JUDGMENT 1. - The appellant-Shera Ram having found guilty of committing murder of Mahant Tulsi Das has been convicted for offence u/s. 302 IPC, sentenced to undergo imprisonment for life by the judgment of the Additional Sessions Judge No. 1, Jodhpur dated 7.6.2000. He has also been convicted for allied offences u/s. 449 & 295 IPC. 2. In village Mathania there is a Raghunath Ji's temple. On 10.3.1999 at about 7.15 a.m. while Tulsi Das was in the temple, the appellant-Shera Ram by caste Brahmin abruptly hurled a stone on his head resulting into the instantaneous death. The appellant also damaged the Idol and other properties of the temple. The incident was witnessed by the villagers which included PW-6 Santosh. PW-11 Narsingh Ram and PW-16 Smt. Tiku Devi. The incident was reported to the police immediately by PW-2 Ghanshyam Das. On this information, police registered a case for offence u/s. 302 IPC and proceeded with investigation. The police prepared the site plan and the inquest memo. The dead body was sent for the post-mortem. PW-20 Dr. C.P. Bhati conducted the post-mortem vide Ex.P/37. He noticed following injuries on the person of deceased-Tulsi Das : (1) Antemortem lacerated wound 2" x 1/2" x upto bone, transversely Lt. side of forehead. Lt. eye eyansed subconjutival haemorrhage present. (2) Lacerated wound 2" x 1/2" x 1/4" longitudinally near injury No. 1 towards forehead. (3) Abrasion 1 cm. x 1 cm. Lt. eyebrow, subconjutival haemorrhage in Lt. eye. He found the injuries ante-mortem in nature. In his opinion the cause of death was due to shock and haemorrhage due to head injury. After usual investigation police laid charge-sheet against the appellant for offence u/ss. 302, 449 & 295 IPC. 3. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined as many as 23 witnesses. The appellant denied the correctness of the prosecution evidence appearing against him in his statement u/s. 313 of the Code of Criminal Procedure. He stated that since 1992-93 his mental condition was not good. Occasionally insanity fits occurred to him. He had undergone the treatment at Jaipur and Jodhpur. The treatment prescription slips were with his elder brother Bhanwar Lal. He was receiving treatment in Jail as well. Twice a month he used to en-checked up by the doctors in Mathura Das Hospital. He stated that since 1992-93 his mental condition was not good. Occasionally insanity fits occurred to him. He had undergone the treatment at Jaipur and Jodhpur. The treatment prescription slips were with his elder brother Bhanwar Lal. He was receiving treatment in Jail as well. Twice a month he used to en-checked up by the doctors in Mathura Das Hospital. He did not know if on the date of incident, insanity fits occurred to him. He pleaded that he was not aware of his act during the transitory period of insanity fits. After 2 or 3 days he came to know that he was being arrested by the police in some case. In substance he pleaded the plea of insanity u/s. 84 IPC. The defence also led the evidence as to his mental condition by producing DW-1 Bhanwar Lal and DW-2 Dr. Vimal Kumar Razdan. The trial Court in view of the statements of the eye-witnesses PW-6 Smt. Santosh, PW-16 Smt. Tiku Devi and other corroboratory evidence held the appellant guilty of murder of Tulsi Das. The learned Judge rejected the plea of insanity and convicted and sentenced in the manner noticed above. 4. PW-16 Smt. Tiku Devi is the star eye-witness of the incident. She stated that the deceased-Tulsi Das was the elder brother of her husband. She was associated with the temple for the last more than 50 year being engaged in the work of cleaning and Seva Puja of the temple. On the date of incident, deceased- Tulsi Das was in'the inner side of the temple and was preparing for the Aarti. Seth Poonam Chand, Narsingh Ram etc. were also inside the temple. At that time, the appellant-Sheria entered in the temple and hurled a stone which struck on the head of the Pujari on account of which he fell down. Poonam Chand and Narsingh Ram raised cries which attracted the other people. The appellant- Sheria also damaged the idol and the other properties. In the cross, -examination, she denied having seen the appellant in mentally disordered cony' ition. 5. PW-11 Narsingh Ram stated that as he was in the temple at the time of Aarti at about 6.45-7.00 a.m. deceased-Tulsi Das the Pujari oft' e temple was preparing for the Aarti inside the temple, abruptly Shera Ram entered in the temple with a stone in his hand. 5. PW-11 Narsingh Ram stated that as he was in the temple at the time of Aarti at about 6.45-7.00 a.m. deceased-Tulsi Das the Pujari oft' e temple was preparing for the Aarti inside the temple, abruptly Shera Ram entered in the temple with a stone in his hand. He hurled stone, which hit the deceased-Tulsi Das on account of which he fell down. He also damaged the idol and other properties of the temple. 6. PW-10 Poonam Chand was also examined as an eye-witness by the prosecution but he did not support the prosecution case. As such he was declared hostile. 7. PW-6 Smt. Santosh stated that she used to go to the temple for providing tea to the deceased-Tulsi Das. On hearing the cries she rushed to the temple. Appellant-Shera Ram was behaving in an unusual manner. She was told by PW-16 Smt. Tiku Devi that Shera Ram had assautled deceased-Tulsi Das. There was a huge crowd outside the temple. She did not enter inside the temple. In the cross-examination she admitted that the appellant suffered from the fits of insanity. 8. PW-12 Ram Kishore a hostile witness stated that hearing the cries he rushed to the temple. He was told that the appellant-Shera Ram had hurled a stone on deceased-Tulsi Das. 9. PW-13 Nand Kishore has also not supported the prosecution story and as such declared hostile. 10. PW-17 Ram Narain has stated that hearing the cries of Tiku Devi he rushed to the temple. He found Shera Ram coming outside the temple. Poonam Chand disclsoed that appellant had killed Tulsi Das. He was also told that the idols were also damaged by him. 11. PW-22 Buraj Singh is the Investigating Officer. He has given all the details of the investigation. He has denied the suggestion of insanity of the appellant. 12. The ocular evidence is corroborated by the medical evidence. Thus, it can safely be concluded that it was the appellant who was responsible for homicidal death of Tulsi Das. 13. The crucial question, which arises for consideration in the instant appeal is whether having regard to the circumstances which preceded, attended and followed the crime, it would be a case entitling the appellant to benefit u/s. 84 of the Indian Penal Code. 13. The crucial question, which arises for consideration in the instant appeal is whether having regard to the circumstances which preceded, attended and followed the crime, it would be a case entitling the appellant to benefit u/s. 84 of the Indian Penal Code. The trial Court has found that there is no evidence to indicate that at the time of the incident the appellant was of unsound mind or he suffered from lunatic fits. 14. In order to appreciate the plea raised, it will be be apt to acquaint with Section 84 IPC which reads as follows : "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." This section provides defence to a person who is having unsound mind or insane at the time of committing the offence. As required by Section 105 of the Evidence Act the onus is upon the accused to establish the facts constituting the exception. Obviously for the reason that facts being within his special knowledge can be established by him alone. It is of course true that the onus so cast upon the accused is not of the same rigorous standard as required of the prosecution but consists of furnishing a reasonable explanation for his conduct so as to raise a doubt that his explanation might be true. The Apex Court in Dudh Nath Pandey v. State of U.P. reported in AIR 1981 SC 911 has observed that defence witnesses are entitled to equal treatment with those of the prosecution and that Court must overcome with traditional instinctive disbelief in defence witness. The Court further observed that if it is true that the defence witnesses often tells lie, it must be appreciated that the prosecution witnesses are no exception. It has been held by the Supreme Court in Dahyabhai Chhaganbhai Thakker v. State of Gujarat reported in AIR 1964 SC page 1568 that the crucial point of time under which unsoundness of mind should be established when the crime is actually committed. It has been held by the Supreme Court in Dahyabhai Chhaganbhai Thakker v. State of Gujarat reported in AIR 1964 SC page 1568 that the crucial point of time under which unsoundness of mind should be established when the crime is actually committed. Thus, when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of an offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or what he was doing what was either wrong or contrary to law. 15. In the instant case DW-1 Bhanwar Lal stated that the appellant, his younger brother, suffered from insanity since 1992, fits used to occur to him on occasions. During this period, he used to assault any person standing around him. He also used to damage the property. Initially, he was being treated by Dr. Devraj Purohit at Jalori Gate. Thereafter, he was under treatment of Dr. Razdan. He was also being treated by Dr. Ashok Pangharia at Jaipur. He has produced thg treatment slips Ex.D/3, Ex.D/4. He was also being under treatment during J ail. DW-2 Dr. V.K. Razdan has stated that the appellant was under his treatment even much prior to the date of incident. He stated that he suffered from epilepsy. He has given the details of insanity after epilepsy fits. He also stated that during the period of insanity such offence including committing of murder. At this stage, it would be relevant to refer the statements of some of the prosecution witnesses, who have also admitted about the fact of insanity of the appellant. PW- 1 Sanker Dan has admitted in the cross-examination that the appellant-Shera Ram had suffered insanity fits for last more than five years. On earlier occasion, he had attacked on his brother and bite his hand. His family members used to tie him with shackles. He some how got released from the house and assaulted the Pujari of the temple. He has also damaged the idol and other properties of the temple. 16. PW-2 Ghanshyam Das has also admitted in the cross-examination that the appellant suffered insanity fits prior to the incident. He also verified the incident, which took place with his elder brother Bhanwar Lal referred to by the PW-1 Shanker Lal. He has also damaged the idol and other properties of the temple. 16. PW-2 Ghanshyam Das has also admitted in the cross-examination that the appellant suffered insanity fits prior to the incident. He also verified the incident, which took place with his elder brother Bhanwar Lal referred to by the PW-1 Shanker Lal. He further admitted that he used to be tied by shackles in the house. 17. PW-5 Hinglas Dan has also admitted the fact of appellant being of unsound mind prior to the date of incident. Similarly, PW-6 Santosh Daga has also admitted the said fact. It is significant to notice that irrespective of the fact that the fat of insanity has been disclosed in the FIR itself, the police did not take any step to get the appellant examined from the doctor, if he really suffered from insanity fits. In these circumstances we are inclined to hold that the appellant was insane at the time of incident and he did not know that he was doing anything wrong or anything contrary to law. Thus, in our opinion the appellant has succeeded in discharging the burden. There is no reason to disbelieve the statement of DW-1 Bhanwar Lal more particularly when it is supported by expert evidence of DW-2 Dr. Razdan and further almost all the prosecution witnesses had admitted in the cross-examination the fact of un- soundness of mind of the appellant. 18. We accordingly allow the appeal and set aside the judgment of the trial Court dated 7.6.2000 passed by the Additional Sessions Judge No. 1, Jodhpur. The appellant is acquitted of offence u/ss. 302, 449 & 295 IPC for the reason that at the time of incident he was a person of unsound mind within the meaning of Section 84 of the Indian Penal Code. We, therefore, direct that the appellant be detained in safe custody in an appropriate hospital or a place of custody of non-criminal lunatics as may be provided to him by State Government under the direct supervision of the jail authorities and he would not be released from safe custody unless and until further medical opinion is obtained with regard to his state of mind and that he can take care of himself and he has been cured of his mental disease and infirmity.Appeal allowed. *******