JUDGMENT : 1. This appeal arises out of judgment and order of sentence dated 23.02.2001 passed by learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in S.T. No. 61-D of 1997 convicting the appellant under Sections 302 and 324, I.P.C. and sentencing him to suffer imprisonment for life u/s 302, I.P.C. and to suffer R.I. for two years for the offence u/s 324, I.P.C. with a direction that both the sentences are to run concurrently. 2. The occurrence happened at about 5.30 a.m. on 8.2.1997 in village Kangeilo under Kamakshyanagar Police Station in the district of Dhenkanal. Trinath Dehury (deceased) at that time was sitting by the side of the fire in his Bari to warm himself as it was still cold in the morning. The appellant came running to that place with a Kati (M.O.-III) and gave blows to the deceased by that Kati. Receiving the blows, the deceased fell down there. The occurrence was witnesses by Nanda Kishore Dehury (P.W.2), informant Kaira Dehury (P.W.3) and Gobardhan Behera (P.W.4). Seeing the incident, all of them rushed to the spot to attend the deceased. They also chased the appellant in vain. From the spot the appellant ran towards the school of the village where a polling party had camped for the General Election to be conducted in that village on that day. Therein the school the appellant assaulted Sarat Kumar Sahu (P.W.10) and Prafulla Kumar Panda (P.W.7) by the same Kati (M.O.-III). The police staff presents in the school used as a polling station caught hold the appellant. On the basis of the report, lodged by Kaira Dehury (P.W.3), the present case was registered in Kamakshyanagar Police Station. The then O.I.C., Kamakshyanagar Police Station (P.W.11) investigated into the case and on completion of investigation he submitted charge-sheet against the appellant implicating him in offence under Sections 302/323/324, I.P.C. 3. The defense plea is one of denial and it is the specific case of the defense that at the time of occurrence the appellant was laboring under unsoundness of mind. 4. P.Ws. 2, 3 and 4 as introduced earlier are the eye witnesses so far as the assault on deceased Trinath Dehury is concerned. P.Ws. 7 and 10 are the injured witnesses so far as the occurrence in the school of the village is concerned. P.Ws. 4. P.Ws. 2, 3 and 4 as introduced earlier are the eye witnesses so far as the assault on deceased Trinath Dehury is concerned. P.Ws. 7 and 10 are the injured witnesses so far as the occurrence in the school of the village is concerned. P.Ws. 8 and 9 besides being witnesses to relevant seizures are also witnesses to the second part of the occurrence that happened in the village school. P.W.1 is the Medical Officer who conducted the post-mortem examined on the dead body of the deceased. P.W.6 is the Medical Officer who examined the injured persons, i.e., P.Ws. 7 and 10 on police requisition. P.W.11 is the Investigating Officer. Besides proving some documents vide Exts. A to D, the defense has examined two witnesses. D.W.1 is the staff deputed for election duty in the spot village. D.W.2 is a teacher of Pabitrapur Primary School where the appellant was also working as a teacher at the relevant time. 5. Learned trial Court on consideration of the materials on record eschewed the plea of insanity raised by the defense and found the appellant guilty under Sections 302/324, I.P.C. 6. Learned counsel for the appellant strenuously submits that learned trial Court has not properly appreciated the evidence on the point of plea of insanity taken by the appellant at the time of trial and has also failed to understand the law on the point. He further submits that the burden of proof so far as the plea of insanity on the accused is concerned is not as heavy as on the prosecution and facts proved in the case should have been taken into consideration by the learned trial Court to accept the plea of insanity raised by the defense. To substantiate his contention learned counsel for the appellant relies on Raghu Pradhan Vs. State of Orissa Ajaya Mahakud Vs. State of Orissa State of Orissa, Vrs. Kamal Lochan Khinbudi (1997) 12 OCR 107. Learned Addl. Government Advocate on the other supports the impugned judgment and submits that there is no material on record to bring the case of the defense within the ambit of Section 84 of Indian Penal Code and to show that at the time of commission of the alleged offence the appellant was "non compos mentis". 7. Learned Addl. Government Advocate on the other supports the impugned judgment and submits that there is no material on record to bring the case of the defense within the ambit of Section 84 of Indian Penal Code and to show that at the time of commission of the alleged offence the appellant was "non compos mentis". 7. The doctrine enshrined in Section 84 of the Indian Penal Code which is a reflection of the rule formulated in M'Naughton's case (1843) 4 St. Tr.(NS) 847 has not yet been amended or changed though said M'Naughton's rules of 19th Century England is held to be out dated in many judicial pronouncements including the case of Ajaya Mahakud supra. 8. A fundamental principle of criminal law is that mens rea (guilty mind) is an essential element in very offence and no crime can be said to have been committed if the mind of the person doing the act is not guilty. Since criminal act is an indispensable element in every crime, a person incapable of entertaining such intent cannot incur legal guilt. Idiots and lunatics are, therefore, not liable in criminal law for their acts. It has been said that a mad man is best punished by his own madness (Furiosus furore suo punier); or that a mad man ' has no will (Furiosus nulla voluntus est); or a mad man is like one who is absent (Furiosus absents loco est). In Halsbury's Laws of England (4th Edn.), Vol-11, P.27 Para-30 it is stated:- Where, on a criminal charge, it appears that at the time of the act or omission giving rise to the offence alleged the defendant was laboring under a defect of reason owing to a disease of the mind so as not to know the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for his act. The question whether, owing to a defect of reason due to disease of the mind, the defendant was not responsible for his act is a question of fact to be determined by the jury. Where the jury funds insanity is made out the verdict takes the special form of not guilty by reason of insanity. The question whether, owing to a defect of reason due to disease of the mind, the defendant was not responsible for his act is a question of fact to be determined by the jury. Where the jury funds insanity is made out the verdict takes the special form of not guilty by reason of insanity. Blackstone in his treatise "Commentaries on the Laws of England" Vol-IV P.P. 18-19 also stated:- The second case of a deficiency in will, which excuses from the guilt of crimes, arises also from a defective or vitiated understanding, viz., in an idiot or a lunatic. For the rule of law as to the latter, which may easily be adapted also to the former, is that 'furiosus furore solum punitur. In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for treason itself. Also, if a man in his sound 'mind' commits an offence, and before arraignment for it he becomes mad, he ought not to be called on to plead to it, because he is unable to do so with that advise and caution that he ought. And, if after he has pleaded, the prisoner becomes mad, he (sic) not is tried; for how can he make his defense"? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed; per adventure, says the humanity of the England law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person being compos mentis, should commit high treason, and after fall into madness he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 & 2 Ph. & Ph. & M.C.10. For, as is observed by Sir Edward Coke 'the execution of an offender is, for example, ut poena ad paucos, meetus ad omnes perveniat. but so it is not a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others. 9. & Ph. & M.C.10. For, as is observed by Sir Edward Coke 'the execution of an offender is, for example, ut poena ad paucos, meetus ad omnes perveniat. but so it is not a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others. 9. The policy of the law on the subject is to control not only sane, but, so far as is possible, also the insane. It is not, therefore, every person mentally diseased, who, ipso facto, is exempted from criminal responsibility. Such exemption is allowed only where the insane person "is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." Section 84 of Indian Penal Code therefore, lays down the legal test of responsibility in cases of alleged unsoundness of mind. It is by this test, as distinguished from the medical test, that the criminality of an act is to be determined. To establish a defense on the ground of insanity it must clearly be proved that at the time of committing the act, the accused was laboring under such a defect of a reason, from disease of the mind as not to know the nature and quality of the act he was doing or, if he did know it that he did not know he was doing what was wrong or contrary to law. The first aspect as aforesaid refers to the offender's consciousness of the bearing of his act of those who are affected by it and the second and third, to his consciousness of his relation to himself. If the accused did know it, he was responsible and he is not competent to the protection under the Section. As held by Hon'ble Supreme Court in the case of Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed. The mere fact that on former occasions the accused had been occasionally subjected to insane delusions or had suffered from derangement of mind, or that subsequently he had at times behaved like a mentally deficient person is per se insufficient to bring his case within he exemption provided in the section. The mere fact that on former occasions the accused had been occasionally subjected to insane delusions or had suffered from derangement of mind, or that subsequently he had at times behaved like a mentally deficient person is per se insufficient to bring his case within he exemption provided in the section. The Court cannot also presume insanity on the part of the accused as the law presumes every person of the age of discretion to be sane unless the contrary is proved; and even if a lunatic has lucid intervals the law presumes the offence of such person to have been committed in a Iucid interval, unless it appears to have been committed during derangement (See Oyami Ayatu Vs. The State of Madhya Pradesh, ). From different judicial pronouncements such as Sheralli Wali Mohammed Vs. The State of Maharashtra Rajan Vrs. State of Kerala (1984) Cri.J. 874 (Kerala), Kesheorao Bhiosanji Navale Vs. State of Maharashtra, and others it has also been established in law that it would be most dangerous to admit a defense of insanity upon argument merely derived from the character of the crime like ferocity of the attack, number of injuries inflicted, absence of motive, successive crimes, want of accomplices etc. Taking into account the burden on the defense u/s 105 of the Evidence Act and the nature of such burden and further fact that it may not be possible in a generality of cases to prove unsoundness of mind at the exact time of the commission of offence. Different Courts and Hon'ble Supreme Court have laid down principles to be borne in mind before applying the provision of Section 84 of Indian Penal Code. Different Courts and Hon'ble Supreme Court have laid down principles to be borne in mind before applying the provision of Section 84 of Indian Penal Code. The principles are:- (a) every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law; (b) the Court shall presume the absence of such insanity; (c) the burden of proof of legal insanity is on the accused, though it is not as heavy as on the prosecution to prove an offence; (d) the Court must consider whether the accused suffered from legal insanity at the time when the offence was committed; (e) in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant considerations; and (f) the prosecution in discharging its burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of law that everyone knows the law and the natural consequences of his act. 10. Applying the aforesaid principles of law if the evidence adduced in the case both by the prosecution and defense are taken into consideration it is found that the defense has not at all proved any extenuating circumstances which preceded, attended or followed the crime which assumes relevance for consideration u/s 84 of the Indian Penal Code. P.Ws. 2, 3 and 4 who are three eye witnesses to the murder of deceased Trinath Dehury and are the co-villagers of the appellant were suggested by the defense that the accused was insane. P.Ws. 3 and 4 replied such defense suggestion in negative and P.w.2 gave an evasive reply by saying that he cannot say. No further questions were put to those witnesses. P.Ws. 7, 8, 9 and 10 who are the witnesses to the second occurrence that happened in the school being outsiders were not in a position to say anything about the mental or cognitive faculty of the appellant. There is nothing in the evidence of the aforesaid witnesses to show that they noticed any abnormal conduct on the part of the appellant at the time of both the occurrences. There is nothing in the evidence of the aforesaid witnesses to show that they noticed any abnormal conduct on the part of the appellant at the time of both the occurrences. The defense, therefore, has failed to bring out anything from the prosecution witnesses to show extenuating circumstances which proceeded, attended or followed the crime which could have been taken into consideration to appreciate the defense taken u/s 84 of the Indian Penal Code. 11. Learned counsel for the appellant banks heavily on absence of motive. Hon'ble Supreme Court in the case of Sheralli Wali Mohammed Vs. The State of Maharashtra 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 insane or that he did not have the necessary mens rea for the offence. In view of the law settled on the point, absence of motive along cannot be held to be an extenuating circumstance. 12. The defense has examined D.Ws. 1 and 2 and some documents vide Exts. A to D to get the appellant bailed out. D.W.1 was a member of the Polling Party stationed at the spot village in the school on the date of occurrence. He obviously, denied any knowledge as to whether the assailant was in proper state of mind when he inflicted the injuries. The evidence of D.W.1, therefore, is inconsequentional for the defense. D.W.2 is a colleague of the appellant at Pabitrapur Primary School and had occasion to work with him for six to seven months prior to the occurrence. He has testified that during this period he found the behavior of the appellant to be erratic, that the accused used to talk to himself, loitering hither and thither aimlessly, talking irrelevant to the student and generally used to behave in an abnormal way. In his opinion the appellant was bit insane (TIKE PAGALA TYPE RA). D.W.2 has further testified that he reported the matter to his higher authority, the Sub-Inspector of School who told that he cannot do anything and thereafter, he (D.W.2) sent for the parents of the appellant who came to village Pabitrapur and took away the appellant. In his opinion the appellant was bit insane (TIKE PAGALA TYPE RA). D.W.2 has further testified that he reported the matter to his higher authority, the Sub-Inspector of School who told that he cannot do anything and thereafter, he (D.W.2) sent for the parents of the appellant who came to village Pabitrapur and took away the appellant. D.W.2 has further testified that the accused used to feel uneasiness on his head and wanted to treat himself and therefore applied for C.L. Ext. A is the C.L. application. The ground of C.L. mentioned in Ext. A is that the accused had some work at his house. The applicant vide Ext. A is addressed to the Sub-Inspector of School through D.W.2 and D.W.2 had made an endorsement vide Ext. A/2 to the effect that the C.L. may be granted. Ext. A is inconsequentional inasmuch as the ground mentioned in the C.L. application does not corroborate D.W.2 to the effect that the appellant took the C.L. for his treatment. Further father of the appellant or his other relations who were closely associated with his day to day life having not been examined, if cannot be held that the appellant was of unsound mind at the relevant time spoken of by D.W.2. There is nothing on record to support the assertion of D.W.2 that he (D.W.2) reported about abnormal behavior of the appellant to the Sub-Inspector of School, though on the date of his examined in the Court D.W.2 was still working in the same school and he was in a position to produce and prove such documents. Exts. B and, C are the certified copies of the order dated 28.02.1997 and 10.04.1997 passed by the S.D.J.M., Kamakshyanagar in G.R. Case No. 40 of 1997 (from which the present Sessions Trial arises). Ext. D is the certified copy of the prayer of the Superintendent of Sub-Jail, Kamakshyanagar wherein it has been stated that the accused was of unsound mind and Medical Officer of the Jail has recommended for his better treatment by the psychiatrist and as such transfer of the appellant to Circle Jail, Chowdwar is necessary. Exts. B and C are not relevant since by the same the S.D.J.M. has merely accepted the prayer made by the Jail Superintendent. Ext. Exts. B and C are not relevant since by the same the S.D.J.M. has merely accepted the prayer made by the Jail Superintendent. Ext. D is to be dismissed as hearsay as the contents thereof is based on the opinion of the Jail Medical Officer, who has not been examined. Further the facts sought to be proved by the defense through D.W.2 and the documents vide Exts. A, B, C and D are the facts of some abnormal behavior of the appellant before the occurrence and while he was in custody after the occurrence. There is some remoteness of the said behavior or conduct so far as the alleged crime is concerned. 13. Regard being had to the principles discussed supra and the nature of evidence adduced by the defense, we are constrained to concur with the finding of the learned trial Court to the effect that the defense plea raised u/s 84 of the Indian Penal Code cannot be accepted. In view of our discussion supra we do not find any merit in the appeal and the same is accordingly dismissed. Final Result : Dismissed