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2014 DIGILAW 1584 (HP)

Gopal Singh v. State of Himachal Pradesh

2014-11-04

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 21.12.2009 rendered by the Additional Sessions Judge, Sirmaur, District at Nahan in Sessions Trial No. 18-N/7 of 2002, whereby the appellant-accused (hereinafter referred to as the ?accused? for convenience sake), who was charged with and tried for offence punishable under section 376 (2) (f) of the Indian Penal Code has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.10,000/- and in default of payment of fine, he was further ordered to undergo rigorous imprisonment for a period of one year. Hence, the present appeal. 2. Case of the prosecution, in a nutshell, is that on 21.8.2002, prosecutrix (PW-3) daughter of PW-1 Kunta Devi, aged about 4½ years, at about 2.30 P.M. was playing outside her house alongwith other children at village Uttamwala. Accused took the prosecutrix to the field on the pretext to bring maize. He committed sexual intercourse with the prosecutrix. Prosecutrix cried. The cries were heard by PW-2 Uma Devi. PW-2 Uma Devi informed PW-1 Kunta Devi, mother of prosecutrix about the same. PW-1 Kunta Devi went to the spot and saw the accused committing sexual assault upon the prosecutrix in the filed. She was laid down on the ground. She lifted the prosecutrix from the lap of the accused and snatched her from the accused. Prosecutrix was naked. She was brought alongwith her clothes to the house. Blood was oozing out from the private parts of the prosecutrix. The Pajami of the prosecutrix was stained with blood. Husband of PW-1 Kunta Devi, who was out of house was called and told about the occurrence. PW-1 Kunta Devi and her husband Babu Ram went to the Police Station, Nahan. They lodged FIR Ext.PW.1/A. PW-4 Dr. Nirmla Vaish examined the prosecutrix. She issued MLC Ext.PW-4/A. She preserved Pajami Ext.P-1 and Ext.P-2 of the prosecutrix and prepared three slides of the fluid taken from the posterior fornix. She also preserved blood samples of the prosecutrix. All the articles were handed over to the police for chemical examination. The prosecutrix remained admitted in the hospital. She was discharged on 31.8.2002. Accused was medically examined by PW-8 Dr. S.C. Goel. Site plan was prepared. Date of birth certificate Ext.PW-9/A of the prosecutrix was obtained. Statements of the witnesses were recorded. All the articles were handed over to the police for chemical examination. The prosecutrix remained admitted in the hospital. She was discharged on 31.8.2002. Accused was medically examined by PW-8 Dr. S.C. Goel. Site plan was prepared. Date of birth certificate Ext.PW-9/A of the prosecutrix was obtained. Statements of the witnesses were recorded. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. The defence counsel intimated the court on 6.3.2003 that accused was suffering from major mental disorder, namely, schizophrenia. Dr. Ramesh Kumar, Assistant Professor, Department of Psychiatry, I.G.M.C., Shimla opined that accused appeared to be suffering from major mental disorder, i.e. schizophrenia. He was examined as CW-1. Accused was ordered to be examined by the Board of senior doctors of the Department of Psychiatry, I.G.M.C., Shimla, vide order dated 17.6.2003. Dr. Hardyal Chauhan, Senior Medical Superintendent, I.G.M.C., Shimla was appointed as Chairman. He constituted a Medical Board of doctors. He was examined as CW-2. He opined that accused appeared to be suffering from mental disorder, as such, he was not capable of defending himself of criminal charge against him. Direction was issued to the Superintendent, Model Central Jail, Nahan and also to the Superintendent of Police, Sirmaur District at Nahan to get the accused examined from the fresh Board. Dr. Ravi Sharma, Professor and Head, Department of Psychiatric, I.G.M.C., Shimla was examined in the Court on 16.12.2003. The Board suggested that the accused should be referred to the Department of Psychiatric, P.G.I., Chandigarh for second psychiatric opinion. The Court directed the accused to be examined from another Medical Board of senior psychiatric, P.G.I., Chandigarh. The Medical Board examination report dated 17.2.2004 was received from P.G.I., Chandigarh. The Board opined that the accused was suffering from paranoid schizophrenia. 4. Accused moved an application under Section 330 of the Code of Criminal Procedure. The Court vide order dated 27.3.2004, ordered the detention of the accused in Psychiatric Department, I.G.M.C., Shimla. Reports of the Himachal Hospital of Mental Health and Rehabilitation, Shimla were received from time to time qua the mental health of the accused. As per report dated 26.9.2008, accused was opined to be capable of making his defence in the Court. He did not have features of active mental disorder. Reports of the Himachal Hospital of Mental Health and Rehabilitation, Shimla were received from time to time qua the mental health of the accused. As per report dated 26.9.2008, accused was opined to be capable of making his defence in the Court. He did not have features of active mental disorder. Senior Medical Superintendent vide letter dated 17.12.2008 declared that patient was fit to be discharged from the hospital for facing the trial. On 2.1.2009, accused was found to be fit for trial. Charge under Section 376 (2) (f) of the Indian Penal Code was framed. He pleaded not guilty. 5. Prosecution examined as many as 12 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He has denied the case of the prosecution in entirety. According to him, he is suffering from mental disorder. Learned trial Court convicted and sentenced the accused as noticed hereinabove. 6. Mr. Gurdev Singh Thakur, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove its case against the accused. 7. Mr. M.A. Khan, leaned Additional Advocate General has supported the judgment passed by the trial Court. 8. We have heard the learned counsel for the parties and have gone through the record meticulously. 9. PW-1 Kunta Devi is the mother of prosecutrix. According to her on 21.8.2002, she was at her home. Her sister-in-law (Jethani) and parents-in-law were also in the house. Her youngest daughter was playing outside the house. She was 4½ years old. At about 2.30 P.M., her sister-in-law Uma Devi called her from the roof of the house and told that her daughter was crying in the fields. She went to the spot. It was at a distance of 100-150 meters from the house. She saw that her daughter was laid on the ground by the accused. He was committing sexual assault upon her daughter. When she reached there, accused lifted her daughter and took her into his lap. She snatched her daughter from the accused. Her daughter was naked. She took her daughter to the house alongwith her clothes. Blood was oozing out from the private part of her daughter. She narrated the occurrence to other family members. They also examined the prosecutrix. Pajama of prosecutrix was having blood stains on it. Her husband was out of house. She snatched her daughter from the accused. Her daughter was naked. She took her daughter to the house alongwith her clothes. Blood was oozing out from the private part of her daughter. She narrated the occurrence to other family members. They also examined the prosecutrix. Pajama of prosecutrix was having blood stains on it. Her husband was out of house. She called him and narrated the occurrence. They went to the Police Station, Nahan. They lodged FIR. Prosecutrix was medically examined in the hospital at Nahan. She remained admitted in the hospital. She was discharged on 31.8.2002 vide Ex.PW-1/B. She has identified Pajami Ex.P-1 and P-2. In her cross-examination, she has denied the suggestion that accused was suffering from mental ailment since his childhood. He used to work as labourer. She has also denied the suggestion that there was dispute between her family and family of the accused. 10. PW-2 Uma Devi has deposed that Kunta Devi is her Devrani. On 21.8.2002, she was on the roof of her house at about 2 – 2.30 P.M. She heard the cries of daughter of Kunta from the field of maize. She informed Kunta Devi about the crying of her daughter. Kunta Devi went to the field and brought her daughter from the field to the house. The victim was naked and she was bleeding from her private part. Her salwar was having blood on it. Kunta Devi told that accused was in the field. He committed sexual act with her daughter. She has also denied the suggestion that accused was suffering from mental disorder. Volunteered that he was mentally sound at that time. She did not know that father of accused used to take him for medical treatment to Dharampur. 11. PW-3 is the prosecutrix. Her statement was recorded without oath. She has deposed that she was taken away from her house to the fields by the accused. She was playing outside in her house alongwith other children. Accused stated that they will bring maize from the field. Maize field was near the house. She did not know what accused did with her as she was small kid at that time and was not capable of understanding the things. She cried in the field. Her mother came there on hearing her cries. She was brought to Nahan. She remained admitted in the hospital for some days. Maize field was near the house. She did not know what accused did with her as she was small kid at that time and was not capable of understanding the things. She cried in the field. Her mother came there on hearing her cries. She was brought to Nahan. She remained admitted in the hospital for some days. She has denied the suggestion that she has named the accused at the instance of her parents. 12. PW-4 Dr. Nirmal Vaish has medically examined the prosecutrix. She has issued MLC Ex.PW-4/A. According to her, rape was done and the probable duration was within 12 hours. She identified Pajami Ex. P-1 and P-2. There were marks of injury on the private parts. There was second degree perineal tear in the vagina. There was one scratch mark over the right side of the thigh lying obliquely. There were three or four nail marks over left side of the thigh. The patient was admitted for stitching of tear (perineal). Treatment was given and the patient was discharged after 3-4 days. 13. PW-5 Balbir Singh has deposed that on 22.8.2002 Constable Suresh Kumar deposited two sealed parcels sealed with seal impression =ZH' and LC Raksha Devi deposed four sealed parcels with seal impression =ZH' with him. He made entries in the register of Malkhana at Sr. No. 269 and 270. He forwarded all the parcels vide RC No. 185/2002 for F.S.L. Bharari through Constable Inder Dutt. 14. PW-6 Constable Inder Dutt has deposed that on 26.8.2002 MHC Balbir Singh handed over to him six sealed parcels for chemical examination vide RC 185/02. He deposited the same at F.S.L. Bharari on 26.8.2002. 15. PW-7 Dr. Ranjana Oberoi has examined the prosecutrix. She issued discharge slip Ex.PW-1/B. According to her, prosecutrix was having injuries perineal and tear was present. It was stitched by Dr. Nirmal Vaish. 16. PW-8 Dr. S.C. Goel has examined the accused on 22.8.2002. He has issued MLC Ext. PW-8/A. According to him, there was a big contusion mark reddish blue on left arm, lower part on anterior aspect. Clothes were preserved. There was no suggestion that the patient was not able to perform coitus. 17. PW-9 Kailash Kataria has issued birth certificate of prosecutrix PW-9/A. 18. PW-10 H.C. Daleep Singh has taken the photographs of the spot on 22.8.2002. 19. Clothes were preserved. There was no suggestion that the patient was not able to perform coitus. 17. PW-9 Kailash Kataria has issued birth certificate of prosecutrix PW-9/A. 18. PW-10 H.C. Daleep Singh has taken the photographs of the spot on 22.8.2002. 19. PW-11 Narveer Singh Rathour has deposed that he remained posted as S.H.O. Police Station Nahan. On 21.8.2002 Kanta Devi alongwith prosecutrix came to the police station. She got FIR Ext. PW-1/A registered. In order to get prosecutrix medically examined she moved an application to M.O. Zonal Hospital, Nahan vide Ext. PW-11/A. MLC of the prosecutrix was procured. Prosecutrix remained admitted in the hospital. Discharge certificate was Ex. PW- 1/B. Accused was arrested on 21.8.2002. He was also got medically examined and MLC Ext. PW-8/A was obtained. On 22.8.2002, he visited the spot and prepared site plan Ext. PW-11/B. He has denied the suggestion that accused was suffering from acute mental disorder. He has also denied the suggestion that when the occurrence took place; accused was suffering from mental disorder. 20. PW-12 Dr. Ramesh Kumar has deposed that accused was under treatment. He has issued report Ext. PA. It was found on examination of the accused that presently, he did not have feature of active mental disorder. Thus, he was fit to be discharged from the hospital for facing the trial. However, patient was required to be continuously supervised. 21. Mr. Gurdev Singh Thakur has vehemently argued that accused was suffering from schizophrenia at the time of commission of offence. PW-1 Kunta Devi, in her statement, has categorically deposed that on 21.8.2002, she was told by PW-2 Uma Devi that her daughter was crying in the field. She went to the spot and recovered the girl and she saw accused committing sexual assault upon her daughter. She was naked. She was brought to the house. She was admitted in the hospital. She was discharged from the hospital on 31.8.2002 vide Ex.PW-1/B. PW-2 Uma Devi has supported the version of PW-1 Kunta Devi. She informed PW-1 Kunta Devi about the crying of her daughter. Kunta Devi went to the field and brought her daughter from the field. She has denied the suggestion that accused was suffering from mental disorder. Volunteered that he was mentally sound at that time. PW-3 prosecutrix was only 4½ years. Her evidence inspires confidence. She informed PW-1 Kunta Devi about the crying of her daughter. Kunta Devi went to the field and brought her daughter from the field. She has denied the suggestion that accused was suffering from mental disorder. Volunteered that he was mentally sound at that time. PW-3 prosecutrix was only 4½ years. Her evidence inspires confidence. She has stated that she did not know what accused did with her. She was young girl of 4½ years. She cried in the field and her mother came there. She remained admitted in the hospital. She has denied the suggestion that she has named the accused at the instance of her parents. PW-4 Dr. Nirmal Vaish has issued MLC Ex.PW-4/A. According to her, rape was committed and the probable duration was within 12 hours. Hymen was torn. There was second degree perineal tear. Stitching was undertaken. PW-7 Dr. Ranjana Oberoi has issued discharge slip Ex.PW-1/B. She has noticed injuries on perineal tear, which was stitched by Dr. Nirmal Vaish. She was discharged on 31.8.2002. PW-8 Dr. S.C. Goel has also denied the suggestion that the accused was suffering from any mental ailment. As per version of PW-12 Dr. Ramesh Kumar in view of report dated 26.9.2008 received from Senior Medical Superintendent, Himachal Hospital Mental Health and Rehabilitation, Shimla, accused was opined to be capable of making his defence in the Court. He did not have features of active mental disorder. He was declared fit to be discharged from the hospital for facing the trial. PW-12 Dr. Ramesh Kumar has also declared that accused was fit to be discharge from the hospital for facing trial as per report Ex.PA. He has not noticed any active mental disorder. 22. What emerges from the statements of PW-1 Kunta Devi and PW-2 Uma Devi read in conjunction with statement of PW-7 Dr. Ranjana Oberoi that accused has committed forcibly rape on the young girl. She was only 4½ years old. She remained admitted in hospital for about ten days. There was second perineal tear in the vagina. Hymen was torn. The injury was stitched by Dr. Nirmal Vaish. Mr. Gurdev Singh Thakur has argued that there was enmity between the families. However, no evidence has been led to this effect. Accused was closely related with the family of victim. Thus, there was no occasion for impleading the accused in the case. 23. Hymen was torn. The injury was stitched by Dr. Nirmal Vaish. Mr. Gurdev Singh Thakur has argued that there was enmity between the families. However, no evidence has been led to this effect. Accused was closely related with the family of victim. Thus, there was no occasion for impleading the accused in the case. 23. Their Lordships of the Hon'ble Supreme Court in State of Madhya Pradesh v. Ahmadulla, AIR 1961 SC 998 have held that the crucial point of time at which the unsoundness of mind as defined in section 84 has to be established is when the act was committed. Their Lordships have held as under: ?2. There is very little dispute about the facts or even about the construction of S. 84 of the Code because both the learned Sessions Judge as well as the learned Judges of the High Court on appeal have held that the crucial point of time at which the unsoundness of mind, as defined in that section, has to be established is when the act was committed. It is the application of this principle to the facts established by the evidence that is the ground of complaint by the appellant-State before us. 8. In this connection we might refer to the decision of the Court of Criminal Appeal in England in Henry Perry 14 Cri App Rep 48 where also the defence was that the accused had been prone to have fits of epileptic insanity. During the course of the argument Reading. C. J., observed : "The crux of the whole question is whether this man was suffering from epilepsy at the time he committed the crime. Otherwise it would be a most dangerous doctrine if a man could say.' "I once had an epileptic fit, and everything that happens hereafter must be put down to that." In dismissing the appeal the learned Chief Justice said : "Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing - that is, the physical nature and quality as distinguished from the moral - or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong ............. There is, however, evidence of a medical character before the jury, and there are statements made by the prisoner himself, that he has suffered from epileptic fits. The Court has had further evidence, especially in the prison records, of his having had attacks of epilepsy. But to establish that is only one step; it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders; and that has not been proved." We consider that the situation in the present case is very similar and the observations extracted apply with appositeness. We consider that there was no basis in the evidence before the Court for the finding by the Sessions Judge that at the crucial moment when the accused cut the throat of his mother-in-law and severed her head, he was suffering from unsoundness of mind incapable of knowing that what he was doing was wrong. Even the evidence of the father does not support such a finding. In this connection the Courts below have failed to take into account the circumstances in which the killing was compassed. The accused bore ill will to Bismilla and the act was committed at dead of night when he would not be seen, the accused taking a torch with him, access to the house of the deceased being obtained by stealth by scaling over a wall. Then again, there was the mood of exaltation which the accused exhibited after he had put her out of her life. It was a crime committed not in a sudden mood of insanity but one that was preceded by careful planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy.? 24. Then again, there was the mood of exaltation which the accused exhibited after he had put her out of her life. It was a crime committed not in a sudden mood of insanity but one that was preceded by careful planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy.? 24. Their Lordships of the Hon'ble Supreme Court in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563 have held that that when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Their Lordships have held as under: ?9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime. 14. The subsequent events leading up to the trial make it abundantly clear that the plea of insanity was a belated afterthought and a false case. After the accused came out of the room, he was taken to the chora and was confined in a room in the chora. P. W. 16, the police sub-inspector reached Bherai at about 9.30 a.m. He interrogated the accused; recorded his statement and arrested him at about 10.30 a.m. According to him, as the accused was willing to make a confession, he was sent to the judicial magistrate. P. W. 16, the police sub-inspector reached Bherai at about 9.30 a.m. He interrogated the accused; recorded his statement and arrested him at about 10.30 a.m. According to him, as the accused was willing to make a confession, he was sent to the judicial magistrate. This witnesses described the condition of the accused when he met him thus: "When I went in the Chora he had saluted me and he was completely sane. There was absolutely no sign of insanity and he was not behaving as an insane man. He was not abusing. He had replied to my questions understanding them and was giving relevant replies. And therefore I had sent him to the Magistrate for confession as he wanted to confess.'' There is no reason to disbelive this evidence, particularly when this is consistent with the subsequent conduct of the accused. But P. W. 9, who attested the panchanama, Ex. 19, recording the condition of the accused's body and his clothes, deposed that the accused was murmuring and laughing. But no mention of his condition was described in the panchnama. Thereafter, the accused was sent to the Medical Officer, Matar, for examination and treatment of his injuries. The doctor examined the accused at 9.30 p.m. and gave his evidence as P. W. 11. He proved the certificate issued by him, Ex. 23. Nothing about the mental condition of the accused was noted in that certificate. Not a single question was put to this witnesses in the cross-examination about the mental condition of the accused. On the same day, the accused was sent to the Judicial Magistrate, First Class, for making a confession. On the next day he was produced before the said Magistrate, who asked him the necessary questions and gave him the warning that his confession would be used against him at the trial. The accused was given time for reflection and was produced before the Magistrate on April 13, 1959. On that date he refused to make the confession. His conduct before the Magistrate, as recorded in Ex. 31 indicates that he was in a fit condition to appreciate the questions put to him and finally to make up his mind not to make the confession which he had earlier offered to do. During the enquiry proceedings under Ch. On that date he refused to make the confession. His conduct before the Magistrate, as recorded in Ex. 31 indicates that he was in a fit condition to appreciate the questions put to him and finally to make up his mind not to make the confession which he had earlier offered to do. During the enquiry proceedings under Ch. XVIII of the Code of Criminal Procedure, no suggestion was made on behalf of the accused that he was insane. For the first time on June 27, 1959, at the commencement of the trial in the sessions court an application was filed on behalf of the accused alleging that he was suffering from an attack of insanity. On June 29, 1959, the Sessions Judge sent the accused to the Civil Surgeon, Khaira, for observation. On receiving his report, the learned Sessions Judge, by his order dated July 13, 1959, found the accused insane and incapable of making his defence. On August 28, 1959, the court directed the accused to be sent to the Superintendent of Mental Hospital, Baroda, for keeping him under observation with a direction to send his report on or before September 18, 1959. The said Superintendent sent his report on August 27, 1960 to the effect that the accused was capable of understanding the proceedings of the court and of making his defence in the court. On enquiry the court held that the accused could understand the proceedings of the case and was capable of making his defence. At the commencement of the trial, the pleader for the accused stated that the accused could understand the proceedings. The proceedings before the Sessions Judge only show that for a short time after the case had commenced before him the accused was insane. But that fact would not establish that the accused was having fits of insanity for 4 or 5 years before the incident and that at the time he killed his wife he had such a fit of insanity as to give him the benefit of S. 84 of the Indian Penal Code. The said entire conduct of the accused from the time he killed his wife upto the time the sessions proceedings commenced is inconsistent with the fact that he had a fit of insanity when he killed his wife.? 25. The said entire conduct of the accused from the time he killed his wife upto the time the sessions proceedings commenced is inconsistent with the fact that he had a fit of insanity when he killed his wife.? 25. In the instant case, it cannot be said that accused was incapable of knowing the nature of act or that he was doing what was either wrong or contrary to law. 26. Their Lordships of the Hon'ble Supreme Court in Ratan Lal v. The State of Madhya Pradesh, AIR 1971 SC 778 have held that the crucial point of time at which unsoundness of mind has to be proved is the time when the crime is actually committed. The burden of proving this can be discharged by the accused from the circumstances which preceded, attended and followed the crime. their Lordships have held as under: ?2. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. (See State of Madhya Pradesh v. Ahmadullah, (1961) 3 SCR 583 = ( AIR 1961 SC 998 ). In D. C. Thakkar v. State of Gujarat, (1964) 7 SCR 361 = ( AIR 1964 SC 1563 ); it was laid down that "there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings." It was further observed: "The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime." 27. In the instant case there is no evidence or circumstance that accused was having unsoundness of mind at the time of commission of offence. In the instant case there is no evidence or circumstance that accused was having unsoundness of mind at the time of commission of offence. There is no evidence that accused was having unsoundness of mind before the occurrence and at the time of commission of crime. 28. Their Lordships of the Hon'ble Supreme Court in Sheralli Wali Mohammed v. State of Maharashtra, AIR 1972 SC 2443 have held that law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. 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 commission of the offence. Their Lordships have held as under: ?12. To establish that the acts done are not offences under S. 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offence, he was labouring under any such incapacity? On this question, the state of his mind before and after the commission of the offence is relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahyabhai Chhaganbhai Thakkar v. The State of Gujarat, (1964) 7 SCR 361 at p. 367 = ( AIR 1964 SC 1563 ), Subba Rao, J., as he then was, speaking for the Court said " (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.'' 13. With this in mind, let us consider the evidence to see whether the accused was in an unsound state of mind at the time of the commission of the acts attributed to him, P. W. 3, one of the brothers of the accused stated that the accused used to become excited and uncontrollable, that sometimes he behaved like a mad man, and that he was treated by Dr. Deshpande and Dr. Malville. P. W. 4, Hyderali, also a brother of the accused, has stated that the accused used to suffer from temporary insanity and that he was treated by Dr. Deshpande and Dr. Malville. The evidence of these two witnesses on the question of the insanity of the accused did not appeal to the trial Court and the Court did not, we think rightly, place any reliance upon it. No attempt was made by the defence to examine the two doctors. There was, therefore, no evidence to show that, at the time of the commission of the acts, the accused was not in a sound state of mind. On the other hand, P. W. 8, Rustom Mirja, has stated in his deposition that the accused has been working with him as an additional motor driver for the last 8 or 10 years and that his work and conduct were normal. He also stated that the accused worked with him on March 6, 1968, till 4 P.M. P. W. 16, Dr. He also stated that the accused worked with him on March 6, 1968, till 4 P.M. P. W. 16, Dr. Kaloorkar, who examined the accused at 7.20 A.M. on the day of the occurrence, has stated in his deposition that he found that the accused was in normal condition. His evidence has not been challenged in cross-examination. We think that not only is there no evidence to show that the accused was insane at the time of the commission of the acts attributed to him, but that there is nothing to indicate that he had not the necessary mens rea when he committed the offence. The law presumes every person of the age of discretion to be sane unless the contrary is proved. It would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. 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 broke open, would not indicate that he was insane or, that he did not have the necessary mens rea for the commission of the offence. We see no reason to interfere with the concurrent findings on this point either.? 29. Their Lordships of the Hon'ble Supreme Court in Elavarasan vs. State represented by Inspector of Police, (2011) 7 SCC 110 have held that the burden of bringing his/her case under section 84 of the Indian Penal Code lies upon person claiming benefit thereof. Standard of proof which accused has to satisfy for discharge of burden under section 105 is not same as is expected of prosecution. It is enough for accused to establish his defence on preponderance of probabilities as in a civil case. Their Lordships have held as under: ?22. The question, however, is whether the appellant was entitled to the benefit of Section 84 of Indian Penal Code which provides that 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 who is incapable of knowing that what he is doing, is either wrong or contrary to law. Before adverting to the evidence on record as regards the plea of insanity set up by the appellant, we consider it necessary to refer to two aspects that bear relevance to cases where a plea of insanity is raised in defence by a person accused of a crime. The first aspect concerns the burden of proving the existence of circumstances that would bring the case within the purview of Section 84 of the I.P.C. It is trite that the burden of proving the commission of an offence is always on the prosecution and that the same never shifts. Equally well settled is the proposition that if intention is an essential ingredient of the offence alleged against the accused the prosecution must establish that ingredient also. 23. There is no gainsaying that intention or the state of mind of a person is ordinarily inferred from the circumstances of the case. This implies that, if a person deliberately assaults another and causes an injury to him then depending upon the weapon used and the part of the body on which it is struck, it would be reasonable to assume that the accused had the intention to cause the kind of injury which he inflicted. Having said that, Section 84 can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. But what is important is that the burden of bringing his/her case under Section 84 of the IPC lies squarely upon the person claiming the benefit of that provision. 24. Section 105 of the Evidence Act is in this regard relevant and may be extracted: "105. Burden of proving that case of accused comes within exceptions.-When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." 25. A careful reading of the above would show that not only is the burden to prove an exception cast upon the accused but the Court shall presume the absence of circumstances which may bring his case within any of the general exceptions in the Indian Penal Code or within any special exception or provision contained in any part of the said Code or in law defining the offence. The following passage from the decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 7 SCR 361 may serve as a timely reminder of the principles governing burden of proof in cases where the accused pleads an exception: "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged." 26. The second aspect which we need to mention is that the standard of proof which the accused has to satisfy for the discharge of the burden cast upon him under Section 105 (supra) is not the same as is expected of the prosecution. A long line of decisions of this Court have authoritatively settled the legal proposition on the subject. The second aspect which we need to mention is that the standard of proof which the accused has to satisfy for the discharge of the burden cast upon him under Section 105 (supra) is not the same as is expected of the prosecution. A long line of decisions of this Court have authoritatively settled the legal proposition on the subject. Reference in this connection to the decision of this Court in State of U.P. v. Ram Swarup and Anr., (1974) 4 SCC 764 should suffice where this court observed: "The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in his favour." To the same effect is the decision of this Court in Bhikari v. State of Uttar Pradesh ( AIR 1966 SC 1 ).? 30. Their Lordships of the Hon'ble Supreme Court in Surendra Mishra vs. State of Jharkhand, (2011) 11 SCC 495 have held that to discharge the onus under section 84, accused must prove his conduct prior to offence, at the time or immediately after offence, with reference to his medical condition. Whether accused knew that what he was doing was wrong or that it was contrary to law is of great importance and may attract culpability despite mental unsoundness having been established. Their Lordships have held as under: ?13. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him. 14. Reference in this connection can be made to a decision of this Court in the case of T.N. Lakshmaiah v. State of Karnataka, (2002) 1 SCC 219 , in which it has been held as follows: "9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case. 10. In State of M.P. v. Ahmadull, AIR 1961 SC 998 , this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. 11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought." 31. Their Lordships of the Hon'ble Supreme Court in Mariappan vs. State of Tamil Nadu, (2013) 12 SCC 270 have held that burden of proving the case of accused comes within exceptions under section 105 of the Evidence Act, 1872 lies on the accused. Their Lordships have held as under: ?13. The evidence of PWs 1 and 2 - the eye-witnesses, the evidence of PWs 3 and 4, who saw the accused running after the occurrence with Aruval (M.O.I) and the recovery of the weapon at the instance of the accused which was found to be stained with human blood of "O" group, as per the serologist report (Ex.P.12), tallied with the blood group of the deceased as the clothes of the deceased viz., M.O.s 1 to 4 were also stained with human blood "O" group clearly prove the case of the prosecution. Further, the medical evidence through PW-9-the Doctor, who conducted the post-mortem and issued the report (Ex.P-3) strengthened the version of PWs 1 and 2. 14. From the materials analyzed, discussed and concluded by the trial Court and the High Court, it clearly establishes that it was the accused-appellant who committed the murder.? 32. Learned trial court has correctly appreciated the evidence while convicting the accused. We need not interfere with the well reasoned judgment rendered by the trial court. 33. 14. From the materials analyzed, discussed and concluded by the trial Court and the High Court, it clearly establishes that it was the accused-appellant who committed the murder.? 32. Learned trial court has correctly appreciated the evidence while convicting the accused. We need not interfere with the well reasoned judgment rendered by the trial court. 33. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed.