IMTIYAZ MURTAZA, J. The present appeal has been filed against the judgment and order dated 24-11-2002 passed by Sessions Judge, Varanasi in S. T. No. 184/88 convicting the appellant under Section 302 IPC and sentencing her to death and further convicted the appellant under Section 309 IPC, but no separate sentence awarded. 2. The facts of the case are that appellant Smt. Rukhsana is wife of Mohammad Aslam complainant. He was married with the appellant about 5-6 years back and appellant is his cousin and two children are borne out of the wedlock. One of them was daughter Shabana aged about 2-1/2 years and other one was son Pappu aged about 8 months. It is alleged that after the marriage appellant was mentally disturbed and she used to bang her head and used to throw utensils and in such condition she could not recognize the children and some time she used to become normal. The complainant was looking after her and she was also taken to Mazar for her treatment. It is alleged that one day prior to the occurrence complainants stomach was upset and he had returned from his shop at about 9. 30 p. m. and after returning from the call of nature he was taking rest in the back room and went to sleep there. The mother of the complainant had called him for meal, but he had not taken the meal on account that his stomach was upset. The complainants wife and other family members after taking meal went to sleep in their rooms. In the morning when the wife of complainant and their children did not wake up the mother of the complainant went to call them and found the room closed from inside. The mother of the complainant had called him and told him that her daughter-in-law is not waking up and the room is closed from inside. The complainant alongwith some people of his mohalla namely Alauddin, Sheikh Salim and Abdul Khalique who were talking with him went upto the room and pushed the door of the room, which was opened and they found that on the cot his daughter Shabana and son Pappu were lying in a dead condition. The neck of both the children were cut. The blood was lying there and throat of his wife was also cut and she was unconscious. She was alive but could not speak. The neck of both the children were cut. The blood was lying there and throat of his wife was also cut and she was unconscious. She was alive but could not speak. The complainant called his father and went to call the doctor and it is alleged that on account of mental disturbance the wife of the complainant had cut throats of the children and also tried to commit suicide. 3. The report of the occurrence was lodged by Mohammad Aslam at Police Station Dashashwamedy, Varanasi. The police after registration of the case investigated the same and submitted charge-sheet and the case was committed to the Court of Sessions in the usual manner. The appellant was charged under Sections 302 and 309 IPC. The prosecution in order to prove its case had examined of Mohammad Aslam, P. W. 1, complainant of the case, P. W. 2 Jaitoon Bibi, mother of the complainant, P. W. 3 Mohammad Akram, brother of the complainant, who had taken appellant to the hospital. P. W. 4 Dr. T. V. Roy had examined Rukhsana. The doctor had found following injuries on her body : (1) Stitched wound (dressed) 7 cm alongwith 5 stitches front of neck across in length 4 cm. above the Sp. External neck. (2) Baematoma defused sot 6 cm. x 3 cm. over is of head in the middle. (3) Ryes tube in soft. (4) Contusion 4 cm. x cm. on outer x correspondence of right thigh 3-1/2 cm. above right knee joint. (5) Abrasion I cm x 1/2 (scoped inner side right leg 9 cm. from Medical Malleous. (6) Contusion 5 cm x 1 cm on outer aspect thigh left lower part 5 cm. above left knee joint. 4. P. W. 5 is Head Constable Bhola Nath Yadav, who had prepared the chik FIR Ka. 3 and also entered in the general diary Ex. Ka. 4 P. W. 6 is Dr. R. C. Gupta, the medical officer, who had conducted post-mortem examination of Km. Shabana and Pappu. Following ante-mortem injury were found on the person of Km. Shabana : (1) Incised wound 12 x 1 cm. x trachea and larynx cut on the front of neck extending from a point 3 cm. below left ear across that front of neck upto a point 4 cm. below right ear and 5 cm. Shabana and Pappu. Following ante-mortem injury were found on the person of Km. Shabana : (1) Incised wound 12 x 1 cm. x trachea and larynx cut on the front of neck extending from a point 3 cm. below left ear across that front of neck upto a point 4 cm. below right ear and 5 cm. above the external notch internal caroled artery is also involved (cut) alongwith esophagus (cut ). Following ante-mortem injury were found on the person of Pappu : (1) Incised wound 9 cm. x 1 cm. trachea larynx esophagus and left internal Notch standing from a point 2 cm. below, left ear around the neck upto a point 5 cm. below right ear. 5. P. W. 7 is the Investigating Officer. The case was registered in his presence and he had conducted the investigation of the case. When he had reached the place of occurrence he found that Smt. Rukhsana had already been sent for medical treatment. He had found the dead-bodies of Km. Shabana and Pappu. He had prepared inquest report and completed formalities for sending the dead bodies the for post- mortem. He had prepared fard of plain earth and blood stained earth. He had also recovered a blood stained knife, which was found near the bodies of children. He prepared recovery memo Ka. 13. He had prepared the site plan and found the small piece of ribbon and prepared fard Ex. Ka. 20. He had also collected the blood from the door and prepared fard Ex. Ka. 21. Two Court witnesses also examined. Dr. Zafar Ullah was examined as C. W. 1 and Dr. A. K. Dwivedi was examined as C. W. 2. Both the doctors had examined the appellant. Dr. Zafar Ullah was called by the family members of the appellant and he had reached at the house of the appellant and had found there Rukhsana in an unconscious condition and had also found the two children lying on the cot, but he had refused to examine and had suggested them for taking her to the hospital and he had also informed the police of the P. S. Dashaswamedh. One Ghulam Gaus is examined as defence witness. He is the brother of the appellant. He had stated about the strained relations between the husband and wife. One Ghulam Gaus is examined as defence witness. He is the brother of the appellant. He had stated about the strained relations between the husband and wife. We have heard Sri V. C. Tiwari, senior Advocate and the learned A. G. A. , for the State. 6. In this case P. W. 1 Mohammad Aslam and P. W. 2 Smt. Jaitoon Bibi are witnesses of fact, who were present in the house when alleged occurrence took place. P. W. 1 Mohammad Aslam has stated that his mother and mother of Rukhsana were real sisters. After about 1-1/2 to 1-3/4 years of marriage Rukhsana had delivered a dead child and after that she was shocked and became very perturbed and after about 1 to 1-1/2 year one child Shabana was born. After the delivery of child, Rukhsana became mentally sick and there were frequent attacks of insanity. During the attacks she used to throw untensils and assault the children and could not recognize any one and she could be controlled with difficulty. 7. After the birth of Shabana another child Pappu was born and at the time of occurrence she was about 8 months old. After the birth of Pappu the attacks of Rukhsana became more frequent and during the attacks once she had tried to burn the children also and on one occasion she had tried to jump out of the window but his mother had controlled her. During the mental illness Rukhsana was taken to Mazar for the treatment. It is alleged that on the day of occurrence complainant had returned at about 9. 30 p. m. from his shop. His stomach was upset and there was only one latrine in the house, which is on the ground floor and he was lying in the baithaka. The complainant mother asked him twice about the dinner but he had refused. In the morning father of the complainant had gone to shop at about 8. 30 a. m. and his brother, sister had also gone to the school. The complainant came and informed him that his wife and children had not yet woke up. The complainant who was talking at that time with two outsiders namely Alauddin and Abdul Khaliq, went to his room alongwith his mother and knocked the door but there was no response. Then he had pushed the door, which opened. The complainant came and informed him that his wife and children had not yet woke up. The complainant who was talking at that time with two outsiders namely Alauddin and Abdul Khaliq, went to his room alongwith his mother and knocked the door but there was no response. Then he had pushed the door, which opened. He had found Shabana and Pappu lying dead and his wife was also having injury on her neck and she was unconscious. The complainant had sent information to his father and he himself went to call the doctor but the family doctor was not available. Then Rukhsana was sent to Kabir Chaura Hospital with his brother Akram, P. W. 3 and his father went to call his in-laws. After the admission of Rukhsana in the hospital complainant had lodged the report. 8. P. W. 2 Jaitoon Bibi is the mother of the complainant. She has stated that Rukhsana is her daughter-in- law. She was suffering from mental illness. During the fits of insanity she used to throw utensils, assaults the children also. She had also tried to jump out of the window but she saved her. She was taken to the mazar for the treatment of her mental illness. She has further stated that Aslam had returned from his shop at about 9-9. 30 p. m. and he had stayed in the baithaka because he was not well and his stomach was upset. He had not taken his dinner and he slept in the baithaka. She has further stated that main door of the house was closed at 11. 30 p. m. and no one can go upstairs. In the morning her husband had gone to his shop and her younger son had also gone to the shop and children went to school. Rukhsana and her children were sleeping in their room. The room of Rukhsana was closed from inside. She had called her but no one replied. She has further stated that when no one replied she came in the baithaka and informed Aslam. He was taking to two persons in the baithaka. Aslam went upstairs alongwith two other persons and he called but no one replied. Aslam pushed opened the door and saws that both children were dead and Rukhsana was also lying in injured condition and she was taken to the hospital. He was taking to two persons in the baithaka. Aslam went upstairs alongwith two other persons and he called but no one replied. Aslam pushed opened the door and saws that both children were dead and Rukhsana was also lying in injured condition and she was taken to the hospital. In her cross-examination she has stated that after one and a half year of marriage she had delivered a dead child and after the delivering she had became silent. After the birth of Shabana her second child she had fits of insanity. During such fits she was totally insane. In one such fists she had tried to burn her children and once she had tried to commit suicide. 9. P. W. 3 Mohd. Akram is the brother of the complainant Mohd. Aslam. He has stated that about seven years back at about 10. 30 a. m. he was sitting at his shop in Harha Sarai. He was called at his house and he reached immediately at his house. Aslam also reached there and he had taken his sister in law to the hospital. In cross-examination he has stated that Aslam was married two days prior to his marriage. Aslam had three children. The first child was born dead. Rukhsana had become silent after the birth of first dead child. He has further stated that after the birth of second child Rukhsana had became mentally ill. She used to have fits of insanity. After the birth of third child frequency of fits of insanity had increased. He has stated that on the date of occurrence he was sleeping on the roof. His wife alongwith children were sleeping in the room. The room of Aslam is in front of his room. He has stated that Aslam was sleeping in the baithaka. He had taken his sister-in-law to the hospital. Several other people of mohalla had accompanied them. He had reached hospital about 12o clock. His statement was recorded by the Investigating Officer after about one weak of the occurrence. 10. The evidence clearly indicates that place of occurrence is a room of Rukhsana which is situated in the first floor of the house and which is not accessible from outside. Rukhsana was alone inside the room alongwith children. The evidence clearly indicates that Rukhsana after killing her children had tried to commit suicide. 10. The evidence clearly indicates that place of occurrence is a room of Rukhsana which is situated in the first floor of the house and which is not accessible from outside. Rukhsana was alone inside the room alongwith children. The evidence clearly indicates that Rukhsana after killing her children had tried to commit suicide. The testimony of witnesses clearly indicates that prosecution has proved beyond reasonable doubt that Rukhsana after killing her two children attempted to commit suicide. 11. It was vehemently argued by the learned Counsel for the appellant that accepting the prosecution allegations to be true the appellant is entitled to acquittal as Section 84 of the Indian Penal Code is fully attracted to the facts of the case. In opposition, the State Counsel urged that no advantage of this General Exception could be extended to the appellant as the burden of proving that she was insane at the time of commission of offence rested upon her which burden she has failed to discharge. She even did not plead this exception in her statement recorded under Section 313 Cr. P. C. rather her case was of denial. 12. The law regarding burden of proof is now very clear from the various pronouncements of the apex Court. The cardinal principle of Criminal Jurisprudence is that there is a presumption of innocence in favour of the accused, and it is the duty of the prosecution to prove the guilt of the accused. This burden always lies upon the prosecution from the beginning till the end of trial. Further the proof has to be beyond reasonable doubt and it never shifts. It either gets discharged nor weakened even where a defence bringing the case within the purview of any General Exception in the Indian Penal Code or any special exception or proviso contained in any other part of the Indian Penal Code. Section 105 of the Evidence Act undoubtedly places a burden of proof on the accused but the failure on the part of the accused to prove that burden conclusively does not absolve the prosecution to discharge the burden of proving the essential ingredients of the offence. The burden which lies upon the accused is not of the same vigour as lies on the prosecution. The burden to prove a defence plea gets discharged. The burden which lies upon the accused is not of the same vigour as lies on the prosecution. The burden to prove a defence plea gets discharged. Once the accused is able to show that the preponderance of probabilities is in favour of his plea. The accused has simply to satisfy the blundered of a prudent man and it is not necessary for him to establish his plea conclusively beyond all reasonable doubts. This burden gets discharged by admissions made or circumstances effect of such circumstances and the evidence adduced by the accused. The alleged conflict between the general burden which lies on the prosecution and the special burden which is imposed on the accused under Section 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. 13. It is now also well established that failure of the accused to plead the exception would foreclose his right to rely on the exception once and for all. Rule of pleading does not apply to criminal cases. Even where the accused in his statement under Section 311 Cr. P. C. does not raise the plea of exception, yet it is open to the Criminal Court to extend benefit of the exception to the accused if it finds from the evidence brought on record from the prosecution side and from the circumstances appearing in the case that the accused acted within the confines of the exception or that there is a reasonable doubt regarding the existence of the essential ingredients of the offence with which the accused is charged for. 14. In a recent decision in Kashiram v. State of Madhya Pradesh, 2001 AIR SCW 4350 : 2002 (1) JIC 969 (SC), the apex Court has held that though Section 105 of the Evidence Act enacts a rule regarding burden of proof but it does not follow therefrom that the plea of private defence should be specifically taken by the accused in his statement before the Court and if not taken shall not be available to be considered though made out from the evidence brought on record. Such a plea can be introduced in cross- examination of prosecution witnesses or in the statement of the accused recorded under Section 313 Cr. P. C. or by adducing defence evidence. Such a plea can be introduced in cross- examination of prosecution witnesses or in the statement of the accused recorded under Section 313 Cr. P. C. or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submissions by relying on the probabilities and circumstances obtaining in the case. 15. In State of U. P. v. Lakshmi, 1998 (1) JIC 718 (SC) : JT 1998 (1) 679, it was held that the mere fact that the accused adopted another alternative defence during his examination under Section 313 Cr. P. C. without referring to Exception, benefit of the Exception cannot be denied to him, if the Court can cut out materials from the evidence pointing to the existence of circumstances leading to that exception. 16. In view of this well-settled position of law, we are not precluded from examining the question, whether the appellants case is covered by the General Exception as contained in Section 84 of the Penal Code, simply for the reason that the appellant had not pleaded this plea specifically in her statement under Section 313 Cr. P. C. and had adopted the case of denial. 17. Section 84 IPC runs as under : "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. " 18. The principle underlying this provision is based upon the maxim "furiosus mulla voluntus est", i. e. , a mad man has no will. 19. " 18. The principle underlying this provision is based upon the maxim "furiosus mulla voluntus est", i. e. , a mad man has no will. 19. In the case of Dahyabhai Chhaganbhai Thakur v. State of Gujarat, AIR 1984 SC 1563, the apex Court has laid down the following propositions regarding the burden of proof in the context of the plea of insanity - (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 upon 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 in Section 84; 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 which rests upon a party in civil proceedings, that is, to prove his defence by a preponderance of probabilities; (3) That 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 as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden resting on the prosecution has not been discharged. 20. In the statement complainant has admitted that after the birth of Shabana the mental condition of his wife had deteriorated and during the said fits of insanity she could not recognize anybody. What she was doing she could not understand and she also used to assault the children and used to throw the utensils and these attacks lasted for about 10 to 15 minutes. He has also admitted that once she had tried to burn the children and also tried to commit suicide and when Pappu was born the mental condition had further deteriorated and frequency of said attack increased and she was not properly treated excepting that he used to take her to mazar. 21. P. W. 2 is Jaitoon Bibi. She is the mother of complainant. She has stated that Rukhsana is his daughter-in-law. 21. P. W. 2 is Jaitoon Bibi. She is the mother of complainant. She has stated that Rukhsana is his daughter-in-law. She was suffering from mental ailments. She used to throw utensils, assault the children also. She had also tried to jump out of the window but she saved her. Rukhsana was taken to mazar for the treatment of her illness. She has stated that after about 1- 1/2 years of the marriage she had delivered a dead child. After the birth of Shabana, Rukhsana had frequent attacks of her insanity and during the attack she lost all her senses. Once she had tried to burn her children and also tried to commit suicide. 22. P. W. 3 Mohammad Akram has also admitted that after the delivery of the first child Rukhsana had become mentally sick and after the birth of second child frequency of attacks had increased. P. W. 3 Mohd. Akram has stated that about 7 years back when he was sitting at his shop he was called to his house and he had taken his sister-in-law to hospital. Smt. Rukhsana after the birth of dead child became silent and after the birth of second child she used to attack fits of insanity and after the birth of third child the frequency of attack had multiplied. 23. In the FIR the complainant had stated that "meri aurat ne dimagi, uljhan main larki va larke ki chhuri se gala katkar mar dala hai tatha apne bhi marne ke liye apna gala chhuri se reita hai. " In the Court P. W. 1 has stated that Smt. Rukhsana had fits of insanity prior to the alleged occurrence and after the birth of third child the frequency of fits of insanity had increased. In his statement he has stated that "subah ghatna dekhne par hamlog samajh gaye ki Rukhsana ne apne pagalpan main yah ghatna ghatit ki hai. " He has further stated that "pagalpan ka daura Rukhsana par parne se yah vakiya ho gaya. " Similarly P. W. 2 Jaitoon Bibi has also stated that "jab use daura parne lagta tha to use kuchh hosh hawash nahi rahta tha jab daura parta tha to kya bhala hai kya bura hai isi use koi tamij nahi rah jati thi Ek dafa usne aisi halat mein bachchon ko jalakar mar dalne ki bhi koshish ki thi. " Similarly P. W. 2 Jaitoon Bibi has also stated that "jab use daura parne lagta tha to use kuchh hosh hawash nahi rahta tha jab daura parta tha to kya bhala hai kya bura hai isi use koi tamij nahi rah jati thi Ek dafa usne aisi halat mein bachchon ko jalakar mar dalne ki bhi koshish ki thi. Ek bar usne aisi halat main apni jan dene ki bhyi koshish kiya tha. " P. W. 3 has also stated about her mental illness. He has stated that (sic) We further find that in the lower Courts record "rukhsana apni mari hui bachchi paida hone ke bad kuchh gunsum rahme lagi. Rukhsana ko jab dunsari bachchi paida hui iske bad se usko daura parne laga. Rukshsana ko jab tisra bachcha paida huwas to uske bad use pahle se kuchh jyada daura parne laga" there is also placed a dying declaration of Smt. Rukhsana which was recorded by Sri B. B. Singh Magistrate on 2-8-1983. The dying declaration was recorded immediately after the occurrence and perusal of the same indicates that she had stated that she had committed the offence under the fits of insanity. From this also it follows that the plea of insanity was not an after thought. 24. In the present case the burden to prove that the offence was committed with the requisite intention was on the prosecution even if the appellant was not able to establish conclusively that she was insane at the time she committed offence. The evidence placed from the prosecution side itself raises a reasonable doubt that one of the most essential ingredients of the offence i. e. , mens rea of the accused is missing. The entire prosecution case right from the FIR shows that appellant was insane prior to the occurrence and the prosecution evidence itself shows that she had committed the offence during the fits of insanity and she was not able to recognize even her small children. 25. It is also note worthy that neither the complainant nor the investigating agency made any effort to get the appellant medically examined for ascertaining her mental condition, though she was available. 25. It is also note worthy that neither the complainant nor the investigating agency made any effort to get the appellant medically examined for ascertaining her mental condition, though she was available. We also cannot loose sight of the fact that the prosecution has neither alleged nor proved the motive for the appellant of killing her two innocent children rather the prosecution case itself is to the effect that the appellant killed her children under the fits of insanity. In the FIR the first informant clearly mentioned "meri aurat ne dimagi ulijhan se ladki aur ladke ko chhuri se gala kat kar mar dala hai tatha apne bhi marne ke liye gala chhuri se reita hai. " 26. Mohd. Aslam P. W. 1 in clear words admitted "subhah ghatna dekhne par hum log samajh gaye ki Rukhsana ne apne pagalpan me yah ghatna ghatit ki hai. " At another place he has stated that "pagalpan ka daura Rukhsana par parne se yah vakiya ho gaya. " 27. P. W. 2 Jaitoon Bibi has also admitted "daura ka asar khatam ho jane par use yah khyal nahi rahta tha ki daure ke dauran usne kya harkat ki thi. " 28. Therefore, the total absence of motive coupled with the past history of the appellant regarding mental imbalance and disorder and other attending circumstances appearing in the case, raise a reasonable doubt as regards the presence of requisite mens rea of the appellant, an essential ingredient of the offence of murder, as such it would be just and prudent to extend the benefit of doubt to the appellant. 29. In the result the appeal is allowed. The judgment and order dated 21-11-2002 passed by the Sessions Judge are set aside. The appellant is acquitted for the offence charged for. She is in jail. She be released forthwith unless wanted in any other case. Reference made by the learned Sessions Judge for confirmation of death is rejected. Appeal allowed.