JUDGMENT : This Criminal Appeal is arising out of the Judgment dated 26.10.2009 passed by the First Additional Sessions Judge, Chhatarpur in Sessions Trial No.260/2008, whereby the appellant has been convicted for offence punishable under Section 302 of the IPC for commission of murder of deceased Nathua @ Natthu Kushwaha and sentenced to imprisonment for life and fine of Rs. 100/-; in default of payment of fine, additional rigorous imprisonment for three months. The appellant has also been convicted for offence punishable under Section 323 of the IPC for causing injury to Jhalua Kushwara and sentenced to simple imprisonment for one year. Both the sentences are ordered to run concurrently. 2. The story of the prosecution, in brief, is that on 5.9.2008 Nathua Kushwaha (hereinafter referred to as ‘the deceased’) had gone to the field of Jhalua Kushwaha (hereinafter to be referred to ‘the injured’) as a matter of routine with his bullocks. At about 12.00 Noon, Balkishan Kushwaha, the son of the deceased went to the said field for giving food to his father/deceased. The deceased after having meals laid down there in the field for taking rest. The injured Jhalua Kushwaha was also there. Balkishan (P.W.3) and Sukhlal Yadav were sitting and talking. At 3.00 P.M., the appellant/accused armed with lathi and brick came there from the side of fencing of the field and uttered to kill the deceased and the injured both. He also said that the deceased got his crops grazed by his animals in the previous year and this year also they would repeat the same. The appellant assaulted the deceased with the brick on his head on account of which, the deceased fell down and the blood started oozing from his head. Jhalua, Balkishan and Sukhlal intervened, then the appellant also assaulted Jhalua by brick. Thereafter, the appellant/accused again inflicted lathi blows to Nathua on his head and back on account of which Nathua Kushwaha became unconscious. Jhalua Kushwaha was also assaulted by lathi on his head and hand on account of which blood started oozing. After committing marpeet accused Ramkripal ran away from there. Both the injured were brought to the house where Nathua Kushwaha died. Jhalua Kushwaha was taken to District Hospital Chhatarpur for medical treatment. On 05.09.2008 itself at 4:00 p.m. Balkishan Kushwaha (PW-3) lodged the first information report (Ex.P-12) at police station Bameetha. Malkhan Singh, Inspector (PW-11) investigated the matter. After committing marpeet accused Ramkripal ran away from there. Both the injured were brought to the house where Nathua Kushwaha died. Jhalua Kushwaha was taken to District Hospital Chhatarpur for medical treatment. On 05.09.2008 itself at 4:00 p.m. Balkishan Kushwaha (PW-3) lodged the first information report (Ex.P-12) at police station Bameetha. Malkhan Singh, Inspector (PW-11) investigated the matter. Spot map Ex.P-5 was prepared. Panchnama of dead body was also prepared and postmortem was conducted. On the basis of memorandum of accused Ex.P-1, lathi and brick were recovered from his possession vide seizure memo Ex.P-2. 3. After completing the investigation, charge-sheet was filed before the Chief Judicial Magistrate, Chhatarpur who committed the case to the Sessions Court on 20.10.2008 for trial. The trial Court framed the charges under Sections 302 and 323 of the I.P.C. against the appellant. The accused abjured the guilt and claimed that he has been falsely implicated. 4. During trial, the prosecution examined as many as 11 witnesses in all. Statements of the accused under Section 313 of Cr.P.C. were recorded. He pleaded that he has been falsely implicated and no defence witness has been examined by the accused. The trial Court after appreciating the evidence on record and hearing the parties convicted and sentenced the appellant as mentioned above. 5. We have heard learned counsel for the parties at length. 6. Complainant Balkishan (P.W.3) who has lodged FIR (Ex.P.12) has deposed that the accused is resident of his village and the deceased was his father. He has further deposed in examination-in-chief that his father was killed by the appellant. On the date of incident, his father had gone to the field for grazing the bullock, where he, Jhalua and Pooran were also there. He deposed that he had gone to the field with lunch. The appellant and Sukhkal both were there together. He further deposed that the appellant gave two blows of lathi and one blow of brick on his father’s head, on account of which, his father died on the spot. At the same time, the appellant also assaulted Jhalua with one lathi’s blow. He further deposed that thereafter he, Pooran, Harichandra and Manni took the deceased to the house keeping him on a cot. He reported the matter at Police Station Bameetha. He further deposed that he is illiterate and used to put his thumb impression. At the same time, the appellant also assaulted Jhalua with one lathi’s blow. He further deposed that thereafter he, Pooran, Harichandra and Manni took the deceased to the house keeping him on a cot. He reported the matter at Police Station Bameetha. He further deposed that he is illiterate and used to put his thumb impression. In para 2 of his deposition, this witness has deposed that injured Jhalua was taken by his sons to the hospital at Chhatarpur. The complainant stated that there was no inimical terms of his father with the appellant. 7. The complainant Balkishan (P.W.3) on being cross-examination has stated that when he reached to the field at 12.00 Noon, the appellant was there. He denied the fact that the appellant was abusing his father at that time. In para 4, he has admitted that as soon as his father laid down to rest, appellant Ramkripal assaulted the deceased with a lathi 3-4 times and one of lathi’s blows stuck on his back. The appellant had assaulted with lathi on his father’s hands and legs. His father became unconscious immediately. He further stated that nothing was sown in his field and animals used to graze there and his father had gone to the field for grazing animals. His father used to graze for bullocks and two cows. In para 5 of his cross-examination, this witness stated that the head and clothes of his father were drenched with blood. He took his father to his house on a cot and on the way his father had died. In para 6 of his crossexamination, the complainant stated that on the date of incident when his father was getting the animals grazed in the field, there was no previous quarrel in connection with that field. The field of the appellant was adjacent to the spot of incident. No injury was sustained on any part of body of his father except on his head. The appellant caused only one blow of brick on the deceased. The appellant sown crop (urada) in his field. This witness has denied that the appellant is insane. In para 7 of his cross-examination, he has denied the fact that the appellant did not cause injuries to his father. In para 8 of his cross-examination, he has stated that the incident was occurred in presence of him. 8. The appellant sown crop (urada) in his field. This witness has denied that the appellant is insane. In para 7 of his cross-examination, he has denied the fact that the appellant did not cause injuries to his father. In para 8 of his cross-examination, he has stated that the incident was occurred in presence of him. 8. P.W.4 Pooran Kushwaha has deposed that he was getting his animals grazed on the date of incident. He saw from very far that the accused/appellant has assaulted the deceased and the injured with lathi. On his reaching on the spot, appellant had already run away. He deposed that the complainant Balkishan was also there. While taking the deceased to home on a cot, he has died and the injured Jhalua was taken by his son to Chhatarpur for treatment. On being cross-examination, this witness has stated that on his reaching on the spot, the appellant ran away and the deceased was lying under a tree of Jhalla in an unconscious condition and the blood was oozing from the injury. In para 4 of the cross-examination, this witness has denied the fact that the appellant was mentally sick. He has admitted that there was no dispute regarding land between the appellant and the deceased. 9. P.W.5 Sukhlal was also present on the spot of incident but he turned hostile. On being cross-examined by the public prosecution, he has stated that he has not seen the appellant assaulting the deceased and the injured with brick and lathi. In para 4, this witness has admitted that the appellant was insane and he was being treated at Gwalior for his insanity. 10. Another eye witness is P.W.10 Jhalua Kushwaha, to whom the appellant caused injuries on the date of incident, which are simple injuries as per MLC Ex.P.10. He deposed that on the date of incident, he and the deceased both were sitting together. Then appellant armed with lathi and brick came there and assaulted this witness on his head. He fell down and became unconscious. On being intervened by the deceased Nathura, the appellant also assaulted the deceased on his head. In para 3 on being cross-examined by the defence counsel, this witness has stated that there was no previous enmity between the appellant and the deceased. He also stated that the appellant was insane and was treated at Gwalior. 11. On being intervened by the deceased Nathura, the appellant also assaulted the deceased on his head. In para 3 on being cross-examined by the defence counsel, this witness has stated that there was no previous enmity between the appellant and the deceased. He also stated that the appellant was insane and was treated at Gwalior. 11. Balkishore (P.W.1) is a witness of memorandum of disclosure (Ex.P.1), seizure memo (Ex.P.2) regarding seizure of lathi and brick and memo of arrest of accused (Ex.P..3). This witness in cross-examination in para 2 has stated that he knows the accused from his childhood. The accused was suffering from mental disorder and because of his mental disorder, his family members used to keep him tied during night hours. Kishori (P.W.2) is also a witness to the proceedings of the investigation. In Para 2 of his cross-examination, he also stated that mental condition of the accused was not good as he was insane. 12. Dr. Vinit Sharma (P.W.9) has conducted the post-mortem of the dead-body of deceased Nathua. As per his opinion, the cause of death is head injury leading to coma. As per his post mortem report (Ex..P.11), following injuries were found on the body of the deceased. (i) Two lacerated wounds present at back of head:- (a) 4 cm x 3 cm at upper right back of head with underlying depressed fracture of skull of similar diameter exposing dura matter which is intact fracture line is extended upto back of right ear. (b) 6 cm x 0.5 cm at left lower back of head. (ii) Two contusions:- (a) 16 x 3 cm at right upper back starting from neck upto middle part of back. (b) 20 x 3 cm at right side of back, oblique in direction starting from lower part of right axilla upto right gluteal region. Above mentioned injuries are ante-morten in nature and injury no. (i)( a) is sufficient to cause death. 13. P.W.8 Dr. S.K. Gupta has examined injured Jhalua and found four injuries. As per his opinion, these injuries were found to be caused by hard and blunt object and the same are simple in nature. As per MLC (Ex.P.10), the injuries sustained by the injured are as under:- 1. Lacerated wound on forehead right side -2 ‘’ x ½ ‘’ skin deep. 2. Abrasion on frontal region of skull - 2’’ x 1/2’’ 3. As per MLC (Ex.P.10), the injuries sustained by the injured are as under:- 1. Lacerated wound on forehead right side -2 ‘’ x ½ ‘’ skin deep. 2. Abrasion on frontal region of skull - 2’’ x 1/2’’ 3. Abrasion on right forearm- 1 ½’’ x 1 ‘’. 4. Abrasion on right leg- 1 ½ ‘’ x 1’’. 14. Learned counsel for the appellant has contended that the impugned judgment may be set aside and the appellant may be acquitted giving benefit of exception under Section 84 of the IPC as the appellant was insane and he was taken to Mental Hospital at Gwalior and treated there. In this regard, learned counsel appearing on behalf of the appellant relies upon a judgment laid down by the Supreme Court in the case of Devi Das Loka Rathod Vs. State of Maharashtra (2018) 7 SCC 718 and prayed that benefit of Section 84 of the IPC be extended as the prosecution has failed to lead any evidence in rebuttal and failed to establish the case beyond reasonable doubt against the appellant. 15. In the judgment rendered in the case of Devi Das Loka Rathod Vs. State of Maharashtra (2018) 7 SCC 718 , the Apex Court held as under:- “10. The law undoubtedly presumes that every person committing an offence is sane and liable for his acts, though in specified circumstances it may be rebut table. The doctrine of burden of proof in the context of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat: ( AIR 1964 SC 1563 ) (AIR p. 1568, para 7) “(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 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”. 11. Section 84 IPC carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts. The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra Vs. State of Jharkhand (2011) 11 SCC 495 , after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State of Rajasthan Vs. Shera Ram (2012) 1SCC 602, as follows: (Shera Ram case, SCC p. 614, para 19) “19 …. 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. 12. The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal Vs. State of M.P. (1970) 3 SCC 533 , as followed: (SCC pp. 533-34, para 2) “2. State of M.P. (1970) 3 SCC 533 , as followed: (SCC pp. 533-34, para 2) “2. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. In Dahyabhai Chhanganbhai Thakkar Vs. State of Gujarat AIR 1964 SC 1563 it was laid down that “there is a rebut table presumption that the accused was not insane, when he committed the crime, in the sense laid down by the Section 84 of the Penal Code, the accused may rebut it by placing before the court all the relevant evidence – oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings.” 13. If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, be shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh Vs. State of U.P. (1990) 3 SCC 190 14. We shall now consider the sufficiency of other medical and defence evidence to examine if a reasonable doubt is created with the regard to the mental state of the appellant at the time of commission of the assault on a preponderance of probability, coupled with the complete lack of consideration of the evidence of PW 14. Merely because an injured witness, who may legitimately be classified as an interested witness for obvious reasons, may have stated that the appellant was not of unsound mind, cannot absolve the primary duty of the prosecution to establish its case beyond all reasonable doubt explaining why the plea for unsoundness of mind taken by the accused was untenable. 22. We are therefore of the considered opinion, that the appellant has been able to create sufficient doubt in our mind that he is entitled to the benefit of the exception under Section 84 of the IPC because of the preponderance of his medical condition at the time of occurrence, as revealed from the materials and evidence on record. The prosecution cannot be said to have established its case beyond all reasonable doubt. The prosecution cannot be said to have established its case beyond all reasonable doubt. The appellant is therefore entitled to the benefit of doubt and consequent acquittal. The appeal is allowed. He is directed to be released from custody unless wanted in any other case.” 16. The learned trial Court has discussed the plea taken by the accused in his defence for extending the benefit of exception under Section 84 of the IPC in paras 14, 15, 16 and 17 of the impugned judgment and rejected it, though the trial Court has recorded a finding that from the perusal of evidence of P.W.1 Balkishore, P.W.2 Kishori, P.W.5 Sukhlal and P.W.10 Jhalua, it appears that the mental condition of the accused is not completely good. However, from marshalling of the evidence of the prosecution witnesses on record including the medical evidence and admissions made by themselves that the accused was insane and he was treated at Mental Hospital, Gwalior. Though, it is stated that the accused was not a mad man but still it is admitted that he had some insanity. In the absence of any such evidence in rebuttal while the burden of proof was on the part of the prosecution to prove beyond reasonable doubt that the appellant was not of unsound mind and was capable of knowing the nature of the act or what he is doing is either wrong or contrary to law, the trial Court ought to have acquitted the appellant extending the benefit of provisions of Section 84 of the IPC. 17. In view of the judgment rendered by the Apex Court in the case of Devidas Loka Rathod (supra) and perusing the evidence available on record, the impugned judgment passed by the trial Court is set aside and the appellant is acquitted of the charges under Sections 302 and 323 of the IPC extending the benefit of provision of Section 84 of the IPC. The incident had occurred on 5.9.2008 and it is stated that the appellant was arrested on same date. Thus, the appellant is stated to be in custody for more than 10 years. He be set at liberty, if not required in any other case. 18. Consequently, this appeal stands allowed and disposed of.