JUDGMENT : G.S. AHLUWALIA, J. 1. This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 20-8-2011 passed by 2nd Additional Sessions Judge, Vidisha in S.T. No. 239 of 2007, by which the appellant has been convicted under Section 302 of I.P.C. and has been sentenced to undergo Life Imprisonment and a fine of Rs. 1000/-, in default 5 months R.I. 2. The prosecution story in short is that Abhishek aged about 8 years was admitted in Surgical Ward of Distt. Hospital, Vidisha. It is alleged that the appellant had fallen down from a train, therefore, he was shifted to Distt. Hospital, Vidisha and was also admitted in the same Ward. It is alleged that on 8-6-2007, at about 6-6:15 P.M., the appellant threw the deceased Abhishek on the ground and killed him by pelting brick. The appellant was arrested on the spot. The police, registered the FIR on the basis of Dehati Nalishi lodged by Smt. Lalita Bai, mother of the deceased. The appellant was immediately shifted to Chiranjeevi Hospital and thereafter, he was shifted to Gandhi Medical College, Bhopal. The post-mortem of the dead body of Abhishek was done. The blood stained earth, brick, clothes of the deceased were seized. They were sent for Forensic Examination. The Statements of the witnesses were recorded. After completing the investigation, the police filed charge sheet for offence under Section 302 of I.P.C. 3. The Trial Court, by order dated 14-11-2002, framed charge under Section 302 of I.P.C. 4. The appellant abjured his guilt and pleaded not guilty. 5. The prosecution examined Abhilakh Singh (PW-1), Devnarayan (PW-2), B.M. Nayak (PW-3), Tilak (PW-4), Kailash (PW-5), Dr. K.M. Goyal (PW-6), Lalita bai (PW-7), Chironjilal (PW-8), Pradeep Kumar Kaushik (PW-9), Shambhu Singh (PW-10), Sanman Singh (PW-11), Dr. Rajiv Chaudhary (PW-12), Raviraj Singh Baghel (PW-13), Surendra Singh (PW-14), Premnarayan (PW-15), Niraj (PW-16), Rambabu Goswami (PW-17), Smt. Ismita Sachan (PW-18), Govindi (PW-19), Dr. C.K. Chaurasiya (PW-20), Dhyan Singh Chauhan (PW-21) and Dr. Shailendra Singh Mukati (PW-22). 6. The appellant examined Dr. N.R. Azad (DW-1) in his defence. 7. On the question as to whether the appellant is mentally fit for making his defence or not, Dr. C.P. Tiwari (CW-1) and Dr. R.N. Sahu (CW-2) were examined. 8. The Trial Court by impugned judgment and sentence, convicted and sentenced the appellant for the above mentioned offence. 9. 6. The appellant examined Dr. N.R. Azad (DW-1) in his defence. 7. On the question as to whether the appellant is mentally fit for making his defence or not, Dr. C.P. Tiwari (CW-1) and Dr. R.N. Sahu (CW-2) were examined. 8. The Trial Court by impugned judgment and sentence, convicted and sentenced the appellant for the above mentioned offence. 9. Challenging the impugned judgment and sentence, it is submitted by the Counsel for the appellant, that the appellant was thrown from a train and accordingly he was admitted in the hospital in an injured condition. He had no animosity against the deceased or his family members. It appears that the appellant was of unsound mind, therefore, he is entitled for benefit of Section 84 of I.P.C. The entire case is based on circumstantial evidence. The material eye witnesses have not supported the prosecution case. Even otherwise, the act of the appellant would not be a murder under Section 302 of I.P.C. and at the most, he can be said that he is guilty of offence under Section 304 Part I of I.P.C. The appellant is in jail from 8-6-2007 and has already completed 14 years of incarceration. 10. Per contra, the Counsel for the State has supported the findings recorded by the Trial Court. 11. Heard the learned Counsel for the parties. 12. Before adverting to the facts of the case, this Court thinks it apposite to consider as to whether the death of Abhishek was homicidal in nature or not? 13. Dr. K.M. Goyal (PW-6) had conducted the post-mortem of the dead body of Abhishek and found following injuries on his body: (i) Lacerated Wound 12 cm x 4 cm, underlying bone fracture, brain matter extending out from wound. Present over mid of forehead. (ii) Lacerated wound 4 x 2 cm present 1 inch above the first wound, underlying bone fracture. (iii) Abrasion 3 cm x 3 cm at left Zygometic arch with cheek. (iv) Abrasion 2 cm x 1 cm over left cheek. Left temporal region of skull was found compressed and on opening, there were multiple fractures of skull bones with laceration of brain tissue and all meninges. Fracture of Maxilla and Mandible were also found. Injuries were ante-mortem in nature. The death was within 3 hours of postmortem. The Post-mortem report is Ex. P.8A. 14. This witness was cross-examined. Left temporal region of skull was found compressed and on opening, there were multiple fractures of skull bones with laceration of brain tissue and all meninges. Fracture of Maxilla and Mandible were also found. Injuries were ante-mortem in nature. The death was within 3 hours of postmortem. The Post-mortem report is Ex. P.8A. 14. This witness was cross-examined. In cross-examination, this witness stated that all the injuries sustained by the deceased were prior to 3 hours. 15. By relying upon the evidence of Dr. K.M. Goyal (PW-6), it is submitted that according to the prosecution case, the incident took place sometimes between 6-6:15 P.M. and the post-mortem was conducted at 8 P.M., therefore, if the injuries were more than 3 hours old, then it is clear that the injuries must have been received by the deceased prior to 5 P.M., therefore, the prosecution story is unreliable. 16. Considered the submissions made by the Counsel for the appellant. 17. According to the prosecution story, the deceased Abhishek died on the spot. According to Dr. K.M. Goyal (PW-6), the deceased had died within 3 hours of post-mortem. Thus, the evidence of Dr. K.M. Goyal (PW-6) that the injuries were caused prior to 3 hours is contrary to his post-mortem report, Ex. P.8A as well as his evidence in para 7 of his evidence. 18. Thus, it is held that as the deceased had died on the spot and the death had taken place within a period of 3 hours, therefore, the contention of the Counsel for the appellant, that the injuries were sustained by the deceased prior to 3 hours is rejected. 19. Accordingly, it is held that the death of the deceased Abhishek was homicidal in nature. 20. The next question for consideration is that whether the appellant is the author of the injuries or not? 21. It is contended by the Counsel for the appellant, that since, the appellant was of unsound mind, therefore, he is entitled for protection under Section 84 of I.P.C. 22. Considered the submissions made by the Counsel for the appellant. 23. B.M. Naik (PW-3), who was posted as A.S.I., Police Station G.R.P., Vidisha has stated that on 8-6-2007, an information was given by Pointsman that one person is lying in between Saunrai – Sumer Railway Station and is being brought to Vidisha by Special Train No. 524, therefore arrangements be made for his treatment. 23. B.M. Naik (PW-3), who was posted as A.S.I., Police Station G.R.P., Vidisha has stated that on 8-6-2007, an information was given by Pointsman that one person is lying in between Saunrai – Sumer Railway Station and is being brought to Vidisha by Special Train No. 524, therefore arrangements be made for his treatment. This information was recorded in Rojnamchasanha at 9:45 A.M. Accordingly, the injured was attended by this witness along with Constable Laxman Prasad and Constable Suryaprakash Choubey. The injured person was lying in the compartment of Guard. He was not speaking and accordingly, he was deboarded from the train and was shifted to Govt. Hospital, Vidisha for treatment. The copy of Rojnamchasanha No. 248 and 251 were marked as Ex. P.3. Accordingly, Constable Laxman Prasad got the injured admitted in Distt. Hospital Vidisha and his returned information was recorded in Rojnamchasanha No. 255 at 12:00, Ex. P.4. 24. Since, the name of the injured was not known, therefore, his M.L.C, Ex. P.17 was prepared at 11.25 A.M. by mentioning Unknown and following injuries were found: One Abrasion over toe of right feet and no other external visible sign of injuries were present over the other part of body. The injuries was caused by hard and blunt object. 25. Dr. C.K. Chaurasia (PW-20) has proved the M.L.C., Ex. P.17. After examining the mark of identification, this witness has specifically admitted that the appellant is the same person, who was examined by this witness at the time of admission. 26. Dr. C.K. Chaurasia (PW-20) has also proved the case history of deceased Abhishek as Ex. P.19. According to this case history, the deceased Abhishek was also admitted in the District Hospital, Vidisha on 8-6-2007 at 12 P.M. and had infected wound over his forehead. At 5:00 P.M., he was medically examined and his general condition was found normal and was advised X-ray of Skull. 27. In cross-examination, this witness has stated that he had admitted the deceased Abhishek who had old infected wound with pus. He admitted that he has not mentioned as to how Abhishek had sustained infected wound. He also admitted that he had not inquired from the family members of Abhishek as to how he had sustained injury. He submitted that he had given medicines like pain killers as well as for healing of wound. 28. He admitted that he has not mentioned as to how Abhishek had sustained infected wound. He also admitted that he had not inquired from the family members of Abhishek as to how he had sustained injury. He submitted that he had given medicines like pain killers as well as for healing of wound. 28. Thus, it is clear that at the time of admission, the deceased Abhishek had only one old infected injury and none else. 29. It is the case of the prosecution that the appellant took the boy with him and after throwing him on the ground, assaulted him by a brick as a result, the boy died instantaneously and the appellant was captured by the people who were present on the spot. 30. Abhilkah Singh (PW-1) had brought Dehati Nalishi, for registration of F.I.R. and handed over the same to T.I. D.S. Chauhan and accordingly, F.I.R. in Crime No. 412/2007 was written by H. Constable Rambabu Goswami, Ex. P.1. This witness was not cross-examined. 31. Devnarayan (PW-2) has stated that he was admitted in the hospital. He had seen one boy in dead condition, but thereafter, he turned hostile and did not support the prosecution story. 32. Tilak (PW-4) has also turned hostile and has not supported the prosecution case. 33. Kailash (PW-5) has also turned hostile and did not support the prosecution case. 34. Lalitabai (PW-7) is the mother of the deceased. She has stated that her elder brother-in-law had caused an injury on the head of the deceased by an axe accordingly, the deceased Abhishek was admitted in the hospital. One more person was also admitted on the adjoining bed. He approached this witness and sought permission to take the boy for playing with him. This witness identified the appellant in the Court and pointed out that the appellant is the same person, who had sought permission from her. Thereafter, the appellant took the boy with him. After some time, the appellant threw the boy on the ground and also assaulted by a brick on his head. The appellant was caught by the persons who were present there. The police also came on the spot and the appellant was taken in custody. Her son had died on the spot. His brain matter was coming out. Her husband had gone to fetch water. The appellant was caught by the persons who were present there. The police also came on the spot and the appellant was taken in custody. Her son had died on the spot. His brain matter was coming out. Her husband had gone to fetch water. Later on, she came to know that the name of the assailant is Ram Bahadur and is a foreign national. The spot map was prepared which bears her thumb impression. 35. In cross-examination, this witness has stated that 2-3 days prior to the date of incident, some dispute arose and accordingly her elder brother-in-law (Jeth) gave an axe blow on his forehead and since, the treatment was not possible in her village, therefore, the boy was got admitted in Vidisha. She denied that her elder brother-in-law Munshilal had met with her after the assault was made by him. She denied that Munshilal was aware that the boy has been admitted in the hospital. She further stated that the appellant was also admitted on the adjoining bad. She further admitted that the appellant had enquired about her whereabouts. She further stated that when the appellant took the deceased with him, she stayed back on the bed. She went outside after hearing the noise. After seeing the condition of her son, She fell unconscious. When She reached on the spot, her son was already lying on the ground. 25-30 persons had already gathered there. Doctors had also come there. She further admitted that there were 10 beds on either side of the bed on which the deceased was admitted. The ward has 5 doors. She further admitted that there were three galleries. She admitted that her son was lying near the Latrine Bathroom and is Pacca place. She further stated that her son was not lying on the open space. She denied for want of knowledge that the appellant was admitted in the hospital, as he had fallen down from the train. Her statements were recorded by the police immediately after the incident. 36. Chironjilal (PW-8) is the father of the deceased. He has stated that his elder brother had given an axe blow on the head of his son. He had lodged a report. His son was admitted in the hospital. Her statements were recorded by the police immediately after the incident. 36. Chironjilal (PW-8) is the father of the deceased. He has stated that his elder brother had given an axe blow on the head of his son. He had lodged a report. His son was admitted in the hospital. On the day of admission of his son, at about 6-6:15 P.M., this witness had gone to make a telephonic call to Patel, as he was in need of money. When he returned back, he found that his son was dead. He was informed by his wife and the persons present on the spot, that the appellant had thrown his son on the ground and thereafter assaulted by brick, as a result his son has expired. His wife had lodged the report. The safina form for preparation of Lash Panchnama is Ex. P.10 and Lash Panchnama is Ex. P.11. Thus, it is clear that this witness is a hearsay witness. 37. Pradeep Kumar Kaushik (PW-9) is the Sub-Station Superintendent. He stated that he was posted as Sub-Station Superintendent at Railway Station Vidisha. On 8-6-2007, he was informed by Station Master of Saunrai Railway Station, that one person has fallen from the train and is injured and is being brought to Vidisha by Train No. 524, and a request was made to make necessary arrangements for his treatment. The written requisition was sent to G.R.P., Vidisha, Ex. P.8. 38. Shambhu Singh (PW-10) has seized the clothes of the deceased vide seizure memo Ex. P.12. 39. Sanman Singh (PW-11) has claimed himself to be an eyewitness. He stated that he had seen the appellant throwing the deceased on the ground. Thereafter, Lash Panchnama, Ex. P. 11 was prepared and his signatures on Safina Form, Ex. P.10 were obtained. In cross-examination, this witness fairly conceded that the police had not recorded his statement, and he is stating for the first time in the Court, that he had seen the appellant, throwing the boy on the ground. The Trial Court has disbelieved this witness on the question of witnessing the incident. 40. Dr. Rajeev Choudhary (PW-12) has stated that on 8-6-2007, one person was admitted by the police at 10 P.M. He was conscious but was not speaking. He was kept in the hospital for the night and on the next day, he was discharged at 3:30. The Trial Court has disbelieved this witness on the question of witnessing the incident. 40. Dr. Rajeev Choudhary (PW-12) has stated that on 8-6-2007, one person was admitted by the police at 10 P.M. He was conscious but was not speaking. He was kept in the hospital for the night and on the next day, he was discharged at 3:30. On the next day, that person was speaking in Nepali language, and accordingly, a Nepali language knowing person was called who informed that the name of the appellant is Ram Bahadur. The discharge ticket is Ex. P.13. This witness also identified the appellant in dock. 41. In cross-examination, this witness has stated that he had not given any document to the police, pertaining to the Admission of the appellant. The condition of the patient at the time of discharge is mentioned in Ex. P.13. He further stated that he was informed that the person had fallen from the train and initially he was admitted in the Govt. Hospital. He further stated that all the movements of the appellant were normal except that he was not speaking. 42. Raviraj Singh Baghel (PW-13) had filled up Mulahiza form, Ex. P.8 of deceased Abhishek. 43. Surendra Singh (PW-14) has stated that on the report of Chironjilal (PW-8), charge sheet was filed against Munshilal, Krantibai for offence under Section 323, 324, 294 and 506/34 of I.P.C. and similarly, on the report of Munshilal, charge sheet was filed against Chironjilal (PW-8), Lalita bai (PW-7) for offence under Sections 323, 294, 324, 506/34 of I.P.C. 44. Premnarayan (PW-15) is also the witness of Lash Panchnama, Ex. P. 11 and had also signed Safina form, Ex. P.10. 45. Neeraj (PW-16) has stated that the mother of the boy had gone to fetch water. At that time, one patient went outside the ward, thereafter, he heard the noise like Dham-Dham from the Gallery. The mother of the boy also came there and started shouting that her son has been killed. A person like appellant was also admitted in the ward, however, this witness could not say with certainty as to whether the appellant was admitted in the ward or not. Thereafter, lot of persons gathered there and started beating. The blood stained earth, two pieces of bricks were seized vide seizure memo Ex. P.14. A person like appellant was also admitted in the ward, however, this witness could not say with certainty as to whether the appellant was admitted in the ward or not. Thereafter, lot of persons gathered there and started beating. The blood stained earth, two pieces of bricks were seized vide seizure memo Ex. P.14. He further admitted that one person was admitted in the hospital and was allotted bed no. 6, whereas the deceased Abhishek was admitted on Bed no. 5. However, denied that the person admitted on bed no. 6 had taken away the boy. This witness was declared hostile. 46. Ram Babu Goswami (PW-17) registered the F.I.R. 47. Smt. Ismita Sachan (PW-18) has stated that She was posted as Staff Nurse in Distt. Hospital, Vidisha. A boy with head injury was admitted on bed no. 5, whereas one person who had fallen from the train was admitted on bed no. 6. She was on duty from 2 to 8 P.M. She was on round with Dr. Ashok Jain. At that time, there was an uproar. She went to the spot and found that the deceased was lying on the ground and his brain matter was coming out. Thereafter, She went to call Dr. Goyal. The mob had captured one person and also informed that he had thrown the boy on the ground. The boy was examined by Dr. Goyal, who informed that the boy has expired. Thereafter, the police also reached there and took person in its custody. Later on, the case sheet of the boy was seized vide seizure memo Ex. P.16. She further stated that the person who was taken into custody was the same person who was admitted on bed no. 6. The persons standing there had informed that the same person has killed the boy. However, this witness was unable to identify the appellant in the dock. 48. Govindi (PW-19) has turned hostile. 49. D.S. Chouhan (PW-21) is the investigating Officer. 50. Thus, it is clear that the entire prosecution case hinges around the evidence of Lalita bai (PW-7), Chironjilal (PW-8) and to some extent, Smt. Ismita Sachan (PW-20). 51. In order to take advantage of Section 84 of Indian Penal Code, it is submitted by Shri Padam Singh that after the appellant was shifted to Gandhi Medical College Bhopal, his behavior was not found to be normal. 51. In order to take advantage of Section 84 of Indian Penal Code, it is submitted by Shri Padam Singh that after the appellant was shifted to Gandhi Medical College Bhopal, his behavior was not found to be normal. To buttress his contention, the Counsel for the appellant has referred to medical Sheet Ex. D2C to show that the appellant used to get aggressive and also used to attack others. Thus, it is submitted that the appellant was of unsound mind, therefore, he is entitled for the benefit of Section 84 of IPC. 52. Heard the learned Counsel for the appellant on the question of unsoundness of mind. 53. Before considering the arguments, this Court, thinks it apposite to consider the law in relation to Section 84 of I.P.C. 54. The Supreme Court in the case of Hari Singh Gond vs. State of M.P. (2008) 16 SCC 109 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 I.P.C. 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 vs. 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 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. 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 I.P.C., 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. 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 facit reum nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). 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 facit reum 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 (furiosi nulla voluntas est). 11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, p. 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognises nothing but incapacity to realise the nature of the act and presumes that where a man’s mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. This Court in Sheralli Wali Mohammed vs. State of Maharashtra, (1973) 4 SCC 79 held that: (SCC p. 79) “… The mere fact that no motive has been proved why the accused murdered his wife and children or the fact that he made no attempt to run away when the door was broke open, would not indicate that he was insane or that he did not have necessary mens rea for the commission of the offence.” Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M’Naughton rules of 19th century England. The provisions of Section 84 are in substance the same as that laid down in the answers of the Judges to the questions put to them by the House of Lords, in M’Naughton case, (1843) 4 St Tr NS 847 (HL). Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender’s mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. 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.” In the case of Bapu vs. State of Rajasthan, (2007) 8 SCC 66 , the Supreme Court has held as under: “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). 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). 11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, p. 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognises nothing but incapacity to realise the nature of the act and presumes that where a man’s mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. This Court in Sheralli Wali Mohd. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. This Court in Sheralli Wali Mohd. vs. State of Maharashtra, (1973) 4 SCC 79 held that: (SCC p. 79) “The mere fact that no motive has been proved why the accused murdered his wife and children or the fact that he made no attempt to run away when the door was broken open, would not indicate that he was insane or that he did not have the necessary mens rea for the commission of the offence.” 12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M’Naughton rules of 19th century England. The provisions of Section 84 are in substance the same as those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M’Naughton’s case (1843) 4 St Tr NS 847 (HL). Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender’s mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. 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.” In the case of Sudhakaran vs. State of Kerala, AIR 2011 SC 265 , the Supreme Court has held as under: “19. 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 the case of Ratan Lal vs. State of Madhya Pradesh, 1970 (3) SCC 533 . In Paragraph 2 of the aforesaid judgment, it is held as follows: “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.” The Supreme Court in the case of Surendra Mishra vs. State of Jharkhand, AIR 2011 SC 627 has held as under: “7. From a plain reading of the aforesaid provision it is evident 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 what is unsoundness of mind? But what is unsoundness of mind? This Court had the occasion to consider this question in the case of Bapu alias Gujraj Singh vs. State of Rajasthan, (2007) 8 SCC 66 : 2007 AIR SCW 3808, in which it has been held as follows: “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, of 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.” 8. The scope and ambit of the Section 84 of the Indian Penal Code also came up for consideration before this Court in the case of Hari Singh Gond vs. State of Madhya Pradesh, (2008) 16 SCC 109 : AIR 2009 SC 31 in which it has been held as follows: 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 I.P.C.. 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.” 9. 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. 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 behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code. 10. Next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him. Reference in this connection can be made to a decision of this Court in the case of T.N. Lakshmaiah vs. State of Karnataka, (2002) 1 SCC 219 : AIR 2001 SC 3828 , in which it has been held as follows: “9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case. 10. In State of M.P. vs. Ahmadull, AIR 1961 SC 998 , this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. 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.” The Supreme Court in the case of T.N. Lakshmaiah vs. State of Karnataka, (2002) 1 SCC 219 has held as under: 7. Section 84 of the Penal Code, 1860 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. 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. 10. In State of M.P. v. Ahmadulla 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 Penal Code, 1860 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 I.P.C., the attending circumstances and the burden of proof, this Court in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat 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 Penal Code, 1860. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Penal Code, 1860 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. But, Section 84 of the Penal Code, 1860 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, 1860. 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. 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 Penal Code, 1860: 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 vs. State of U.P. 55. If the evidence which has come on record is considered, then it appears that the appellant had fallen from a train and had sustained injury, but that was on toe of his right feet. There is nothing on record to suggest that the appellant had suffered any head injury as a result of which, the appellant had lost his mental control. Further, there is nothing on record to suggest that the appellant was ever suffering from unsoundness of mind. There are two types of insanity i.e., Medical Insanity and Legal Insanity. There is nothing on record to suggest that the appellant had suffered any head injury as a result of which, the appellant had lost his mental control. Further, there is nothing on record to suggest that the appellant was ever suffering from unsoundness of mind. There are two types of insanity i.e., Medical Insanity and Legal Insanity. Under Section 84 of I.P.C., 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 burden to prove insanity is on the accused. It is submitted by the Counsel for the State that it is incorrect to say that the appellant was of unsound mind. On 9-6-2007 i.e., on the next date of incident, the appellant wrote in his Nepali language about his background which is Ex. P. 24 and its translation is also Ex. P.24. In the said letter, he had mentioned that “he was going to Hyderabad along with his brother and two more persons. His brother was killed by gundas and he was thrown out of the train. He had lodged report with G.R.P. Since, he had come to India for the first time, therefore, there was nobody to listen to him. Nobody was able to understand his language, therefore, he was under tension.” Thus, it is submitted that since, the appellant was the citizen of Nepal, therefore, he was finding it difficult to communicate with local persons, but he was not of unsound mind, otherwise, he could not have written his plight. 56. Further, in order to attract the provisions of Section 84 of I.P.C., the accused must prove, that he was of unsound mind at the time of commission of offence. There is nothing on record to suggest that the appellant was of unsound mind at the time of commission of offence. 57. Further, no application under Section 328 of Cr.P.C. was ever filed for stay of trial. There is nothing on record to suggest that the appellant was of unsound mind at the time of commission of offence. 57. Further, no application under Section 328 of Cr.P.C. was ever filed for stay of trial. However, it appears that in an application for grant of bail, a ground was raised that the appellant is of unsound mind, therefore, the Trial Court on its own directed for an enquiry and after examining the witnesses, by order dated 3-9-2009, came to the conclusion that the appellant is fit to make his defence. 58. Furthermore, as per Jail Record, Ex. D.2C it is clear that the appellant was having his meals and used to talk. However, from the jail record it also appears that some times, the appellant used to become aggressive and used to attack the other persons. It is also clear that on some occasions, it was observed, that the appellant was not having sleep. Be that as it may. Remaining in aggression and attacking others, cannot be equated with unsoundness of mind. However, the jail record shows that the conduct of the appellant was not normal. Abnormal behavior does not mean that the appellant was suffering from Legal insanity. Therefore, this Court is of the considered opinion, that the appellant has failed to prove that he was suffering from Legal Insanity at the time of commission of offence. Hence, the submission of unsoundness of mind of the appellant is hereby rejected. However, it is clear that the behavior of the appellant was not normal. 59. The next question for consideration is as to whether the appellant had committed the offence alleged against him or not? 60. The incident is alleged to have taken place around 6 – 6:15 P.M. The appellant was also admitted in the same ward. In the bed head ticket of the appellant, Ex. P.18 it is mentioned that “at 5:15 P.M., the appellant was not found on the bed”. Thus, it is clear that the appellant was not on bed at the time when the Doctor was taking round. Further, according to Lalitabai (PW-7) it was the appellant who took the boy with him for playing purposes and immediately thereafter, the boy was found dead with head injury. Thus, there is an evidence of last seen together. 61. Thus, it is clear that the appellant was not on bed at the time when the Doctor was taking round. Further, according to Lalitabai (PW-7) it was the appellant who took the boy with him for playing purposes and immediately thereafter, the boy was found dead with head injury. Thus, there is an evidence of last seen together. 61. The Supreme Court in the case of Shailendra Rajdev Pasvan vs. State of Gujarat, (2020) 14 SCC 750 has held as under: 15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In Bodhraj vs. State of J&K, Rambraksh vs. State of Chhattisgarh, Anjan Kumar Sarma vs. State of Assam following principle of law, in this regard, has been enunciated: (Shailendra Rajdev Pasvan case, SCC Online Guj 16) “16. …The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.” The Supreme Court in the case of Ashok vs. State of Maharashtra, (2015) 4 SCC 393 has held as under: 12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt. Here another judgment in Harivadan Babubhai Patel vs. State of Gujarat, would be relevant. In this case, this Court found that the time-gap between the death of the deceased and the time when he was last seen with the accused may also be relevant. The Supreme Court in the case of Mahavir Singh (Supra) has held as under: 12. Undoubtedly, it is a settled legal proposition that the last seen theory comes into play only in a case where the time-gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead (sic is small). Since the gap is very small there may not be any possibility that any person other than the accused may be the author of the crime............ The Supreme Court in the case of Jagroop Singh (Supra) has held as under: 27. Quite apart from the above, what is argued is that there is a long gap between the last seen and recovery of the dead body of the deceased. As per the material on record, the informant searched for his son in the village in the late evening and next day in the morning he went to the fields and the dead body was found. The post-mortem report indicates that the death had occurred within 24 hours. Thus, the duration is not so long as to defeat or frustrate the version of the prosecution. The post-mortem report indicates that the death had occurred within 24 hours. Thus, the duration is not so long as to defeat or frustrate the version of the prosecution. Therefore, there can be no trace of doubt that the deceased was last seen in the company of the accused persons. 62. In the present case, the time gap between last seen together and the death of the boy is of few minutes. Thus, there is a close proximity between the circumstance of last seen together and the death of the boy. 63. Furthermore, according to Smt. Ismita Sachan (PW-20), the person who was admitted on bed no. 6 was caught hold by the persons. She further stated that the person who was admitted on bed no. 6 had fallen from the train. Although Smt. Ismita Sachan (PW-20) was unable to identify the appellant in the dock, but since, it was the appellant only, who was admitted in the hospital, as he had fallen from the train, therefore, it is clear that the appellant was captured by the people on the spot itself and later on, he was taken into custody by the police. 64. By referring to F.S.L. report, Ex. P.25, it is submitted by the Counsel for the appellant, that since, the blood stains were not found on the brick, therefore, it is clear that the allegations made against the appellant are false. 65. The submissions made by the Counsel for the appellant cannot be accepted. Mere absence of blood on the brick cannot be a ground to discard the prosecution story specifically when the dead body of the boy was found on the spot with lacerated wound on his head along with multiple fractures of his skull bone and his brain matter was also coming out. 66. Accordingly, it is held that it was the appellant who assaulted the deceased Abhishek by brick after throwing him on the ground. 67. It is next contended by the Counsel for the appellant, that the appellant is the citizen of Nepal, he was going to Hyderabad by train. From his written background, Ex. P.24, it is clear that some miscreants killed his brother and threw him out of the train and therefore, possibility of injury to his head is not ruled out. Furthermore, the appellant had no grudge against the deceased or his family member. He had no motive. From his written background, Ex. P.24, it is clear that some miscreants killed his brother and threw him out of the train and therefore, possibility of injury to his head is not ruled out. Furthermore, the appellant had no grudge against the deceased or his family member. He had no motive. Further, it is clear from the jail record, Ex. P. D2C that his behavior was not normal, and sometimes, the appellant used to become aggressive and was also attacking the other inmates of jail, therefore, the act of the appellant would not be that of murder but it would be a culpable homicide not amounting to murder. 68. Heard the learned Counsel for the parties. 69. The Supreme Court in the case of Veeran vs. State of M.P. (2011) 11 SCC 367 , while considering the distinction between Section 299 and 300 of I.P.C. has held as under: “17. Also, the fine distinction between Section 299 and Section 300 I.P.C. has been eloquently and beautifully carved out by Hon’ble Dr. Justice Arijit Pasayat in a recent judgment, after considering all the previous judgments of this Court. We may quote profitably the following paragraphs of the judgment in Thangaiya vs. State of Tamil Nadu, (2005) 9 SCC 650 : (SCC pp. 656-57, paras 17-20) “17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh vs. State of Punjab, AIR 1958 SC 465 for the applicability of clause ‘Thirdly’ is now ingrained in our legal system and has become part of the rule of law. Under clause ‘Thirdly’ of Section 300 I.P.C., culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. 18. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. 18. Thus, according to the rule laid down in Virsa Singh case AIR 1958 SC 465 even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. 19. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons—being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. 20. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.” 70. If the facts of this case are considered in the light of the above mentioned law, then it is clear that the appellant is the citizen of Nepal and was going to Hyderabad on a train. It was found that one person had fallen down from the train and accordingly, he was shifted to Vidisha and was admitted in Distt. Hospital, Vidisha by G.R.P., Vidisha. The appellant was also admitted in the same ward in which the deceased Abhishek was admitted. The appellant was admitted on bed no. It was found that one person had fallen down from the train and accordingly, he was shifted to Vidisha and was admitted in Distt. Hospital, Vidisha by G.R.P., Vidisha. The appellant was also admitted in the same ward in which the deceased Abhishek was admitted. The appellant was admitted on bed no. 6 whereas Abhishek was admitted on bed no. 5. The appellant took away the boy with him after taking permission from Lalitabai (PW-7). Thereafter, the boy was found in a dead condition. All the eye-witnesses have turned hostile and therefore, it is not known that in what manner, the boy was killed. However, the appellant was caught hold by the mob on the spot itself. The appellant was shifted to Chiranjeevi Hospital and from thereafter, he was shifted to Gandhi Medical College, Bhopal. According to Dr. R.N. Sahu, CW-2, he had treated the appellant. The appellant was suffering from Psychosis. However, it was further stated that such persons are capable of making their defence in the Court. The patients of psychosis can recover. Dr. Sahu CW-2 had examined the appellant in the month of Feb. 2009 and at that time, he was normal. In cross-examination, this witness has also stated that the patient of psychosis usually commits offence not deliberately or intentionally but being the patient of psychosis . He further stated that the patients of psychosis are not in a position to understand as to what is correct or what is wrong. Further, it is clear from the jail record, Ex. D.2C, the behavior of the appellant at the time of his admission in jail was not normal and he was very aggressive and was attacking the other inmates. Thus, considering the physical/mental condition of the appellant, it is held that although he was not suffering from Legal Insanity, but he was certainly suffering from psychosis. Further, he had no grudge against the deceased or his family members. The appellant was a complete stranger. No motive has been proved. Thus, it is held that the act of the appellant would fall under Section 304 Part I of I.P.C. and not under Section 302 of I.P.C. 71. Accordingly, the conviction of the appellant under Section 302 of I.P.C. is modified and he is convicted for offence under Section 304 Part I I.P.C. instead of Section 302 of I.P.C. 72. Thus, it is held that the act of the appellant would fall under Section 304 Part I of I.P.C. and not under Section 302 of I.P.C. 71. Accordingly, the conviction of the appellant under Section 302 of I.P.C. is modified and he is convicted for offence under Section 304 Part I I.P.C. instead of Section 302 of I.P.C. 72. So far as the question of sentence is concerned, although the maximum sentence for offence under Section 304 Part I I.P.C. is Life Imprisonment, but the manner in which the incident took place, it is held that lessor sentence can be awarded. The appellant was arrested on 8-6-2007 and was never released on bail during trial. Even in the present appeal, he was never released on bail. Thus, it is clear that the appellant is in jail from 8-6-2007 and thus, he has completed more than 14 years of sentence. Accordingly, he is awarded the jail sentence already undergone by him with fine of Rs.1000/-. In default of payment of fine amount, the appellant shall undergo the Rigorous Imprisonment of one month. 73. With aforesaid modification, the judgment and sentence dated 20-8-2011 passed by 2nd Additional Sessions Judge, Vidisha in S.T. No. 239 of 2007 is hereby Affirmed. 74. The appellant is in jail. He be released immediately, if not required in any other case. Let a copy of this judgment be immediately provided to the appellant, free of cost. 75. The office is directed to immediately send the record of the Trial Court alongwith copy of the judgment for necessary information and compliance. 76. The appeal succeeds and is allowed to the extent mentioned above.