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2017 DIGILAW 1033 (MP)

Pratap v. State of M. P.

2017-09-25

G.S.AHLUWALIA, SHEEL NAGU

body2017
JUDGMENT : G.S. Ahluwalia J. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 17-6-2002 passed by Special Judge and Additional Sessions Judge, Guna in Sessions Trial No. 149/1991, by which the appellant has been convicted under Section 302 (on two counts), Sections 307 and 309 of I.P.C. and has been sentenced to undergo Life Imprisonment and a fine of Rs.500/- with default imprisonment for offence under Section 302 of I.P.C. (on two counts for killing Ms. Rekhabai and Rajesh), under Section 307 of I.P.C. for rigorous imprisonment of 10 years and fine of Rs.500/- with default imprisonment and for offence under Section 309 of I.P.C. for simple imprisonment of 6 months. All the sentences have been directed to run concurrently. 2. The necessary facts for the disposal of the present appeal in short are that on 7-4-1991, at about 10:45 A.M., an F.I.R. was lodged by Gendalal (P.W.1), alleging therein that at about 6 A.M., he was sleeping in his house along with his wife. He heard the screaming and, therefore, he and his wife came out of the house and found that the appellant was assaulting his wife Munnibai. When he and his wife Smt. Sumitra Bai, tried to save the injured Munnibai, then the appellant ran after them. It was alleged that the appellant Pratap had killed his own children Ms. Rekhabai and his son Rajesh by farsa and has thereafter ran away from the spot. On the basis of the oral information given by Gendalal (P.W.1), the police registered the F.I.R. The dead bodies of Ms. Rekhabai and Rajesh, were sent for postmortem. Spot map, Ex.P.5 was prepared. Plain and blood stained earth was seized from the spot vide seizure memo Ex. P.6, P.7 and P.8. The injured Munnibai was sent for treatment. The appellant Pratap was arrested vide arrest memo Ex.P.23. The confessional statement, Ex. P.24 was recorded. At the instance of appellant, one farsa and one blood stained shirt was seized from the possession of the appellant vide seizure memo Ex.P.13. After completing the investigation, the police filed the charge sheet against the appellant for offence under Sections 302,307 and 309 of I.P.C. 3. The Trial Court by order dated 17-5-1991, framed charges under Sections 302 (on two counts), 307 and 309 of I.P.C. The appellant abjured his guilt and pleaded not guilty. 4. After completing the investigation, the police filed the charge sheet against the appellant for offence under Sections 302,307 and 309 of I.P.C. 3. The Trial Court by order dated 17-5-1991, framed charges under Sections 302 (on two counts), 307 and 309 of I.P.C. The appellant abjured his guilt and pleaded not guilty. 4. The prosecution in order to prove its case, examined Gendalal (P.W.1), Munnibai (P.W.2), Pemaram (P.W.3), Mishrilal (P.W.4), Kasiya (P.W.5), Sumitra Bai (P.W.6), Ramkobai (P.W.7), Bablu (P.W.8), Dr. Chakradhari Varma (P.W.9), Gappalal (P.W.10), Sukua (P.W.11), Radheshyam (P.W.12), Shishupal Singh (P.W.13), Dr. Rajendra Kumar Jain (P.W. 14), Lacchiram (P.W.15), Balkrishan Arya (P.W.16) and Sunil Bhaskar Joshi (P.W.17). The appellant did not examine any witness in his defence. 5. During arguments, a defence was taken by the Appellant that he is of unsound mind and the incident had taken place on account of insanity and therefore, he may be acquitted. 6. The Trial Court after considering the evidence on record as well as the defence of the appellant under Section 84 of I.P.C., convicted the appellant for offence under Section 302 (on two counts), Sections 307 and 309 of I.P.C. 7. Challenging the judgment and sentence passed by the Trial Court, it is submitted by the Counsel for the appellant that in fact the appellant was of unsound mind and the offence was committed on account of insanity. He not only killed his two minor children Ms. Rekhabai and Master Rajesh but also attempted to kill his wife Smt. Munnibai. It is further submitted that by causing injury on his neck, it is alleged that the appellant also tried to commit suicide. During the pendency of the Trial, the appellant was got examined by Doctor who had specifically opined that the appellant is not able to understand the things and he is not capable of entering defence and accordingly, not only the appellant was sent to mental asylum for treatment but the Trial Court had also stayed the further proceedings under Section 329 of Cr.P.C. 8. Per contra, it is submitted by the Counsel for the State that there is nothing on record to suggest that the appellant was insane at the time of incident. Per contra, it is submitted by the Counsel for the State that there is nothing on record to suggest that the appellant was insane at the time of incident. Merely because he was treated for insanity at subsequent point of time, and the proceedings were kept in abeyance by the Trial Court, would not mean that the appellant was insane even at the time of incident, as no document has been filed by the appellant to show that prior to incident, he was ever treated for insanity. It is further submitted that all the eye witnesses, including Munnibai (P.W.2) who was injured have specifically stated that the appellant had caused injuries to the deceased Ms. Rekhabai and Rajesh and had also caused injuries to Munnibai. It is further submitted that subsequently, the appellant also tried to commit suicide by making an attempt to cut his neck. 9. Heard the learned Counsel for the parties. 10. The first question for determination is that whether the deceased Ms. Rekhabai and Rajesh died a homicidal death and whether the injured Munnibai (P.W.2) sustained any injury or not? 11. Dr. Rajendra Kumar Jain (P.W.14) had conducted the postmortem of dead body of deceased Ms. Rekhabai, aged about 4 years and found the following injuries : ''(i) Incised wound 7 cm x 5 cm x bone deep on left side of neck. (ii) Incised wound 4cm x 2cm x 2cm on neck. (iii) Multiple abrasions on face of various size and shape.'' Cause of death of Haemorrhage shock due to injury on neck. The postmortem report of the deceased Ms. Rekhabai is Ex. P.20. 12. Dr. Rajendra Kumar Jain (P.W.14) had also conducted postmortem of dead body of deceased Rajesh, aged about 2 years and had found the following injuries : ''(i) Incised wound on upper part and right side of neck. (ii) Incised wound 3cm x 2cm x 2 cm on left shoulder.'' Cause of death was Haemorrhage because of shock due to injury on neck. The postmortem report of the deceased Rajesh is Ex. P.21. 13. Dr. Rajendra Kumar Jain (P.W.14) had also medically examined the injured Munnibai and had found the following injuries on her body : ''(i) One incised wound on back of right lower chest 2”x ½ ”x ¼ . The postmortem report of the deceased Rajesh is Ex. P.21. 13. Dr. Rajendra Kumar Jain (P.W.14) had also medically examined the injured Munnibai and had found the following injuries on her body : ''(i) One incised wound on back of right lower chest 2”x ½ ”x ¼ . ” (ii) One incised would on back of left lower chest 2”x ½ ”x ¼ .” (iii) Incised would on right should 2”x2”x bone deep. (iv) Incised wound at back of right upper chest 2”x ½ ”x bone deep. (v) Multiple linear abrasions of various size and shape on back of right upper chest. (vi) Crush injury on right ring finger. (vii) Incised wound on left index finger. (viii) Incised wound at middle of phalanx of left middle finger. (ix) Abrasion on right frontal region size 2”x ½ ”. The M.L.C. report of injured Munnibai (P.W.2) is Ex. P/15. In x-ray report, fracture of middle phalanx left middle finger, fracture of Achromian of scapular right side was found and Partial distal phalanx left ring finger was found missing. The x-ray report of injured Munnibai (P.W.2) is Ex.P.19. 14. The appellant has not challenged the injuries sustained by injured Munnibai (P.W.2) as well as the injuries sustained by the deceased Ms. Rekhabai and Rajesh and cause of their death, therefore, it is held that the deceased Ms. Rekhabai and Rajesh had met with a homicidal death whereas injured Munnibai (P.W.2) had sustained multiple incised wounds on vital parts of her body. 15. The next question for determination is that whether the appellant had suffered any injury on his body or not? 16. Dr. Chakradhari Sharma (P.W.9) has stated that on 7-4-1991, he was posted in District Hospital Guna and examined the appellant Pratap and had found the following injuries :- ''One incised wound 6cm x 6cm on middle of neck. Trachea was found cut. '' The M.L.C. report of the appellant Pratap is Ex.P.10. 17. Thus, it is clear that appellant Pratap had also sustained incised wound on his neck and on internal examination, trachea was also found cut. 18. The next question is that whether the appellant Pratap had attempted to commit suicide by causing self inflicting injury on his neck or not and whether he had caused murder of deceased Ms. Rekhabai and Rajesh and had attempted to murder his wife Munnibai (P.W.2) ? 19. 18. The next question is that whether the appellant Pratap had attempted to commit suicide by causing self inflicting injury on his neck or not and whether he had caused murder of deceased Ms. Rekhabai and Rajesh and had attempted to murder his wife Munnibai (P.W.2) ? 19. The prosecution has examined Gendalal (P.W.1), Munnibai (P.W.2),Kasia (P.W.5), Sumitrabai (P.W.6) as eye witnesses. Gendalal (P.W.1) had lodged the F.I.R. This witness has stated that on 7-4-1991 at about 6 A.M. he had seen the appellant causing injuries to his wife Munnibai (P.W.2). He saw that the appellant was causing injuries by means of farsa. When this witness tried to save her, the appellant chased him. It is further submitted that the appellant had caused injuries to his minor children Ms. Rekhabai and Rajesh. He brought Munnibai (P.W.2) to his house and She was alive. She had sustained injuries on her back, shoulder, waist etc. He also brought the dead bodies of both the children. Thereafter he lodged the F.I.R. in the police station Myana, District Guna, which is Ex.P.1. In cross examination, this witness has stated that the place of incident is adjoining to his house. The house of the appellant and the witness are situated in the same premises however, both the brothers i.e., the appellant and this witness reside separately. He has further stated that he has no information that the appellant had also tried to commit suicide. However, it was specifically stated by this witness, that the appellant was of unsound mind and therefore, he was not knowing as to what he was doing. This witness was not declared hostile by the prosecution on the question of unsound mind of the appellant. 20. Munnibai (P.W.2) has also stated that She and her children were assaulted by the appellant. However, She has specifically stated in her examination in chief, that about 2 years prior to the date of incident, the appellant became patient of unsoundness of mind and under the insanity, he had committed the offence. It was further stated that prior to the incident also, he was treated at Guna and Gwalior but his mental condition did not improve. This witness was not declared hostile by the prosecution. In cross-examination, this witness has further stated that the appellant had committed offence because of unsoundness of his mind. 21. It was further stated that prior to the incident also, he was treated at Guna and Gwalior but his mental condition did not improve. This witness was not declared hostile by the prosecution. In cross-examination, this witness has further stated that the appellant had committed offence because of unsoundness of his mind. 21. Kasia (P.W.5) has also supported the prosecution case, but this witness also stated that the appellant was of unsound mind and under the insanity, he had committed the offence. This witness was declared hostile as he had not supported the prosecution case in its entirety. However, in cross examination by the public prosecutor, this witness has stated with authority that the appellant was of unsound mind and he was also not cultivating the land because of insanity. In cross-examination by the counsel for the appellant, this witness further stated that the appellant was being treated for the last 2-3 years for mental instability. 22. Sumitra Bai (P.W.6) has also supported the prosecution story, but She has also stated that the appellant was of unsound mind and he was insane for the last 2 years prior to the date of incident. This witness was declared hostile and was cross examined by the Public Prosecutor. In cross examination, this witness has again stated that even at the time of incident, the appellant was of unsound mind and in spite of regular treatment his mental condition did not improve. 23. Pemaram (P.W.3), Mishrilal (P.W.4), Ramko bai (P.W.7) have stated that the appellant was insane. 24. Bablu (P.W.8) is a child witness and is a hearsay witness. 25. Gappalal (P.W.10) and Sukua (P.W.11) were the witnesses of oral dying declaration and have not supported the prosecution case and were declared hostile. 26. Radheshyam (P.W.12) has stated that the appellant was admitted in District Hospital, Guna. He was discharged from the Hospital on 16-4-1991.The appellant was already under arrest. The appellant made a confessional statement and at his instance, one farsa and blood stained shirt was seized from the possession of the appellant. The farsa was taken out by the appellant from a place near Nala. Both the articles were seized by seizure memo Ex.P.13. In cross examination, this witness has stated that the confessional statement of the appellant was already recorded by the investigating officer on 9-4-1991. The farsa was taken out by the appellant from a place near Nala. Both the articles were seized by seizure memo Ex.P.13. In cross examination, this witness has stated that the confessional statement of the appellant was already recorded by the investigating officer on 9-4-1991. This witness denied the suggestion that the appellant was insane for about 2-3 years prior to the date of incident. 27. Lachhiram (P.W.15) had prepared the spot map Ex. P.22. 28. Balkrishna Arya (P.W.16) is the investigating officer who had conducted the investigation. 29. From the appreciation of the evidence of Gendalal (P.W.1), Munnibai (P.W.2), Kasia (P.W.5), Sumitra Bai (P.W.6), it is proved that the appellant had caused fatal injuries to his minor children Ms. Rekhabai and Rajesh and had also caused injuries to injured Munnibai (P.W.2). Munnibai (P.W.2) is the wife of the appellant and mother of the deceased children. The F.I.R. was lodged promptly. There is no reason to disbelieve the ocular evidence of injured witness Munnibai (P.W.2). Even during arguments, the Counsel for the appellant has not challenged the findings of guilt arrived at by the Trial Court. Accordingly, it is held that the appellant had killed his two minor children, namely Ms. Rekhabai and Rajesh and had caused such injuries to injured Munnibai (P.W.2) which were sufficient in the ordinary course of its life to cause death. 30. So far as the charge under Section 309 of I.P.C. is concerned, there is no evidence on record that the appellant tried to commit suicide by causing injury to himself by cutting his neck. The appellant was admitted by Police Station Kotwali, Distt. Guna in District Hospital Guna, however, the prosecution, for the reasons best known to it has not examined any witness to show that under what circumstances, he was found by the Police Station Kotwali, District Guna. Although the Doctor Chakradhari Sharma (P.W.9) had found one incised wound on his neck, but in absence of any specific proof that the appellant had himself caused the said injury with an intention to commit suicide, the conviction of the appellant under Section 309 of I.P.C. is set aside and he is acquitted of the charge under Section 309 of I.P.C. 31. It was next contended by the Counsel for the appellant, that the appellant had committed the offence on account of unsoundness of mind and therefore, he is entitled for the benefit of Section 84 of I.P.C. 32. In support of her contention, the Counsel for the appellant relied upon the order-sheets of the Trial Court as well as on the evidence of Dr. Sunil Bhasker Joshi (P.W.17), who has stated that on 7-8-1991, the appellant was admitted in the mental ward of Central Jail, Gwalior and this witness had medically examined him. He had found that he was not capable of entering defence and his observation report is Ex.C.1. He had treated the appellant during his detention in the jail, but no improvement was found. He had treated the appellant for a year and had given electric shocks but in spite of that his mental condition did not improve. In cross-examination, this witness has admitted that he is not in a position to state that since long the appellant was insane. This witness has also stated that it is possible that the appellant might be suffering from insanity for a long time. 33. From the order sheet dated 29-7-1991 of the Trial Court, it appears that the Superintendent, Sub-Jail wrote a letter to the Trial Court requesting to send the appellant to Mental Hospital, Gwalior for treatment. The said application was allowed and it was directed by the Trial Court to send the appellant to Mental Hospital, Gwalior for treatment. Thereafter as the appellant was not produced before the Trial Court, therefore, the evidence of some of the witnesses could not be recorded. On 25-10-1991, a reply was received from the Superintendent Central Jail, Gwalior that due to non-availability of the guard, he could not be produced and accordingly, the Reserved Inspector was directed to make the Guard available. Ultimately, the appellant was produced in custody on 16-3-1992 and Balkrishna (P.W.16) was examined and the case was adjourned to 30-3-1992 for cross-examination of Radheshyam Sharma. On 30-3-1992, Radheshyam (P.W.12) was cross-examined but a request was made by the counsel for the appellant, that the appellant is insane and is not in a position to give his defence, therefore, his statement under Section 313 of Cr.P.C. may not be recorded. On 30-3-1992, Radheshyam (P.W.12) was cross-examined but a request was made by the counsel for the appellant, that the appellant is insane and is not in a position to give his defence, therefore, his statement under Section 313 of Cr.P.C. may not be recorded. In the light of the statement made by the Counsel for the appellant, the Trial Court thought it proper to get the appellant medically examined from a psychiatrist and it was directed that after receiving the report from psychiatrist, his statement under Section 313 of Cr.P.C. would be recorded. On 9-5-1992, the report of psychiatrist was received but since, the appellant was not produced therefore, the case was adjourned. An application under Section 439 of Cr.P.C. was filed for grant of bail which was rejected by order dated 22-5-1992. Thereafter, on 2-6-1992, the appellant was produced in custody, however, an observation report was sent by Central Jail Gwalior that the appellant is not capable of entering defence, therefore, the Trial Court directed the jail authorities to send the appellant to Mental Hospital, Gwalior. It appears that the appellant was released on bail, however, on 2-11-1992, the sureties filed an application that they are not in a position to control the appellant, therefore, the appellant may be taken back in custody. Accordingly, the appellant was once again taken in custody and was sent to jail. On 2-11-1992, Dr. Sunil Bhasker Joshi (PW-17) was examined on the question of insanity of appellant. Thereafter on 6-11-1992, the jail authorities were once directed to send the appellant to Mental Hospital Gwalior for treatment. On 8-1-1993, a report was received that the appellant is not capable of entering defence. Thereafter on certain dates, observation reports were submitted to the effect that the appellant is not capable of entering defence and ultimately, the Counsel for the appellant filed an application under Section 328,329 of Cr.P.C. for staying the proceedings. After considering the various reports of the appellant, the Trial Court by order dated 8-6-1994 stayed the further proceedings under Section 329 of Cr.P.C. 34. The case was adjourned from time to time awaiting the improvement of mental condition of the appellant and ultimately, a report was received from the Mental Hospital, Gwalior on 24-7-2001, that the appellant can be discharged as his mental condition has improved. The case was adjourned from time to time awaiting the improvement of mental condition of the appellant and ultimately, a report was received from the Mental Hospital, Gwalior on 24-7-2001, that the appellant can be discharged as his mental condition has improved. However, as it was not mentioned that whether the appellant is capable of entering defence or not, therefore, further report was called. On 16-8-2001, again it was mentioned by the Mental Hospital Gwalior, that the appellant is not capable of entering defence. On 18-9-2001, the appellant was produced before the Trial Court and it was observed by the Trial Court, that the appellant does not appear to be mentally sound and therefore, report was called that whether the appellant is capable of entering defence or not? Ultimately by order dated 9-3-2002, the trial resumed and the case was fixed for recording of accused evidence. Thus, it is clear that the last prosecution witness was examined on 30-3-1992 but thereafter the trial could not proceed because of mental condition of the appellant and ultimately, the Trial Court by order dated 8-6-1994 stayed the further proceedings under Section 329 of Cr.P.C. which remained stayed till 9-3-2002. During this period, various reports were received with regard to the insanity of the appellant and the appellant remained admitted in Hospital or Mental Ward of jail. Thus, it is clear that the appellant was found incapable of entering defence and therefore, the Trial was kept stayed for 10 long years i.e., from 1992 till 8-6-1994, the case was adjourned and on 8-6-1994 the Trial was stayed. Now, one fact is clear from record that immediately after the incident, the appellant was found to be of unsound mind and his insanity was to such an extent, that the Trial Court could not record his statement under Section 313 of Cr.P.C. and the proceedings before the Trial Court were kept in abeyance for 10 long years. Now, the sole question for determination is that whether the appellant is entitled for the benefit of Section 84 of Indian Penal Code or not? 35. Section 84 of Indian Penal Code reads as under :- ''84. Now, the sole question for determination is that whether the appellant is entitled for the benefit of Section 84 of Indian Penal Code or not? 35. Section 84 of Indian Penal Code 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.'' 36. The Supreme Court in the case of T.N. Lakshmaiah Vs. State of Karnataka, reported in (2002) 1 SCC 219 has held as under :- ''7. Section 84 of the Indian Penal Code 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 that what he is doing is either wrong or contrary to law. The section forms part of Chapter IV dealing with general exceptions. The importance of the Chapter was highlighted by Lord Macaulay before the House of Commons at the time of introduction of the Bill as under:- “This Chapter has been framed in order to obviate the necessity of repeating in every penal clause a considerable number of limitations. Some limitations relate only to a single provision, or to a very small class of provisions…. Every such exception evidently ought to be appended to the rule which it is intended to modify. But there are other exceptions which are common to all the penal clauses of the Code, or to a greater variety of clauses dispersed over many chapters. It would obviously be inconvenient to repeat these exceptions several times in every page. We, have, therefore, placed them in a separate chapter and, we have provided that every definition of an offence, every penal provision, and every illustration of a definition or penal provision, shall be construed subject to the provisions contained in that chapter.” 8. The principle embodied in the Chapter is based upon the maxim actus non facit reum, nisi mens sit rea i.e. an act is not criminal unless there is criminal intent. 9. The principle embodied in the Chapter is based upon the maxim actus non facit reum, nisi mens sit rea i.e. an act is not criminal unless there is criminal intent. 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. Ahmadulla 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. 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. Dealing with the plea of insanity, the scope of Section 84 IPC, the attending circumstances and the burden of proof, this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563 held: (AIR pp. Dealing with the plea of insanity, the scope of Section 84 IPC, the attending circumstances and the burden of proof, this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR 1964 SC 1563 held: (AIR pp. 1566-67, para 5) “It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of ‘shall presume’ in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a ‘prudent man’. If the material placed before the court, such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of ‘prudent man’ the accused will have discharged his burden. The accused has to satisfy the standard of a ‘prudent man’. If the material placed before the court, such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of ‘prudent man’ the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.” 12. After referring to various textbooks and the earlier pronouncements of this Court, it was further held: (AIR p. 1568, para 7) “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 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.” 13. To the same effect is the judgment in Bhikari v. State of U.P. AIR 1966 SC 1 .''' 37. The Supreme Court in the case of Bapu alias Gujraj Singh Vs. State of Rajasthan, reported in (2007) 8 SCC 66 has held as under:- ''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 IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term “insanity” itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. 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 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 Chhaganbhai Thakkar v. State of Gujarat AIR 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, appears sane. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. In all cases, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarises 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. Under Section 84 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 factors. 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 mentis (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 Misdemeanors, 12th Edn., Vol.1, p. 105; 1 Hale’s Pleas of the Crown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of this 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 reason, (see Russell, 12th Edn., Vol. 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 concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). ************ 13. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). ************ 13. The standard to be applied is whether 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 of 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.” 38. The Supreme Court in the case of Sudhakaran Vs. State of Kerala, reported in (2010) 10 SCC 582 has held as under :- ''33. This Court has on several occasions examined the standard of proof that is required to be discharged by the appellant to get the benefit of Section 84 IPC. We may make a reference here to the observation made in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat. The relevant aspects of the law and the material provisions relating to the plea of insanity were noticed and considered as follows: (AIR pp. 1566-67, para 5) “5. … Penal Code ‘299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.’ ‘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.’ Evidence Act ‘105. 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.’ Evidence Act ‘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.’ ‘4. … “Shall presume”.—Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.’ ‘3.…“Proved”.—A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”.—A fact is said to be disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.’ ‘101. Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said ‘that the burden of proof lies on that person.’ It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code. This general burden never shifts and it always rests on the prosecution. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of ‘shall presume’ in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a ‘prudent man’. If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of ‘prudent man’ the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code. If the Judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.” 34. Thereafter, upon further consideration, this Court defined the doctrine of burden of proof in the context of the plea of insanity in the following propositions: (Dahyabhai Chhaganbhai Thakkar case AIR 1964 SC 1563 p. 1568, para 7) “(1) The prosecution must prove beyond reasonable doubt that the [appellant] 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 [appellant] was not insane, when he committed the crime, in the sense laid down by Section 84 of the Penal Code: the [appellant] 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 [appellant] 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 [appellant] 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 [appellant] and in that case the court would be entitled to acquit the [appellant] on the ground that the general burden of proof resting on the prosecution was not discharged.” 35. It is also a settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 is the time when the offence is committed. We may notice here the observations made by this Court in Ratan Lal v. State of M.P. (1970) 3 SCC 533 : 1971 SCC (Cri)) 139. We may notice here the observations made by this Court in Ratan Lal v. State of M.P. (1970) 3 SCC 533 : 1971 SCC (Cri)) 139. In para 2 of the aforesaid judgment, it is held as follows: (SCC p. 533) “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 [appellant].” 39. The Supreme Court in the case of Surendra Mishra Vs. State of Jharkhand reported in (2011) 11 SCC 495 has held as under :- ''11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression “unsoundness of mind” has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term “insanity” carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the 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 affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Penal Code. 12. The next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. 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 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. Even if the accused establishes unsoundness of mind, Section 84 of the 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 T.N. Lakshmaiah v. State of Karnataka (2002) 1 SCC 219 , in which it has been held as follows: (SCC p. 224, paras 9-11) “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. Ahmadulla 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)]. 10. In State of M.P. v. Ahmadulla 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. 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.” 40. Thus, it is clear that the burden to prove that the offence was committed on account of insanity is on the accused/appellant. The Crucial point of ascertaining existence of insanity is the time when the offence is committed. Absence of motive to commit offence cannot be a ground to prove insanity. To prove the insanity or unsoundness of the mind of the accused, his previous as well as post mental status may be considered. Further every insanity is not legal insanity and there may be a case, where a person may be suffering from Medical insanity but it may not be sufficient to treat the same as legal insanity so as to give benefit of Section 84 of I.P.C. 41. Further every insanity is not legal insanity and there may be a case, where a person may be suffering from Medical insanity but it may not be sufficient to treat the same as legal insanity so as to give benefit of Section 84 of I.P.C. 41. If the facts of the case are considered, then it would be clear that the witnesses namely Gendalal (P.W.1), Munnibai (P.W.2) Kasia (P.W.5), Sumitrabai (P.W.6) Ramkobai (P.W.7) have specifically stated that the applicant was suffering from mental disorder for near about 2 years prior to the date of incident, but surprisingly, the Public Prosecutor decided not to declare Gendalal (PW-1) and Munnibai (PW-2) hostile on this issue. The Trial Court in para 21 of the judgment has held that as these witnesses had not stated about the insanity of the appellant either in the F.I.R., or in their case diary statements, therefore, it appears that they are not telling the truth before the Court. Section 145 of Evidence Act requires, that the witness has to be confronted with his/her previous statement and in absence of which any omission in the previous statement cannot be taken into consideration. 42. The Supreme Court in the case of Karan Singh Vs. State of M.P. reported in (2003) 12 SCC 587 has held as under:- ''5. When a previous statement is to be proved as an admission, the statement as such should be put to the witness and if the witness denies having given such a statement it does not amount to any admission and if it is proved that he had given such a statement the attention of the witness must be drawn to that statement. Section 145 of the Evidence Act is clear on this aspect. The object is to give the witness a chance of explaining the discrepancy or inconsistency and to clear up the particular point of ambiguity or dispute. In the instant case, Ext. D-4 statement as such was not put to the witness nor was the witness given an opportunity to explain it. Therefore, Ext. D-4 statement, even if it is assumed to be a statement of PW 1 Hari Singh, that is of no assistance to the appellants to prove their case of private defence.'' 43. The Public Prosecutor relied upon the Judgment passed by the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar Vs. Therefore, Ext. D-4 statement, even if it is assumed to be a statement of PW 1 Hari Singh, that is of no assistance to the appellants to prove their case of private defence.'' 43. The Public Prosecutor relied upon the Judgment passed by the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, reported in AIR 1964 SC 1563 , submitted that when the witnesses had not stated in their case diary statements with regard to the insanity of the appellant, then it should be presumed that the appellant was not insane either prior to incident or at the time of incident. The submission made by the Counsel for the State cannot be accepted for a single reason, that in the said case, the witnesses were confronted with their previous statements whereas in the present case, Gendalal (PW-1) and Munnibai (PW-2) were not declared hostile on the question of insanity of the appellant. The Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar (Supra) has held as under :- ''8. Now we come to the merits of the case. Ordinarily this Court in exercise of its Jurisdiction under Art. 136 of the Constitution accepts the findings of fact arrived at by the High Court. But after having gone through the judgments of the learned Additional Sessions Judge and the High Court, we are satisfied that this is an exceptional case to depart from the said practice. The learned Additional Sessions Judge rejected the evidence of the prosecution witnesses on the ground that their version was a subsequent development designed to help the accused. The learned Judges of the High Court accepted their evidence for two different reasons. Raju, J., held that a court can permit a party calling a witness to put questions under S. 154 of the Evidence Act only in the examination-in-chief of the witness; for this conclusion, he has given the following two reasons: (1) the wording of Ss. 137 and 154 of the Evidence Act indicates it, and (2) if he is permitted to put questions in the nature of cross-examination at the stage of re-examination by the party, the adverse party will have no chance of cross-examining the witness with reference to the answers given to the said questions. Neither of the two reasons, in our view, is tenable. Neither of the two reasons, in our view, is tenable. Section 137 of the Evidence Act gives only the three stages, in the examination of a witness, namely examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under S. 154 of the Evidence Act: that is governed by the provisions of S. 154 of the said Act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever, witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, (sic-re-examination) permit the person calling him as witness to put questions to him which might be put in cross-examination by the adverse party. To confine the operation of S. 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief. In the present case what happened was that some of the witnesses faithfully repeated what they had stated before the police in the examination-in-chief, but in the cross-examination they came out with the story of insanity of the accused. The court, at the request of the Advocate for the prosecution, permitted him to cross-examine the said witnesses. It is not suggested that the Advocate appearing for the accused asked for a further opportunity to cross-examine the witnesses and was denied of it by the court. The procedure followed by the learned Judge does not conflict with the express provisions of S. 154 of the Evidence Act. Mehta. J., accepted the evidence of the witnesses on the ground that the earlier statements made by them, before the police did not contradict their evidence in the court, as the non-mention of the mental state of the accused in the earlier statements was only an omission. This reason given by the learned Judge is also not sound. This Court in Tahsildar Singh v. State of U.P. (1959) Supp (2) SCR 875 at p. 903 : ( AIR 1959 SC 1012 at p. 1026) laid down the following text, for ascertaining under what circumstances an alleged omission can be relied upon to contradict the positive evidence in court: "....(3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement ....... : (ii) a negative aspect of a positive recital in a statement ......; and (iii) when the statement before the police and that before the Court cannot stand together......''Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but before the court they stated that the accused was insane and therefore, he committed the murder. In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the witnesses before the police can be used to contradict their version in the court. The judgment of the High Court, therefore, in relying upon some of the important prosecution witnesses was vitiated by the said errors of law. We would, therefore, proceed to consider the entire evidence for ourselves. 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.” 44. Further, the Trial Court has disbelieved the defence of the appellant under Section 84 of I.P.C., on the ground that in his statement under Section 313 of Cr.P.C., he had not taken a specific stand that the offence was committed on account of insanity. This singular circumstance by itself is not sufficient to discard the defence of the appellant. Another reason for discarding the defence of the appellant is the recovery of blood stained farsa and shirt. As per F.S.L. report Ex.P.25, blood was found on farsa and shirt but there is no evidence on record that whether the blood was human blood and what was the blood group. 45. The Supreme Court in the case of Kansa Behera Vs. As per F.S.L. report Ex.P.25, blood was found on farsa and shirt but there is no evidence on record that whether the blood was human blood and what was the blood group. 45. The Supreme Court in the case of Kansa Behera Vs. State of Orissa, reported in (1987) 3 SCC 480 , has held as under:- ''12. As regards the recovery of a shirt or a dhoti with bloodstains which according to the serologist’s report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small bloodstains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the bloodstains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.'' 46. Therefore, in absence of any evidence to prove that human blood was found on the farsa as well as on the Shirt recovered from the possession of the appellant, it cannot be said that the prosecution has proved beyond reasonable doubt that the seized farsa is the weapon of offence and the appellant was wearing the same shirt at the time of incident. In the present case, one important aspect of the matter is that the appellant had also sustained incised wound therefore, his shirt was bound to be stained with blood. Thus, it was obligatory on the part of the prosecution to prove that the shirt and the farsa were stained with human blood and further what was the blood group? As already mentioned, as per the F.S.L. report Ex.P.25 only blood was found on these two articles. The report is not clear that whether the blood was human blood or not. Therefore, the recovery of blood stained farsa and Shirt cannot be considered to be an incriminating circumstance. 47. As already mentioned, as per the F.S.L. report Ex.P.25 only blood was found on these two articles. The report is not clear that whether the blood was human blood or not. Therefore, the recovery of blood stained farsa and Shirt cannot be considered to be an incriminating circumstance. 47. If the facts and circumstances of the case are considered in the light of the evidence of Gendalal (P.W.1), Munnibai (P.W.2) Kasia (P.W.5), Sumitrabai (P.W.6) Ramkobai (P.W.7), it is clear that these witnesses have specifically stated that the appellant was of unsound mind for the last near about 2 years prior to the incident and he had committed the offence on account of insanity and these witnesses were either not declared hostile on this issue or nothing could be elicited from their evidence which may indicate that the appellant was not of unsound mind. Further, under the facts and circumstances of the case, non-filing of the medical documents showing the treatment of the appellant prior to incident does not appear to be fatal in the light of the subsequent mental condition of the appellant, as deposed by Dr. Sunil Bhaskar Joshi (P.W.17) as well as the fact that even the Trial had remained stayed for near about 10 long years under Section 329 of Cr.P.C. Thus, in the considered opinion of this Court, the appellant has succeeded in proving his defence that he had committed the offence on account of insanity and therefore, it is held that the appellant is entitled for the benefit of Section 84 of I.P.C. As nothing is an offence if it is committed, if by reason of unsoundness of mind, the accused was incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law, therefore, the appellant is acquitted of charges under Sections 302 (on two counts) and 307 of I.P.C. As already held that the prosecution has failed to prove that the appellant had tried to commit suicide by causing self-inflicted injury on his neck, therefore, he is also acquitted of charge under Section 309 of I.P.C. 48. The judgment and sentence dated 17-6-2002 passed by Additional Sessions Judge, Guna in S.T. No. 149/1991 is hereby set aside. 49. The appellant is not on bail, therefore, he be released immediately, if not required in any other case. 50. The appeal succeeds and is hereby allowed. The judgment and sentence dated 17-6-2002 passed by Additional Sessions Judge, Guna in S.T. No. 149/1991 is hereby set aside. 49. The appellant is not on bail, therefore, he be released immediately, if not required in any other case. 50. The appeal succeeds and is hereby allowed. Sheel Nagu, J. 1. I am in full agreement with the view taken and the foundational reasons assigned by my learned brother while acquitting the appellant. 2. However, I am compelled to write a few words to express by anguish arising from the disturbing fact of appellant having to suffer 26 (twenty six) long years of incarceration before being acquitted. 3. I in my usual nonchalance can very well turn a Nelson's eye towards this disturbing feature by terming it to be a systemic defect but my conscience impels me to do otherwise. 4. It is for the executive and as well the judiciary to take remedial steps to prevent recurrence of such instances where rendering of judgment becomes a source for remorse rather than relief. Appellant Pratap was arrested in April, 1991. Pratap faced a long drawn prosecution, interspersed by repeated stay of trial which concluded in June 2002 by convicting him whereafter this appeal took 15 (fifteen) long years to culminate into this judgment upholding the defence of innocence. 5. I hope, trust and pray to God that we judges, the executive and legislative functionaries of the State and the Union get strength and inclination to come out from our comfort zones and become more sensitive towards the grievance of the persons like appellant Pratap by making the necessary changes on the legislative, executive and judicial front to prevent another Pratap to crop up and shake our conscience again.