J. M. PANCHAL, J. ( 1 ) THE appellant has, by filing this appeal under section 374 (2) of the Code of Criminal Procedure, 1973 (for short "cr. P. C.), challenged legality and correctness of judgment dated 3 1/01/1992 rendered by the learned Additional Sessions Judge, Mahesana in Sessions case No. 116 of 1990 by which the appellant has been convicted under section 235 (2), Cr. P. C. of the offences punishable under section 302 of the Indian Penal Code and under section 135 of the Bombay Police Act 1951 and is sentenced to undergo Rigorous Imprisonment for life for an offence punishable under section 302, I. P. C. and to undergo Rigorous Imprisonment for a day and to pay a fine of Rs. 10. 00 i/d. to undergo R. I. for two days for the offence punishable under section 135 of the Bombay Police act. The sentences inflicted for both the offences are ordered to run concurrently. ( 2 ) THE complainant Balvantji Nawaji is residing in village Norata, Dist. Patan with his family members. Deceased victim Nagajo Moghaji was his uncle. His uncle had four sons out of which eldest son is Pratapji who is the appellant before this Court. Other three sons and the appellant were residing with his deceased uncle. The appellant was not pursuing any activity or occupation for earning purpose and he was roaming in the village for no purpose. It is alleged that on previous day of date of incident, the deceased and his wife both had reprimanded the appellant for his conduct of not doing work for earning purpose. 2. 1. THE incident took place on 4/05/1990 in the morning at 11-15 a. m. The deceased had gone to attend a Diara (Meeting of elderly persons in which one Gadhvi Barot was to attend to sing folk-songs ). The wife of the deceased and other two sons of the deceased had gone, out of residence for their work. The deceased returned to his house at about 11-00 a. m. and lied down on one cot which was kept for resting purpose. At that time, Jarukhaben sister of the appellant and daughter of the deceased was cooking meals for lunch in a small hut, having one slopping roof. At that time, youngest son Hamirji was there in the house. The appellant was also present in the house. At that time, Jarukhaben sister of the appellant and daughter of the deceased was cooking meals for lunch in a small hut, having one slopping roof. At that time, youngest son Hamirji was there in the house. The appellant was also present in the house. At about 11-15 a. m. , the appellant went inside the house and brought one Vansi (an agricultural implement used for cutting cactus of which one end is fitted with sickle ). The complainant has given its description in his deposition. Its description is also given in Muddamal Pawati Exh. 2. The appellant came out side with the Vansi and inflicted two blows of Vansi on the deceased. One blow of Vansi landed on chin and other landed on forehead. This incident was witnessed by Jarukhben. She shouted for help as a result of which complainant Balvantji Nawaji and his wife Menaben both rushed to the place of incident. At that time, the appellant was present with the vansi in his hands. The deceased was bleeding from the wounds which he had sustained. The complainant pressed one cloth which is being used for wearing around head, on the face of the deceased. Meanwhile, as stated in the complaint, the appellant went away leaving the Vansi at the place of incident. Thereafter, many persons from the village gathered there. Wife of the deceased also came from the field. The injured deceased was shifted by the complainant in the Tractor to General Hospital, Patan at about 11-30 hrs. He was examined by Dr. Vikram Aawaddan Gadhavi in the hospital. Dr. Gadhavi also gave information to P. S. O. of Patan Taluka Police Station. On the basis of the information, P. S. I. of Patan Taluka Police Station made entry vide Entry No. 12/90 in the Station Diary and he informed Second P. S. I. to go to General Hospital. P. S. I. Mr. Naththekhan Muratkhan immediately rushed to the General Hospital, Patan within 15 minutes. At that time, injured was not conscious and it was not possible for him to record his complaint. At that time, the complainant was present in the hospital. He lodged the complaint to Mr. Naththekhan. Mr. Natthekhan sent that complaint to the Patan Taluka Police Station for registration of the offence. That complaint came to be registered as CR. At that time, injured was not conscious and it was not possible for him to record his complaint. At that time, the complainant was present in the hospital. He lodged the complaint to Mr. Naththekhan. Mr. Natthekhan sent that complaint to the Patan Taluka Police Station for registration of the offence. That complaint came to be registered as CR. No. 49/90 for offences punishable under Sec. 307, I. P. Code and Sec. 135 of the Bombay Police Act. Thereafter, he handed over the investigation to P. S. I. . Shri Bhimjibhai Govindbhai Limbachia. Before Mr. Naththekhan sent the complaint for registration to Police Station, the Medical Officer transferred the deceased to Civil Hospital, Ahmedabad at about 14. 15 hrs. On taking charge of investigation, Mr. Bhimjibhai Govindbhai Limbachia first went to the village Norata. There, he drew a panchnama of scene of offence. From that place, he seized blood stained Dhoti, blood stained pieces of cotton cordage of net of the cot. He also recorded statements of witnesses who were conversant with the facts of the case. Thereafter on the next day, he went to Civil Hospital, Ahmedabad for recording the statement of the injured, but it was found that the injured was not in a conscious condition to give his statement, and therefore, he instructed Police Head Constable who was present there to write a Yadi to the Executive Magistrate for recording the dying declaration of injured. Then, on 6/03/1990, he recorded the statements of other witnesses. On the next day i. e. 7th March, 1990 the accused was arrested from the village. On 8/03/1990, he seized blood stained paheran (long shirt) of deceased under panchnama. From the record of the case, it appears that the deceased who was under the medical treatment, in the Civil Hospital died in the hospital at 21. 55 hrs on 9/03/1990. On or about 15/03/1990, Investigating Officer received the information on telephone that the deceased had died, and therefore, on that day, a Yadi was written to J. M. F. C. Patan to add an offence under Sec. 302, I. P. C. in the F. I. R. Thereafter the Investigating Officer received documents with regard to inquest panchnama as well as Post Mortem Notes. On completion of investigation, the Investigating Officer chargesheeted the case against the appellant in the Court of the learned J. M. F. C. Patan on 15/05/1990. On completion of investigation, the Investigating Officer chargesheeted the case against the appellant in the Court of the learned J. M. F. C. Patan on 15/05/1990. ( 3 ) ONE of the offences is punishable under section 302, I. P. C. which is exclusively triable by the Court of Sessions and hence on 26/6/1990, the learned J. M. F. C. committed the case to the Court of learned Sessions Judge, Mahesana for trial where it was numbered as Sessions Case No. 116 of 1990. ( 4 ) THE learned Judge of the trial Court framed charge at Ex. 3 against accused. It was read over and explained to the appellant to which the appellant pleaded not guilty to the charge and claimed to be tried. The prosecution has examined following witnesses to prove its case against the appellant: (1)P. W. NO. 1 Balvant Navaji (complainant) at Ex. 16. (2) P. W. 2 Dr. Vikram Aavaddan Gadhavi who examined the injured at the first point of time at Ex. 18. (3) P. W. 3, Jarukhben Nanjibhai -sister of the appellant who witnessed the incident, at Ex. 20. (4) P. W. 4 Menaben Balvantji - the wife of the complainant at Ex. 21. (5) P. W. 5 Dr. Nayankumar Natwarlal Parikh who conducted autopsy on the dead body of the deceased at Ex. 22. (6) P. W. 6 Somaji Anadaji ( Panch witnesses for panchnama of cot on which the deceased was lying down ) at Ex. 25. (7) P. W. 7 Aanarji Rupaji (-second panch) for aforesaid panchnama Ex. 26 as well as panchnama of seizure of vansi produced by Jarukben at Ex. 27. (8) P. W. 8, P. S. I. . Naththekhan Muratkhan Ex. 32. (9) P. W. 9, P. S. I. . Bhimjibhai Govindbhai Limbachia, Investigating Officer at Ex. 34. ( 5 ) THE prosecution has also produced following documentary evidence in support of its case against the appellant: (1) A Yadi of Police Station Officer of Patan Taluka Police Station addressed to Second P. S. I. . at Ex. 6. (2) A Yadi with which the complaint was sent by Naththekhan to P. S. O. for registration at Ex. 7. (3) Panchnama of arrest of the appellant -accused at Ex. 8. (4) Forwarding letter with which incriminating articles were sent to Forensic Science Laboratory at Ex. 9. at Ex. 6. (2) A Yadi with which the complaint was sent by Naththekhan to P. S. O. for registration at Ex. 7. (3) Panchnama of arrest of the appellant -accused at Ex. 8. (4) Forwarding letter with which incriminating articles were sent to Forensic Science Laboratory at Ex. 9. (5) Receipt issued by responsible officer of Forensic Science Laboratory for having received the articles sent at Ex. 10. (6) Report of P. S. I. . Mr M. M. Singh made to J. M. F. C. Pathan to add offence punishable under section 302, I. P. C. at Ex. 11. (7) Inquest panchnama Ex. 12. (8) Prescribed Form Exh. 13 sent to Civil Surgeon with letter of a request to perform post mortem at Ex. 14. (9) Report of Forensic Science Laboratory at Ex. 15. (10)COMPLAINT at Ex. 17. (11) Injuries certificate issued by Dr. Gadhavi at Ex. 19. (12) Post Mortem Notes Ex. 23. (13) Panchnama of scene of incident at Ex. 26. (14) Panchnama of blood stained cot and its net of cotton cordage at Ex. 27. (15) Panchnama of seizure of Vansi produced by P. W. 3 Jarukhben at Exh. 29. (16) Panchnama of seizure of paheran (a long shirt) produced by Bhupataji Becharji at Ex. 30. (17) A copy of notification published under section 37 (1) of the Bombay Police Act 1951 prohibiting weapons etc. not to be held and carried in public place at Ex. 35. ( 6 ) AFTER recording of evidence of the prosecution witnesses was over, the circumstances appearing against the appellant were brought to the notice of and explained to the appellant. For compliance of section 313, Cr. P. C. further statement of the appellant was recorded. The appellant has not denied the case but has shown his ignorance about the incident. In reply to Question No. 11, the appellant stated that at the time of incident, he was not conscious. In reply to Question No. 13, the appellant has stated that his father was not allowing him to do any work as he was suffering from desease of epilepsy. The appellant submitted his written statement at Ex. 41. He has stated, inter alia in Ex. 41 that he was suffering from mental disease since before the incident and also after the incident, and was also taken to the hospital from the Jail for treatment for mental imbalance. The appellant submitted his written statement at Ex. 41. He has stated, inter alia in Ex. 41 that he was suffering from mental disease since before the incident and also after the incident, and was also taken to the hospital from the Jail for treatment for mental imbalance. He has stated in Para 5 of his written statement at Ex. 41 that at the time of incident, he was under the effect of insanity. The appellant examined Dr. Vikrambhai Aawaddan Gadhavi as D. W. 1 at Ex. 42 as his defence witness. This defence witness has produced a letter dated 5/05/1990 written by the Jailor, Sub-Jail, Patan and addressed to Police Inspector, Patan City Police Station, copy of which was forwarded with an endorsement to the Medical Officer, General Hospital, Patan. This letter is at Ex. 43. It appears from the written statement Exh. 41 filed by the appellant that he has pleaded defence available under section 84, I. P. C. ( 7 ) THE learned Judge of the trial Court after hearing the arguments of the learned Advocates for both the parties and after appreciating evidence led by both the parties, rendered judgment and convicted the appellant as stated earlier. Appellant has challenged that judgment in this appeal. ( 8 ) HEARD Ms. Banna Datta, learned Advocate for the appellant and Ms. Nandini Joshi, learned APP for the respondent-State. Ms. Banna Datta, the learned Advocate for the appellant has taken us through the evidence on record. By placing reliance on evidence of Dr. Gadhavi, Ms. Banna Datta, the learned Advocate for the appellant has argued that the injuries Nos. 1 and 2 noticed by Dr. Gadhavi were of such a nature that the injured would have survived, if proper treatment would have been given to him, and therefore, the learned Judge of the trial Court ought not to have held that the deceased died a homicidal death. She has further argued that there were three eye witnesses at the place of incident as alleged by the prosecution, out of which, two eye witnesses i. e. the complainant and his wife were not accepted to be eye witnesses by the learned Judge of the trial Court, and therefore, the prosecution case rests solely on eye witness Jarukhben -a daughter of the deceased. She has further argued that it would be hazardous and risky to base conviction on the testimony of this type of sole eye witness. She has argued that prosecution has not examined material witness Hamirji youngest son of the deceased, and therefore, adverse inference should be drawn against prosecution, and therefore, accused be given benefit of doubt. ( 9 ) BY placing reliance on the observation of the learned Judge of the trial Court in Para 9 of the judgment, Ms. Banna Datta has argued that the learned Judge of the trial Court has not appreciated the defence put by the appellant in its correct and proper perspective namely that at the time of the incident, he was mentally imbalanced, and under the effect of insanity. She has further argued that this defence gets corroboration from the prosecution witnesses namely the complainant, his wife and eye witness Jarukhben. She has emphatically argued that this defence of the appellant is proved by him as required to be proved under section 84 of the Indian Penal Code and that the learned Judge of the trial Court has grossly erred in not accepting his defence. For the defence pleaded by the appellant, Ms. Banna Datta has also placed reliance on the evidence of Dr. Gadhavi who is examined as defence witness at Ex. 42 and also a copy of letter at Ex. 43 produced by Dr. Gadhavi. She has argued that the conviction of the appellant for the offence punishable under section 135 of the Bombay Police Act for contravention of notification issued by the competent authority under section 37 (1) of the Bombay Police Act is not according to law and it requires to be set aside because the appellant was not found with the Vansi in a public place. She has further argued that the learned Judge of the trial Court has not appreciated the evidence in its correct perspective and looking to the facts of the case and evidence led by the defence witness, the appeal deserves to be allowed and the appellant should be given benefit of general exception falling under section 84 of the Indian Penal Code and acquitted. ( 10 ) MS. Nandini Joshi, learned APP for the respondent -State has supported the judgment of the learned Judge of the trial Court. ( 10 ) MS. Nandini Joshi, learned APP for the respondent -State has supported the judgment of the learned Judge of the trial Court. She has argued that looking to the defence taken by the appellant, the presence of accused in the house at the time of incident is not in dispute. She has further argued that though Jarukhben is a sole eye witness to the occurrence, her evidence inspires confidence of the Court and the learned Judge of the trial Court has rightly placed reliance on the evidence of eye witness Jarukhben. She has further argued that her evidence stands corroborated by incriminating articles which were blood stained cot, paheran and pieces of cotton cordage of net of cot, because all these articles were found to have been stained with blood by the Scientific Officer of the Forensic Science Laboratory and the blood group of the deceased matches with the blood group found on incriminating article vansi which was used in the commission of the offence. She has further argued that the defence pleaded is not proved by the appellant, and the appellant ought to have led satisfactory cogent evidence to prove his defence falling under section 84 of the I. P. Code. She has further argued that defence which is pleaded by the appellant is an afterthought because after recording of evidence of all the prosecution witnesses was over, the appellants advocate had submitted an application Ex. 37 and requested the trial Court to recall seven witnesses to cross-examine on the point of mental condition of the appellant. According to learned A. P. P. as per the order of the learned Judge of the trial Court, the prosecution witnesses Nos. 1,3 and 4 were recalled and the appellant was given sufficient opportunity to cross-examine them on the point of mental condition of the appellant, but inspite of the opportunity given, the appellant has failed to prove his defence, as required by law. In support of her arguments, Ms. Nandini Joshi has cited (1) OYAMI AYATU vs. THE STATE OF MADHYA PRADESH, reported in AIR 1974 SC 216 ; (2) SULAIMAN PILLAI vs. STATE OF KERALA, reported in 1995 Supp. (3) SCC 695 and (3) T. N. LAKSHMAIAH vs. STATE OF KARNATAKA reported in (2002) 1 SCC 219 . In support of her arguments, Ms. Nandini Joshi has cited (1) OYAMI AYATU vs. THE STATE OF MADHYA PRADESH, reported in AIR 1974 SC 216 ; (2) SULAIMAN PILLAI vs. STATE OF KERALA, reported in 1995 Supp. (3) SCC 695 and (3) T. N. LAKSHMAIAH vs. STATE OF KARNATAKA reported in (2002) 1 SCC 219 . She has further argued that the reasons assigned by the learned Judge of the trial Court are cogent and plausible and there is no reason to disagree with the findings arrived at by the learned Judge of the trial Court, and therefore, looking to the facts and circumstances of the case, and evidence on record, appeal deserves to be dismissed. ( 11 ) WE have considered the arguments advanced by the learned Advocates for both the parties. We have reappreciated the evidence led by both the parties to come to our own conclusions. The fact that deceased died a homicidal death, is not in dispute. The learned Judge of the trial Court has observed in Para 8 of his judgment that defence lawyer has not raised any dispute on the point that death of the deceased was an unnatural death or that death was not a homicidal death. The complainant and Jarukhben both have deposed that after the incident, the injured Nagaji Moghaji was shifted to General Hospital, Patan. Dr. Vikram Gadhavi who is examined at Ex. 18 has deposed that he is serving as Medical Officer in Government Hospital, Patan since last three years and on 4/03/1990 at about 12. 50 hrs. Nagaji Moghaji was brought to him without a Police Yadi. He had examined injuries sustained by said injured. He has specifically deposed that when he examined the injured, condition of injured was serious and semi-unconscious with fit of convulsions and was not in a fit condition to make statement, and that he was bleeding from his mouth. He noticed following two injuries: (1) Incised wound of 12 cm. x 2 cm. of size. bone deep and bone cut over the chin of face shape D and border right upper lip/lower lip from rigt side right ankle and mouth going in outward to the left extending upto the lower track of shaft of left margin just below and lateral to left ankle of mouth. clinically fracture of mandible. Right lower molar teeth broken and other loosened. Lower inciseor teeth also loosened. clinically fracture of mandible. Right lower molar teeth broken and other loosened. Lower inciseor teeth also loosened. (2) Incised wound over the frontal area of skull extending from right side of forehead and upto left side of forehead deep upto bone. Clinically fracture of skull base 2 cm. lateral to the left side upto 3. 00 cm. right side of forehead bone deep (illegible) in shape. The certificate given by Dr. Gadhavi at Ex. 19 is duly proved. He has further deposed that aforesaid injuries could be possible by sharp cutting instrument. He was shown vansi Muddamal Article No. 3. and on seeing vansi, he has opined that aforesaid injuries were possible by this weapon. He has further deposed that aforesaid injuries were sufficient in the ordinary course of nature to cause death of the deceased. In cross-examination, he has deposed that Injury No. 1 can be fatal but he has further opined that injured would have survived, if he was given proper treatment. For Injury No. 2, he has also opined that he cannot say as to whether injured would have survived, if proper treatment was given. As per his evidence, he had given primary medical treatment to the patient and on the very same day at about 2. 15 p. m. the injured was referred to Civil Hospital, Ahmedabad. It is not in dispute that injured was admitted in Civil Hospital, Ahmedabad and he died at about 21. 15 hrs on 9/03/1990, while he was under treatment in Civil Hospital, Ahmedabad. Police Head Constable who was on duty in the Hospital had held an inquest and prepared panchnama at Ex. 12 on 10th March, 1990. As per inquest panchnama, there were injuries on forehead and also on outer side of right thigh. It may be noted that defence lawyer has admitted this document i. e. Inquest panchnama Ex. 12, and therefore, this document has been admitted in evidence under section 294, Cr. P. C. Thus there is no dispute with regard to inquest panchnama. In Pedda Narayan Vs. State of A. P. reported in AIR 1975 SC 1252 , the Honble Supreme Court has held, by referring to section 174, Cr. 12, and therefore, this document has been admitted in evidence under section 294, Cr. P. C. Thus there is no dispute with regard to inquest panchnama. In Pedda Narayan Vs. State of A. P. reported in AIR 1975 SC 1252 , the Honble Supreme Court has held, by referring to section 174, Cr. P. C. that a perusal of this provision would clearly show that the object of the proceedings under section 174 is merely to ascertain whether a person has died under suspicious circumstances or it is an unnatural death and if so what is the apparent cause of the death. The inquest panchnama Ex. 12 reveals that the dead body was identified by the complainant and injuries were there on chin, forehead and outer side of left thigh, and therefore, it was not a natural death. Police Head Constable who was on duty in the hospital had sent the dead body of the deceased with a letter Ex. 14, to Civil Surgeon for performing post mortem along with prescribed Form Ex. 13. Both these documents were admitted by the appellant during trial. The prosecution has examined Dr. Nayankumar Natwerlal Parikh Ex. 22 who performed Post Mortem Examination on the dead body of the deceased. ( 12 ) DR. Nayankumar Parikh deposed before the trial Court that he was performing his duties as Tutor in Forensic Science Department of Civil Hospital, Ahmedabad. On 10/03/1990 at about 9-00 a. m. , the dead body of the deceased Nagajiji was received for autopsy and he started to perform its post mortem examination at 9-00 a. m. and completed that work at 11-00 a. m. On performing post mortem on the dead body of the deceased, he noticed following external injuries which are stated in Para 17 of the Post Mortem Notes Ex. 23: -Surgical stitch wound on forehead trasversable for 11. 3 cm. Margine of wound contused.-Palpable fracture of frontal bone present.-Surgical stitch wound on chin going upward to left upper angle of lip for 4. 3 cm. Margin contused. He also noticed the following internal injuries on the dead body of the deceased at the time of performing the post mortem examination, which were noted down in Para 19 of the said Post Mortem Notes at Ex. 23: (1) Ecchymosis under the skull on frontal bone and further (illegible) on both parital bones in area of 20 x 14 cm. 23: (1) Ecchymosis under the skull on frontal bone and further (illegible) on both parital bones in area of 20 x 14 cm. size. (2) A linear fracture of frontal and both parital bone for 16. 9 cms. (3)BRAIN conjested subdural subarrachnoid. Hemmorrhage seen in different part. As per his evidence, all the above injuries were ante-mortem and they were sufficient, in the ordinary course of nature, to cause death of the deceased. As per his opinion, death was due to shock as a result of injuries sustained and its complications. His evidence is corroborated by contemporaneous document viz. Post Mortem Notes Ex. 23. In cross-examination, he opined that the injury on chin was of such nature that if immediate treatment would be available to the injured, injured would have survived. In spite of this opinion, he has categorically denied the suggestion put by the defence lawyer that deceased would have survived, if immediate treatment would have been given to the deceased. The contention taken by the learned Advocate for the appellant that looking to the medical evidence, case would not fall under section 299, I. P. C. because opinion of the Doctor is such that the deceased would have survived if immediate treatment would have been given to him cannot be upheld. Explanation II to Sec. 299, I. P. C. will be applicable to this case. Explanation II speaks that when death is caused by vital injury, a person who caused such vital injury shall be deemed to have caused the death, although by resorting to proper remedy and skillful treatment, the death may have been prevented, and therefore, the contention taken by Ms. Banna Datta is devoid of merits and therefore same is rejected. From medical evidence, it is proved that unnatural death was a culpable homicidal death. The learned Judge of the trial Court has given finding on this point on the basis of aforesaid medical evidence. That finding requires to be confirmed in view of discussions made hereinabove, and acordingly it is upheld. ( 13 ) THIS takes us to decide as to who is the author of the injuries sustained by the deceased. The prosecution mainly relies on three eye witnesses. Ms. That finding requires to be confirmed in view of discussions made hereinabove, and acordingly it is upheld. ( 13 ) THIS takes us to decide as to who is the author of the injuries sustained by the deceased. The prosecution mainly relies on three eye witnesses. Ms. Banna Dutta has argued before us that these three eye witnesses are P. W. 1 Balvantji Navaji - the complainant, P. W. 4 Menaben Balvantji -the wife of the complainant and P. W. 3 Jarukhben Nagajibhai -the sister of the accused. 14. 1as per evidence of Balvantji Navaji, the deceased was his uncle. His house is situated in same lane in which the house of the deceased is situated. There is only one house of his another uncle Jashwantji Meghaji, in between his house and the house of the deceased, and therefore, he is also a close neighbour of the deceased. As per his evidence, incident took place at about 11. 15 a. m. He was present there in front of his house and at that time, his wife Menaben P. W. 4 was cooking meals for lunch. He has further deposed that deceased Nagaji was lying on cot in front of his house, and at that time, Jarukhben i. e. daughter of the deceased was also cooking meals for lunch. He heard shouts of Jarukhben and on hearing shouts, he and his wife rushed to the house of the deceased and at that time, he saw that Nagaji was in a lying condition on the cot. According to his evidence, the appellant inflicted two blows of Vansi -one on chin and another on forehead. After reaching to the place of incident, he separated the appellant and the deceased and thereafter he caught hold of the appellant so as to see that no further blows might be inflicted by the appellant. According to his deposition, thereafter the appellant had run away. He saw that the deceased was bleeding from the parts of body where he had sustained injuries. Therefore, he pressed the face with cloth which is being worn around the head. So far as presence of other persons is concerned, he has deposed that when the appellant had run away from the place, he himself, Jarukhben and Hamirji were only pesons present at the site, and thereafter, other persons had gathered there. Therefore, he pressed the face with cloth which is being worn around the head. So far as presence of other persons is concerned, he has deposed that when the appellant had run away from the place, he himself, Jarukhben and Hamirji were only pesons present at the site, and thereafter, other persons had gathered there. He has further deposed that at the time of incident, mother of the appellant was working in the field, and therefore, one boy was sent for who called the mother of the appellant to the house of the deceased. According to him, one tractor of Hamirbhai was called for and by taking the deceased in the tractor, the deceased was immediately shifted to hospital at Patan. He has stated that the deceased was admitted in the hospital at Patan, and Police had came there and recorded his complaint. He has proved his complaint which is at Ex. 17 on the record of the case. He has further deposed that when the deceased was being shifted from Patan to Ahmedabad, he did not accompany the deceased. He has further deposed that after his return to village, Police had come to village and he had shown place of incident. This fact is corroborated by Panchnama of scene of incident Exh. 26 and deposition of Investigating Officer Shri Limbachia Exh. 34. According to him, his uncle Nagaji died about seven days after the incident. He has identified the Vansi which is produced as Muddamal Article No. 3 on the record of the case. He has also deposed that clothes worn by deceased were stained with blood. In cross-examination, he was confronted with the complaint on the point that he did not state in his complaint that he heard the shouts of Jarukhben and on hearing shouts, he reached to the place of incident. In cross-examination, he has asserted the same case of the prosecution that Jarukhben shouted after Nagaji sustained injuries, meaning thereby the defence admits that he rushed to the place of incident after hearing the shouts of Jarukhben. His presence in the house is not disputed. From cross-examination, the presence of Jarukhben in her house and presence of Menaben in her house are also not disputed. His evidence is corroborated by complaint which was registered at the earliest point of time. According to the prosecution, the incident took place at about 11. 15 hrs. His presence in the house is not disputed. From cross-examination, the presence of Jarukhben in her house and presence of Menaben in her house are also not disputed. His evidence is corroborated by complaint which was registered at the earliest point of time. According to the prosecution, the incident took place at about 11. 15 hrs. According to the say of the complainant,the tractor arrived at about 11. 30 hrs. Menaben has deposed that they reached the hospital at 12. 00 p. m. Dr. Vikram Gadhavi has deposed that at about 12. 50 hrs on 4/03/1990, Nagaji was brought to him in the hospital without Police Yadi. Thus, within short span of time, the deceased was shifted to Patan Civil Hospital. According to say of Dr. Vikram Gadhavi, he informed the Police, as a result of which, the entry in Station Diary was made which is at Ex. 6. Police Station Officer of Patan Taluka Police Station instructed P. S. I. Naththekhan to immediately go to Civil Hospital. According, Natthekhan reached Hospital within 15 minutes. According to say of Naththeknan P. W. 8, he reached the hospital at about 13. 15 hrs. According to say of the complainant, immediately after reaching the hospital, Police recorded his complaint and therefore, there is no delay in lodging the complaint. In Kahan Singh and others Vs. State of Haryana reported in 1973 (3) SCC 226, it is ruled that when FIR was given soon after the occurrence of incident, the possibility of putting up a false version is remote. Thus, there is no reason to disbelieve the complainant who lodged the complaint. On reading the complaint, we find that name of the appellant is referred to in it. Presence of two eye witnesses is also referred to in it. It is also narrated therein as to how the incident took place. The only fact not stated in his complaint is that Jarukhben shouted and on hearing the shouts of Jarukhben, he rushed to the place of incident. This is not significant, relevant and material omission and therefore, the same cannot be treated as contradiction. There is no reason to disbelieve this witness when he has given account of incident as per his complaint. ( 14 ) THE prosecution has examined Menaben at Ex. 21. She is the wife of the complainant. This is not significant, relevant and material omission and therefore, the same cannot be treated as contradiction. There is no reason to disbelieve this witness when he has given account of incident as per his complaint. ( 14 ) THE prosecution has examined Menaben at Ex. 21. She is the wife of the complainant. She has deposed in her evidence that on the date of incident, she was cooking meals in the kitchen and her husband was taking meals. She has further deposed that Jarukhben shouted and therefore, she herself and her husband both rushed towards the house of the deceased. She saw that deceased was inflicted with blows of vansi and at that time, present appellant was present there with vansi in his hands. She saw that one injury was inflicted on the chin and another was inflicted on forehead of the deceased. They i. e. she and her husband both caught hold of the appellant. Thereafter, the appellant ran away. Thus the fact that on hearing the shouts made by Jarukhben, both -the complainant and his wife had run towards the house of the deceased, is proved by this witness also. When Menaben heard the shouts made by Jarukhben, certainly her husband must have heard the shouts of Jarukhben. Omission with regard to hearing of shouts of Jarukhben, by the complainant is not material and significant one and therefore, the same cannot be treated as contradiction. The complainant and Menaben both had seen the accused person with the Vansi in his hands at the place of incident. This fact is not challenged in cross-examination. This fact is relevant under Section 6 read with Section 11 of the Indian Evidence Act, because immediately after the incident, these two persons had rushed to the place of incident and seen the appellant with the Vansi in his hand at the place of incident, and therefore, this fact is relevant for consideration of the Court. The learned Judge of the trial Court has discussed the evidence of these two witnesses and has come to the conclusion that they had not actually seen the incident but had come on the spot after hearing the shouts made by Jarukhben. Evidence of both these witnesses get corroboration from evidence of Jarukhben. Hence their evidence is rightly relied on by the learned trial Judge. Evidence of both these witnesses get corroboration from evidence of Jarukhben. Hence their evidence is rightly relied on by the learned trial Judge. ( 15 ) IN this case, most material evidence is of Jarukhben Nagajibhai who is examined at Ex. 20. She has deposed that she is residing with her parents in village Norata and has four brothers, out of them, elder is Pratapji i. e. present appellant, and second is Paragji, whereas third is Sartan and youngest is Hamirji. She had identified the present appellant in the trial Court to be her brother. She has narrated entire incident in her deposition. As per her evidence, incident took place at about 11. 15 a. m. Her father Nagaji had gone to attend DIARA at about 8-00 a. m. and returned to house at about 11. 00 a. m. She has stated that her father was lying facing sky on the cot in front of his house. According to her evidence, at that time present appellant and her younger brother Hamirji were present there in the house, whereas her mother and another brother Paragji had gone to the field and other brother Sartanji had gone to Mahesana on that day. She has deposed that she was cooking meals for lunch in a hut having a single slopping-roof, outside the house, and at that time, the present appellant went inside the house and brought Vansi and reached to the place where her father was lying on the cot. She has specifically deposed that the appellant inflicted blows with Vansi on forehead and chin of her father and she and her brother Hamirji both shouted and caught hold of the appellant. She has further deposed that her cousin brother Balvantji and sister-in-law Menaben both came to the place of incident, and thereafter, the appellant had left the place by leaving the said Vansi at the place of incident. She has further deposed that her father was injured and he was bleeding and his clothes were stained with blood. According to her, thereafter, her father was shifted to Civil Hospital, Patan and she did not go to Ahmedabad but she returned to village and thereafter the police came to her village and police recorded her statement. She has also deposed that she produced vansi which was left by appellant at place, before police. This fact is corroborated by Panchnama Exh. She has also deposed that she produced vansi which was left by appellant at place, before police. This fact is corroborated by Panchnama Exh. 29 and also by evidence of Investigating Officer. She has identified Vansi which is produced as Muddamal Article No. 3 on the record of the case. It was argued that no conviction can be based on evidence of sole witness. After all, in view of Sec. 134 of Evidence Act, quantity of evidence is not necessary to base conviction. It is quality of evidence which matters and evidence of one witness, if reliable and cogent could be taken into consideration for basing conviction. In MAKIAT SINGH vs. STATE OF PUNJAB, (1991) 4 SCC 341 , it is held that the conviction could be made on the basis of the testimony of a solitary witness, and it is not the quantum of evidence but the quality and credibility of the witness that lends assurance to the Court for acceptance. So far as motive part is concerned, this witness has deposed that the appellant was not doing any work or any occupation for earning purpose, and her father was insisting him to do some work. In cross-examination, she has deposed that she was preparing meals at the place from where she could see her father lying on the Otta. This fact is clarified by the accused in her cross-examination. In cross -examination, her presence at the place of incident is not disputed. She is confronted with her police statement on the point that she did not state before the police that the appellant had left the place leaving vansi in the house. When she herself has produced Muddamal vansi under Panchnama Exh. 29, this omission is not significant and relevant for the purpose of appreciation of her evidence. A case has been suggested to her and which has been denied by her that she did not witness the incident and she was giving a false evidence. Except this, there is no other suggestion put to her as to why this witness should depose against the appellant falsely. For her, the deceased and the appellant are of near and dear relations. Deceased was her father, whereas the appellant is her elder brother. There is no reason for her to implicate the appellant in this serious case. Except this, there is no other suggestion put to her as to why this witness should depose against the appellant falsely. For her, the deceased and the appellant are of near and dear relations. Deceased was her father, whereas the appellant is her elder brother. There is no reason for her to implicate the appellant in this serious case. There is no suggestion from the appellant side that some unknown person had come and inflicted injuries. Evidence of Jarukhben is corroborated by evidence of complainant as well as Menaben. Her evidence stands corroborated by medical evidence and investigating officer. She had produced muddamal vansi before the police and it was seized under panchnama Ex. 29. This very vansi was sent to the Forensic Science Laboratory along with Dhoti, and paheran of the deceased, as well as pieces of cotton cordage of net of cot for examination. According to report of Forensic Science Laboratory which is produced at Ex. 15, Senior Scientific Assistant of Forensic Science Laboratory had detected human blood on Dhoti and Paheran of the deceased. She also ascertained that there were stains of human blood on pieces of cotton cordage of net of cot. She ascertained group of blood as b group. There is no explanation from the appellant as to how this blood came on Vansi. Therefore, this evidence gives corroboration to the evidence of Jarukhben. Evidence of Jarukhben is found to be cogent, credible, truthful, consistent and natural one and it inspires confidence of the Court because it gets corroboration from other reliable evidence on record. The learned trial Judge had opportunity to notice the demeanour of these three witnesses and therefore he has rightly placed reliance on evidence of these three witnesses. Thus, by reading evidence of this eye witness Jarukhben Nagjibhai coupled with evidence of the complainant and his wife, the prosecution has proved beyond reasonable doubt that it was nobody else but only the appellant who had inflicted the injuries on the deceased and as a result of the injuries inflicted by him, the deceased had died, and therefore, the finding arrived at by the learned Judge of the trial Court on this point does not require to be disturbed and the same is required to be upheld. ( 16 ) SO far non-examination of Hamirji is concerned, it may be stated that had the prosecution examined him, he would have duplicated the evidence. Hence no adverse inference can be drawn. Prosecution closed its evidence vide Purshis Exh. 36. Appellants advocate did not object against dropping of other witnesses including Hamirji. Appellant could have examined Hamirji as his defence witness. After all, he was his younger real brother. Hence contention of Ms. Dutta based on non-examination of Hamirji is hereby negatived. ( 17 ) IN this case, alternatively the appellant has pleaded defence of insanity. Ms. Dutta has argued that looking to evidence of the prosecution and also evidence led by the appellant in his defence, case of the appellant falls under section 84 of I. P. Code. On a bare reading of section 84, I. P. C. it is amply clear that person who wants to establish that an act done by him is covered by section 84 of I. P. C. , he must prove following two ingredients; (1) Accused was of unsound mind at the time of commission of the act; and (2) By reason of unsoundness of mind, accused was incapable of knowing nature of the act or that he was doing what was either wrong or contrary to law. It is true that burden to prove this his defence is not similar to burden which is cast on the prosecution to prove its case against accused. The burden on accused can not be equated with the burden of proof on the prosecution in criminal cases and could not be rated higher than a burden on a party to civil proceedings wherein a finding could be based on preponderance of probabilities. ( 18 ) TO appreciate defence of the appellant, it is necessary to know as to what type of case he has pleaded before the trial Court. In this case, while recording further statement of the appellant under section 313, Cr. P. C. the appellant submitted his written statement at Ex. 41, wherein he has stated that because of mental disorder and mental imbalance of accused, he was being sent to hospital. In this case, while recording further statement of the appellant under section 313, Cr. P. C. the appellant submitted his written statement at Ex. 41, wherein he has stated that because of mental disorder and mental imbalance of accused, he was being sent to hospital. He has further stated that he is a patient of epilepsy and when he was receiving attack of epilepsy, he was becoming unconscious and was not able to control himself and at that time, he was not knowing as to what was being done by him. He has specifically stated that at the time of incident, he was under effect of illness of insanity. In support of his defence, the appellant has examined Dr. Vikrambhai Gadhavi at Ex. 42 as his defence witness. Dr. Gadhavi has deposed that on 5/05/1990, he was on duty as Medical Officer in Civil Hospital, Patan and on that day at about 2. 15 p. m. he had examined Thakor Pratapji Nagajiji (appellant ). The appellant was brought before him along with Yadi Ex. 43. This witness has produced Yadi Ex. 43. It was addressed by Jailor, Sub Jail, Patan to Police Inspector, Patan City Police Station and copy was endorsed to Medical Officer, Civil Hospital, Patan. After examination of the appellant, he noted down his finding on back of Ex. 43. He has proved his endorsement on reverse of Ex. 43. Explaining his endorsement at Ex. 43, he has deposed that the accused appeared to be suffering from mental disease. He recommended that for further treatment, he should be referred to Civil Hospital, Mahesana. He has further deposed that as he had transferred the accused to Civil Hospital, Mahesana, he was not in a position to say as to whether in fact accused was suffering from any mental disease or not. For this, he has given reason that he is not an expert on this point. He has further deposed that one can have disease of epilepsy since his birth. A further query was put to this Doctor and he has explained that because it is referred to in Yadi that accused is a patient of epilepsy and also from appearance, he felt that accused was suffering from mental disorder. He has further deposed that one can have disease of epilepsy since his birth. A further query was put to this Doctor and he has explained that because it is referred to in Yadi that accused is a patient of epilepsy and also from appearance, he felt that accused was suffering from mental disorder. In cross-examination by the learned APP who appeared in the trial Court, he has deposed that at the time of examination, he did not find any symptom to come to a conclusion that accused was suffering from epilepsy. He has further deposed that when a patient receives an attack of epilepsy, normally his mouth would be closed and there would be froth from the mouth and patient would become unconscious and further that during the fit of epilepsy, patient would not be able to do any other activity. This is the evidence with regard to plea of epilepsy. The patient was examined on 5/05/1990, and therefore, the case of accused that on the date of incident, the appellant was under fit of epilepsy, is not proved. ( 19 ) MS. Nandini Joshi, learned APP has argued that this defence is an after-thought and it should not be accepted because the accused submitted his application Ex. 37 requesting the trial Court to recall seven witnesses to allow him to put certain questions with regard to mental ailment of the appellant as an afterthought. On reappreciation of evidence, we find that application Ex. 37 was submitted after all the prosecution witnesses were examined and closing Purshis Exh. 36 was submitted by prosecution. If really, it was a defence of the accused, he would have put the defence at the earliest point of time. The appellant has tried to get support for his defence from the evidence of prosecution witnesses. The appellant was residing in a joint family with his parents. Jarukhben was one of the family members in family of deceased. If really, the appellant was an insane or patient of insanity, Jarukhben was the best person to give history about the alleged mental disease of the appellant. A case was suggested to Jarukhben and she has denied that when he returned from Patan Hospital to her village, she found that the appellant was unconscious in the house. If really, the appellant was an insane or patient of insanity, Jarukhben was the best person to give history about the alleged mental disease of the appellant. A case was suggested to Jarukhben and she has denied that when he returned from Patan Hospital to her village, she found that the appellant was unconscious in the house. Another suggestion was put to her and she has denied that on or about date of incident, accused was not doing any work and he was sitting in stunned condition. She has explained that the accused was able to move but was not doing any work. She has further deposed that sometimes, accused was falling ill and at that time, accused was lying and sleeping. She has further deposed that sometimes, it so happened that while walking, accused was falling and at that time, his mouth was remaining closed tightly. It appears that she supports the case of the appellant with regard to epilepsy. Now the question which requires to be considered is as to whether on the date of incident at 11. 15 p. m. accused had suffered a fit of epilepsy. For this fact, there is no evidence. For a moment, if it is believed that he is a patient of epilepsy and on that day he had received attack of epilepsy then according to the evidence of Doctor, he would not be in a position to make any movement and would become unconscious. Thus, if he had received attack of epilepsy, there would be no possibility that he would have inflicted blows with vansi on his father, and therefore, the defence is not believable. Thus what is required to be proved for bringing the case under section 84, I. P. Code is not proved on the basis by way of even preponderance of probabilities. In case of T. N. LAKSHMAIAH vs. STATE OF KARNATAKA, reported in (2002) 1 SCC 219 , the Honble Supreme Court has explained the scope and ambit of section 84 of I. P. Code. Sec. 84, I. P. C. forms part of Chapter IV dealing with general exceptions. The principle embodied in the Chapter is based upon the maxim actus non facit reum, nisi mens sit rea i. e. an act is not criminal unless there is criminal intent. Sec. 84, I. P. C. forms part of Chapter IV dealing with general exceptions. The principle embodied in the Chapter is based upon the maxim actus non facit reum, nisi mens sit rea i. e. an act is not criminal unless there is criminal intent. Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case. The burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by Section 84, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [illustration (a)]. It is further ruled that in a case where the exception under section 84, I. P. C. is claimed, 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 is doing what is either wrong or contrary to law. It is further held that the entire conduct of the accused, from the time of the commission of the offence up to the time of the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bonafide or an afterthought. ( 20 ) HERE in this case, incident took place on March 4, 1990 at 11. 15 a. m. As per evidence of Jarukhben, the appellant left the place leaving vansi there and there. Thereafter the accused could not be traced out. The Investigating Officer Mr. Bhimji Limbachia Ex. ( 20 ) HERE in this case, incident took place on March 4, 1990 at 11. 15 a. m. As per evidence of Jarukhben, the appellant left the place leaving vansi there and there. Thereafter the accused could not be traced out. The Investigating Officer Mr. Bhimji Limbachia Ex. 34 in his deposition has stated that on March 4, 1990 he was performing his duties as P. S. I. Patan Police Station, and the complaint of Balvantji was given to him for investigation by P. S. O. vide order Ex. 7 and he took over that investigation and on that day, he went to village Norata. According to the police officer, the complainant was present and had shown the place of incident for which a panchnama of scene of offence was drawn Ex. 26. He has specifically deposed that on that day, inquiry was made about the accused but he was not available. From record, it appears that accused could be arrested at 20. 30 hrs. on 7/03/1990. Thus, accused remained absconding for three days. If really, he was insane, he would not have run away from the place and would not have absconded for three days. This conduct of the accused should be considered. Thus from the evidence, it is clear that whatever defence is pleaded by the accused is not proved by the appellant. The learned Judge of the trial Court has rightly not accepted the plea of insanity put up by the appellant. The learned Judge of the trial Court has assigned cogent and plausible reasons for arriving at his decision with regard to rejection of defence of the accused. We are in complete agreement with the reasons assigned by the learned Judge of the trial Court. The learned Advocate for the appellant is unable to convince us for dislodging the reasons given by the learned Judge of the trial Court. . ( 21 ) THUS, this case is proved against the accused for offence punishable under section 302, I. P. C. and the learned Judge of the trial Court has inflicted minimum sentence prescribed under section 302, I. P. C. We do not find any reason to disagree with the final conclusions arrived at by the learned Judge of the trial Court. ( 22 ) MS. ( 22 ) MS. Banna Dutta has argued that conviction of the appellant with respect to offence punishable under section 135 of the Bombay Police Act for contravention of prohibitory order under notification issued under section 37 (1) of the Bombay Police Act, is bad in law. The prosecution has produced a notification Ex. 35 issued under section 37 (1) of the Bombay Police Act issued by the District Magistrate, Mahesana by which a prohibitory order was issued. The residents of Mahesana District were prevented from holding and carrying articles listed in Ex. 35 during the period from 1 3/02/1990 to 12/03/1990 in a public place. By this notification, residents of Mahesana District were prevented from holding and carrying articles including weapons, sticks, inflammable articles in the public place. ( 23 ) HERE in this case, looking to the facts of the case, vansi was there inside the house of the deceased and appellant took out that vansi from the said house and used that vansi in committing the murder of the deceased in the house and therefore, it cannot be said that the appellant was found in public place by holding and carrying vansi which was prohibited by the District Magistrate, Mahesana. Therefore, in no circumstance, it can be said that there was a breach of the notification by him. Under the circumstances, it cannot be said that the accused has committed offence punishable under section 135 of the Bombay Police Act. The learned Judge of the trial Court has grossly erred in convicting the accused for offence punishable under section 135 of the Bombay Police Act, and therefore, the said conviction is required to be set aside. ( 24 ) IN view of what is stated hereinabove, this appeal deserves to be partly allowed and the same is partly allowed accordingly. The appeal, so far as it relates to conviction for the offence punishable under section 302 of the Indian Penal Code, is dismissed. The appeal, so far as it relates to conviction of the appellant for the offence punishable under section 135 of the Bombay Police Act, is allowed, and therefore, the order of conviction and sentence, so far as it relates to the offence punishable under section 135 of the Bombay Police Act, is set aside. Rest of the order stands confirmed. The appeal, so far as it relates to conviction of the appellant for the offence punishable under section 135 of the Bombay Police Act, is allowed, and therefore, the order of conviction and sentence, so far as it relates to the offence punishable under section 135 of the Bombay Police Act, is set aside. Rest of the order stands confirmed. Muddamal articles be destroyed/disposed of as per the directions given by the learned Judge of the trial Court in the impugned judgment. .