JUDGMENT - J.N. PATEL, J.:---This appeal is directed against the judgment and order dated 29th July, 1994 passed by the 2nd Additional Sessions Judge, Yavatmal in Sessions Trial No. 99/1993, under which, the learned Additional Sessions Judge found the appellant-Sou. Sumitra w/o Shriram Pimpalkar guilty for having committed offence punishable under section 302 of Indian Penal Code and sentenced her to suffer imprisonment for life and to pay a fine of Rs. 100/-; in default, to suffer S.I. for eight days. He also found the appellant guilty for having committed offence under section 307 I.P.C. and sentenced her to suffer R.I. for five years and to pay a fine of Rs. 100; in default, to suffer S.I. for eight days. The substantive sentences were ordered to run concurrently and the appellant was also granted set off for the period for which she was in jail as a under trial prisoner. 2. The appellant is the mother of the two small children who are alleged to have been killed by her by throwing them into the well; and the third one whom, she attempted to kill by taking her in arms and jumping herself in the well and in the transaction made an attempt to commit suicide. These children are born to her from Shriram s/o Letu Pimpalkar (P.W. 1) out of the wedlock. The eldest child being a son by name Balya, aged 5 years; the next being a daughter Ku. Mangla, aged 3 years and the third and the youngst of them being daughter Ramla, who was delivered just two months before the incident. The appellant belongs to labour class and the income of the family was out of labour. According to the prosecution, after delivering the girl child, viz., Ramla, the appellant who was not keeping well and was staying at her house. 3. The appellant alongwith her family was residing at village Lokhand Bardi, Kolam Pod in Yavatmal district and the incident is alleged to have occured at a well situated in the nala of Lokhand Bardi. On or about 18-12-1992, the husband of the appellant Shriram Pimpalkar and mother-in-law Bainabai (P.W. 1 and 8 respectively) had gone to work alongwith other labourers, leaving the children Balya, Ku. Mangla and Ramla with the appellant. On or about 18-12-1992, the husband of the appellant Shriram Pimpalkar and mother-in-law Bainabai (P.W. 1 and 8 respectively) had gone to work alongwith other labourers, leaving the children Balya, Ku. Mangla and Ramla with the appellant. One Shantabai w/o Chandrabhan Rampure (P.W. 6), who had gone to fetch the water from the well, saw the appellant throwing her son-Balya and daughter-Mangla in the well and after throwing Balya and Mangla, she too jumped in the well alongwith her another daughter Ramla, on which, Shantabai started shouting. On hearing the shouts, Ramkrishna s/o Suryabhan Debur (P.W. 3) who was first to reach the site, was informed that one woman has jumped into the well. On seeing the woman sinking in the well he jumped into the well, caught her and brought her out of the well. He has also noticed one small girl child floating in the water. By that time, the other witnesses, viz. Tukaram s/o Kejya Ghotekar (P.W. 2), who happens to be the father of the appellant has also reached the scene of offence and jumped into the well and saved the younger daughter of the appellant, who was floating in the water and took her out. By this time, Bainabai (P.W. 8) mother-in-law of the appellant, had also reached the place of incident, on hearing the shouts that the appellant Sumitra had fallen into the well, followed by Shriram Pimpalkar (P.W. 1) husband of the appellant alongwith others. P.W. 1 Shriram Pimpalkar lodged a report with police station, Yavatmal city about the incident. The police reached the spot. In the presence of panchas, the police prepared Inquest panchanama (Exhibit-19) of the dead bodies of Balya, which is at Exhibit-18 and that of Ku. Mangla (Exhibit-19); in the presence of the panchas. The dead bodies of the children Balya and Mangla were then sent for post mortem examination. The police prepared the panchanama of the spot of occurrence in the presence of panchas at Exhibit-27. The police also seized the clothes of Balya and Mangla, under seizure panchanama, (Exhibit-23) which were brought from the hospital, and recorded statements of witnesses to the incident. The post mortem report of deceased Balya and Mangla (Exhibit-21 and 20 respectively) was received. In the opinion of the Doctor, who conducted the autopsy, the cause of death was due to asphyxia due to drowning. The post mortem report of deceased Balya and Mangla (Exhibit-21 and 20 respectively) was received. In the opinion of the Doctor, who conducted the autopsy, the cause of death was due to asphyxia due to drowning. On conclusion of the investigation, the Police Station Yavatmal city filed a charge-sheet in the Court of Chief Judicial Magistrate, Yavatmal, who committed the case for trial to the Court of Session. 4. On 30-05-1994, the 2nd Additional Sessions Judge, Yavatmal framed a charge against the appellant that : "On or about 18-12-1992, at village Lokhand Bardi (Kolam Pod) within the jurisdiction of Police Station Yavatmal city, she committed murder by intentionally or knowingly causing the death of her son Balya and daughter Mangla by throwing them in the well and by jumping herself in the well alongwith her youngest daughter Ramla and thereby committed an offence punishable under section 302 I.P.C. That her act in jumping into the well with her youngst daughter Ramla aged about 3 months old, was with such intention or knowledge and under such circumstances of that act, if she would have caused the death of said Ramla, she would have been guilty of murder and thereby committed an offence punishable under section 307 I.P.C." The appellant pleaded not guilty to the charge. The plea raised by the appellant in her defence was that of insanity, as according to her, she did not know what had happened on the date of incident, as regards the death of her two children. 5. The prosecution examined, in all, 11 witnesses in support of their case, which include Shriram s/o Letu Pimpalkar (P.W. 1) husband of the appellant; Tukaram s/o Kejya Ghotekar (P.W. 2) father of the appellant, who saved the girl child Ramla; Ramkrishna s/o Suryabhan Debur (P.W. 3), who saved the appellant; Suresh s/o Suryabhan Debur (P.W. 4) one of the eye-witnesses to the incident; Narayan s/o Bhimrao Ulke (P.W. 5) a panch; Shantabai w/o Chandrabhan Rampure (P.W. 6) eye witness to the incident; Bali d/o Nagorao Rampure (P.W. 7), who had informed the husband of the appellant about the incident; Bainabai w/o Letu Pimpalkar (P.W. 8) mother-in-law of the appellant; Police Officers, viz., Nagorao s/o Zingraji Matre (P.W. 9) P.S.I.; Arunkumar s/o Motilal Zarkariya (P.W. 10), reader, P.S.I.; Dr. Chavan (P.W. 11), who conducted autopsy on the dead bodies of Balya and Mangla. 6. Chavan (P.W. 11), who conducted autopsy on the dead bodies of Balya and Mangla. 6. The learned Additional Sessions Judge found that the prosecution has proved that Balya and Mangla died a homicidal death because of drowning in the well, which was in consequence of the act of the accused and further that the appellant/accused attempted to commit murder of her younger daughter by jumping into the well alongwith her. The learned Additional Sessions Judge negatived the plea of insanity raised by the appellant during the trial and proceeded to convict her for having committed offence under section 302 and 307 I.P.C. 7. It is submitted by Mr. Jaiswal, learned Counsel appearing for the appellant that the learned trial Court has not considered the plea raised by the appellant in her defence, that she was insane and incapable of understanding the act attributed to her i.e. throwing her two children in the well and also jumping herself in the well alongwith her younger daughter Ramla. It is submitted that the learned trial Court ought to have considered the facts and circumstances which preceded the incident and were directly responsible for the killings of two small children by their own mother. It is submitted that the trial Court ought to have seen that the act of killing her own children and attempting to kill herself alongwith her youngest child Ramla indicate that it was an act committed in a fit of delusion and it was in the spur of moment that the appellant can be said to have decided to end herself and her children which, if, considered in the background that the appellant was suffering from illness immediately after her delivery and had not taken food from last two days prior to the incident, itself goes to show that the killings seem to have been committed on an occasion of a particular stress and, therefore, the learned trial Court ought to have given benefit of section 84 of I.P.C. to the appellant and acquitted her. 8. It is further submitted that the case of the appellant is squarely covered by section 84 of I.P.C., as in similar set of circumstances where the accused/mother has killed her small children, various Courts have acquitted the accused by giving the benefit of section 84 of I.P.C. In support of his contention Mr. 8. It is further submitted that the case of the appellant is squarely covered by section 84 of I.P.C., as in similar set of circumstances where the accused/mother has killed her small children, various Courts have acquitted the accused by giving the benefit of section 84 of I.P.C. In support of his contention Mr. Jaiswal relied upon the case of (Ratanlal v. State of Madhya Pradesh)1, A.I.R. 1971 S.C. 778 in order to emphasise that the Court ought to have seen that there was material on record to show the state of mind of the appellant prior to and after committing the alleged offence, though the Police Officers did not find it necessary to seek police custody of the appellant after her arrest which was immediately after the incident. Considering the peculiar facts and circumstances, the Investigating Officer ought to have referred the appellant for medical examination, at least regarding her mental state and in absence of such steps being taken by the prosecution, the material evidence that appellant was of unsound mind was lost to the appellant. It is submitted that even otherwise there is sufficient material brought on record in the evidence of P.W. 1-Shriram Pimpalkar and other witnesses which clearly reflects as to the mental state of the appellant at the time of commission of offence. 9. The next case referred by the learned Counsel for the appellant is that of (Laxman Accused Prisoner)2, 1973 Cri.L.J. 110 in which, the accused had mercilessly killed his wife by stabbing to death in broad daylight without any motive and after committing the offence, did not make any attempt to conceal or to escape when caught. The Madras High Court found that the appellant was entitled to benefit of section 84 of I.P.C., even though in his confessional statement, he had pleaded sudden and grave provocation, proceeded on the footing that, he was quite sane at the time of the act and was proved to be so for a year thereafter and nobody else was present in the house. The learned Counsel for the appellant has also relied upon the case of (Bai Ramilaben v. State of Gujrat)3, 1991 Cri.L.J. 2219. The learned Counsel for the appellant has also relied upon the case of (Bai Ramilaben v. State of Gujrat)3, 1991 Cri.L.J. 2219. It is submitted by the learned Counsel for the appellant that though this case was cited before the trial Court, the trial Court failed to take into consideration the plea of insanity on the ground that the case of Ramilaben differs with that of the appellant/accused, which is not so and the trial Court having failed to consider the case of Ramilaben on the point that the prosecution having failed to prove mens rea, conviction for murder is illegal, as in the present case also the prosecution has not placed on record any material to show that the appellant had requisite mens rea for committing such a heinous offence of killing her own children, whom she loved dearly. 10. Mr. Jaiswal, learned Counsel for the appellant submitted that in case this Court does not accept the plea of insanity raised by the appellant, in the alternative, the case of the appellant be considered based on the plea of diminished responsibility. Mr. Jaiswal submitted that the facts of the case show that there are circumstances of mitigation and killings seem to have been committed on a occasion of a particular stress, which is very unlikely to be repeated and, therefore, it cannot be said that the appellant, if released, would be a source of danger to the society and, therefore, the Court can consider the case of the appellant with leniency and her sentence can be reduced to one already undergone. It is submitted that though in the strictest sense this plea of diminished responsibility is not available in India but can well be applied to the case of the appellant; and referred to the case of (Siddheswami Bora v. State of Assam)4, 1981 Cri.L.J. 1005. It is submitted that this Court can also recommend to the State Government to consider the case of the appellant to remit remainder of sentence, as contemplated under section 433-A of Criminal Procedure Code, 1973. It is, therefore, submitted by Mr. It is submitted that this Court can also recommend to the State Government to consider the case of the appellant to remit remainder of sentence, as contemplated under section 433-A of Criminal Procedure Code, 1973. It is, therefore, submitted by Mr. Jaiswal, learned Counsel for the appellant that the appellant deserves to be acquitted as her case falls within the four corners of section 84 of I.P.C. as the act attributed to the appellant as alleged to be committed by her, was when she was suffering from unsoundness of mind and was incapable of knowing the nature of the act, particularly, in the background of her illness and considering her subsequent conduct after the commission of alleged offence. 11. Mrs. Jog, learned A.P.P. submits that on considering the nature of plea raised by the appellant i.e. to avail the benefit of section 84 of I.P.C. claiming herself to be of unsound mind at the time of commission of offence at least goes to show that the appellant admits of having committed murder of her small children and attempted to commit murder of her third child, by jumping into the well with her. It is submitted that in absence of any medical evidence and any other material, it will be difficult to extend the benefit of section 84 I.P.C. in favour of the appellant. The learned A.P.P. has drawn the attention of this Court to the case of (Sherali Wali Mohammed v. State of Maharashtra)5, reported in A.I.R. 1972 S.C. 2443 in order to emphasise that how the plea of insanity requires to be dealt with by the Court. It is submitted that the law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is submitted that the law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. The mere fact that no motive has been proved why the accused murdered her children or, the fact that she made no attempt to run away after she was rescued from the well, is not enough to attract section 84 I.P.C. It is submitted that if such a plea is taken by the appellant, it was for the appellant to discharge the burden of proof by leading some evidence or placing on record material in rebuttal of the presumption that the appellant was not insane when she committed the crime in the sense laid down by section 84 of I.P.C. and in absence of any such material, the benefit of section 84 cannot be extended in favour of the appellant. 12. Another case relied upon by the learned A.P.P. is that of (Ramchandran v. State of Kerala)6, 1986 Cri.L.J. 1222. It is submitted that to attract immunity provided under section 84 Court has to consider whether accused suffered from legal insanity, as every type of insanity recognised in medical science is not legal insanity, unless it is proved that accused was mentally unsound at the time of committing the act. It is submitted that in the present case the prosecution has sufficiently established that the appellant/accused killed her two minor children and attempted to kill the third one by jumping into the well alongwith them, which indicates premeditation and the act of of the appellant clearly falls within the definition of "commission of murder by her in doing away with her children". It is submitted that merely because the appellant was not keeping well and could not be given medical treatment or due to illness was not taking food, would not go to show that, she was suffering from unsoundness of mind. It is submitted that such circumstances are unfortunately prevalent in lower strata of the society, where the poor cannot afford to have even the basic medical treatment and, therefore, it cannot be said to be an exception of the case of the appellant. It is submitted that such circumstances are unfortunately prevalent in lower strata of the society, where the poor cannot afford to have even the basic medical treatment and, therefore, it cannot be said to be an exception of the case of the appellant. It is submitted that the appellant was not suffering from any mental illness so as to commit such a heinous crime and even if it is accepted that this was an impulsive attempt on the part of the appellant, it cannot be termed as legal insanity so as to attract section 84 of I.P.C. It is, therefore, submitted by the learned A.P.P. that the appeal deserves to be dismissed and the manner in which the appellant has ended the life of her young children does not call for any leniency in her case. 13. The only point which requires for our consideration is whether the case of the accused/appellant could fall under section 84 of I.P.C. Section 84 of I.P.C. provides as under : "84. Act of a person of unsound mind---Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." The very object and purpose of this provision is based on the fundamental principle of criminal law that mens rea (guilty mind) is an essential element in every offence and no crime can be said to have been committed if the mind of the person doing the act is not guilty. In order to better appreciate the principle laid down under section 84 of I.P.C., we may refer to the passage quoted in Halsbury's Law of England; "Where, on a criminal charge, it appears that at the time of the act or omission giving rise to the offence alleged the defendant was labouring under a defect of reason owing to a disease of the mind so as not to know the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for his act. The question whether, owing to a defect of reason due to disease of the mind, the defendant was not responsible for his act is a question of fact to be determined by the jury. Where the jury finds insanity is made out the verdict takes the special form of not guilty by reason of insanity." Therefore, what we understand is that, if the accused was of unsound mind at the time of commission of act; and by reason of unsoundness of mind, the accused was incapable of knowing the nature of the act or that he was doing so contrary to law then it cannot be said to be an offence as covered by section 84 of the I.P.C. In order to appreciate as to what is unsoundness of mind, we can safely classify persons as to be non compos mentis (not of sound mind), falling in the category of : (1) an idiot; (2) one made non compos by illness; (3) a lunatic or madman; and (4) a drunkard, i.e. one who is drunk. For the purpose of our case, second category assumes importance i.e. one made non compos by illness. Now, let us examine whether the appellant is a person, who can be said to be non compos mentis by illness? Shriram Pimpalkar (P.W. 1) in his evidence before the Court has stated in clear terms that : "The accused was maintaining i.e. taking care of the children. It is true that there were cordial relations in between accused and we members of the family. It is true that the accused was properly maintaining our children. The accused has delivered a younger daughter before about two months from the date of incident. The accused was not keeping good health after delivery. It is true that due to my financial difficulty, I could not give medical treatment to the accused." He has further stated that : "It is true that the accused did not take meals since 16-12-1993 and she was sleeping since then. During that period, my mother was cooking the meals and I used to leave the house early in the morning. The accused was complaining headache and remaining asleep throughout the day during those days." This clearly indicates the physical and mental condition of the appellant/accused immediately prior to the incident. During that period, my mother was cooking the meals and I used to leave the house early in the morning. The accused was complaining headache and remaining asleep throughout the day during those days." This clearly indicates the physical and mental condition of the appellant/accused immediately prior to the incident. If this is the condition of a person, when particularly in the background the appellant being a woman, and was not keeping a good health after delivery and because she could not be provided with medical treatment due to financial inability, the illness has aggravated so much that from 16-12-1993, the appellant had stopped taking meals and was even found sleeping during that period, which indicates that she had sleepless night and can be said to be in a state of delirium which has a symptom of disturbance of consciousness in which orientation is impaired, the critical faculty is blunted or lost and thought content is irrelevant or incoherent. Hallucinations and illusions may be present. Delirium may be caused by organic illness (as in some type of fevers) or by psychological factors. The duration and nature of illness which aggravated from 16-12-1993 show that the health of the appellant must have significantly deteriorated, both- mentally and physically, which probably drove her to commit culpable act attributed to her. The facts stated in his evidence by her husband Shriram Pimpalkar further speaks about her conduct, after the incident when he states that 'the accused was not weeping when I came near the well and she was sitting calm and quite, she was seeing at one place without twinkling of an eye, she was not talking with anybody, she did not try to run away from that spot." are indicative of the fact that the appellant did not show any sign to have committed such a heinous offence of killing her two children and having made attempt to commit suicide with the third child. This, to a great extent, indicates that the appellant did not have requisite mens rea to commit the offence. 14. This, to a great extent, indicates that the appellant did not have requisite mens rea to commit the offence. 14. On this count that the appellant was suffering from illness has also come in the evidence of (P.W. 8) Bainabai w/o Letu Pimpalkar, which corroborates the evidence of Shriram Pimpalkar on the point that the appellant was not feeling well for 2 to 3 days prior to the incident and, therefore, she used to remain asleep during those days. Therefore, what we find from the evidence of prosecution witnesses is that the appellant, who otherwise was a devoted mother killed her children, because she was suffering from illness, which aggravated to the extent that she had stopped taking food two days prior to the incident and used to remain sleeping, which only indicates the depressed state of mind, as the appellant herself made an unsuccessful attempt to commit suicide alongwith third child after throwing her two children in the well. The conduct of the appellant which reflected her condition, as has come in the evidence of (P.W. 1) -Shriram Pimpalkar and (P.W. 8) Bainabai, is a circumstance, which does support the case of the appellant that at the time when the offence is alleged to have been committed, the appellant was not of sound mind. 15. What we find from the judgment of the trial Court is that the trial Court did not consider the plea of insanity raised by the appellant by way of her defence, in proper perspective and even ignored the principles enunciated in Ramilaben's case (cited supra). 16. 15. What we find from the judgment of the trial Court is that the trial Court did not consider the plea of insanity raised by the appellant by way of her defence, in proper perspective and even ignored the principles enunciated in Ramilaben's case (cited supra). 16. Therefore, considering the peculiar facts and circumstances of the case, in which, the appellant is alleged to have committed the heinous offence of killing her two minor children and making an attempt in case of the third child by jumping herself in the well alongwith the said child, so as to end her own life, we find that this abnormal behaviour of the appellant was a result of her state of unsound mind and in absence of any mens rea proved by the prosecution as to why she committed such homicidal offence and killed her own children, we find that the case of the appellant is squarely covered by section 84 of I.P.C. Therefore, we quash and set aside the conviction and sentence passed by the 2nd Additional Sessions Judge, Yavatmal, in Sessions Trial No. 99/93 and allow the appeal of the appellant. The appellant is acquitted of the charge of having committed offence under sections 302 and 307 of I.P.C. and her conviction and sentence is quashed and set aside. The appellant be set at liberty forthwith, if she is not required in any other case. 17. The appeal is allowed in the aforesaid terms. Appeal allowed. -----