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2008 DIGILAW 1031 (BOM)

State of Maharashtra v. Uttam Nandram Somwanshi

2008-07-22

N.V.DABHOLKAR, P.R.BORKAR

body2008
Judgment Dabholkar, J.- 1. The State feeling aggrieved by the judgment of acquittal recorded by Additional Sessions Judge, Shrirampur in Sessions Case No.70 of 2003, has filed this appeal under Section 378 (1) (3) of the Code of Criminal Procedure, 1973. The Respondent-accused was tried for offences punishable under Sections 302, 504 of Indian penal Code and was acquitted at the conclusion of the trial, on 27.9.2005. Hence, the appeal. 2. The prosecution story can be narrated thus; . The incident in question took place on 30.7.2003 at about 2.30 a.m. This was on the night between 29th and 30th July 2003, after midnight hours. The place of incident is at Shrirampur and in front of the house of the accused. The victim of the incident Vatchalabai was the wife of the accused. The prosecution story mainly unfolds from the deposition of PW-1 Ashok and PW-4 Vaishali, who are the children of the accused and the deceased. They were aged 20 and 22 years respectively, at the time of recording their evidence in 2005. Thus, they were aged 18 and 20 at the time of incident and are the individuals of sufficient understanding and not child witnesses. . On 29.7.2003, the accused and brother of PW-1 Ashok, had been to their workshop. The deceased, on her way to the temple, visited the workshop at about 4.30 p.m. At that time, she was accompanied by daughter Vaishali (PW-4). The accused was annoyed by this visit and he expressed his displeasure about the same. There was some exchange between husband and wife on that count. At about 7.30 p.m., his other son returned home. The family had dinner at about 9.30 p.m., whereafter the family went to sleep. The accused, deceased Vatchalabai and PW-1 Ashok were sleeping on the platform in front of the house and others were sleeping inside the house. Even before going to bed, the accused challenged deceased Vatchalabai about her visit to the workshop and again there was a quarrel between the two. At about 2.30 a.m., PW-1 Ashok heard the noise of assault and he removed the chaddar from his face. He saw the accused assaulting Vatchalabai with an iron pestle on her head. Ashok shouted and snatched the pestle. In the meanwhile, other family members, who were sleeping inside, also came out. The mother was seriously injured and head injury was profusely bleeding. He saw the accused assaulting Vatchalabai with an iron pestle on her head. Ashok shouted and snatched the pestle. In the meanwhile, other family members, who were sleeping inside, also came out. The mother was seriously injured and head injury was profusely bleeding. Vatchalabai had become unconscious. Ravi, other son, arranged one rickshaw. PW-1 Ashok, Ravindra Borkar, Kailash Borkar and others took her to Damani Hospital. One Dattu Magar was asked to give message to brother of the victim (PW-3 Bhalnath). At Damani hospital, party was advised to take the injured to German Hospital. The German Hospital directed the party to take the injured to Kamgar Hospital. After some examination and C.T. scan, the patient was shifted to Loni Hospital. At about 11.00 a.m., doctors told the relatives of Vatchalabai that, she had expired. . On 30.7.2003, at about 3.30 a.m., brother of PW-3 Bhalnath received a message regarding assault on the sister by the accused and that she was admitted in the hospital. The brother communicated the details to Bhalnath on telephone through one Mr. Kale. Bhalnath reached Shrirampur and followed the same path by which the party had taken the victim i.e Damani Hospital, German Hospital, Kamgar Hospital and lastly Pravara Hospital, Loni. After intimation regarding death of Vatchalabai, Bhalnath came to Shrirampur and lodged a report with police station, which set the investigation into motion. 3. For proving its case, the prosecution has examined seven witnesses. PW-1 Ashok and PW-4 Vaishali, who are the children of accused and the victim, provided direct and best possible evidence. PW-3 Bhalnath is the brother of the deceased, but he has no personal knowledge about the incident and he had joined the party only at Pravara Hospital, Loni. . Dr.Kashinath, attached to Pravara Hospital (PW-5) has produced the case papers of deceased Vatchalabai, from Pravara Hospital and PW-6 Dr. Shrikant then attached to Pravara Hospital, had performed post mortem. The spot panchanama was drawn in the presence of PW-2 Deepak and Shri S.R. Rane, Deputy Superintendent of Police (PW-7), is the Investigating Officer. 4. The accused, while denying the charge, has not denied relationship. He has expressed desire to examine defence witness and has, accordingly, examined Dr.Mohan Sahatrabuddhe. Shrikant then attached to Pravara Hospital, had performed post mortem. The spot panchanama was drawn in the presence of PW-2 Deepak and Shri S.R. Rane, Deputy Superintendent of Police (PW-7), is the Investigating Officer. 4. The accused, while denying the charge, has not denied relationship. He has expressed desire to examine defence witness and has, accordingly, examined Dr.Mohan Sahatrabuddhe. Although accused himself did not touch that aspect during the course of his statement under Section 313 of the Code of Criminal Procedure, 1973, the defence raised by cross examination of the witnesses and examination of Dr. Sahatrabuddhe as defence witness, the accused has claimed benefit of Section 84 of I.P.C. and it is submitted on his behalf that at the time of the incident, he was incapable of knowing the nature of the act, or that he was incapable of knowing that what he was doing was either wrong or contrary to law, due to unsoundness of mind. 5. On going through the impugned judgment, it can be said that by relying upon evidence of the two children (Ashok and Vaishali - PWs 1 and 4) of the accused and the victim, the learned Judge came to the conclusion that the act is committed by the accused. In other words, it is held that the accused caused head injuries to wife Vatchalabai, by assaulting with the help of the pestle, which has resulted into her death. Upon considering the evidence of defence witness Dr. Sahatrabuddhe and certain admissions in the evidence of PW-4 Vaishali, the learned Judge felt that the case of the respondent-accused was squarely covered by general exception under Section 84 of the IPC and, therefore, the accused is acquitted and his detention in Yerwada Mental Hospital is ordered till he recovers. 6. Heard respective counsel. Both of them placed reliance upon reported judgments, in order to enlighten us as to when the benefit of general exception under Section 84 of IPC is available and when it is not. Only thereafter, both the lawyers referred to admissions by PW-4 Vaishali and other material on record, in order to propound respective case. . 6. Heard respective counsel. Both of them placed reliance upon reported judgments, in order to enlighten us as to when the benefit of general exception under Section 84 of IPC is available and when it is not. Only thereafter, both the lawyers referred to admissions by PW-4 Vaishali and other material on record, in order to propound respective case. . It was submitted by learned Public Prosecutor that the defence has not discharged onus of creating a preponderance of probability that "at the time of doing the act" by unsoundness of mind, the respondent-accused was incapable of knowing the nature of his act, or that what he was doing was unlawful and, therefore, according to learned Public Prosecutor, the trial court was not justified in granting benefit of general exception under Section 84 of the IPC. . According to learned Defence Counsel, the defence has brought sufficient material on record, demonstrating that the accused was schizophrenic and thus created a probability of his being a person of unsound mind at the time of doing the act, by providing details of his mental state before and after the incident. 7. AIR 1961 SC 998 , State of Madhya Pradesh vs. Ahmadulla, was relied upon by learned Public Prosecutor for following observations from paragraphs 3 and 8 of the judgment. ". The burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by S.84 lies on the accused who claims the benefit of this exemption." . The emphasis by learned Public Prosecutor was on the clause time." "at the crucial point of time.". In paragraph 8 of the judgment, the learned Public Prosecutor has placed reliance on the observations which are borrowed by the Hon’ble Apex Court from the decision of the Court of Criminal Appeal in England in Henry Perry 14 Cri App Rep 48. The observations relied upon read as under:- ". 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. The observations relied upon read as under:- ". 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. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing-that is- the physical nature and quality as distinguished from the moral - or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong ................................... There is, however, evidence of a medical character before the jury and there are statements made by the prisoner himself, that he has suffered from epileptic fits. The Court has had further evidence, especially in the prison records, of his having had attacks of epilepsy. But to establish that is only one step; it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders; and that has not been proved." (emphasis added) 8. In AIR 1966 SC 1 , Bhikari vs. State of U.P., following observations from paragraph 5 were relied upon; ". There is no doubt that the burden of proving an offence is always on the prosecution and that it never shifts. It would, therefore, be correct to say that intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. Thus if a person deliberately strikes another with a deadly weapon, which according to the common experience of man-kind is likely to cause an injury and sometimes even a fatal injury depending upon the quality of the weapon and the part of the body on which it is struck, it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury which in fact resulted from the act. In such a case the prosecution must be deemed to have discharged the burden which rested upon it to establish an essential ingredient of the offence, namely the intention of the accused inflicting a blow with a deadly weapon." . In such a case the prosecution must be deemed to have discharged the burden which rested upon it to establish an essential ingredient of the offence, namely the intention of the accused inflicting a blow with a deadly weapon." . Thus, according to learned Public Prosecutor, once the prosecution has proved that the accused committed the act, which indicates intention to inflict fatal injury, the prosecution has discharged its burden and thereafter it is for the defence to establish that the accused was incapable of knowing the nature of his act at the time he committed it. So far as Section 84 of IPC is concerned, the Hon’ble Apex Court observed thus in further part of paragraph 5; ". Section 84 of the Indian penal Code can no doubt be invoked by a person for nullifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Now, it is not for the prosecution to establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every one is presumed to know the natural consequences of his act. Similarly, everyone is also presumed to know the law. These are not facts which the prosecution has to establish. It is for this reason that S.105 of the Evidence Act places upon the accused person the burden of proving the exception upon which he relies." . A Division Bench of this High Court in the matter of Saraswati vs. State of Maharashtra 1993 (2) Mh.L.J.1529, was relied upon by learned Counsel for respondent-accused for following observations in paragraph 13 of the reported judgment. ". We have already discussed the case law in this regard and it must be held that the duty of the prosecution does not end merely in expounding the prosecution evidence and trying to establish that the ingredients of the law are satisfied but if there is corresponding material that has emerged in the course of investigation that would otherwise justify the case being brought under one of exceptions, the prosecution cannot be pardoned for having kept the material back from the Court. " . " . In fact, reliance on this case is uncalled for because, the learned counsel for the respondent-accused has not been able to demonstrate before us anything which can be termed as an attempt on the part of prosecution to suppress the material that occurred during the course of investigation and that would support the plea of unsoundness of mind at the time of the incident. . Shri Garud, Advocate, placed reliance upon recent judicial pronuncement in the matter of Bapu alias Gujraj Singh vs. State of Rajasthan (2007) 8 SCC 66 and more particularly, head notes "B", "C" and "E" of the same. Head Note "C" which borrows observations from paragraphs 7 and 8 which were relied upon by Advocate Shri Garud, read thus; ". The burden of proof rests on an accused to prove his insanity, which arises by virtue of Section 105 of the Evidence Act, 1872 and is not so onerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding. The onus has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors." . According to learned counsel for the defence, the accused has discharged the onus, by examination of Dr.Sahastrabuddhe, which showed that prior to the incident, accused was detected to be Schizophrenic and was treated by the defence witness. Mental state of the accused immediately after incident, according to Shri Garud Advocate; is proved by admission of his daughter Vaishali (P.W.4). In fact, contents relied upon from Head Note "D", which are borrowed from judgment paras 11 and 12, lay down the same principle as in the later half of Head Note "C" quoted hereinabove. "Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. "Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender’s mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence." . Although observations from paragraph no. 8 as borrowed in Head Note "D" are relied upon, those are not applicable to the case at hands for the same reasons as recorded by us in expressing that ratio from the case of Saraswati (Supra) is held by us, to be not applicable. It is observed in paragraph no. 8 that where during the investigation, previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. In the case at hands, although reliance is placed by Adv.Shri Garud on the observations, he has not demonstrated any incident that investigating officer could have learnt about history of insanity of the accused during the course of investigation. In fact, earliest point of time during the course of enquiry, investigation and trial, when insanity of the accused was revealed, was in August 2004, when the matter was already before Additional Sessions Judge, Shrirampur and hence, the observations from paragraph no.8 of this judgment, relied upon by Advocate Shri Garud, are of no assistance to the defence in the present case. In paragraph no.7, the Honourable Apex Court observed thus : "Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in I.P.C. The courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity." . We feel that further observations in paragraph nos.11 and 12 of the judgment, are required to be read as complimentary to the portion quoted hereinabove, relied upon by Adv.Shri Garud In paragraph no.11 wherein, it is observed thus : "The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied." . In paragraph no.12, it is observed thus : "Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M’Naughton rules of 19th century England." 9. Both learned counsel have placed reliance upon the judgment of the Supreme Court, in the matter of Dahyabhai Chhaganbhai V/s State of Gujrat, AIR 1964 S.C.1563. The learned Public Prosecutor has laid emphasis on Head Note "C" for the purpose of claiming that unsoundness of mind at the time of commission of the act, is required to be probabilised by the defence i.e. when a 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. . . Both the learned counsel have placed reliance upon Head Note "G", which speaks about burden of proof, as under : "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 S.84 of the 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." 10. After discussing evidence of PW-1 Ashok and PW-4 Vaishali, in his judgment paragraphs 6 to 8 and also referring to the evidence of two doctors namely, PW-5 Dr.Adinath and PW-6 Dr.Shrikant, in paragraph 11, learned Judge arrived at a conclusion that the evidence showed, of accused having assaulted the deceased with iron pestle and the deceased having succumbed to the assault and, therefore, a finding is recorded in paragraph 12 that, the death is homicidal. A negative finding is recorded on point No.2, "Does prosecution further prove that the accused assaulted the deceaed with iron pestle and intentionally caused her death ?", not because the judge disbelieved the evidence of PW-1 and PW-4, but he arrived at a conclusion that the accused was entitled to benefit of general exception under Section 84 of IPC and, therefore, there was no intention to cause death. . . We can not avoid feeling that the reasons discussed by the learned Judge, or even finding on point No.2 are not properly compartmentalized. When a defence was raised that that the accused was entitled to benefit of general exceptions under Section 84 of IPC, the points should have been (i), whether the accused committed an act of inflicting fatal injuries on the head of the victim Vatchalabai and (ii) whether the death so ensued amounts to murder or accused is entitled to benefit of general exception under Section 84, being a person of unsound mind, incapable of understanding the nature of his act, or that what he was doing was wrong or contrary to law. Be that as it may. 11. The evidence of Dr.Shrikant, who performed post mortem and the nature of injuries described, more particularly damage to the brain, are sufficient to hold that the death was homicidal. The nature of injuries does not permit us to consider the possibility of such injuries being result, either of suicide or accident. To describe in brief, Vatchalabai had suffered difused haematoma over right parieto temporal occipital region. She had also suffered depressed communitted fracture of right parietal bone, right temporal bone and right mastoid bone with fracture lines extending to base of skull. There was also fracture of middle cranial fossa. It will not be an exaggeraton if we can say that the head of the vicitm was smashed with iron pestle. The description of the injuries rules out the possibility of those being either accidental or suicidal. . So far as death being homicidal is concerned, PW-1 and PW-4 are the children, not only of the deceased but also of the accused. Their evidence comes in the most natural form, especially that of Ashok, who was sleeping on the same platform, where parents were sleeping and where accused inflicted injury on the deceased Vatchalabai. Vaishali had arrived at the scene, either while accused was inflicting the blows or soon thereafter. But, Vaishali knows accused having entered the house and having searched for pestle, which was the weapon ultimately used. Evidence of these two witnesses also stands corroborated by the Medical papers. The history of the injury recorded at Pravara Rural Hospital, Loni, as given by Gorakshanath Gadhe, was of the assault by husband with hard and blunt object. But, Vaishali knows accused having entered the house and having searched for pestle, which was the weapon ultimately used. Evidence of these two witnesses also stands corroborated by the Medical papers. The history of the injury recorded at Pravara Rural Hospital, Loni, as given by Gorakshanath Gadhe, was of the assault by husband with hard and blunt object. (In all probability, this Gorakshanath, who is not examined, is also brother of the victim, who had given that message to complainant Bhalnath on telephone, through Mr. Kale). Consequently, the narration of PW-1 Ashok gets some corroboration, because entry of the history in the case paper was soon after the incident and without much time for thinking and embellishment. . Therefore, it must be said that the prosecution has proved the accused to have committed the act of smashing the head of the victim Vatchalabai by means of iron pestle and thus inflicting injury to her head, which resulted into death. The prosecution has thus proved the death of Vatchalabai to be homicidal and this leaves us to consider the only aspect whether the defence has brought material on record justifying acquittal of the accused, by giving him benefit of general exception under Section 84 of IPC, by keeping in mind the parameters laid down by the Hon’ble Apex Court in supra) Dahayabhai (supra). . Learned Trial Judge has discussed this aspect in his judgment paragraphs 13 to 25 and has arrived at a conclusion that the accused was not knowing nature of his act, or that what he was doing was either wrong or contrary to law. Till the time the learned Judge recorded his conclusion in paragraph 25, by expressing, "I am convinced that accused was not knowing the nature of his act...." act....", the Judge has discussed what were the submissions of the lawyers on both the sides and on what material they had placed reliance. Thus, it must be said that the Judge only expressed, of his being convinced about unsoundness of mind of the accused at the time of committing the act, on the basis of material relied upon by the learned counsel for the respondent-accused. . Thus, it must be said that the Judge only expressed, of his being convinced about unsoundness of mind of the accused at the time of committing the act, on the basis of material relied upon by the learned counsel for the respondent-accused. . It appears that the defence had relied upon evidence of Dr.Sahatrabuddhe, examined as defence witness, case paper (Exh.44) produced by him, the fact that even after arrest the accused was referred to Mental Asylum, Yerwada and initially he was certified to be suffering from mental disorder, by certificate (Exh.49) dated 11.10.2004 and police had filled in the medical history (Exh.50 which does not bear any date any where and that seems to have been filled in by Medical Officer and, therefore, will have to be presumed to have been taken down on the same day as Exh.49 dated 11.10.2004). . We may state here itself that we are justified in expressing that the ratio laid down in couple of judicial pronouncements (Saraswati vs. State of Maharashtra 1993 (2) Mh.L.J.1529 and head note "D" in the matter of Bapu alias Gujraj Singh v. State of Rajasthan (2007) 8 SCC 66 ), regarding suppression of knowledge about previous history of insanity of the accused by the prosecution, is not applicable to the present case. It appears that in October 2004, as soon as learned Sessions Judge suspected mental disorder of the accused, he referred the accused to Asylum and the details are brought on record in the form of Exhibits 49 and 50. . From the discussion in paragraphs 18 and 19 of the judgment, it is evident that the defence counsel also relied upon certain admissions by PW-4 Vaishali and absence of motive. Learned Judge seems to have felt displeasure of the accused about visit of his wife and daughter to the workshop, to be inadequate as motive for committing murder of the wife. . As rightly argued by learned Public Prosecutor, in all the discussion by the trial court, there is no conscientious efforts to consider the evidence relied upon by the defence from the angle, act" "at the time of doing the act". . As rightly argued by learned Public Prosecutor, in all the discussion by the trial court, there is no conscientious efforts to consider the evidence relied upon by the defence from the angle, act" "at the time of doing the act". No doubt, it may not be possible to medically examine the accused for his mental state at the time of doing the act, but from the observations in the cases relied upon by both the sides, it is clear that the defence can bring on record, preponderance of probability of accused being of unsound mind "at the time of doing the act" by producing the evidence, regarding unsoundness of mind of accused, soon before and soon after the act. We must say that, there is no evidence on record, which can be said to be indicating unsoundness of the mind of the accused, soon before the alleged incident. On reference to Exh.44, case paper produced by Dr. Sahatrabuddhe, it can be seen that the treatment had commenced on 6.1.1992 and continued upto 15.1.1997. The incident in question has taken place on 30.7.2003 i.e. six years after the treatment had discontinued. Although defence has relied upon opinion by Dr.Sahatrabudde, that after time gap, schizophrenic attack can relapse and in such attack, the patient can commit grue-some act, the defence has not brought on record any incident between January 1997 to July 2003, of accused having relapsed and suffered schizophrenic attack and under such attack having committed some grue-some act. . So far as evidence regarding possibility of schizophrenic attack soon after the incident is concerned, even from the order passed by the learned Sessions Judge (Paperbook page 29), it is evident that, it was realized on 20.8.2004 that the accused was talking irrelevantly. This was followed by an order of reference of the accused to the Cviil Surgeon, Ahmednagar, whereafter the accused was certified to be fit to face the trial, in March 2005. Thus, relapse to schizophrenic attack was in August, 2004, which is one year after the incident on 30.7.2003. It must be taken into account that the accused was arrested. After arrest, he was also produced before the Magistrate and remanded to appropriate custody from time to time. Thus, relapse to schizophrenic attack was in August, 2004, which is one year after the incident on 30.7.2003. It must be taken into account that the accused was arrested. After arrest, he was also produced before the Magistrate and remanded to appropriate custody from time to time. At least on the first occasion, when the accused was produced before the Magistrate, it can be presumed, that there were no signs of unsoundness of mind, otherwise there could have been reference of the accused by the Magistrate to the Medical Officer, on that day only. . In the miscellaneous file, there appears first remand report dated 31.7.2003, wherein accused is shown to have been arrested on 30.7.2003 at about 20.25 hours and produced before the Judicial Magistrate, First Class, Shrirampur, on 31.7.2003 at 3.00 p.m. The Magistrate has recorded that the accused has no complaint of ill-treatment at the hands of the police. It is thus evident that, on the day next after the incident, there were no signs of unsoundness of mind. Even if we are not to refer to the remand report in the record, because it is not exhibited document, presumption as to the action as recorded in the remand report referred by us, will have to be drawn because the Magistrate being an official, will have to be presumed to have done official act properly. By this evidence, it must be said that the defence does not have material to show the accused having projected signs of unsoundness of mind, soon after the incident. By the order of Sessions Judge and observations of Mental Asylum, Yerwada (Exhibits 49 and 50), symptoms of unsoundness of mind were noticed during the period August to October 2004. 12. This leaves us to consider admissions by daughter Vaishali (PW-4). Learned Counsel has laid emphasis on following admissions. ". It is true that my father was taking medicines for sound sleep. .... It is true that my mother used to give him tablets regularly. ...... It is true that though my father used to take medicines and tablets, his trouble was increased. It is true that my father many times used to forget what he was doing. It is true that during that period, he used to get annoyed on the persons to whom he used to love." . ...... It is true that though my father used to take medicines and tablets, his trouble was increased. It is true that my father many times used to forget what he was doing. It is true that during that period, he used to get annoyed on the persons to whom he used to love." . In fact, these admissions also include the fact that regularity of administration of medicines to the respondent-accused was being taken care by the deceased Vatchalabai herself and although admissions are obtained from Vaishali that the trouble of the father was on the increase, no concrete incident of behaviour reflecting unsoundness of mind was brought on record, by admission of Vaishali. She has denied a suggestion of accused having put sickle on the neck of her aunt. There are further admissions by Vaishali, relied upon by the defence, which read; ". It is true that after the incident, my father was standing calmly without any expression on his face. ...... It is true, in the morning, my father took bath at about 6.00 a.m. He also performed pooja. He also prepared tea and took the same. After tea, he told me that he would go to see the deceased in the hospital." . While taking into consideration these admissions, we can not ignore that Vaishali has denied suggestion that since 8-10 days prior to the incident, father was getting more trouble of his mental disorder. If the father has behaved as if nothing had happened after the victim was taken to the hospital by others, even Vaishali admits that after the incident, she slept inside the house. . Unfortunately, apart from above admissions, which were tried to be relied upon to suggest that the accused suffered mental disorder, soon after the incident, the earlier evidence shows that till August 2004, nothing of the sort had revealed and the defence has also brought on record, in the cross examination of Vaishali, the material which indicates that the accused was planning the killing with cool mind. She has deposed; ". It is true that after dinner, I had latched the door and slept. I again say that when I was latching the door, my father told me that he would put the chain from outside and asked us not to latch the door from inside." . She has deposed; ". It is true that after dinner, I had latched the door and slept. I again say that when I was latching the door, my father told me that he would put the chain from outside and asked us not to latch the door from inside." . This material, brought on record in the cross examination, must be read in the light of deposition of Vaishali in her chief examination, where she states; ". When I tried to latch the door from in side, my father asked me not to latch the door from in side and told that, he would put chain from outside. Thereafter, we slept inside the house. At about 2/2.30 a.m., my father came inside the house. He asked me where pestle was kept, I asked him why he was in need of pestle. He asked me to keep quiet. He then went to kitchen and came with pestle. He then went out of the house. He had shut the door of the house. " . We feel that, the description of the conduct of the accused soon before the incident, clearly indicates that he was working to a plan. On the day he was produced before the Magistrate on 31.7.2003, there were no signs of unsoundness of mind. Therefore, it must be said that, the defence has not been successful in proving that, "at the crucial point of time" or "at the time of doing the act" by unsoundness of mind, the respondent-accused was incapable of knowing the nature of his act. The evidence regarding unsoundness of mind brought on record, is not regarding unsoundness of mind, soon before or after the incident. On the contrary, soon before the incident, accused appears to have conscientiously acted upon the plan and hence, we are unable to agree with the learned Trial Judge that the defence has brought its case within purview of general exceptions available under Section 84 of IPC. 13. The appeal will, therefore, have to be allowed. We hold that the availability of general exception under Section 84 of IPC is not established, by bringing on record preponderance of probability that, act" "at the time of doing act", the respondent-accused was suffering from such unsoundness of mind as to be unable to know the nature of his act. . The appeal will, therefore, have to be allowed. We hold that the availability of general exception under Section 84 of IPC is not established, by bringing on record preponderance of probability that, act" "at the time of doing act", the respondent-accused was suffering from such unsoundness of mind as to be unable to know the nature of his act. . Consequently, negative finding of the trial court on point No.2 will have to be reversed. We hold the accused guilty of murder of Vatchalabai. We sentence accused to suffer imprisonment for life (as this is not a case, rarest of the rate to consider the capital sentence) and fine of Rs.1,000/=, in default, rigorous imprisonment for six months. . We clarify that in case, prison authorities ever find the accused to have relapsed to schizophrenia, he should be referred to nearest Mental Asylum for appropriate treatment. . A certified copy of this judgment be furnished to the accused, free of costs, through prison authorities.