The instant appeal is preferred against the judgment and order dated 25.2.2002 passed by Additional Ses­sions Judge, Fast Track Court No. 1, Fatehpur in Session Trial No. 589 of 1997-State v. Sitaram arising out of Case Crime No. 123 of 1997. 2. The appellant has been convicted and sentenced under Section 304 I.P.C. for life imprisonment and fine of Rs. 4,000/-. In de­fault of payment of fine, one year imprison­ment and also under Section 324 I.P.C. 2 years R.I. The trial had proceeded under Sections 304, 308 I.P.C. but the conviction was con­verted under Section 324 I.P.C. instead of Section 308 I.P.C. 3. The appellant is in jail since last 13 years. He had no counsel to defend himself and, therefore, Sri Amit Kumar Srivastava Advo­cate was appointed as Amicus Curiae in the instant appeal to argue the case. 4. The incident is said to have taken place on 3.6.1997 at 12.30 p.m. in the house of first informant Ram Swarup who happens to be real brother of the accused. F.I.R. was regis­tered on the same day i.e. 3.6.1997 at 1.20 p.m. at Police Station Khakhreru, District Fatehpur. The accused appellant was arrested on the spot. 5. According to narration of the F.I.R. reg­istered on 3.6.1997 Ex. Ka-8. a written re­port Ex. Ka-1 was given at police station Khakhreru by Ram Swarup. The prosecution story is that Ram Swarup was sitting at his door with his two daughters. At about 12.30 p.m. he heard shrieks of his father and as soon as he proceeded towards his father's door, he saw the accused Sitaram who was a mentally challenged person since before the incident, had an axe in his hand which was soaked in blood. Certain blood drops had also sprinkled on him. He ran towards the first informant who tried to hide but before he could save his son Dharamvir Singh, the accused as­saulted him by the blood soaked axe in his hand and wielded axe blows on Pintu alias Mahesh, nephew of Kishan who is resident of the same village, he died instantaneously. The first informant's son was injured very badly. Suresh, Rambali and several others ran towards his house after hearing shrieks. Sitaram accused ran towards back side of the house where his sister-in-law (Bhabhi) Belpatiya was sitting with her niece. He also assaulted them by the same axe. The first informant's son was injured very badly. Suresh, Rambali and several others ran towards his house after hearing shrieks. Sitaram accused ran towards back side of the house where his sister-in-law (Bhabhi) Belpatiya was sitting with her niece. He also assaulted them by the same axe. Maya died on the spot, sister-in-law Belpatiya fell down after receiving axe injuries. Thereafter he tried to run towards West of the house when he was apprehended on the spot by Pyare son of Baldeo. The accused tried to attack Pyare also who received minor injuries on his hand. However, the people who had gathered there, were able to catch him and handed him over to the police. 6. Three persons namely Smt. Belpatiya wife of Kishori Lal, Smt. Maya wife of Rakesh Pasi and Mahesh son of Budha Pasi have died in the incident. There are two in­jured persons namely Hulla son of Late Pitayee and Dharmvir son of Sarupe. 7. Smt. Belpatiya was examined at PHC Vijayeepur, District Fatehpur on 3.6.1997 at 8.15 p.m. Her injuries are detailed herein below:- 8. Incised wound over the middle of head measuring 10x4 cm in size whitish coloured Brain matter (grey matter) is coming out from cranium. Patient is unconscious in deep coma. Respiration is very deep. Planter reflex ex­tensor. Pupil dilated, not responding to light. Duration-Fresh. Opinion Injury has been inflicted by some cutting and heavy object. Injury is dangerous to life She is in severe head injury. 9. Post-mortem on the body of deceased Mahesh was performed by Dr. R.C. Kushwahaon4.6.1997 at 3.00p.m. which is Ex. Ka-2. Following ante-mortem injuries were found on his body. Incised wound 8 cm. x 6 cm. x trachea deep on left side neck, Arteries. Veins. Muscles, Tendeon and tra­chea cut away. 10. Post-mortem on the body of the de­ceased Smt. Maya was performed by Dr. R:C. Kushwaha on 4.6.1997 at 3.30 p.m. which is Ex. Ka-3. Following ante-mortem injuries were found on her body. 11. Lacerated wound 12 cm. 8 cm. x Brain deep on left side head, left parietal bone frac­tured. Brain mass is coming out with blood. 12. Post-mortem on the body of the de­ceased Smt. Belpatiya was performed by Dr. R.C. Kushwaha on 4.6.1997 at 4.45 p.m. which is Ex. Ka-4. Following ante-mortem injuries were found on her body. Lacerated wound 18 cm. x 2 cm. x Brain deep on left side head. Brain mass is coming out with blood. 12. Post-mortem on the body of the de­ceased Smt. Belpatiya was performed by Dr. R.C. Kushwaha on 4.6.1997 at 4.45 p.m. which is Ex. Ka-4. Following ante-mortem injuries were found on her body. Lacerated wound 18 cm. x 2 cm. x Brain deep on left side head. 8 cm. above the left ear. Brain mass is coming out from the wound. Left parietal and frontal bone fractured. Blood clot present on the wound. 13. Injured Hulla was examined on 7.6.1997 at 7.30 p.m. His injuries are detailed herein below:- 1. Incised wound over the left shoulder joint measuring 7x2 cm in size, semi circle, bony deep skin, subcutaneous tissue, muscle, bone (head of humeras) is cut. Colour of the wound is red. Margins of the wound are regu­lar. Adv. X ray. 2. Incised wound over the back of neck measuring 7x2 cm in size, skin, subcutane­ous tissue muscle are cut. Adv. X ray. 3. Incised wound over the back of neck, measuring 7x2 cm in size, just below the wound No. 2. Skin, subcutaneous tissue, muscle and bone are cut. Adv. X ray. Colour of the wound is red. Margins of the wound are regular. Opinion and duration. Fresh. All the injuries from No. 1 to No. 3 have been inflicted by some hard and blunt object are grievous in nature. Adv. X ray for which patient is being referred to District Hospital, Fatehpur and also for further management. 14. Injured Dharmvir was examined on 3.6.1997 at 7.15 p.m. His injuries are detailed herein below:- 15. Stab wound over the back of neck (lower part) and over the upper part of back, measuring 8x2 cm in size, bony deep, crepitus present over the upper part (left side of back) near the wound. Colour of the wound is red. Margins of the wounds are sharp. Adv. X ray. Duration-Fresh Injury has been inflicted by some heavy and cutting object and is grievous in nature. Pleura is torn. Adv. X ray. Patient is being referred to CMS District Hospital, Fatehpur for further management and for X ray. 16. Altogether 11 witnesses were examined by prosecution. Budha PW-1 is witness of in­quest. Ram Swarup PW-2 first informant is the real brother of accused. Suresh PW-3 and Ram Pratap PW-4 are neighbours of the ac­cused as well as complainant. Hori Lal PW-5 is father. Dr. 16. Altogether 11 witnesses were examined by prosecution. Budha PW-1 is witness of in­quest. Ram Swarup PW-2 first informant is the real brother of accused. Suresh PW-3 and Ram Pratap PW-4 are neighbours of the ac­cused as well as complainant. Hori Lal PW-5 is father. Dr. R.C. Kushwaha PW-6 conducted autopsies and Dr. Suresh Singh PW-7 who had examined the injuries. Shiv Prasad PW-8, Madhusudan Singh PW-9 and Dharamvir PW-10 are formal witnesses and Deena Nath PW-11 is the Investigating Officer. 17. PW-1 Buddha is an illiterate man and he is examined as a witness of inquest. PW-2 Ram Swarup is the first informant. He has detailed the narration of the F.I.R. in his examination-in-chief. He has admitted in his cross-examination that the accused Sitaram is a mad man therefore, his wife left him long back and now she is married with someone else. Though the first informant has admitted that the accused was a mentally deranged person but denied the suggestion of the de­fence that the F.I.R. was lodged by him with an ulterior motive. PW-3 Suresh is a neighbour who has also repeated the prosecu­tion story. However, in the cross-examination, he has confirmed that Sitaram was an insane man since before the incident. Sometimes he used to hit the neighbours also in heat of his madness. PW-4 Ram Pratap is another neighbour. He has confirmed in his cross-examination that Sitaram committed the offence in a frenzied state of mind as he was insane since before the occurrence took place. He has further admitted that there was no bad blood between the accused and his father and brothers but however he committed the of­fence in state of unsoundness. He has further stated that Sitaram was taken to the hospital for treatment by his family members. He fur­ther stated that prior to this incident, he had never tried to harm in the manner as he did on the date of incident. Further assertion of this witness is that villagers were always very cautious with him as every one knew that he was a deranged person. PW-5 Hori Lal is fa­ther of the accused. He has admitted that Sitaram was married a year before the inci­dent but only because of his insanity, his wife left him and went to another place. Further assertion of this witness is that villagers were always very cautious with him as every one knew that he was a deranged person. PW-5 Hori Lal is fa­ther of the accused. He has admitted that Sitaram was married a year before the inci­dent but only because of his insanity, his wife left him and went to another place. The fa­ther has also stated that he had taken his son (accused) for treatment in Sadar Hospital, Fatehpur but he ran away. He was not given proper treatment since they are very poor therefore, he could not afford his treatment by a. better doctor or keep him in a mental asylum. He has denied that he and his other family members have falsely implicated him with an ulterior motive. Thus all the eye wit­nesses are unanimous and agreed that Sitaram accused is a mad person and he committed this offence in a fit of crazy insanity. 18. Sri Amit Kumar Srivastava Amicus Curiae appearing on behalf of the accused pointed out certain extracts of the statements of the witnesses which has also been enumer­ated herein above to substantiate his argument that the present appellant has no doubt killed three persons and injured two others but there was neither any intention nor motive to com­mit the offence. In fact he was not aware of his action. It is not known what prompted him to commit the crime and killed his own fam­ily members and infants and, therefore, his case falls within one of the exceptions enu­merated in Chapter IV of I.P.C. Section 84 I.P.C. reads as under:- 84. Act of a person of unsound mind.-Nothing is an offence which is done by a per­son who, at the time of doing it, by reason of unsoundness of mind, is incapable of know­ing the nature of the act, or that he is doing what is either wrong or contrary to law. 19. We have also examined the evidence of Investigating Officer PW-11. Sri Amit Kumar Srivastava has pointed out the state­ment of the Investigating Officer where he admits that when he took Sitaram in custody, the axe which was used for commission of the offence, was kept beside him. He tried to question the accused and Sitaram told the Investigating Officer that he used to fly a Helicopter 8 years before but now he is not flying any more. He tried to question the accused and Sitaram told the Investigating Officer that he used to fly a Helicopter 8 years before but now he is not flying any more. The Investigating Officer has further admitted in his cross-examination that accused Sitaram was senseless and inco­herent in his conversation and the way he behaved it was obvious that he was a men­tally deranged person, not capable of any understanding. 20. Sri Amit Kumar Srivastava Amicus Curiae has placed reliance on a number of decisions. The first decision is Smt. Rukhsana v. State of U.P., 2002 (45) ACC 73. Paragraph 24 of the said judgment is quoted below:- "24. It is also note-worthy that neither the complainant nor the investigating agency made any effort to get the. Appellant medi­cally examined for ascertaining her mental condition, though she was available. We also cannot loose sight of the fact that the pros­ecution has neither alleged nor proved the motive for the appellant of killing her two. Innocent children, rather the prosecution case itself is to the effect that the appellant killed her children under the fits of insanity. In the FIR the first informant clearly mentioned "Meri aurat ne dimagi uljhan se ladhki aur ladkhe ko chhuri se gala kat kar mar dala hai tatha apne bhi marne ke liye gala chuchuri se reita hai" Mohd. Aslam P.W. 1 in clear words ad­mitted "Subhah ghatna dekhne par hum log samajh gaye ki Rukhsana ne apne pagalpan me yah ghatna ghatit ki hai". At another place he has stated that "Pagalpan ka daura Rukhsana par panic se yeah ho gaya." P. W. 2 Jaitoon Bibi has also admitted "Daura ka asar khatam ho jane par use yad nahi rahta tha ki daure ke dauran usne kya harkat ki thi." 2l: The next decision relied upon by Sri Amit Kumar Srivastava is; Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 . Paragraph 7 of the said judg­ment is quoted below:- "7. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The pros­ecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecu­tion from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code: the accused may re­but it by placing before the court all the rel­evant evidence-oral documentary or circum­stantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was in­sane at the time he committed the offence, the evidence placed before the court by the accused, or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the gen­eral burden of proof resting on the prosecu­tion was not discharged". 22. Learned counsel has also cited other decisions; Vijayee Singh and others v. State of U.P., 1990 (27) ACC 483, Babu Lal v. State, AIR 1960 Allahabad 223. 23. On close scrutiny of the aforesaid judg­ments as well as other laws relating to an of­fence committed by a person of unsound mind, mere pleading of insanity will not be sufficient. It is necessary to substantiate and establish that the accused was of an unsound mind and there was no mens rea to commit the offence. 24. In the present case, brother, father and other neighbours have been examined and none of them have come forward with a plau­sible reason for his erratic behaviour which resulted in killing three persons and causing injuries to others. The disclosure of the pros­ecution case in the F.I.R. itself and various statements, we are of the opinion that the ac­cused is a lunatic. He did not know the im­plication of his act and indiscriminately went on wielding axe blows, be it a child or a woman and thereafter he did not even attempt to hide the weapon which he used for com­mitting the crime. We are of the considered view that there was no motive whatsoever to kill his Bhabhi or his brother's daughter and son and also one of the neighbour's son aged only four years. We are of the considered view that there was no motive whatsoever to kill his Bhabhi or his brother's daughter and son and also one of the neighbour's son aged only four years. We ourselves wanted to sat­isfy the assertions of the witnesses as well as argument of the learned counsel appearing on behalf of the accused. 25. We had summoned the accused Sitaram from the Central Jail, Naini and tried to ask him some questions but he appeared abso­lutely inarticulate and was not able to answer properly. We had also sent him to Varanasi Mental Hospital to get him examined. The report of the Medical Officer, Mental Hospi­tal, Varanasi dated 23.6.2010 mentions that he was admitted on 4.6.2010 and Doctor ar­rived on the following conclusions which are quoted below:- (a) Facts indicating Psychiatric Illness ob­served by myself. Conscious but unco-operative : Poor per­sonal hygienic. Impaired socialization : Talks/replies irrel­evantly at times Attention aroused but not sustained : Im­paired judgment. Presence of delusion of grandeur & delu­sion of persecution. Inappropriate effect: Poor insight. Diagnosed as a case of Schizo affective Disorder (F 25) (b) Other facts (if any) indicating Psychi­atric illness communicated to me by other. (Here state the information and from whom). Has been seen/adv. By Psychiatrist- Dr. Anurag Verma, Allahabad & treated with anti psychotic Tab. Risperidone. 26. On a conjoint appraisal of evidence, argument of Sri Amit Kumar Srivastava and medical report of Varanasi Mental Hospital, we are of the definite opinion that case of the appellant falls within one of the exceptions enumerated in Section 841.P.C. The principle underlying this provision is based on the maxim "furious mulla voluntus est" i.e a mad man has no will and, therefore, we hold that at the time of commission of crime, he was incapable of understanding the implication of his act and he was in a state of mind which, no doubt, is difficult to decide for us at this stage but obviously there was neither any in­tention nor any reason for committing the crime. He is in jail since a very long time i.e. 13 years but his mental condition has not yet changed, therefore, we arrive at a conclusion that the appellant resorted for killing inno­cent persons and also causing injuries to many others who were none other but his own fam­ily members. He is in jail since a very long time i.e. 13 years but his mental condition has not yet changed, therefore, we arrive at a conclusion that the appellant resorted for killing inno­cent persons and also causing injuries to many others who were none other but his own fam­ily members. The brother and father had no other option but to hand him over to the po­lice and, therefore, the present case comes within the four corners of Section 84 I.P.C. and conviction awarded by the learned Addi­tional Session Judge, Fast Track Court 1st, Fatehpur is set at naught and the appeal is allowed. But we are apprehensive of releas­ing him from the custody in this state of mind where his recent medical check up has clearly revealed that he is still a Psychic and it is not safe. We had summoned the family members and his brother had come to the Court. We questioned him whether he would be willing to take back the appellant in his house since he has nowhere else to go but the brother clearly declined to accept his responsibility. He was afraid that there may be recurrence of the previous incident. We are constraint to continue to keep him in custody in the present set of circumstances as there are chances of the appellant going berserk and become un­controllable once again. 27. In view of Section 335 (I)(a) Cr.P.C. since possibility of delivering the appellant to any of his relative or friend is out of ques­tion, therefore, he may be detained in the Mental Hospital. The provisions of Section 335 Cr.P.C. is quoted below:- "335. Person acquitted on such ground to be detained in safe custody- Whenever the finding states that the accused person com­mitted the act alleged, the magistrate or Court before whom or which the trial has been held shall, if such act would, but for the incapacity found have constituted an offence,- (a) Order such person to be detained in safe custody in such place and manner as the Mag­istrate or Court thinks fit; or (b) Order such person to be delivered to any relative or friend of such person. (2) No order for the detention of the ac­cused in a lunatic asylum shall be made un­der clause (a) of sub-section (1) otherwise than in accordance with such rules as the State Government may have made under the In­dian Lunacy Act, 1912 (4 of 1912). (3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub-section (1) except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall- (a) Be properly taken care of and prevented from doing injury to himself or to any other person; (b) Be produced for the inspection of such officer, and at such times and places, as the State Government may direct. (4) The Magistrate or Court shall report to the State Government the action taken under sub-section (1)". 28. The object and reason for enacting the Indian Lunacy Act, 1912 was to regulate cus­tody of lunatics and management of their es­tates in India. A number of Acts already ex­isted at the time when the Indian Lunacy Act came in existence. Section 91 of the said Act empowers the State Government to make rules. However, Section 91(1) (a) of the said Act reads as under:- 91 Power of State Government to make rules-(1) [***] The State Government may make rules for all or any of the following purposes, namely- (a). To prescribe forms for any proceedings under this Act other than a proceeding before a High court [***]. 29. We have though tried to find out that whether the State of U.P. has framed any spe­cific rule or not but we have not been able to lay our hands on any such rule. However, since the rule making power of the State Government exempts the High Court from the said rules if framed by the State Government. We are of the opinion that our hands are not tied up to make arrangement for the appel­lant to be kept though he has been given a verdict of acquittal. The State Government shall make arrangement to send the appellant to Varanasi Mental Hospital for his curative treatment. We are of the opinion that our hands are not tied up to make arrangement for the appel­lant to be kept though he has been given a verdict of acquittal. The State Government shall make arrangement to send the appellant to Varanasi Mental Hospital for his curative treatment. However, the treatment expenses will have to be borne by the State Govern­ment since the family members have un­equivocally expressed that they have no de­sire to take him back in the house as there may not be recurrence of previous incident. The appellant shall be sent to Varanasi Men­tal Hospital where he was examined previ­ously. Varanasi Mental Hospital shall send a report regarding his mental status in every six months to this Court. 30. The Government Advocate shall en­sure that the report shall contain all informa­tions about his mental condition and other health conditions. If possible he should also be involved in certain work which shall keep •him occupied otherwise sitting idle will ob­viously lead him towards destruction. It is very seldom that we come across such a case where the appellant has been acquitted and none of the family members are ready to take him back and, therefore, we have no option but to send him to the Varanasi Mental Hos­pital. The Jail authorities shall ensure that necessary formalities are completed before he is admitted in the hospital not as a convict but as a free man and he shall be given com­plete treatment. Besides, his hygiene and nourishment shall also be taken care of. 31. In the circumstances, though the ap­pellant is acquitted he cannot be released on account of his mental condition and arrange­ment shall be made by the jail authorities to send him to Varanasi Mental Hospital within a month from the date a certified copy of this order is produced before them. Order accordingly.