Judgment ( 1. ) THE appellant has preferred this appeal against the judgment dated 18-6-1996 passed by the First Additional Sessions Judge, Tikamgarh, in Sessions trial No. 61 of 1992, convicting the appellant for the offence under Section 302 of the Indian Penal Code on two counts and sentencing him to imprisonments for life on each count, both running concurrently. ( 2. ) PROSECUTION story as emerges out from the First Information report lodged by Rajbalram, Police Constable (P. W. 13), on 3-2-1992 at 10. 00 hours in the morning is that on that day he was posted at Police Kotwali, tikamgarh. In the Morning he and Constable Jagdish Prasad were deputed to carry two prisoners viz. , Rajju Dhimar and Raju Dhobi detained in police lock up, to jail. He and Jagdish Prasad obtained a handcuff chain and the keys from head Constable Moharrir. At that time Constable Dhaniram (accused) was posted on the duty of Santri (Guard ). Jagdish Prasad opened the lock up at about 9. 30 A. M. and handcuffed Rajju Dhimar and Raju Dhobi and while he was waiting for prisoners to put on their shoes, appellant/accused Dhaniram (Constable) suddenly started firing on both the prisoners as a result of which both of them fell down dead at the spot. On the aforesaid report, Crime Nos. 51 and 52 of 1992, under Section 302 of the Indian Penal Code were registered at Police station Kotwali, Tikamgarh. ( 3. ) UNDISPUTED facts of the prosecution case are that on 3-2-1992 constable Jagdish Prasad (P. W. 10) and Constable Dhaniram had their posting at Police Station, Tikamgarh. On 2-2- 1992 deceased Rajju Dhimar and Raju dhobi were ordered by the Sub Divisional Magistrate, Tikamgarh, to be detained in jail in connection with proceedings under Sections 110 and 151, Cr. PC till 10-2-1992, for which jail warrants Ex. P-17 and Ex. P-18 were issued by the aforesaid Court. Deceased Rajju Dhimar was also being prosecuted in the Court of Judicial Magistrate, First Class, Tikamgarh, on the charges under Sections 341,294,506 and 509 of the Indian Penal Code. He was produced before the said court on 2-2-1992, but, as he was not granted bail, he was remanded to judicial custody till 15-2-1992 and a jail warrant (Ex. P-19) in that regard was issued by the Court. He was produced before the said court on 2-2-1992, but, as he was not granted bail, he was remanded to judicial custody till 15-2-1992 and a jail warrant (Ex. P-19) in that regard was issued by the Court. As it had become late on 2-2-1992, the prisoners could not be lodged in jail and had to be detained in police lock up of Kotwali, Tikamgarh. It is also not disputed that on 3-2-1992 Constable Dhaniram was posted on the duty of santri (Guard), from 9. 00 A. M. and he had taken it over at the said time from constable Bholaram (P. W. 11 ). At the time of taking over the duty he was handed over one 303 bore rifle and 50 live cartridges, the entries whereof in general Diary were marked Ex. P-22 and Ex. P-23. ( 4. ) IT is also undisputed that on 3-2-1992 at about 9. 05 A. M. Constable Jagdish Prasad (P. W. 10) and Constable Rajbalram (P. W. 13) were deputed to take the said prisoners to jail. The entry in general diary in that regard is Ex. P-24. Their departure was entered at Serial No. 144. The entries with regard to the handing over the handcuffs and keys and four jail warrant were also made in the general diary. The copies of entries were produced before the Court. It is also not disputed that while on duty the rifle of Dhaniram, Santri (Guard) was fired and prisoners Raju Dhobi and Rajju Dhimar had fell dead because of the gun shot injuries at the spot and that 11 cartridges were fired by the aforesaid rifle and further that the accused Dhaniram was disarmed and arrested at the spot. ( 5. ) B. S. Parihar, Sub-Inspector (P. W. 14) initiating the investigation arrested accused/appellant Dhaniram on the same day vide arrest memo (Ex. P-35), prepared the spot map (Ex. P-30) in the presence of witnesses and made inquest of both the dead bodies vide memos Ex. P-31 and Ex. P-32. Investigating officer called the Arms Moharrir Ramesh Chandra (P. W. 5) who got the jammed cartridges in the half-cock rifle released from the chamber of the gun vide memo. Ex. P-9 and seized the service rifle of accused/appellant Dhaniram from the possession of Constable Bholaram, who had snatched it from the accused after the incident vide seizure memo. Ex. P-10. Investigating officer called the Arms Moharrir Ramesh Chandra (P. W. 5) who got the jammed cartridges in the half-cock rifle released from the chamber of the gun vide memo. Ex. P-9 and seized the service rifle of accused/appellant Dhaniram from the possession of Constable Bholaram, who had snatched it from the accused after the incident vide seizure memo. Ex. P-10. Blood stained clothes and the pieces of bullet taken out from the body of the deceased Rajju Dhimar were also seized vide memo. Ex. P-8. Eleven empty cartridges of. 303 bore, one bandolier with 35 live cartridges and 3 charger clips were seized from the possession of the accused at about 10. 40 hours on 3-2-1992 vide seizure memo. Ex. P-11. One pair of slippers belonging to the deceased Rajju Dhimar, one bullet and one set of handcuffs with chain after opening the same from the hands of deceased were seized vide memo. Ex. P-12 from the spot. Blood stained and plain earth was seized from the spot. Jail warrants of the deceased persons issued by the Courts were seized from the possession of Constable Jagdish Prasad vide seizure memo. Ex. P-14. Seized articles including the rifle and fired cartridges were sent for examination to Forensic Science Laboratory vide letter dated 23-3-1992 (Ex. P-36 ). However, ballistic report of the Gun and seized cartridges were not produced during the trial. ( 6. ) DEAD bodies of deceased persons viz. , Raju Dhobi and Rajju dhimar were sent for the post-mortem examination to the District Hospital, tikamgarh where P. W. 2 Dr. N. K. Chourasiya and P. W. 3 Dr. K. R. Sahay performed the post-mortem examinations. ( 7. ) VIDE post-mortem report (Ex. P-4) of Raju Dhobi following injuries were found on his body:- (1) Gun shot wound, right side upper part of the neck 1 cm x 1 cm going slightly forward and left injuring all the tissues in way fracturing 3rd, 4th cervical vertebrae, lacerating spinal card and appearing in left side neck, saw plain in 3 cm x 3 cm lacerated wound. (2) Three gun shot wounds in middle of sternum left each in 1" distances from each other going backward, downward or laterally, upper two pierced chest wall, lung and heart, lower one not injured heart, they injured chest wall on the back, left fracturing 8th rib, with three wounds of exit below it, lateral to the edge of scapular left lower, one 1-1/2" x 1", other two 1 cm x 2/3 cm each, all gun shot wounds showing the entry burnt at the margins. Blood clots present on the margins of all the wound. All the injuries were opined to be about a day in duration, caused by fire arm and ante mortem in nature. It was opined that the cause of death was bleeding from the gun shot wounds and injury to spinal card. Time of death within 6 hours. Vide post-mortem report (Ex. P-5) of the dead body of deceased Rajju dhimar Dr. N. K. Chourasiya and Dr. K. R. Sahay found the following injuries :- (1) One wound of entry present on the lateral aspect of the right upper arm, size 2/3 cm x 2 cm with burnt margins present having forward and medially causing fracture of upper part of right humerus and further producing wound of exist at the anterior aspect of right shoulder, size about 2" x 1-1/2" (2) One wound of entry in the epigastrium 2/3 cm x 2/3 cm size, just below the xiphisternal traversing backward, upward laterally badly tearing the liver and further causing fracture of nearby ribs. 7th, 8th, 9th ribs producing wound of exit on the back, below angle of right scapula 2 cm x 1-1/2 cm in size. Two metal pieces were recovered from the posterior chest wall near wound of exit. (3) Wound of entry in the epigastrium near the mid line 2/3 x 2/3 cm in size, travelling upward, backward and laterally causing severe laceration of liver, right lung, fracture of 5th, 6th and 7th ribs as lateral aspect producing wound of exit 2" x 1-1/2" in size on lateral aspect again entering the medial side of upper arm producing fracture of humerus. Wound of exit on the lateral aspect of right upper arm below lower end of deltoid 1-1/2" x 1-1/2" in size and size of entry on the arm as 2" x 1-1/2" in size. Wound of exit on the lateral aspect of right upper arm below lower end of deltoid 1-1/2" x 1-1/2" in size and size of entry on the arm as 2" x 1-1/2" in size. (4) Wound of entry on the upper part of epigastrium 2/3 cm x 2/3 cm in size, entering backward, downward and laterally causing laceration of liver perforation of loops of small gut, right kidney and coming out on the right lumber region anteriorly producing wound of exit of the size of 2" x 1-1/2". (5) Lacerated wound behind the right acromion process of right shoulder 1" x 1/2" x skin deep. (6) Lacerated wound on the right side of abdomen on mid line 1-1/2 x 1-1/2 cm in size, margins infected. (7) Small abrasion on the right iliac crest 1/2 x 1/2 x 1/4 cm in size. Margins of all wounds of entries of gun shot injuries were burnt. In the opinion of the doctor, injuries Nos. 1 to 4 were caused by fire arms, injuries Nos. 5, 6 and 7 were caused by hard and blunt object. Injuries No. 1 to 5 were about one day duration and injuries Nos. 6 and 7 were of about 2-3 days in duration. All injuries were antemortem. Two metal pieces of bullet recovered from the body near wound of exit posteriorly on right side were sealed and handed over to police. The mode of death was shock due to haemorrhage. The cause of death was gun shot injuries to lung, liver, intestine, kidney and spinal cord. Time since death within 6 hours duration. ( 8. ) ON query by the Investigating Officer, Dr. Chourasiya opined that the injuries of Rajju Dhimar mentioned in the post-mortem report at Nos. 6 and 7, which were seen by him on 3-2-1992 and injury No. 5 might have been caused due to fall on hard and blunt surface. ( 9. ) ACCUSED Dhaniram was also sent to District Hospital, Tikamgarh, for examination of his mental condition and Dr. R. G. Johri found him to be of normal mental status vide his report (Ex. P-1 ). ( 10. ) AFTER the requisite investigation, the charge-sheet against the accused/appellant was filed before the Court of Magistrate and in due course the case was committed for the trial. ( 11. R. G. Johri found him to be of normal mental status vide his report (Ex. P-1 ). ( 10. ) AFTER the requisite investigation, the charge-sheet against the accused/appellant was filed before the Court of Magistrate and in due course the case was committed for the trial. ( 11. ) LEARNED Trial Court framed the charges for the offence under section 302 of the Indian Penal Code. Accused/appellant abjured the guilt and claimed to be tried. ( 12. ) DURING trial, to substantiate its case, the prosecution examined 14 witnesses, out of whom 6 witnesses viz. , Constable Suresh Kumar (P. W. 4) Constable Chintaman (P. W. 9), Constable Jagdish Prasad (P. W. 10), Constable bholaram (P. W. 11), Head Constable Shyambabu Durbe (P. W. 12) and Constable Rajbalram (P. W. 13) were examined as eye-witnesses. P. W. 1 Dr. R. G. Johri was examined to throw light on the mental status of accused Dhaniram. P. W. 2 dr. N. K Chourasiya and P. W. 3 Dr. K. R. Sahay were examined as medical witnesses, who had performed the post mortem examination of the dead bodies. P. W. 5 Ramesh Chandra, Arms Moharrir, P. W. 6 Natthu, Riksha Puller, P. W. 7 maniram Yadav, Shopkeeper, P. W. 8 Kamlesh Kumar and P. W. 14 B. S. Parihar, sub Inspector, were examined regarding the investigation. ( 13. ) ACCUSED/appellant in his defence examined D. W. 1 Constable rajbahadur, D. W. 2 Ram Singh Kastwar, D. W. 3 Dr. (Smt.) S. K Malhotra and d. W. 4 Nathuram, father of the accused. From the trend of cross-examination and the evidence produced by the accused/appellant in defence, it appeared that the defence of the accused was that of unsoundness of mind in terms of Section 84 of the Indian Penal Code, however, from the examination of the accused under Section 313 of Code of Criminal Procedure it appeared that of accidental firing of his gun or that of exercise of right of private defence during the discharge of his duty as public servant. ( 14. ) THE prosecution case as per evidence of P. W. 13 constable rajbalram is that on 3-2-1992 he was posted as a Constable in Kotwali, tikamgarh. He and Constable Jagdish Prasad (P. W. 10) were posted on duty to take under trial prisoners, Rajju and Raju, to jail from the police lock up. ( 14. ) THE prosecution case as per evidence of P. W. 13 constable rajbalram is that on 3-2-1992 he was posted as a Constable in Kotwali, tikamgarh. He and Constable Jagdish Prasad (P. W. 10) were posted on duty to take under trial prisoners, Rajju and Raju, to jail from the police lock up. The key of the lock up and handcuffs were with the Head Constable Moharrir, viz. , shyambabu Durbe (P. W. 12 ). At about 9. 30 A. M. Jagdish Prasad obtained the key of the lock up and also the handcuffs from Shyambabu. Jagdish Prasad opened the lock of the cell and handcuffed the prisoners Rajju Dhimar and Raju dhobi and brought them out of the gate of the lock up. Raju Dhobi put on his shoes. As soon as they proceeded ahead, accused Dhaniram, who was posted on the duty of Santri (Guard), fired gun shots on both the prisoners as a result of which both of them fell dead at the spot. Dhaniram fired in all 11 rounds. On his admonishing Dhaniram as to what he was doing, Dhaniram told him that if he waned to be alive, he should run away, then he climbed over the roof. According to him, Head Constable Nanhebhaiya and Constable Bholaram caught hold of dhaniram and made him to sit and took the gun from him. He further stated that since the gun had gone half cock, therefore, the bullet got obstructed in the barrel and it could not fire further. He then lodged the report Ex. P-29, in the kotwali. ( 15. ) THE evidence of P. W. 13 Rajbalram found support from the evidence of P. W. 10 Constable Jagdish Prasad who deposed that at the relevant time he had obtained the key of the lock up and Constable Rajbalram had taken the handcuffs and the chain from HCM. He had opened the lock of the prison cell, thereafter he and Rajbalram had entered the cell and after handcuffing both the prisoners they had come outside the cell and the cell was locked. At the time when deceased Raju Dhobi was putting on his shoes and both the prisoners were in handcuffs, suddenly accused Dhaniram fired his service gun, the first shot hit Raju Dhobi on his neck and he fell down. At the time when deceased Raju Dhobi was putting on his shoes and both the prisoners were in handcuffs, suddenly accused Dhaniram fired his service gun, the first shot hit Raju Dhobi on his neck and he fell down. When he asked the accused as to what he was doing, then he said, he should run away and then he ran away from the spot with the key and thereafter accused had fired shots at both the deceased persons. He further stated that Dhaniram had fired around 10-11 rounds, some of which had hit the wall also. The evidence of other witnesses viz. , Constable bholaram (P. W. 11), HCM Shyambabu Durbe (P. W. 12) and Constable Suresh kumar (P. W. 4) was also to the same effect. ( 16. ) THE evidence of D. W. 3 Dr. (Smt.) S. K Malhotra, Psychiatrist and the Superintendent of Mental Hospital, Gwalior, was with respect to the mental condition of the accused. The accused was sent to Mental Hospital, Gwalior, for observation on 28-2-1992 and was kept there till 30-5-1992. Her evidence was that sometimes the accused was seen in abnormal state but generally he was peaceful, he used to talk less, his replies were irrelevant on 3-3-1992. On 25-3-1992 he was found mentally sound. On 16-4-1992 his mental state was not found proper. She stated that in regard to any particular incident it was not possible to say about the balance of mind of any person since same person may react differently even in similar situations at different times. If somebody is tried, irritated or ill, his reactions may be different. ( 17. ) D. W. 4 Nathuram happened to be the father of the accused. According to him, about 20 years before the present occurrence, accused had abused him when he had refused him to provide Terrycot clothes. ( 18. ) RELYING upon the evidence adduced by the prosecution, the learned Trial Court held the accused/appellant guilty for the offence charged and convicted and sentenced him as aforesaid. ( 19. According to him, about 20 years before the present occurrence, accused had abused him when he had refused him to provide Terrycot clothes. ( 18. ) RELYING upon the evidence adduced by the prosecution, the learned Trial Court held the accused/appellant guilty for the offence charged and convicted and sentenced him as aforesaid. ( 19. ) SHRI A. P. Singh, learned Counsel for the appellant, has assailed the conviction of the appellant on the ground that at the relevant time when the incident occurred, the appellant was insane and was mentally unsound, as such he was incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. He has submitted that since the prosecution has failed to adduce any evidence with regard to the motive, which the appellant could have harboured against the deceased persons, it should have been presumed that the appellant was of unsound mind. He has further submitted that this was the reason why the appellant was sent for medical examination by P. W. 1 Dr. R. G. Johri about his mental condition and that from the evidence of D. W. 3 Dr. (Smt.) S. K. Malhotra, Psychiatrist of Mental Hospital, Gwalior, and that of d. W. 4 Nathuram, the father of the accused/appellant, it appeared that the appellant was of unsound mind. In the alternative, learned Counsel submitted that the probability that the deceased persons had attacked and assaulted the appellant at the time when they were being handcuffed by Constable Jagdish prasad and Rajbalram and had attempted to snatch his rifle and in order to protect his person and property, appellant without any intention to kill them had fired gun shots at them, cannot be ruled out. He has submitted that the appellant has stated the above facts in very clear terms in his statement recorded under section 313 of the Code of Criminal Procedure. He has further submitted that in view of the aforesaid reasonable probabilities, existing in favour of the appellant, the finding of conviction recorded by the Trial Court is erroneous and deserves to be set aside. ( 20. ) ON the contrary, Shri G. P. Singh, Dy. Govt. Advocate, who contended that the evidence of prosecution witnesses, who had no animus against the appellant, is wholly reliable. ( 20. ) ON the contrary, Shri G. P. Singh, Dy. Govt. Advocate, who contended that the evidence of prosecution witnesses, who had no animus against the appellant, is wholly reliable. It is established from the evidence and the material on record that the appellant was not insane or of unsound mind at the point of time when the incident occurred. He has further submitted that there is not an iota of evidence that the deceased persons had in any manner attacked the appellant or attempted to snatch away rifle from his hands. From the evidence on record it is proved that at the time when they were shot dead, they were handcuffed, as such it was not possible for them to have attacked the appellant. From the evidence of prosecution witnesses and that of defence witnesses, including the evidence of D. W. 3 Dr. (Smt.) S. K. Malhotra and D. W. 4 Nathuram, no such inference is possible that the accused/appellant suffered with unsoundness of mind at the relevant time. He has accordingly submitted that the finding of conviction of the appellant being based on proper scrutiny and appreciation of evidence by the Trial Court does not call for any interference. ( 21. ) WE have heard Shri A. P. Singh, Counsel for the appellant and shri G. P. Singh, Dy. Govt. Advocate for the State at length and have gone through the entire evidence on record. Before we deal with the contentions raised by the learned Counsel for the parties, it will do well to take note of the evidence, adduced by the prosecution as well as defence in the case. ( 22. ) SO far as the direct evidence is concerned, the prosecution has produced P. W. 13 Constable Rajbalram, P. W. 10 Constable Jagdish Prasad and p. W. 4 Suresh Kumar, who have all categorically stated that on 3-2-1992 at about 9. 30 A. M. deceased Raju Dhobi and Rajju Dhimar were detained in the lockup of Police Kotwali, Tikamgarh. On 3-2-1992, under the jail warrants issued by the sub Divisional Magistrate and the Judicial Magistrate, First Class, Tikamgarh, both the prisoners had to be lodged in Jail of Tikamgarh. At about 9. 30 A. M. deceased Raju Dhobi and Rajju Dhimar were detained in the lockup of Police Kotwali, Tikamgarh. On 3-2-1992, under the jail warrants issued by the sub Divisional Magistrate and the Judicial Magistrate, First Class, Tikamgarh, both the prisoners had to be lodged in Jail of Tikamgarh. At about 9. 30 A. M. , constable Rajbalram obtained the handcuffs and Constable Jagdish Prasad obtained the key of the prison lockup and opened the same and put handcuffs to both the prisoners and brought them out of the gate of the cell and at the time when Raju Dhobi was wearing shoes, suddenly, Santri Dhaniram fired gun shots over both the prisoners as a result of which they died. In cross-examination of the aforesaid witnesses, it was suggested by the defence that when Constable rajbalram was handcuffing prisoner Rajju Dhimar, another prisoner Raju dhobi had escaped and had attempted to snatch his gun from the appellant and further that Rajju Dhimar also came out and scuffle with him. It was also suggested that when Rajju Dhimar and Raju Dhobi tried to snatch the gun from the appellant, in a sudden fit of madness and in the scuffle his gun went off and both the deceased persons suffered gun shot injuries. These suggestions have been categorically and firmly denied by the witnesses. Witness Rajbalram (P. W. 13) has stated that nobody had said that appellant had gone mad. He has also deposed that the Constable, who caught hold of appellant, was not attacked by him. Had Dhaniram wanted to kill him, he could have done it. Witness rajbalram has said that it was wrong to say that he had not handcuffed the prisoners before opening the prison cell. This witness has further deposed that he had left the chain of handcuffs when one shot was fired. They have deposed that when the gun of Dhaniram had got half-cock, then it was snatched by constable Bholaram (P. W. 11 ). The evidence of Rajbalram finds support from the evidence of Suresh Kumar (P. W. 4), who was posted as Head-Constable at kotwali, Tikamgarh. He has deposed that at about 9. 15 AM. They have deposed that when the gun of Dhaniram had got half-cock, then it was snatched by constable Bholaram (P. W. 11 ). The evidence of Rajbalram finds support from the evidence of Suresh Kumar (P. W. 4), who was posted as Head-Constable at kotwali, Tikamgarh. He has deposed that at about 9. 15 AM. He was in the room of HCM, when he heard sound of firing of gun, he came out and saw that prisoner Raju Dhobi was lying on the ground then he saw accused firing his gun, shots whereof hit other prisoner Rajju Dhimar and thereafter he ran away from the spot but he heard sounds of 4-5 shots more. He deposed that when head Constable Nanhebhaiya and Bholaram had informed that they had taken away the gun from accused Dhaniram, thereafter, he had come out. In the cross-examination, this witness has said that when accused had been a student, he suffered fits of madness, but, he did not know as to whether any such fits occurred during his tenure of the service or not. ( 23. ) P. W. 9 Constable Chintaman has deposed that when he was standing in the office of HCM, he had heard sounds of firing, hearing which he along with other persons had run away and entered a room and when the firing was over then he had come out and then he came to know that firing was done by the accused/appellant. ( 24. ) ANOTHER important witness, Constable Bholaram (P. W. 11) has deposed that on the day of the occurrence, accused had come in the morning, at about 8 AM. and had asked him to hand over the duty of guard but he told him that he would handover the duty at 9 AM. He has stated that on that day Rajju dhimar and Raju Dhobi were detained in the lock up. At about 9 AM. he had handed over the duty of Santri (Guard) to appellant Dhaniram and had handed over 303 bore rifle along with 50 live cartridges to him and had also informed him that two prisoners were detained in the cell. After about half an hour he heard people shouting that Dhaniram had shot dead Rajju and Raju and then he saw dhaniram intimidating the mob to run away, he himself however did not see dhaniram firing his gun. After about half an hour he heard people shouting that Dhaniram had shot dead Rajju and Raju and then he saw dhaniram intimidating the mob to run away, he himself however did not see dhaniram firing his gun. He further deposed that he had caught hold of dhaniram and had taken away the rifle from him and at that time there had been scuffle between them, during which gun had gone half cock. ( 25. ) P. W. 12 Shyambabu Durbe, who was posted as Head Constable moharrir in the Police Kotwali, has deposed that Rajju Dhimar and Raju Dhobi were ordered by the Courts to be lodged in jail on 2-2-1992, but, because on that day the time of the entry of the jail had been over, they had been kept in the police lock up of Kotwali, Tikamgarh. On 3-2-1992 Constable Jagdish Prasad and Rajbalram were deputed to take them to jail. At 9. 15 AM. he had handed over handcuffs and the key along with four jail warrants to Constable Rajbalram and the key of lock up to Constable Jagdish Prasad. He has deposed that Jagdish prasad and Rajbalram had handcuffed the prisoners inside the lock up and had closed the lock up. At that time appellant was posted on the duty of Santri (Guard ). While he was making entries in the Rojnamcha, he heard sounds of firing, he came in the verandah and saw staff personnel running towards the back side of the Kotwali and one prisoner lying on the ground, outside the lock up and another prisoner crying. Dhaniram, who had gun in his hand, shouted that everybody should go, whereupon he also ran away and heard sound of 5-6 gun shots, though he himself did not see firing Dhaniram. Later on, he saw Rajju and raju lying dead. He deposed that out of fear, he did not go out in front of the appellant. He further deposed that by jumping from the back side of the wall of kotwali he went and informed Town Inspector of the Kotwali about the incident. This witness has proved all the relevant entries pertaining to duties of the staff, handing over of rifle with 50 cartridges to Constable Bholaram and thereafter the entries regarding handing over of rifle and 50 cartridges by bholaram to appellant Dhaniram. This witness has proved all the relevant entries pertaining to duties of the staff, handing over of rifle with 50 cartridges to Constable Bholaram and thereafter the entries regarding handing over of rifle and 50 cartridges by bholaram to appellant Dhaniram. Further steps taken in the investigation have been proved by P. W. 14 B. S. Parihar, who was posted as Sub-Inspector in the kotwali. ( 26. ) THE medical evidence of Dr. N. K. Chourasiya (P. W. 2) and Dr. K. R. Sahay (P. W. 3) has established the fact that the deceased Rajju Dhimar and raju Dhobi had died homicidal death due to gun shot injuries. ( 27. ) ON proper scrutiny with care and caution of the testimony of aforesaid prosecution witnesses, we find no reason to disbelieve or discard it. From the aforesaid evidence and the material adduced by the prosecution on record, it is amply established that Prisoners- Raju Dhobi and Rajju Dhimar were shot dead by the appellant, who was at the relevant time posted as Santri (Guard) in Kotwali, Tikamgarh. Merely for want of evidence of motive for the crime on the part of the accused, it cannot be legitimately held that it lacks mens rea, in the face of the direct and positive reliable evidence, as observed, that he had pointedly shot at the deceased persons with his gun with the inevitable and apparent consequence of causing their death which naturally implies mens era, though not got on surface. The finding in that regard reached by the Trial Court cannot thus be said to be perverse or erroneous in any manner. Next submission made by the learned Counsel for the appellant is that at the relevant time the appellant was insane or was of unsound mind, therefore, he was not capable of knowing the nature of the act he was doing. When the fact that the accused has killed the deceased persons is established, the burden of proving his defence, bringing his case within the exception of Section 84 of the Indian Penal Code, falls upon the accused, though that burden is not so onerous as lies on the prosecution to prove its case. Further, the accused is required to prove unsoundness of his mind existing at the point of time when the incident had occurred. The Apex Court in Dahyabhai Chhaganbhai Thakkar Vs. Further, the accused is required to prove unsoundness of his mind existing at the point of time when the incident had occurred. The Apex Court in Dahyabhai Chhaganbhai Thakkar Vs. State of gujarat ( AIR 1964 SC 1563 ) had considered the question of burden of proof in the context of defence based on the exception embodied in Section 84 of the indian Penal Code. In that context it has been held:- " (7) The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions :- (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the indian Penal Code : the accused may rebut it by placing before the Court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. (9) When a legal plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian penal Code can only be established from the circumstances which preceded, attended and followed the crime. " ( 28. ) IN the light of the aforesaid ratio, if we examine the facts of the present case, the prosecution had examined P. W. 1 Dr. R. G Johri, who was posted as Chief Medical and Health Officer in District Hospital, Tikamgarh. On the request of Station House Officer of Kotwali, Tikamgarh, he examined the accused-appellant with respect to his mental condition. Vide his report Ex. P-1, this witness opined that the appellant was of normal mental status except he was little bit apprehensive. Though the defence challenged his evidence on the ground that this witness was not a Psychiatrist, but from his evidence it is apparent that on 3-2-1992, i. e. , on the day of incident, the appellant was in normal state of mind, as he had not shown any signs of being a person of unsound mind. From the cross-examination of this witness nothing could be revealed which could have rendered his testimony unreliable. From the evidence of other prosecution witnesses also it cannot be discerned that at the time of the occurrence appellant was suffering with mental unsoundness. It is on the record that at the time of occurrence the appellant fired shots only on the two prisoners but did not attempt to kill or injure anybody else. On the contrary, he had asked other staff personnel present there to go away from the spot. This conduct of the accused itself speaks volumes in showing that he had not lost the balance of his mind or was suffering with any kind of insanity. So far as the evidence of D. W. 3 dr. (Smt.) S. K. Malhotra, Psychiatrist and Superintendent of Mental Hospital, gwalior, is concerned, she had kept the appellant under observation from 28-2-1992 till 30-5-1992. From her evidence it appears that on some occasions the appellant appeared to be mentally abnormal but generally he was found mentally sound. So far as the evidence of D. W. 3 dr. (Smt.) S. K. Malhotra, Psychiatrist and Superintendent of Mental Hospital, gwalior, is concerned, she had kept the appellant under observation from 28-2-1992 till 30-5-1992. From her evidence it appears that on some occasions the appellant appeared to be mentally abnormal but generally he was found mentally sound. She deposed that a person may react differently in the same situation if he is irritated, hungry, ill or suffering with some temporary excitement. From her evidence, it is not possible to hold that the appellant was suffering with insanity or unsoundness of mind at the point of time when the incident had occurred, i. e. , on 3-2-1992. ( 29. ) D. W. 4 Nathuram, father of the appellant, has deposed that when the appellant was student of class seventh, i. e. , about 20 years before the present occurrence, he had asked for the clothes of terrycot and when he had refused him, then he had indulged in hurling abuses. Again, after 8-10 years, Dhaniram started cutting wood kept on a well and when he asked him to refrain from doing so, he again abused him and ran after him with an axe, then neighbours had come and pacified him, though Dhaniram had become adamant. He further deposed that he had taken Dhaniram to one Dr. Khan, who had given him some pills and he also got him treated by some exorcist and that Dhaniram was suffering with similar type of fits with the interval of one or two months. He has admitted that dhaniram was in service since about 13 to 14 years, he had taken training of police at Indore but he did not inform police officer regarding his mental unsoundness, On proper scrutiny of the evidence of aforesaid defence witness, his testimony does not inspire confidence. From it, it can not reasonably be inferred that the appellant suffered with any mental disorder at or about the time of the alleged incident. On the contrary, his conduct has amply established the fact that at the time of the occurrence he was fully mentally sound. ( 30. ) WHEN we refer to the statement of appellant, recorded under section 313 of the Code of Criminal Procedure, it is revealed that he admitted that he had fired gun shots on both the prisoners and both had died on the spot. ( 30. ) WHEN we refer to the statement of appellant, recorded under section 313 of the Code of Criminal Procedure, it is revealed that he admitted that he had fired gun shots on both the prisoners and both had died on the spot. He admitted that he had fired some shots in the air to ward off the mob. He admitted that 11 cartridges were fired and his gun had gone half cock and that 11 empty cartridges and 39 live cartridges were seized from him. In the answer of questions No. 106 and 107 he admitted that he was in full senses and was behaving normal when he was examined by P. W. 1 Dr. R. G. Johri. However, in the answer of question No. 112 he gave altogether a different story in his defence, according to which, on the day of the incident Raju Dhobi and Rajju dhimar, who had tried to escape from the custody, had assaulted him by fists and kicks and had tried to snatch his gun, hence, 3-4 rounds were fired by him and since a mob had assembled there, he had fired some more shots in the air, but his gun had gone half cock. He stated that he had informed the town Inspector about the incident. He further stated that at the time of the incident only Rajju had been handcuffed, but Raju was not handcuffed and while the dead bodies were being sent for the post-mortem examination, at that time Constable rajbalram (P. W. 13) had put handcuff on the hand of deceased Raju. ( 31. ) SUGGESTIONS in this regard had been put to the prosecution witnesses, but the same were emphatically denied. Aforesaid defence of the appellant, runs counter to his alternative defence of insanity or unsoundness of mind. Dispelling the above defence, Rajbalram and Jagdish Prasad, have emphatically denied such suggestions and have categorically deposed that at the time when the shots were fired at the prisoners, they had been handcuffed and the lock up was closed. There is no iota of evidence to give rise to any probability that the deceased persons had tried a forcible escape and had attempted to snatch the gun from the appellant. On the contrary, the statement of accused rules out any probability of his being of unsound mind. There is no iota of evidence to give rise to any probability that the deceased persons had tried a forcible escape and had attempted to snatch the gun from the appellant. On the contrary, the statement of accused rules out any probability of his being of unsound mind. The defence theory of assault by the deceased prisoners on the appellant is further ruled out from the fact that no injuries were found on his body when he was examined by Dr. R. G. Johri (P. W. 1 ). Had he suffered any injuries at the hands of deceased prisoners, he would have very well pointed out to the doctor. Thus, the aforesaid defence taken by the appellant naturally falls to the ground. ( 32. ) THUS, in view of the foregoing discussion and on even re-appreciation of the evidence, we are of the opinion that the Court below has considered the evidence oral and documentary on the record in the proper perspective and has rightly come to the finding of guilt of the appellant. We see no illegality or perversity in the judgment requiring any interference. ( 33. ) IN the result, we confirm the conviction and sentence of the appellant, awarded by the Court below, Appeal fails and is hereby dismissed. Criminal Appeal dismissed.