JUDGMENT:- SANTOSH BORA, J 1. Heard respective counsel for the parties. 2. This Criminal Appeal under Sub-section 2 of Section 374 of the Code of Criminal Procedure, 1973 (Act No. 2/1974), is filed by the appellant Vitthal, challenging the judgment and order of his conviction and sentence under Section 302 and Section 307 of IPC, respectively, passed by learned Additional Sessions Judge, Basmathnagar, on 21/7/2006. The appellant is sentenced to suffer imprisonment for life and fine of Rs.1,000/- with default cause for the offence punishable under Section 302 of I.P.C. He was also sentenced to suffer imprisonment for life and ordered to pay fine of Rs.1,000/- with default clause for the offence punishable under Section 307 of I.P.C. The learned Additional Sessions Judge was pleased to pass order that both substantive sentences shall run concurrently. 3. Background facts, which are not in dispute, are as under :- . Abasaheb Limbaji Chavan is resident of village Adgaon (Ranjebuwa) in Basmat Tahsil of Hingoli district. Adgaon comes within the territorial limits of the jurisdiction of Hatta Police Station. . Abasaheb resides in house no. 100 which consists of 8 rooms, with his wife Mandodari, elder son Dnyaneshwar, his wife Surekha, son Akash, second son Vitthal, his wife Varsha, victim daughter - Girija, aged 6 months and younger son Rameshwar. The source of income of the family was agriculture. Abasaheb was in some service, elder son Dnyaneshwar was Medical Practitioner, accused Vitthal was looking after agricultural land which is about 40 acres and Rameshwar was taking education. . So far as accused Vithal is concerned, he married Varsha on 23/3/2000 and victim Girija is the offspring of the said wedlock. 4. On 10/5/2000, accused Vithal assaulted his wife Varsha by using a bottle beer as a weapon inflicting injury in her abdomen. Varsha was admitted in hospital. A complaint was also filed against accused Vithal. In the said incident, accused Vithal had also assaulted his mother - Mandodari. On 2 to 3 occasions, accused Vithal also assaulted his father - Abasaheb, mother - Mandodari and brother - Dnyaneshwar. Accused Vithal also complained in the month of May, 2000 against his brother - Dnyaneshwar, suspecting his illicit relations with wife Varsha. This was a chapter case under Section 107 of the Code of Criminal Procedure. On 2 to 3 occasions, accused Vithal also assaulted his father - Abasaheb, mother - Mandodari and brother - Dnyaneshwar. Accused Vithal also complained in the month of May, 2000 against his brother - Dnyaneshwar, suspecting his illicit relations with wife Varsha. This was a chapter case under Section 107 of the Code of Criminal Procedure. Inspite of above mentioned disturbances, Chavan family was residing jointly in a house and for the purpose of convenience, they were residing separately, as there were eight rooms. 5. On 24/1/2004, a programme of "Dnyaneshwari Parayan" (continuous recital of Verses and Hymns of simplified Bhagwadgita) was arranged and even meals were served to the invites. It is on 25/1/2004, in the early morning at 4 a.m., accused Vithal alleged to have initially assaulted his wife Varsha, suspecting her character. He assaulted Varsha on her head and other parts of the body with the help of a Katti (Sickle - normally used for cutting sugar-cane). Varsha raised shouts for help. Other family members rushed to the room where accused Vithal, Varsha and daughter Girija were sleeping. Dnyaneshwar, brother of accused, opened the door. There was electric bulb. Even father - Abasaheb and mother - Mandodari gathered at the place of occurrence. Dnyaneshwar, brother, rushed to his brother - accused Vithal and asked as to why he was assaulting wife Varsha. As Vithal was holding a lethal weapon in hand, Dnyaneshwar could not dare to intervene. It is at this juncture, when Varsha was taken out of the room, accused Vithal took heroic position and uttered words that, he will finish / kill daughter Girija, who is an offspring of illicit relations of wife Varsha. He used the words Naski Aulad. Saying so, he assaulted Girija with an iron pipe and also gave a knife blow on her neck. Child Girija, who less than six months old, died on the spot. Abasaheb Chavan and other family members took Varsha to Civil Hospital at Parbhani for treatment. The Medical Officer present in the Hospital treated Varsha. Varsha sustained 12 bleeding injuries and one abrasion. By the evening time, as it was thought by Dnyaneshwar, brother-in-law of Varsha, that she needs better treatment, and thus, she was shifted to a private hospital of Dr. Jethlia, where, police recorded her statement. 6. In the meanwhile, news of assault by accused Vithal spread in the village. Varsha sustained 12 bleeding injuries and one abrasion. By the evening time, as it was thought by Dnyaneshwar, brother-in-law of Varsha, that she needs better treatment, and thus, she was shifted to a private hospital of Dr. Jethlia, where, police recorded her statement. 6. In the meanwhile, news of assault by accused Vithal spread in the village. One Bandu Chavan informed the incident to the Police Patil Vilasrao Chavan, who is related the family of Abasaheb Chavan. He claims that, he was knowing about the conduct of accused Vithal and assault on Chavan family members and particularly wife Varsha, for the reasons that, he used to suspect her character. Vilasrao Chavan, Police Patil, claims that, he had an occasion to intervene, as he is from brotherhood of Abasaheb Chavan’s family. He, accordingly, rushed to the spot and thereafter, went to Police Station, Hatta, where, he lodged a report. The police registered the offence. During the course of invigilation, police referred the dead body of Girija for the autopsy to concerned hospital, where, the post-mortem was conducted. Provisional post-mortem report as well as post-mortem report was also submitted by the concerned hospital to the police. Needless to say, in the meanwhile, usual investigation was carried out by the police by drawing inquest panchanama on the dead body of Girija and spot panchanama i.e. panchanama of the spot of place of occurrence. Certain articles were seized from the place of occurrence. Such articles include, blood stained bed-sheet and other articles found in the said room in question. Police also seized blood stained sweater and a frock of deceased Girija. Accused Vithal was arrested on the same day at 21.15 hrs. He was in the police custody for three days. During the course of investigation, it is alleged that, police recovered weapons, such as, a Katti and a Knife, at the behest of the accused Vithal. It was found that, articles were hidden in the backside of the house of accused. The discovery was effected on 27/1/2004. Needless to say, for effecting the panchanamas referred to above viz. inquest panchanama, spot panchanama, seizure panchanama and discovery panchanama, the police investigating machinery took the help of panchas. Muddemal articles were referred to a Chemical Analyzer. On 29/1/2004, accused was remanded to the magisterial custody. Consequently, police attached to Hatta Police Station lodged accused in the District Prison at Parbhani. 7. inquest panchanama, spot panchanama, seizure panchanama and discovery panchanama, the police investigating machinery took the help of panchas. Muddemal articles were referred to a Chemical Analyzer. On 29/1/2004, accused was remanded to the magisterial custody. Consequently, police attached to Hatta Police Station lodged accused in the District Prison at Parbhani. 7. In the meanwhile, the police filed chargesheet as per Section 173 of Code of Criminal Procedure in the court of learned Judicial Magistrate First Class, Basmat, alleging that accused has committed murder of his daughter - Girija as well as attempted to commit murder of his wife Varsha and thus, he is responsible for the offence punishable under Sections 302, 307 of the Indian Penal Code. The chargesheet bearing No. 33/2004 was filed before the learned Magistrate on 19/4/2004. The learned Judicial Magistrate First Class (Smt. Swati Chavan), by order dt 17/6/2004, registered the Regular Criminal Case No. 90/2004 and on 17/21.6.2004, referred the case to the Session Court at Parbhani, as envisaged under Section 209 of the Code for trial, as the offences were triable by the Sessions Court. 8. The Superintendent, District Prison, Parbhani, Shri Gutte, submitted a report to the Sessions Court, Parbhani that accused is lodged in the said prison since 27/1/2004. It is stated that, since 26/9/2004, it was observed that, accused is behaving abnormally. It was stated that, accused is not taking meals, nor taking sound sleep and keeps staring in void and he is not talking with any one. It is stated that, accused was referred to Psychiatrist and Medical Officer Shri Subash Kale attached to the Govt. Hospital at Parbhani. It is stated that, the Medical Officer, certified that, accused needs to be treated by a Psychiatrist. It is stated that, for examination and treatment by a Psychiatrist, the permission of Sessions Court is required and it is for this reason the report was made on 27/9/2004 (EXH. 44). 9. Again on 1/11/2004 subsequent report (EXH. 46) was submitted by the prison authorities to the Sessions Court, Parbhani. It is stated that, since 30/10/2004, there was increase in the abnormal behaviour of accused, who was seen enjoying his own stool as food. It was, therefore, reported that accused needs to be examined and treated by a Psychiatrist. 44). 9. Again on 1/11/2004 subsequent report (EXH. 46) was submitted by the prison authorities to the Sessions Court, Parbhani. It is stated that, since 30/10/2004, there was increase in the abnormal behaviour of accused, who was seen enjoying his own stool as food. It was, therefore, reported that accused needs to be examined and treated by a Psychiatrist. The report shows that, on 22/23.11.2004, accused was referred to the Civil Surgeon, Parbhani, for admission in the hospital and treatment as per the order of the Sessions Court at Parbhani on 20/11/2004. It appears that, some time during this period, court of Additional Sessions Judge came to be established at Basmat and on transfer of the Sessions Case No. 83/2004 from Parbhani Court, it came to be registered as Sessions Case No. 50/2004 at the court Additional Sessions Court, Basmat. 10. Record shows that, accused was sent for admission and medical treatment at Mental Asylum at Yerwada, where, he was treated for about few months. Ultimately, after his examination by the Medical Board, he was certified to be of sound mind and fit for trial on 9/3/2005. Thus, it appears that, Sessions Court followed the provisions contained in Chapter XXV relating to "Persons of Unsound Mind" and the procedure prescribed under Sections 329 and 331 of the Code. Thus, following facts can be taken to be admitted and clear :- [i] There is absolutely no evidence that on the date of commission of the offence, accused was a person of unsound mind. [ii] There is absolutely no evidence on record that, since before the occurrence in question on 25/1/2004, accused was suffering from unsoundness of mind or he was being treated for mental illness. On the other hand, there is evidence on record, in the shape of testimony of wife Varsha, father Abasaheb and brother Dnyaneshwar, stating that accused was not suffering from the illness of mind. On the contrary, they have positively stated that accused was quite well, except for the incidents of the year 2000, assaulting wife Varsha and on or two occasions, assaulting father, mother and brother, in heat of anger in the year 2000 itself. Accused had filed a Chapter Case suspecting character of his wife Varsha and her alleged illicit relations with her brother-in-law Dnyaneshwar. [iv]. Accused had filed a Chapter Case suspecting character of his wife Varsha and her alleged illicit relations with her brother-in-law Dnyaneshwar. [iv]. Immediately after the incident, accused was arrested on the same day at 21.15 hrs., he was presented before the Magistrate, his police custody remand was obtained for a period of three days and thereafter, on 29/1/2004, he was remanded to magisterial custody and during this period, at no point of time, accused complained that he was suffering from unsound mind. [v] Thereafter, the charge-sheet was filed against accused after completion of the investigation and even during the course of investigation, accused never complained that he is suffering from illness of mind, if at all the accused was suffering from unsound mind. There is no reason why police authorities failed to notice the said fact during the course of investigation. There is nothing on record that police suspected him to be a person of unsound mind. [vi] After filing of charge-sheet on 19/4/2004 till the order of committal was passed on 17/6/2004 by the learned magistrate, there is no complaint on behalf of accused about his illness of mind. [vii] Record shows that, it is after committal of the case to the Sessions Court and probably, before the commencement of the trial, prison authorities noticed, for the first time on 26/9/2004 i.e. after about period of eight months from the date of the incident, that the behaviour of the accused is some what abnormal, suggesting mental disorder and report was made to the Sessions Court. Since then till the month of May, 2005 i.e. certificate of the Medical Board that accused is mentally sound and fit for trial, it appears that only for a period of about six months, the conduct of accused was abnormal or he was suffering from mental disorder / disturbance. Thus, it is clear that, since after the incident in question, accused was not suffering from any mental disorder / disturbance. [viii] Even before the learned Sessions Judge, accused never complained about mental disorder / disturbance. The record shows that, when the accused was brought before the learned Additional Sessions Judge for trial and the charge-sheet framed on 27/5/2005, accused pleaded not guilty. Plea of not guilty was recorded. 11. Actual trial, recording of evidence, commenced on 6/8/2005, on which date, prosecution examined wife of accused - Varsha (PW1). The record shows that, when the accused was brought before the learned Additional Sessions Judge for trial and the charge-sheet framed on 27/5/2005, accused pleaded not guilty. Plea of not guilty was recorded. 11. Actual trial, recording of evidence, commenced on 6/8/2005, on which date, prosecution examined wife of accused - Varsha (PW1). Prosecution examined in all eight wittiness in order to prove its case and the last witness Dr. Rajeshwar Mokashi [PW8] was examined on 1/9/2008. The learned Additional Sessions Judge recorded finding that, during the course of trial, at no point of time, accused was found suffering from unsoundness of mind or having mental disorder / disturbance. On the basis of evidence on record, accused was examined under Section 313 of the Code of Criminal Procedure in respect of oral evidence as well as documentary evidence and evidence as regards the allegations against the accused. In reply to questions put, accused answered without hesitation. The statement recorded under Section shows that at no point of time, accused complained that he has mental disorder / disturbance or even at the time of incident in question or soon before the incident in question or soon after the incident in question he was having mental illness or mental disorder / disturbance, thereby, making him incapable of knowing the nature of act or consequence of his conduct. On the other hand, in his defence, he has stated that, witnesses examined by prosecution, particularly, his father, mother, brother and wife, might be claiming land of his share and therefore, deposing falsely. He has stated that, case of the prosecution is false. He has clearly stated that, in order to extract land of his shares, witnesses are deposing falsely. He has stated that, all his family members are trying to kill him. He was also asked, whether he want to examine any one in his defence. He replied in affirmative and gave names of Shri Gupte, Jail Superintendent and Shri Subhash Kale, Medical Officer, as his defence witnesses. But, ultimately, for the reasons best known to accused or defence counsel, at the trial, these witnesses were not examined. 12. So far as prosecution case against accused is concerned, prosecution examined in all eight witnesses, including near & deer relatives of accused, as such, Varsha - wife (PW1), who is the surviving victim of the murderous attack by accused, brother Dnyaneshwar (PW4), father Abasaheb (PW5). 12. So far as prosecution case against accused is concerned, prosecution examined in all eight witnesses, including near & deer relatives of accused, as such, Varsha - wife (PW1), who is the surviving victim of the murderous attack by accused, brother Dnyaneshwar (PW4), father Abasaheb (PW5). We have carefully perused the evidence of these witnesses, as the learned counsel Shri V.M.Lomte [appointed] appearing on behalf of the accused has vehemently argued that, evidence of these witnesses is tainted and there is a ring of falsehood in their evidence. Therefore, we have carefully scrutinized the evidence of these witnesses. All these witnesses have narrated the family history which we have already stated in the background of acts and said facts are not required to be repeated. The evidence of Varsha (PW1) shows that, on 24/1/2004, previous day of the incident, there was a programme of "Dnyaneshwari Parayan" and even meals were served to all invites and all family members went to sleep in the respective rooms in the same house. She has deposed that, she was sleeping in their room and the other inmates of the room were the accused and her daughter - Girija, aged 5 - 6 months. She has deposed that, it is about 4 O’clock, accused started beating her by raising suspicion about her character and gave blow of Katti on her body. She shouted and called the family members for help. Her father-in-law Abasaheb and brother-in-law Dnyaneshwar as well as mother-in-law Mandodari came immediately. She says that, she was severely beaten and she sustained about 12 bleeding injuries and one abrasion on her person. She has clearly stated that, her husband thereafter assaulted daughter Girija by calling that she is Naski Aulad (illicit child - bastard), which words have been described as "rotten child" by the ld. Additional Sessions Judge. She has sated that Girija died at the spot. She has stated that, as she had sustained bleeding injuries on her left hand, head and both the shoulders as well as back, she was hospitalized by her father-in-law and other relatives for treatment. She says that, she was treated initially at Govt. Hospital, Parbhani and in the evening hours, she was shifted for better treatment in a private hospital of Dr. Jethlia. She states that, her statement was recorded by the police while she was taking treatment in the said hospital. She says that, she was treated initially at Govt. Hospital, Parbhani and in the evening hours, she was shifted for better treatment in a private hospital of Dr. Jethlia. She states that, her statement was recorded by the police while she was taking treatment in the said hospital. If we read the evidence of Dnyaneshwar (PW4) and Abasaheb (PW5), testimony of Varsha (PW1) appears to be consistent and corroborated. There are no material contradictions or omissions. Even if few contradictions and omissions exist, as pointed out by Advocate Shri V.M.Lomte, these contradictions and omissions cannot be termed as material, thereby, affecting the credibility of the testimony of the eye witnesses, including the evidence of the injured eye witness / victim viz. Varsha (PW1) who had sustained 12 bleeding injuries and one abrasion on her person. Perusal of evidence of Varsha (PW1), Dnyaneshwar (PW4) and Abasaheb (PW5), clearly shows that their testimony is truthful, natural and it inspires confidence. There is nothing to discard their evidence, as contended by the learned counsel for accused. 13. So far as medical evidence is concerned, prosecution examined Dr. Rajmohan Narsayya Pedapallikar, Medical Officer (PW7), Primary Health Centre. This witness was examined in order to prove the provisional post-mortem report (EXH. 35) and post-moretm report (EXH 36) prepared by the then Medical Officer viz. Dr. Abraham Nehre. There is no serious challenge to the medical evidence on record. Injuries on the person of deceased Girija, as mentioned in the column 17 of the post mortem report can be stated as under :- [i] Contusion and lacerated wound at the right side of the neck (base), 3 cm x 1/2 cm. [ii] Contusion and lacerated wound at the right [19] side of the umbilicus, 1 cm x 1/2 cm. [iii] Both ear lobule cut due to pull of ring in both side. The Medical Officer clearly mentions that, there was fracture or palpation on left side of parietal bone, frontal bone and occipital bone. There was injury to the brain on the parietal bone side. Valut fracture on parietal bone, frontal bone and occipital bone. Dr. Rajmohan Narsayya Pedapallikar (PW7) says that, cause of death was head injury due to blunt object. He states that, injury mentioned in the post-moretm report (Exh.36) were suffice to cause death in ordinary course of nature. There was injury to the brain on the parietal bone side. Valut fracture on parietal bone, frontal bone and occipital bone. Dr. Rajmohan Narsayya Pedapallikar (PW7) says that, cause of death was head injury due to blunt object. He states that, injury mentioned in the post-moretm report (Exh.36) were suffice to cause death in ordinary course of nature. He further states that, injuries mentioned are possible by Article "A" (pipe) which was shown to the witness. Thus, medical evidence also supports ocular testimony of eye witnesses and more particularly evidence of Varsha (PW1). 14. So far as injuries sustained by victim Varsha (PW1), wife of accused, prosecution examined Dr. Rajeshwar M.Mokashi (PW8). He says that, he was working as Medical Officer, Casualty Section, on the relevant date at Civil Hospital, Parbhani. He says that, Varsha was admitted at 7 a.m. He examined her. Varsha was brought by her father-in-law, Abasaheb. On examination, he noticed 12 bleeding injuries and one abrasion. The injuries were on posterior aspect, scalp frontal area, forehead, right shoulder, back on right side, over neck posteriorly, neck side, left shoulder, left arm, right forearm posteriorly aspect, right forearm (anterior aspect), left hand dersum and left forearm. He states that, the age of injuries was six hours prior to 25/1/2006 and all 13 injuries were simple and can be caused by blunt and hard object. When article Katti was shown to him, he stated that, all injuries are possible by tip of sickle (Katti) which is some what blunt. Thus, the Injury Certificate (EXH 39) is clearly proved. 15. Lastly prosecution examined the Investigating Officer Babarao Ganpatrao Chavan, who was attached to the Police Station at Hatta at the relevant time. He says that, he had received report from Police Patil Vilasrao Chavan (PW2). The said report was reduced in writing and it is at EXH. 14. He registered the offence under Crime No. 15/2004 for the offences stated hereinabove. He proceeded immediately to the spot, referred the dead body for autopsy and took all the required steps, we may say successfully, as regards investigation till the filing of the charge-sheet. The said report was reduced in writing and it is at EXH. 14. He registered the offence under Crime No. 15/2004 for the offences stated hereinabove. He proceeded immediately to the spot, referred the dead body for autopsy and took all the required steps, we may say successfully, as regards investigation till the filing of the charge-sheet. Thus, on appreciation of the evidence on record we are of the view that, prosecution has proved that, accused - Vithal has committed the offence of murder of his child Girija and also, attempted to commit murder of his wife Varsha and thus, prosecution has proved, beyond all reasonable doubt, the charge for the offences punishable under Section 302 and 307 of the Indian Penal code. 16. We have also perused the judgment passed by the learned Additional Sessions Judge which is under challenge in the appeal. We see no reason to interference with the findings arrived at by the learned Additional Sessions Judge. Same is the position as regards the defence of the accused. Accused was under obligation to prove the defence of unsoundness of mind. The burden of proof is not the same as on the prosecution. Accused may prove the defence by the evidence, which may probabalize his version. In our view, as we have mentioned hereinabove, accused failed to discharge the burden of proving his self-defence of unsoundness of mind and as such, general exception, as carved out under Section 84 of the Indian Penal Code, is not attracted. 17. We have independently assessed entire evidence on record. In our view, prosecution has proved its case against appellant beyond all reasonable doubt. Prosecution has proved that accused assaulted his daughter - Giraja, aged 6 months, who died on the spot, so also, accused attempt to commit murder of his wife - Varsha. Varsha is not only wife of accused but also injured witness in the case. Her presence at the spot cannot be doubted. Evidence of Varsha is corroborated by testimony of Abasaheb, father of accused and Dnyaneshwar, brother of accused. They arrived at the spot when accused was assaulting victims. Evidence on record clearly shows that Dnyaneshwar tried to pacify accused by asking as to why he is assaulting daughter. In fact, Dnyaneshwar wanted to save Giraja from being attacked. Evidence of Varsha is corroborated by testimony of Abasaheb, father of accused and Dnyaneshwar, brother of accused. They arrived at the spot when accused was assaulting victims. Evidence on record clearly shows that Dnyaneshwar tried to pacify accused by asking as to why he is assaulting daughter. In fact, Dnyaneshwar wanted to save Giraja from being attacked. However, he could not do so, because accused was holding weapons in his hand i.e. earlier iron pipe and later on, a knife and he had already assaulted with a Katti on wife Varsha. Thus, looking to danger to his life, he could not go forward and save Giraja from being attacked by accused. 18. There is no denial of the fact that, injured Varsha was taken to the government hospital by Abasaheb and Dnyaneshwar, wherein, she was admitted and treated. It seems, in the meanwhile, Police Patil Vilasrao rushed to the spot, reported the matter to Police and Police referred dead body of Girija for post-mortem. Police Patil lodged report at Police Station. Police enquired into matter after report by Police Patil. Varsha was shifted to private hospital of Dr. Jethlia and there her statement was recorded by Police. There is nothing on record to show that, statement of Varsha was false. On the other hand, testimony of Varsha is corroborated by evidence of Abasaheb and Dnyaneshwar. Circumstantial evidence on record also corroborates prosecution case pointing out guilt of accused. We have discussed medical evidence in the earlier paragraphs. Evidence of the doctor corroborates the incident in question. Thus, accused is guilty of committing murder of his daughter Giraja. He is further guilty for the offence of attempting to commit murder of his wife Varsha. 19. So far as defence of accused is concerned, there is absolutely no evidence on record to show that accused was insane at the time of commission of crime or immediately before or after commission of crime. There is no evidence on record to show that, accused was suffering from legal insanity as required by Section 84 of Indian Penal Code. Moreover, accused was chargesheeted, tried and ultimately found guilty. In our view, except for short period for about six months, during which period accused was mentally disturbed and therefore, was required to be treated in the mental hospital at Yerwada, but he was tried only after he was certified to be sane and fit for trial. Moreover, accused was chargesheeted, tried and ultimately found guilty. In our view, except for short period for about six months, during which period accused was mentally disturbed and therefore, was required to be treated in the mental hospital at Yerwada, but he was tried only after he was certified to be sane and fit for trial. There is no semblance of evidence on record to show that accused is entitled to seek benefit of exception carved out under Section 54 of Indian Penal Code. Thus, in our view, accused is guilty for offence punishable under Section 302 r/w 307 of Indian Penal Code. 20. As we have assessed record independently, it is not necessary to refer to findings of learned Additional Sessions Judge. In our view, learned judge, after appreciation of evidence on record, rightly recorded finding of guilt against accused. In our view, learned Judge rightly appreciated circumstantial evidence on record and recorded finding against accused. Learned Judge has rightly discarded peal of insanity raised by accused. 21. Shri Vivek Lomte, learned counsel for appellant, was enable to point out any fault or lacunae in the order. He mainly contends that accused was insane and as such, he is entitled to be acquitted in view of provisions of Section 84 of Indian Penal Code. Per contra, learned APP has taken us through record of case, in order to show that in the facts of present case, it cannot be said that, accused was insane or a person of unsound mind. He submits that, there is no evidence on record to show that accused was insane. There is no evidence in the shape of medical record to show that accused was, in fact, being treated for insanity. Even at the time of commission of crime, accused was not insane and accused assaulted his daughter and wife with cool mind and after due preparation. After about 7 to 8 months of arrest of accused and just before commencement of trial, accused was found mentally disturbed by prison authorities. They brought this fact to the notice of Sessions Court after getting accused medically examined through a Psychiatrist. Accused was suffering from mental disturbance for about six months during which period he was treated. It is, thereafter, he was sent for trail. Learned Sessions Judge has rightly dismissed plea of accused that he is suffering from insanity. 22. They brought this fact to the notice of Sessions Court after getting accused medically examined through a Psychiatrist. Accused was suffering from mental disturbance for about six months during which period he was treated. It is, thereafter, he was sent for trail. Learned Sessions Judge has rightly dismissed plea of accused that he is suffering from insanity. 22. So far as insanity / defence of insanity is concerned, it is settled that, mental condition of accused must, at the crucial point of time, such as, is described by Section 84 of Indian Penal Code. In the instant case, there is very little dispute about facts or even about construction of Section 84 of Indian Penal Code. Sessions Court held that, at the crucial point of time; at which unsoundness of mind, as defined in that Section, has to be established; is when the act was committed. It is application of this principle to the facts established by evidence i.e. the ground of thrust of argument by learned counsel for accused. . Section 84 of Indian Penal Code runs in these terms :- "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." It is not in dispute that, burden of proof that mental condition of accused was, at the crucial point of time, such as is described by this Section lies on accused who claims benefit of this exemption (vide S. 105, Indian Evidence Act, Illustration (a)]. In other words, when a plea of legal insanity is set up, court has to consider whether at the time of commission of offence, accused by reason of unsoundness of mind, was incapable of knowing nature of the act or that he was doing what was either wrong or contrary to law. Thus, crucial point of time for ascertaining state of mind of accused is the time when offence was committed. Whether accused was in such a statement of mind as to be entitled to the benefit under Section 84 of Indian Penal Code can only be established from circumstances which preceded, attended and followed the crime. 23. Thus, crucial point of time for ascertaining state of mind of accused is the time when offence was committed. Whether accused was in such a statement of mind as to be entitled to the benefit under Section 84 of Indian Penal Code can only be established from circumstances which preceded, attended and followed the crime. 23. It is the fundamental principle of criminal jurisprudence that accused is presumed to be innocent and therefore, burden lies on prosecution to prove guilt of accused beyond reasonable doubt. Prosecution, therefore, in case of homicide shall prove beyond reasonable doubt that accused caused death with requisite intention described in Section 299 of Indian Penal Code. But, under Section 105 of the Evidence Act, burden of proving existence of circumstances bringing case within exception lies on accused; and the court shall presume absence of such circumstances. Under Section 105 of Evidence Act r/w definition of "shall presume" in Section 4 thereof, court shall record absence of such circumstances as proved, unless, after considering matter by it, it believes that the said circumstances existed or there exists or so probably that prudent man who, under the circumstances of particular case, to act upon the supposition that they did exist. To put in other words, accused will have to rebut presumption that such circumstances did not exist by placing material before court sufficient to make it consider the existence of said circumstances so probable that a prudent man would act upon them. The accused as to satisfy standard of ‘Prudent man’. If the material placed before court, as such, oral and documentary evidence, presumption, admissoin or even prosecution evidence, satisfies the test of ‘Prudent man’, accused will have to discharge his burden. Evidence so placed may not be sufficient to discharge burden under Section 105 of Evidence Act, but it may raise reasonable doubt in the mind of a judge as regards the one or other all necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge where accused had requisite intention laid down in Section 299 of Indian Penal Code. If the judge as such reasonable doubt, he has to acquit accused, for in that evident, prosecution will have failed to prove conclusively guilt of accused. It may, for instance, raise a reasonable doubt in the mind of the judge where accused had requisite intention laid down in Section 299 of Indian Penal Code. If the judge as such reasonable doubt, he has to acquit accused, for in that evident, prosecution will have failed to prove conclusively guilt of accused. Doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions :- [a] Prosecution must prove beyond reasonable doubt that accused had committed offence with requisite mens rea; and the burden of proving that always rests on prosecution from beginning to end of trial. [b] There is rebuttable presumption that accused was not insane when he committed crime, in the sense laid down by Section 84 of Indian Penal Code; accused may rebut it by placing before court all relevant evidence, oral and documentary or substantial, but burden of proof upon him is no higher than rests upon a party to a civil proceedings. [c] Even if accused was not able to establish conclusively that he was innocent at the time when he committed offence, evidence placed before court by accused or by prosecution may raise reasonable doubt in the mind of court as regards one or more of ingredients of offence, including mens rea of accused and in that case, court would be entitled to acquit accused on the ground that general burden of proof resting on prosecution was not discharged. 25. Learned counsel for appellant / accused as well as learned APP for respondent - State referred to several decisions of Hon’ble Apex Court, several High Courts, including this court, laying down different facets for the plea of insanity. As principles in this regard are already referred to above, it is not necessary to refer to principles laid down in these cases. However, it would be useful to make a reference to these cases, as under:- [a] State of Madhya Pradesh Vs. Ahmadulla, AIR 1961 SC 998 ; [b] Dahyabhai C. Thakur Vs. State of Gujarat . AIR 1964 SC 1563 [c] Bhikari Vs. State of Utter Pradesh, AIR 1966 SC 1 [d] Ratan Lal Vs. State of Madhya Pradesh 1970 (3) SCC 533 [e] State of Maharashtra Vs. Sindhi @ Raman 1975 SC 1662 : (1975) 1 SCC 647 [f] Amrit Bhushan Gupta Vs. Union of India, 1977 AIR (SC) 608. State of Gujarat . AIR 1964 SC 1563 [c] Bhikari Vs. State of Utter Pradesh, AIR 1966 SC 1 [d] Ratan Lal Vs. State of Madhya Pradesh 1970 (3) SCC 533 [e] State of Maharashtra Vs. Sindhi @ Raman 1975 SC 1662 : (1975) 1 SCC 647 [f] Amrit Bhushan Gupta Vs. Union of India, 1977 AIR (SC) 608. [32] [g] Motiram Vs State of Maharashtra 2002 Vol. 104 (4) BCR 322. [h] In case of State Vs. Koli Jeram Duda [AIR 1955 Saurashtra 105, Vol. 42 C.39 Dec], the Hon’ble Apex Court has observed that, there is difference between medical insanity and legal insanity and it is only insanity which exonorates an accused from the crime. [i] In case of Baswantrao Bajirao Vs. Emperor [AIR (36) 1949 Nagpur 66], a Division Bench [Coram : Vivian Bose and Hidayatullah, JJ], presided over by Vivian Bose, J, observed thus :- "An accused who has been proved to have killed the deceased is not entitled to any benefit of doubt as to his insanity because the burden is on him to prove strictly that he committed the act in a moment of insanity. The exemption of insanity must be clearly made out before it is allowed. It is not every kind of idle and frantic humour of a man, or something unaccountable in his actions, which will show him to be such a madman as is to be exempted from punishment; but where as man is totally deprived of his understanding and memory, and does not know what he is doing, any more than an in fact, or a wild beast, he will properly be exempted from the punishment of the law." [j]. The Division Bench, in the case of Baswantrao [supra], has further observed that, the law makes a distinction between medical and legal insanity. [k]. In case of T. N. Lakshmaiah Vs. State of Kerala, [2001 AIR (SC) 3828], the Hon’ble Apex Court has observed thus :- "It is admitted that the appellant in this case, has not led any evidence in proof of the plea of insanity. There is nothing on the record to infer that the accused was of unsound mind at or about the time of occurrence. State of Kerala, [2001 AIR (SC) 3828], the Hon’ble Apex Court has observed thus :- "It is admitted that the appellant in this case, has not led any evidence in proof of the plea of insanity. There is nothing on the record to infer that the accused was of unsound mind at or about the time of occurrence. His behaviour at the time and subsequent to the commission of the crime clearly indicates that he knew and was capable of knowing the nature of the act done by him." [l]. In case of Shrikant Anandrao Bhosale Vs. State of Maharashtra [ 2002 (7) JT 386 ], the Hon’ble Apex Court has observed that, on medical examination of case history and other provided medical record showing that accused was suffering from paranoid schizophrenia and was under regular medical treatment. He was hospitalized 25 times within short span of time after the incident. After killing wife, accused made no attempt to hide or run away. Thus, benefit of doubt was extended, holding that accused in the said case, was under a delusion. [m]. In a recent judgment of the Hon’ble Apex Court in case of Bapu @ Gajraj Singh Vs. State of Rajasthan [2007 (2) Bom. C.R. 9 (Cri) 11], the Hon’ble Dr.Justice Arajit Pasayat, speaking for the Bench [Coram : Dr.Arijit Pasayat and D.K.Jain, JJ], has observed that, a distinction has to be made between cases where a insanity is more or less proved and in cases where insanity is sought to be proved in respect of person who for all intents and purposes is sane. The Hon’ble Court has, in para nos. 7 to 12 of its judgment in case of Bapu @ Gijraj Singh [Supra], has observed thus:- "7. 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 the IPC. 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. A Court is concerned with legal insanity, and not with 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. The burden of proof rests on an accused to prove his insanity, which arises by virtue of section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act) 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. See (Dahyabhai Vs. State of Gujarat, 1 DGLS 88 : 1964 SC 1563]. In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appear sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarizes them as follows :- "Whether there was deliberation and preparation for the act; whether it was done in a manner which showed a desire to concealment; whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detections; whether after his arrest he offered false excuses and made false statements. All facts of this sort are material as bearing on the test, which Bramwall, submitted to a jury in such a case: Would the prisoner have committed the act if there had been a policeman at his elbow? It is to be remembered that these tests are good for cases in which previous insanity is more or less established. These tests are not always reliable where there is, what Mayne calls, "Inferential insanity". 8. It is to be remembered that these tests are good for cases in which previous insanity is more or less established. These tests are not always reliable where there is, what Mayne calls, "Inferential insanity". 8. Under Section 84 of IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. But 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. The onus, however, 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 facto. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. 9. There are four kinds of persons who may be said to be non compos mentia (not of sound mind) i.e. (1) an idiot; (2) one made non compos by illness (3) a lunatic or a mad man and (4) one who is drunk. The prosecution has not to establish these facts. 9. There are four kinds of persons who may be said to be non compos mentia (not of sound mind) i.e. (1) an idiot; (2) one made non compos by illness (3) a lunatic or a mad man and (4) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, (See Archbold’s Criminal Pleadings, Evidence and Practice, 35th Edn. pp. 31-32, Russell on Crimes and Misdemeanours, 12th Edn. Vol., p. 105; 1 Hala’s Plea of the Grown 34). A person made non compos men-us by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reasons, (See Russell, 12 Edn.1, p. 103: Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity. 10. Section 84 embodies the fundamental maxim of criminal law, i.e., "actus non reum facit nisi mens sit rea" (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must occur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). 11. 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 has doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section would be given or not, is the material time when the offence takes place. The crucial point of time for deciding whether the benefit of this section would be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the : defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of: exemption from criminal responsibility. Stephen in ‘History of the Criminal Law of England, Vo. II, page 166’ has observed that if a person cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man’s mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever, atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. This Court in [(Sherall Walli Mohammed Vs. State of Maharashtra, 2, 1972 DGLS 349 : 1972 Cri.L.J. 1523 (SC)] held that the mere fact that no motive has been proved why the accused murdered his wife and child or the fact that he made no attempt to run away when the door was broken open would not indicate that he was in sane or that he did not have necessary mens rea for the offence. 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 Naughton Rules of 19th Century England. The provisions of section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in (M. Naughton’s), 3, (1843) 4 St. Tr. (NS) 847. The provisions of section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in (M. Naughton’s), 3, (1843) 4 St. Tr. (NS) 847. 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. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or prefect restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient. 12. The standard to be applied is whether condition according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits or insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section." 25. In the instant case, so far as plea of insanity is concerned, having regard to the material on record, the following conclusions can be drawn and the same are not disputed by learned counsel for appellant :- [a] There is absolutely no evidence that at the time of occurrence accused was a person of unsound mind. In the instant case, so far as plea of insanity is concerned, having regard to the material on record, the following conclusions can be drawn and the same are not disputed by learned counsel for appellant :- [a] There is absolutely no evidence that at the time of occurrence accused was a person of unsound mind. [b] There is absolutely no evidence that before occurrence in question on 25/1/2004, or immediately thereafter, at least for about six months, accused was a person of unsound mind. [c] Incident occurred on 25/1/2004 at about 4 a.m. in the house of accused, wherein, he assaulted wife with sugar-cane cutter (Katti) and then assaulted his daughter Girija, aged 6 months, who was sleeping on a cot, saying that he is finishing the Naski Aulad (illegitimate child) of his wife Varsha. [d] Accused was arrested on the same day, remanded to police custody and then magisterial custody since 29/1/2004. During this period, no complaint to concerned Magistrate or police was made that he was having any mental problem, nor the police or the magistrate noticed any such problem. [e] Since 29/1/2004, accused was in district jail at Parbhani. During this period, charge-sheet was filed and case was remitted to Sessions Court for trial. Till third week of September, 2004, no abnormality was found i.e. about a period of about 8 months by the jail authorities. It is only on 26/9/2004, prison authorities noticed some what abnormal and disorderly behaviour of accused and hence, he was referred to Govt. Hospital for checking and consequently, report was made to Sessions Court. Again it was found that, his behaviour was not normal and was admitted in the mental hospital where he was treated and after about six months, Medical Board certified that, accused is sound and fit for trial. Thereafter, accused was tried. During the course of trial for about 2 months, learned Addl. Sessions Judge never found accused suffering from any misbehaviour or person of unsound mind. [f] Accused was examined under Section 313 of IPC. Initially, his plea was recorded, wherein, he denied charge and contended that as to why he was implicated in the instant case. No where the statement under Section 313 raises plea of insanity. None of the answers in the statement showed any sing of abnormality. [f] Accused was examined under Section 313 of IPC. Initially, his plea was recorded, wherein, he denied charge and contended that as to why he was implicated in the instant case. No where the statement under Section 313 raises plea of insanity. None of the answers in the statement showed any sing of abnormality. [g] During course of trial, wife - Varsha, father - Abasaheb and brother - Dnyaneshwar, denied suggestion made on behalf of accused that he was suffering from any mental disturbance or he was [42] treated for such mental disorder. 26. At the cost of repetition, it may be stated that, there is no iota of evidence that accused was suffering from legal insanity. Thus, accused miserably failed to discharge initial burden of proving plea of insanity. Such burden is not that of prosecution, but certainly, accused has to prove plea of defence which would make said plea probably possible and at least acceptable. In a given case, circumstantial evidence may convince a court to extend benefit of doubt. In our view, in the facts and circumstances of this case, there is no such evidence on record to extend such benefit to accused. 27. Lastly, Shri Vivek Lomte, learned counsel for accused, pointed out that, even today accused is suffering from mental disturbance, however, he has not placed on record any evidence in that behalf. If any such abnormality is noticed or pointed out to the jail authorities, we hope that jail authorities would take appropriate steps for extending all treatment to the accused. 28. So far as another side issue, as argued by learned counsel for appellant, is concerned, one of the points pertain to Certificate of Fitness issued by Medical Board. It is contended that, said Certificate is given in the form under the provisions of Indian Lunacy Act 1912 and that has been repealed by provisions of Mental Health Act, 1998 and as such, the Certificate may be treated as null & void and it may not be accepted. He further contended that, trial may be treated as void and fresh trial may be ordered. In our view, this contention is devoid of any merit and hence, not accepted. He further contended that, trial may be treated as void and fresh trial may be ordered. In our view, this contention is devoid of any merit and hence, not accepted. It is true that, Certificate is in the form under Indian Lunacy Act, 1912 and said Act has been repealed by Mental Health Act, 1998, but fact remains that form prescribed under both the Acts contain similarities and substance to be recorded in both the forms is same and therefore, there is no depth in the argument of learned counsel for accused. 29. Lastly, Shri Vivek Lomte, learned counsel fro appellant / accused, has drawn our attention to the charge framed by the Additional Sessions Judge. It is true that, charge as framed by learned Judge has lacunae, errors and defects. On careful consideration of charge, we are of the view that, no prejudice is caused to accused. Thus, such a defect or error cannot go to root of matter so as to vititiate trial. In our judgment in case of Aappa Kakrya Pawar Vs. State of Maharashtrta [Criminal Appeal No. 532/2006, decided on 6/6/2008], we have emphasises for keeping in mind guide-lines in respect of framing of charge contained in provisions of Section 211 to 214, Chapter XVII of CrPC. We have also referred to the judgments of the Hon’ble Apex Court in case of Edlabhoom Reddy Vs. Thakkidiram Reddy [1998 AIR (SC) 2702] and Kammari Brahmaiah Vs. Public Prosecutor, High Court of A.P. [1999 AIR (SC) 775]. We have observed that, several such complaints of non-observance of guidelines are noticed by this court and hence, emphasised for adhering to such guidelines. We observed that, charge must be framed in accordance with the guidelines as provided by CrPC. There should be application of mind while framing of charge. In fact, framing of charge is the first stage in the trial when the learned judge is required to apply mind. Framing of charge is not a mere formality. Charge must be framed in accordance with the provisions of Chapter XVII of the Code and guidelines contained in the same must be observed. In a given case if prejudice to accused is pointed out, trial may be vitiitated. Framing of charge is not a mere formality. Charge must be framed in accordance with the provisions of Chapter XVII of the Code and guidelines contained in the same must be observed. In a given case if prejudice to accused is pointed out, trial may be vitiitated. Thus, we have indicated that, learned Sessions Judge must adher to the said guidelines and be alert while framing charge so as ensure that there would be no room for complaint in superior court. 30. In view of the above, we see no reason to interfere with the order of conviction & sentence passed by learned Additional Sessions Judge. Hence, we pass the following order. OPERATIVE ORDER . For the reasons discussed hereinabove, Criminal Appeal No.10 of 2007 is dismissed, by confirming the finding of guilt, conviction & sentence. Certified copy of this judgment be furnished to the accused free of cost through the jail authorities. While appreciating the assistance rendered by Shri V.M.Lomte, Advocate [appointed], we quantify his professional charges at Rs.4,000/- [Four thousand only].