ORDER : 1. The instant criminal appeal is being preferred under Section 374 of Cr.P.C. against the judgment of conviction and order of sentence dated 05th September, 2008 passed in S.T. No. 266/2007 by the Second Additional Sessions Judge, Ashoknagar, Guna whereby appellant-Girijashankar has been convicted under Section 302 of IPC and sentenced for Life Imprisonment along with fine of Rs. 50,000/- with default stipulation. 2. As per the case of the prosecution, on 02.06.2007 at Police Station Isagarh, Sarpanch Lal Shahab through telephone, intimated that at village Khiriya Devat, Girijashankar and Brijesh have killed Laxman and Shivchanran Kushwaha. On such intimation, marg was registered and ASI-Hradesh Pal reached the spot where complainant-Bundel Singh lodged a report on which Dehati Nalsi was noted down and the offence was registered. On investigation, it was found that the deceased Laxman and Shivcharan were working at Girijashankar's house as manual labours and they were killed by Girijanshankar, Brijesh and Ramswaroop @ Bal Swaroop by an axe and the reason for murders was related to wages. After preparation of spot map and autopsy of corpse, statements of complainant's witnesses were recorded and charge-sheet was filed before the competent criminal Court. 3. One accused-Ramswaroop @ Bal Swaroop remained in absconsion therefore, it appears that separate charge-sheet was filed against him vide S.T. No. 146/2008, in which judgment dated 05.08.2008 was passed and accused Ramswaroop @ Balswaroop was acquitted from the charge of Section 302/34 of IPC. 4. In the present case, accused-Girijashankar and Brijesh abjured their guilt and trial was conducted. Statement of Girijashankar under Section 313 of Cr.P.C. was recorded in which he stated that complainant-Bundel Singh has falsely implicated him because of previous animosity. He is a lunatic, underwent medical treatment at Gwalior whereas accused Brijesh took the defence of plea of alibi because according to him, on the relevant date, he went to Tighra temple for worship. Villagers have falsely implicated him. On behalf of the accused, Vivekanand Goswami (DW-1) deposed on oath and accused-Girijashankar under Section 315 of Cr.P.C. appeared as defence witness (DW-2). 5. The trial Court considered the statements of the parties and defence taken as well as the documentary evidence produced by them and thereafter, convicted the present appellant-Girijashankar for the offence under Section 302 of IPC for Life Imprisonment with fine of Rs. 5. The trial Court considered the statements of the parties and defence taken as well as the documentary evidence produced by them and thereafter, convicted the present appellant-Girijashankar for the offence under Section 302 of IPC for Life Imprisonment with fine of Rs. 50,000/- with default stipulation and another accused Brijesh was acquitted from the charge of Section 302 of IPC, therefore, this appeal has been preferred at the instance of appellant Girijashankar. 6. According to counsel for the appellant, Girijashankar was suffering from mental disorder and he was a lunatic. Evidence of the witnesses established his lunacy and a report was also obtained by the trial Court from the jail authorities which also indicates that appellant was a lunatic and therefore, he was liable for acquittal in terms of Section 84 of IPC because he never knew the effect and result of his action, if at all he is found to be involved in the murder of deceased Laxman and Shivcharan Kushwaha. He and his father both suffer from mental disorder. 7. Another ground raised by the counsel for the appellant is the own conduct of the appellant whereby after the incident, Bhanu and Babulal took him to police station wherein before SHO (Daroga), he admitted the fact that he killed two Kushwahas of Khiriya Devat. This fact suggest that he was suffering from mental disorder and did not know the actual effect of his conduct. Learned counsel for the appellant also referred the FSL report vide Ex. P-21 and P-24 and submits that the blood report has not been matched with the blood of the accused as well as blood of the deceased/victims therefore, relying upon the judgment of the Hon'ble Apex Court in the case of Kansa Behera vs. State of Orissa, AIR 1987 SC 1507 , he pleads innocence for the appellant. It is further submitted on behalf of the appellant that telephonic intimation cannot be termed as FIR and on the basis of telephonic intimation, prosecution could not establish the case regarding implication of appellant in the murder of Laxman and Shivcharan Kushwaha. It was the submission of the appellant that when other two accused have been acquitted on same set of facts then the trial Court erred in convicting the present appellant on same set of facts. He deserves acquittal. 8. It was the submission of the appellant that when other two accused have been acquitted on same set of facts then the trial Court erred in convicting the present appellant on same set of facts. He deserves acquittal. 8. Learned counsel for the appellant also raised the point about excessive fine imposed by the trial Court over the appellant and also submitted that in default of non-payment of fine of five years, additional RI has been awarded which is very excessive in nature looking to the poor financial condition of the appellant therefore, he prayed for waiver of fine amount and/or reduction of sentence of five years in lieu thereof. 9. Per contra, learned Public Prosecutor for the State, Smt. Pachori matched the vehemence of the counsel for the appellant and supported the impugned judgment. According to her, appellant could not produce any documentary evidence before the trial Court to establish the fact about his lunacy. In fact enquiry was conducted by the trial Court, wherein report was obtained from the jail superintendent and as per the report, the conduct of the appellant-accused-Girijashankar was discrete enough to conclude about his mental equilibrium. Even during trial, appellant remained calm and quiet. So far as variance of FSL report is concerned, she relied upon the judgment of the Apex Court in the case of R. Shaji vs. State of Kerala, 2013 (14) SCC 266 and submits that minor variation of serologist report can be overlooked. Eye witnesses and other witnesses supported the story of the prosecution and extra judicial confession made by the appellant established his guilt. She prayed for dismissal of the appeal. 10. It is also submitted by her that if appellant has not deposited the fine amount then he will have to suffer additional jail sentence of five years as directed by the trial Court and he cannot be shown any leniency in this regard. 11. Heard the learned counsel for the parties at length and perused the record. 12. Telephonic information given by Sarpanch refers the name of present appellant-Girijashankar as the person who killed the deceased Laxman and Shivcharan. Dehati Nalsi (Ex. P-2) also refers the name of present appellant Girijashankar as the person who killed the deceased persons. Dehati Nalsi has been lodged immediately after the incident and therefore, can be relied upon as corroborative piece of evidence. Dehati Nalsi (Ex. P-2) also refers the name of present appellant Girijashankar as the person who killed the deceased persons. Dehati Nalsi has been lodged immediately after the incident and therefore, can be relied upon as corroborative piece of evidence. The allegations of the prosecution is that the deceased Laxman and Shivcharna were hired by the appellant for house repairing work (Khaprel ka Kam) and spot map (Ex. P-3) indicates the work of repairing of Khaprel was underway. Postmortem report of the deceased Laxman and Shivcharan (Ex. P-10) and (Ex. P-11) respectively, indicates that he suffered Incised Wounds mainly (with abrasion and contusion marks) and the nature of injuries were sufficient to cause death, therefore, cause of death, was homicidal in nature. Extra judicial confession was made by the appellant before Bhanu, Kalyan, Ashok and Anant Singh etc. and the same is affirmed by Babulal (PW-1) in his statement and the weapon (axe) seized vide Ex. P-15 from the possession of Kalyan Singh indicates the role of appellant-Girijashankar in such gruesome act. 13. Bundel Singh (PW-2) is the eye witness, who in his testimony in para 2 categorically mentioned the course of incident wherein he saw present appellant-Girijashankar inflicting the blow of axe over deceased Shivcharan on his Head (side and back) and he saw the neck of deceased Laxman virtually separated from his trunk and lying over the ground and the deceased Laxman was killed by the present appellant Girijashankar by the axe. He narrates the incident in such a fashion that it appears that he somehow escaped from the clutches of Girijashankar because Girijashankar was on a spree of manhunt. He called Ram Bharose, Dhanu and Balkishan and also called Chokidar. Dhanu (PW-4) also narrates the incident in almost same fashion. Both the witnesses refer the presence of Brijesh and Ramswaroop @ Balswaroop but role of wielding axe to kill the deceased Laxman and Shivcharan is attributed only to Girijashankar. During cross-examination, he remained un-rebutted. Lallu @ Rambharose (PW-7) also deposed in the Court and he attributed the role of Girijashankar on oath in almost same manner. Although present witness is the son of deceased Laxman and therefore, may be termed as interested witness but his testimony cannot be rejected out-rightly, only on this pretext. Although his evidence is to be seen with bit caution. Lallu @ Rambharose (PW-7) also deposed in the Court and he attributed the role of Girijashankar on oath in almost same manner. Although present witness is the son of deceased Laxman and therefore, may be termed as interested witness but his testimony cannot be rejected out-rightly, only on this pretext. Although his evidence is to be seen with bit caution. Since his evidence is corroborated and supported effectively by other eye witnesses therefore, no reason exists to disbelieve him. Besides that, no major contradictions, omissions or inconsistencies exist viz-a-viz the narration of other witnesses to bring home the conclusion about his unreliability. 14. Dr. S.S. Chari (PW-9) gave medical opinion about the injuries sustained by the deceased Laxman and Shivcharan. The nature of injuries referred, are as under:- ^^e`rd y{e.k dh yk'k dk vkarfjd ijh{k.k djus ij fuEu ik;k Fkk & e`rd ds flj ds ck;s rjQ dh gM~Mh VwVh gqbZ Fkh] ljokbZdy o Vhch dVh gqbZ FkhA efLr"d dk ck;k fgLlk {kfrxzLr gksdj Qalk gqvk FkkA [kkus dh FkSyh esa ipk gqvk Hkkstu Fkk ftldh lrg lysVh jax dh Fkh] NksVh cMh vkarksa esa ey Hkjk gqvk FkkA [kwu ls yriFk diM+s lhYMdj Fkkuk bZlkx<+ Fkkuk ÁHkkjh dks ijh{k.k gsrq Hksts x;s Fks ¼1½ ,d Vh'kVZ lQsn uhyh /kkjhnkj ¼2½ ,d lQsn lkQh ¼3½ ,d lQsn /kksrh lhYM dj ijh{k.k dks Hksts x;s FksA** 15. The said injuries are sustained by an axe wielded by the appellant and Dr. Chari (PW-9) has given opinion that injuries to Shivcharan (injuries No. 1, 2 and 3) and to Laxman (injuries No. 2, 3) were sustained by the sharp cutting weapon like an axe whereas Shivcharan sustained injuries (injury No. 4) and Laxman (injuries No. 1, 4, 5 and 6) from any hard and blunt object. In the fit of rage, it is possible that appellant/accused used both sides of the weapon (axe) to crush the deceased. Therefore, medical evidence in effect, corroborates the course of events the way it precipitated and then culminated. Statements of seizure witness Kalyan Singh alongwith Babulal (PW-1) establish the seizure of weapon used by the appellant in this gruesome act. They also supported the extra judicial confession made by the appellant. Interesting to note that this extra judicial confession was not made under police custody or was not under any coercion or duress, it was made on his own volition by the appellant. They also supported the extra judicial confession made by the appellant. Interesting to note that this extra judicial confession was not made under police custody or was not under any coercion or duress, it was made on his own volition by the appellant. It might be possible that feeling of killing two innocents followed after the gory act, might have persuaded him for repentance or for penance but such extra judicial confession supported by the testimony of witnesses makes liable the appellant for conviction under Section 302 of IPC because through rigors of punishment and confinement, he can absolve himself from such feelings. 16. Section 84 of IPC gives protection to a person who cannot comprehend his act or omission while committing any offence. The benefit of mental in-comprehensiveness can act only be given to those persons who are really affected by the disability caused by nature to their sensory perceptions as well as limitation of mental and cognitive faculties. Any act of rage or anger, cannot absolve a person from criminal liability. 17. The Hon'ble Apex Court in the case of State of Rajasthan vs. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602 has discussed this aspect in following words: "15. The corollary that follows from the above is whether having committed the charged offence, the respondent is entitled to the benefit of the general exception contained in Section 84, Chapter IV of the IPC? 16. Section 84 states that: "84. Act of 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 what he is doing is either wrong or contrary to law." It is obvious from a bare reading of this provision that what may be generally an offence would not be so if the ingredients of Section 84 IPC are satisfied. It is an exception to the general rule. Thus, a person who is proved to have committed an offence, would not be deemed guilty, if he falls in any of the general exceptions stated under this Chapter. 17. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntus est. Thus, a person who is proved to have committed an offence, would not be deemed guilty, if he falls in any of the general exceptions stated under this Chapter. 17. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior. 18. In the case of Surendra Mishra vs. State of Jharkhand, the Court was dealing with a case where the accused was charged for an offence under Section 302 IPC and Section 27 of the Arms Act. While denying the protection of Section 84 of the IPC to the accused, the Court held as under:- "11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian 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 behavior or the behavior is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code." 19. From the abovestated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto. The onus would be on the accused to prove by expert evidence that he is suffering from such a mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability." 18. Chapter XXV of the Code of Criminal Procedure provides a mechanism for such benefits wherein under Sections 328 and 329 of Cr.P.C. enquiry can be made by the trial Court regarding mental status of an accused and even trial can be withheld, but here in the present case enquiry report was sought from the jail authorities and jail authorities had given report about his mental well being in specific terms. In the report, it was referred that appellant is behaving like a normal person in jail. He also behaved practically normal during trial. No medical evidence in the form of long drawn treatment of appellant was placed on record to bring home the fact about his lunacy. Oral evidence although indicates that he was mentally disturbed but that disturbance was because of the rage or anger he sustained or because of some mental disorder, he committed such offence was not proved by defence successfully. Such inclination of mind could not be established in absence of defence evidence, therefore, at this juncture, this Court cannot reach to the conclusion in absence of any documentary evidence or in absence of any enquiry successfully conducted in favour of accused in this regard to conclude that the accused was a lunatic. It is possible that accused might have been a short tempered man but that does not absolve him from criminal liability ipso facto and he cannot wriggle out from indictment on this pretext. 19. It is possible that accused might have been a short tempered man but that does not absolve him from criminal liability ipso facto and he cannot wriggle out from indictment on this pretext. 19. Pleadings of lunacy cannot be taken as the cloak to absolve from the criminal liability in a routine manner, it is a sovereign's prudent legal gesture encoded under Section 84 of IPC for an actual mentally disordered person to shield him from the wrath of indictment. It is always to be seen that the mechanism provided to avail such benefit under Section 328 and 329 of Cr.P.C. is followed and an enquiry should be made by the trial Court in specific terms and a person who is seeking the benefit of Chapter XXV of the Code of Criminal Procedure may prove his innocence as per the provisions contained into it. 20. Therefore, the case in hand does not fall under the category where the appellant can be given benefit of lunacy or exigencies provided under Section 84 of IPC. 21. On the basis of cumulative analysis, due vetting of testimonies of witnesses as well as documentary evidence, this Court comes to the conclusion about indictment of the appellant-Girijashankar. 22. So far as the ground raised by the appellant regarding acquittal of other co-accused persons are concerned, no role has been attributed in specific terms of other co-accused persons by the prosecution. Right from telephonic massage to Dehati Nalsi and by the different witnesses, conclusion drawn was about the role of present appellant-Girijashankar in killing the deceased Laxman and Shivcharan. Even if their presence could have been established, then any intention or common intention without being established, they could not have been fastened the liability with the aid of Section 34 of IPC. Even otherwise, State has not filed any appeal against the order of acquittal of other co-accused, Brijesh and Ramswaroop @ Bal Swaroop therefore their alleged role does require elaboration. Appellant cannot get advantage of their acquittal. 23. So far as submission regarding absolvement from fine is concerned, imposition of fine of Rs. 50,000/- with default stipulation to undergo five years rigorous imprisonment separately by the accused appears to be worth consideration because here the trial Court has adopted harsh view in respect of imposition of fine with default stipulation to the extent of five years of rigorous imprisonment. 24. 50,000/- with default stipulation to undergo five years rigorous imprisonment separately by the accused appears to be worth consideration because here the trial Court has adopted harsh view in respect of imposition of fine with default stipulation to the extent of five years of rigorous imprisonment. 24. In fact, the term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of nonpayment of fine. A term of imprisonment ordered in default of fine stands on a different footing and therefore, he can always avoid to undergo imprisonment in default of payment of fine by paying such amount, whereas the sentence is something which an offender must undergo, unless it is set aside or remitted in part or in whole, either in appeal, or in revision, or in other appropriate judicial proceedings or otherwise. A General Principle of Law reflected under Section 363 to 370 of IPC is that the amount of fine should not be harsh or excessive. 25. In the case of Emperor vs. Mendi Ali M. AIR 1941 (All) 310 , the Apex Court has held that when the Sessions Judge imposed the maximum punishment of imprisonment of ten years under Section 304 Part-I and imposed fine of Rs. 100/- or to undergo RI for one year then in a suo moto revision, the High Court observed in the following manner:- "So far as the fine is concerned, I cannot think it is proper, in the case of a poor peasant, to add to a very long term of substantive imprisonment a fine which there is no reasonable prospect of the accused man paying and for default in paying which he will have to undergo a yet further term of imprisonment. And, in my judgment, without venturing to say whether it is a course which is strictly in accordance with the law or not, I cannot help thinking that it becomes all the more undesirable to impose such a fine where the term of imprisonment to be undergone in default will bring the aggregate sentence of imprisonment to more than the maximum term of imprisonment sanctioned by the particular section under which he is convicted. I venture to think that Judges should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment." 26. I venture to think that Judges should exercise a careful discretion in the matter of superimposing fines upon long substantive terms of imprisonment." 26. A decision of the Hon'ble Apex Court in the case of Palaniappa Gounder vs. State of Tamil Nadu, 1997 (2) SCC 634, can be profitably referred to in which the Apex Court had considered the provisions of IPC as also Cr.P.C. and observed that the Court has the power to impose a sentence of fine and if fine is imposed on an offender, it would be challenged as contrary to law. The Court derived beautiful expression to mandate that:- "9. But legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. Though, therefore, the High Court had the power to impose on the appellant a sentence of fine along with the sentence of life imprisonment the question still arises whether a sentence of fine of Rs. 20,000/- is justified in the circumstances of the case. Economic offences are generally visited with heavy fines because an offender who has enriched himself unconscionably or unjustifiably by violating economic laws can be assumed legitimately to possess the means to pay that fine. He must disgorge his ill-gotten wealth. But quite different considerations would, in the generality of cases, apply to matters of the present kind. Though there is power to combine a sentence of death with a sentence of fine that power is sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. In fact, the common trend of sentencing is that even a sentence of life imprisonment is seldom combine with a heavy sentence of fine. In fact, the common trend of sentencing is that even a sentence of life imprisonment is seldom combine with a heavy sentence of fine. We cannot, of course, go so far as to express approval of the unqualified view taken in some of the cases that a sentence of fine for an offence of murder is wholly "inapposite" (for example, State vs. Pandurang Tatyasaheb Shinde, AIR 1956 Bom 711 ), but before imposing the sentence of fine, particularly a heavy fine, alongwith the sentence of death or life imprisonment, one must pause to consider whether the sentence of fine is at all called for and if so, what is a proper or adequate fine to impose in the circumstances of the case. As observed by this Court in Adamji Umar Dalai vs. State of Bombay, AIR 1952 SC 14 , determination of the right measure of punishment is often a point of great difficulty and no hard-and-fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations but the Court must always bear in mind the necessity of maintaining a proportion between the offence and the penalty proposed for it. Speaking for the Court, Mahajan J. observed in that case that: 5...........In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases." Though that case related to an economic offence, this Court reduced the sentence of fine from Rs. 42,300 to Rs. 4,000 on the ground that due regard was not paid by the lower Court to the principles governing the imposition of a sentence of fine." 27. Similarly, in the case of Shantilal vs. State of M.P. (2007) 11 SCC 243 , this Court again had the occasion to confront the similar fact situation and in the said case, appeal of convict was partly allowed and order of payment of fine of Rs. 1,00,000/- was upheld, but the period for which the said accused has to undergo in default of payment of fine was reduced from three years to six months. 1,00,000/- was upheld, but the period for which the said accused has to undergo in default of payment of fine was reduced from three years to six months. Here in the present case, fact situation suggest that appellant-Girijashankar is a man of humble background and it appears that by this time, family of appellant may or may not be standing with him and his financial means may not be sufficient enough to pay the fine amount and therefore, he may have to suffer additional five years imprisonment, which is being granted by the trial Court on much higher side. These additional five years may come in conflict with remission laws of the State also which may give some respite to the appellant because of his overall conduct in jail. It would amounting to snatch away the relief from one hand while extending through another. 28. Here in the present case, agony of the appellant may aggravate because of the fact that he is convicted for double murder and fine of Rs. 50,000/- (each totaling Rs. 1,00,000/-) have been awarded therefore, it is excessive in the facts and circumstances of the case as well as the over all social/financial condition of the appellant. 29. This aspect has been considered by the Hon'ble Apex Court in the case of Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat, (2013) 1 SCC 570 and recently in the case of Sharad Hiru Kolambe vs. State of Maharastra and Others by the Apex Court vide order dated 20th September, 2018 in Cr. A. No. 1209/2018 (arising out of SLP (Cri.) No. 8067/2018), wherein the default sentence has been reduced in the given fact situation of the case. We intend to tread on the same path in respect of reduction of default sentence. 30. Trial Court must always bear in mind the necessity of maintaining the proportion between the offence and the fine proposed and sentence awarded in default of non-payment of fine and a careful discretion should be exercised while considering pecuniary circumstances of the accused persons. as to the character and magnitude of the offence and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases. as to the character and magnitude of the offence and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases. Therefore, in the considered opinion of this Court, fine amount shall remain intact but the period for suffering RI for five years in default of payment of fine is reduced to RI for one year. To that extent, appeal filed by the appellant-Girijashankar is allowed but so far as, the indictment under Section 302 of IPC is concerned, appeal stands dismissed. 31. Resultantly, the appeal filed by the appellant Girijashankar so far as conviction and sentence regarding Section 302 of IPC is concerned, stands dismissed, but appeal so far as reduction of period of imprisonment on account of default in making payment of fine is concerned, it stands modified and imprisonment of five years in default is reduced to one year. 32. Appeal stands dismissed with above mentioned modification.