he was improved. Exh. 45 is the certificate saying that he was improved and so discharged. IT does not show that he was cured. In the cross-examination Doctor has admitted that symptoms of schizophrenia may some times aggravate or subside and may appear after some time, and in the case of appellant the symptoms of schizophrenia were of aggravated form. He has also described the position of such a patient. Exh. 44 are the case-papers and treatment given to the appellant 5, Exh. 35 (Exh. 39 same as Exh. 35) is form No. 2 by which appellant's brother gave consent for giving shock treatment, medicines, anesthesia etc. to appellant. At Exh. 41 it is a certificate issued by the Medical Officer, Zilla Parishad Dispensary, Gadhinglaj (Kolhapur) dated 13-12-1985 showing that appellant was in depressed mood, some times became aggressive and mentally disoriented. Therefore he was referred to the Mental Hospital. FIR Exh. to appellant. At Exh. 41 it is a certificate issued by the Medical Officer, Zilla Parishad Dispensary, Gadhinglaj (Kolhapur) dated 13-12-1985 showing that appellant was in depressed mood, some times became aggressive and mentally disoriented. Therefore he was referred to the Mental Hospital. FIR Exh. 21 is filed by P.W. 2 Dhondiba Patil. It has been mentioned that appellant was not mentally sound after he returned from Belgaum. He was kept in Ratnagiri Mental Hospital by his brother for treatment. P.W. 4 Tanubai has stated that the appellant was quarrelling with her and she was unable to understand why he was behaving in that manner or beating her and quarrelling with her and that was happening often. She has deposed that appellant behaved like a made man and it was spread in the village that he has gone mad. She has further stated that he behaved like a mad man and spoke like mad man by looking to the people. She has also stated that appellant was taken to Bombay by his brother for treatment and was treated and brought back to Hasurwadi. She has deposed that even after the treatment there was no change of the attitude of the appellant. She has also deposed about the treatment given to the appellant in Ratnagiri Hospital. P.W. 5 Subhana Chavan though in the cross-examination he has denied his statement before the Police that appellant was behaving like a mad man and appellant's brother had taken him to Bombay and Ratnagiri for giving him treatment, the contradiction in that respect was brought on record. The evidence of PSI Madhukar Mote P.W. 7 shows that he made such a statement before him. P.W. 6 Netaji Patil deposed that appellant was quarrelling with his wife. After he came to stay in the village, there was no reason for such quarrels. He used to quarrel with her all of a sudden. Some times he used to speak in irrelevant manner. He has deposed that appellant was given treatment in Bombay and Ratnagiri Mental Hospitals. P.W. 7 Madhukar Mote, PSI has stated that it transpired in the investigation that appellant was previously insane and he was given treatment in the hospital at Ratnagiri and Bombay. He has stated that relatives of the appellant had informed him that appellant was suffering from serious mental disorder at least for a year prior to the date of incident. P.W. 7 Madhukar Mote, PSI has stated that it transpired in the investigation that appellant was previously insane and he was given treatment in the hospital at Ratnagiri and Bombay. He has stated that relatives of the appellant had informed him that appellant was suffering from serious mental disorder at least for a year prior to the date of incident. He was treated at Ratnagiri Mental Hospital since 14-12-1985 and he has exhibited symptoms of aggravated form of schizophrenia. The same continued thereafter though Exh. 45 shows that there was some improvement in him after treatment in Ratnagiri Mental Hospital. This is clear from his further treatment at Bombay though papers in that respect were not available. 7. Circumstances attending the incident : P.W. 2 Dhondiba Patil has deposed that he had seen the appellant holding the head of Renuka in one hand and sickle in another hand. He asked the appellant about the incident and the Appellant did not reply. He deposed that appellant was caught by Police Patil, Subhana and others and was taken by ST bus to Gadhinglaj Police Station and produced before PSI. In the cross-examination he has deposed that the appellant was speaking something which he could not hear and he went ahead straightway without paying any attention to his talk. He has stated that appellant saw towards him, but he was in his mood (trance) and went ahead in the same mood. Bhausheb Patil P.W. 3 has deposed that appellant was holding head of Renuka in one hand and sickle in another hand and his clothes were smeared with blood and also his person. He has stated that Subhana caught the appellant and snatched the sickle from his hand and at that time the appellant did not speak anything to them. The appellant was then tied and taken to ST bus stand and then to Gadhinglaj Police Station. He has stated that the head was in the hand of the appellant. It was covered by towel when they travelled in ST bus. In the cross-examination he had admitted that appellant straightway went ahead without speaking anything and without replying to him. The appellant was in his own mood (trance) and he went away. He has also stated that the appellant walked for one furlong but did not raise any cries as he was in his mood. In the cross-examination he had admitted that appellant straightway went ahead without speaking anything and without replying to him. The appellant was in his own mood (trance) and he went away. He has also stated that the appellant walked for one furlong but did not raise any cries as he was in his mood. He has also stated that when sickle was snatched from the appellant, the appellant did not struggle or resist. He has also stated that even though appellant was tied, he did not oppose. The appellant was in his own mood until he was brought upto ST bus stand. P.W. 4 Tanubai, wife of appellant has deposed that Renuka was weeping when she was not allowed to go to fair of Yellamma. The appellant lifted Renuka by saying that she would be taken to deity. The appellant was caught and was taken along with the head to the Police Station at Gadhinglaj. She has also deposed that 15 days prior to the date of incident the appellant has burnt the basket of deity Yellamma at village Hasurwadi and prepared tea on it and drank it, and on the date of incident he had broken the Darshan of Yellamma deity which was in her neck. She has stated that she could not give any reason for the behaviour of the appellant in that manner. P.W. 5 Subhana Chavan caught the appellant. He has stated that head of Renuka was in appellant's right hand and sickle in the left hand. He has stated that appellant admitted the cutting of head of his daughter and told him to leave him. The appellant was not speaking anything at that time. He has also stated that hands of the appellant were tied and he was taken to S.T. bus stand and then to Police Station. In the cross-examination he has admitted that the appellant was going alone ahead. P.W. 6 Netaji Patil deposed that appellant quarrelled with his wife as she brought basket of Yellamma deity and said what was the propriety in keeping Renuka (Yellamma) also. 8. The conduct or behaviour after the incident : The evidence on record shows that appellant made no attempts to conceal himself after the incident. He did not make any attempt to hide the weapon or to run away. He did not oppose or resist or abuse or attack when he was apprehended or tied. 8. The conduct or behaviour after the incident : The evidence on record shows that appellant made no attempts to conceal himself after the incident. He did not make any attempt to hide the weapon or to run away. He did not oppose or resist or abuse or attack when he was apprehended or tied. He was in his own mood (trance) throughout. He quietly went along with others to the Police Station at Gadhinglaj. He did not try to throw away the head which he was holding. The killing also has not taken place at secluded place. It was at the open space and near the village. All these indicated that he was not having guilty mind. 9. Motive : Prima facie in our opinion, there was no motive for the appellant to commit his crime. There was no animus against the child Renuka. The learned A.P.P. argued that appellant was having motive to do away with Renuka and he wanted to punish her mother Tanubai as she was worshipping Yellamma in spite of his objection. First the evidence on record shows that the Appellant and other members of the family used to attend the fair of Yellamma deity every year. The evidence therefore suggests that the appellant was not against the worship of Yellamma. Even assuming that appellant was hating such worship of Yellamma deity, it cannot be said that there was animus against the child or any cause to do away with her. The learned A.P.P. then contended that appellant thought that his mental condition was not good because his wife Tanubai was worshipping Yellamma. Renuka was the other name of Yellamma. The appellant was identifying Renuka with Yellamma and on the date of incident when he noticed that Renuka was crying for attending the fair of Yellamma deity, he killed her so to do away the cause itself. According to the learned A.P.P. this speaks about the motive. However, in our opinion, this cannot spell out motive on the part of the appellant to kill Renuka. In our opinion this shows that appellant was in fact suffered from illusion or delusion when he was trying to identify the young daughter with deity Yellamma. On the contrary it would indicate his insane conduct. 10. Modi's Medical Jurisprudence and Toxicology (Twenty- first Edition) makes mention about the indications of insanity. In our opinion this shows that appellant was in fact suffered from illusion or delusion when he was trying to identify the young daughter with deity Yellamma. On the contrary it would indicate his insane conduct. 10. Modi's Medical Jurisprudence and Toxicology (Twenty- first Edition) makes mention about the indications of insanity. One of them is Depressive Psychosis and the other is Paranoid Schizophrenia. While dealing with Depressive Psychosis Modi has said this: “In some cases, the depressive kills the relatives especially dependant young children. The whole mental activity is reduced and in extreme cases reaches stuporous stage. Depressive patients have feelings of self-reproach and guilt.” In the case of Paranoid Schizophrenia it has been mentioned that the main characteristic of this illness is a well elaborated delusional systems in a personality that is otherwise a well preserved. Delusions are at first indefinite, but gradually they become fixed, and definite so as to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Modi has also mentioned that in vast majority of the cases it starts in fourth decade and develops insidiously. The appellant was nearly aged 40 at the time of incident. 11. The learned A.P.P. contended that evidence on record an particularly of P.W. 6 Netaji Patil showed that appellant knew what he was doing was wrong and so expressed to him that what was the necessity of keeping Renuka. However, we cannot accept this by ignoring other evidence on record. The other evidence showed that appellant formed definite illusion or delusion that his condition was not good due to bringing of basket of deity of Yellamma by his wife and wearing Darshan in her neck. Therefore he destroyed the basket showing queer conduct and also tore the Darshan. Further Renuka is the other name of Yellamma and so appellant identified Renuka as Yellamma and tried to do away with her from the house. This, in our opinion suggests that appellant was incapable to perceive the real nature of his conduct and effect thereof due to insanity. 12. The circumstances which preceeded the incident showed that the appellant was suffering from serious mental trouble bordering an insanity for more than one year prior and was treated in mental hospitals at Ratnagiri and Bombay. This, in our opinion suggests that appellant was incapable to perceive the real nature of his conduct and effect thereof due to insanity. 12. The circumstances which preceeded the incident showed that the appellant was suffering from serious mental trouble bordering an insanity for more than one year prior and was treated in mental hospitals at Ratnagiri and Bombay. The evidence suggested every possibility of continuance of the same or relapse thereof at the time of incident. Evidence in respect of circumstances just prior to the incident and attending it showed that the appellant was not able to understand or know what he was doing was wrong on contrary to law as his cognitive faculties were impaired. The conduct and behaviour exhibited by the appellant following the incident showed that he was having no guilty mind. There was absence of secrecy, absence of motive, no resistance of any type and absence of pre-arrangement. Therefore the behaviour and conduct of the appellant which preceded, attended and followed the incident revealed that at the time of commission of offence the appellant was not knowing the nature of the act committed by him and that it was contrary to law, due to unsoundness of mind. The evidence on record clearly rebuts the presumption that every man is presumed to be sane and it would bring the case within the parameters of section 84 of Indian Penal Code. 13. The totality and cumulative effect of all this evidence and the circumstances brought on record and considered them carefully lead to the irresistible inference that at the crucial moment the state of mind of appellant was such that he was not able to know or understand what he was doing was wrong or contrary to law due to unsoundness of his mind. He has satisfactorily discharged the burden to bring his case within the four corners of section 84 of Indian Penal Code. Therefore his killing does not amount to an offence as he gets protection of the provision of section 84 of Indian Penal Code. The appellant is therefore entitled to acquittal of the charge levelled against him. 14. Hence the following order :— The appeal is allowed and the order of conviction and sentence recorded against the appellant by the trial Court in Sessions Case No. 68 of 1987 dated 5-1-1988 is set aside and the appellant is acquitted. The appellant is therefore entitled to acquittal of the charge levelled against him. 14. Hence the following order :— The appeal is allowed and the order of conviction and sentence recorded against the appellant by the trial Court in Sessions Case No. 68 of 1987 dated 5-1-1988 is set aside and the appellant is acquitted. However, we direct that the appellant shall be detained in the safe-custody of jail, and the jail authority shall submit a report to the State Government forthwith whether the appellant can be released without danger of his doing injury to himself or to any other person and upon receipt of such report from the jail authority, the State Government shall take appropriate steps as envisaged under section 338 of Criminal Procedure Code, 1973 in the matter of release of appellant. We also direct the office to send a copy of the judgment to the State Government under section 353(4) of the Criminal Procedure Code, 1973. Appeal allowed. -----