JUDGMENT ON BOARD : Arvind Singh Chandel, J. 1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) has been filed by the appellant herein calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 18.01.2018 passed by the Additional Sessions Judge, Fast Track Court, South Bastar, Dantewada, Chhattisgarh in Sessions Trial No.139/2012, whereby the appellant has been convicted under Section 302 of the Indian Penal Code (hereinafter referred to as ‘the IPC’) and sentenced to undergo imprisonment for life and with fine of Rs.100/-, in default of payment thereof, he has to undergo additional rigorous imprisonment for one month and he has been further convicted under Section 307 (3 counts) of the IPC and sentenced to undergo rigorous imprisonment for ten years and with fine of Rs.100/- (3 counts), in default of payment thereof, he has to undergo additional rigorous imprisonment for one month. Both the jail sentences are directed to run concurrently. 2. Prosecution story in brief is that on 08.07.2012, after having lunch, Kheduram Sori, Constable No.960 (PW-07), Lakhmuram, Constable No.666 (PW-08) and Bablu Barsa, Constable No.33 (PW-13) were washing their hands and cleaning their utensils at hand pump and at that point of time appellant Suresh Kujur (Constable No.393), who was laced with S.L.R. Rile in his hand, reached near the hand pump and after filling in chamber of the magazine started firing at them with intention to kill them and when he missed the shots, all of them present there started running around and took shelter. When the appellant did not see anyone, he started running towards Morcha No.1 where he found constable No.647, namely, Golmundru (deceased) and shot him on his back due to which he suffered grievous injuries on his body and died on the spot. 3. Morgue intimation (Ex.P/6) regarding death of Constable Golmudru (deceased) was recorded by Shatrughan Nag, A.S.I. (PW-11). He also lodged First Information Report (Ex.P/5) in Police Station Pamed, District Bijapur (C.G.). Vide Property Seizure Memo (Ex.P/4) total three empty cartridges and blood stained soil were seized. One S.L.R. rile and 17 live cartridges were seized from possession of the appellant. Inquest proceeding was conducted vide Ex.P/7A and the dead body of Golmudru was subjected to post-mortem examination which was conducted by Dr. Vide Property Seizure Memo (Ex.P/4) total three empty cartridges and blood stained soil were seized. One S.L.R. rile and 17 live cartridges were seized from possession of the appellant. Inquest proceeding was conducted vide Ex.P/7A and the dead body of Golmudru was subjected to post-mortem examination which was conducted by Dr. G.S. Dhruw (PW-6) and post-mortem report is Ex.P/02 in which cause of death is opined as syncope & severe hemorrhage, injuries are reported to be anti-mortem and nature of death is reported to be homicidal. Statements of witnesses were recorded under Section 161 of the CrPC. 4. On completion of the investigation, the appellant was charge- sheeted for the aforesaid charges before the concerned jurisdictional Criminal Court from where the case was committed to the Court of Session and after committal, the matter was received by the Court of Additional Sessions Judge, Fast Track Court, South Bastar, Dantewada for trial in accordance with law, in which the appellant abjured the guilt, took a plea of false implication and entreated for trial. 5. During the course of trial, in order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 11 documents. In defence, three witnesses were examined. Statement of the appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication. 6. After trial, the Trial Court, on appreciation of the oral and documentary evidence available on record, by the impugned judgment dated 18.01.2018 reached to the conclusion that the prosecution has been able to duly establish its case beyond reasonable doubt and accordingly convicted the appellant for the aforesaid offences and sentenced him in the manner as mentioned earlier in this judgment, which led to filing of the present appeal. 7. Mr. Shikhar Bakhtiyar, learned Counsel appearing for the appellant would submit that the Trial Court has wrongly convicted the appellant without there being sufficient and clinching evidence against him. He would further submit that the Trial Court has not appreciated the evidence that the appellant is a person of unsound mind. On perusal of statements of defence witnesses, namely, Dr. Satish Shrivastava (DW-01), Dr. Mariyam Vatsala (DW-02) and Sunita Kujur (DW-03), it is duly established that at the time of the alleged act, the appellant was suffering from unsoundness of mind. On perusal of statements of defence witnesses, namely, Dr. Satish Shrivastava (DW-01), Dr. Mariyam Vatsala (DW-02) and Sunita Kujur (DW-03), it is duly established that at the time of the alleged act, the appellant was suffering from unsoundness of mind. Therefore, he is entitled to get benefit of Section 84 of the IPC which states 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 he is doing what is either wrong or contrary to law’. Thus, the conviction of the appellant for the aforementioned offences is not sustainable. Reliance has been placed on Devidas Loka Rathod Vs. State of Maharasthra, (2018) 7 SCC 718 ; Vijayee Singh Vs. State of Uttar Pradesh, (1990) 3 SCC 190 and Mohan Lal V. State of Rajasthan, 2022 SCC Online Raj 185. 8. Mr. Ankur Kashyap, learned Dy. Government Advocate raised his objection on the submission made by learned Counsel for the appellant and submitted that the Trial Court considering the entire evidence available on record has rightly convicted the appellant for the aforesaid offences. Further, the defence has been unable to establish the fact that at the time of the alleged incident, the appellant was a person of unsound mind and, therefore, he is not entitled to get benefit of Section 84 of the IPC. 9. We have heard the rival submissions made by learned counsel for the parties and gone through the evidence on record with utmost circumspection. 10. Whether the death of deceased Golmudru was homicidal in nature is answered by the Trial Court in affirmative relying upon the post-mortem report, Exhibit P/02, which is proved by Dr. G.S. Dhruw (PW-06) and the cause of death is opined as syncope & severe hemorrhage, which, in our considered opinion, is a correct finding of fact based on the evidence available on record and it is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding of the Trial Court. 11. Now, the next question which arises for consideration is whether the appellant is the author of the crime, the finding of the Trial Court in this regard is based upon the unrebutted statements of Kheduram (PW-07), Lakhmu Ram (PW-08) and Bablu Basra (PW-13) who were working with the appellant. 11. Now, the next question which arises for consideration is whether the appellant is the author of the crime, the finding of the Trial Court in this regard is based upon the unrebutted statements of Kheduram (PW-07), Lakhmu Ram (PW-08) and Bablu Basra (PW-13) who were working with the appellant. In their Court statements, they categorically deposed that on the date of incident, when they were washing their hands and cleaning their utensils at the hand pump, at that point of time, appellant Suresh Kujur came with SLR rile in hand and after filling in the chamber of the magazine, started firing at them with the intention to kill them and when he missed the shots, he ran towards Morcha No.1, where he found Golmudru hiding and he fired on him due to which he died on the spot. Though these three witnesses survived from being shot by the appellant, he had fired on them with the intention to commit their murder. This fact is not rebutted during their cross-examination. There is nothing specific in their cross- examination on the basis of which their statements could be disbelieved. From the statements of these witnesses, it is well-established that on the date of alleged incident, the appellant started firing on these three witnesses with the intention to commit their murder and later he fired on Golmudru due to which he died on the spot. Thus, it is well- established that it is the appellant who committed the homicidal death of Golmudru and fired gun shots on Kheduram (PW-07), Lakhmu Ram (PW-08) and Bablu Basra (PW-13), which, in our considered opinion is a correct finding of fact based on the evidence available on record. Accordingly, we hereby affirm this finding of the Trial Court. 12. The only argument raised by learned Counsel for the appellant in defence is that at the time of alleged act, the appellant was suffering from unsoundness of mind and at that point of time he was unable to understand what he was doing and, therefore, he is entitled to get benefit of the provisions of Section 84 of the IPC, which runs thus: “84. Act of a person of unsound mind.- nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law’. 13. Section 84 of the 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. 14. The aspect of mental state of the accused and unsoundness of mind and plea of insanity by virtue of Section 84 of the IPC was initially examined by the Supreme Court in Ratan Lal Vs. State of Madhya Pradesh, (1970) 3 SCC 533 , as under: “2. It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this ties on the accused. In D.G. Thakker v. State of Gujarat it was laid down that “there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Pencal Code, the accused may rebut it by placing before the Court all the circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings.” 15. In Devidas (supra), the Supreme Court further observed and 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 rebuttable. The doctrine of burden of proof in the context of the plea of insanity was stated as follows in Dahyabhai Chhaganbhai Thakkar v. 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 the reasonable doubts. The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495 , after which the onus shall shift on the prosecution to establish the inapplicability of the exception. The standard of the test to be applied shall be of legal insanity and not medical insanity, as observed in the State of Rajasthan v. Shera Ram, (2012) 1 SCC 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. 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 v. State of M.P., (1970) 3 SCC 533 , as follows: (SCC pp. 533-34, para 2) (Criminal Appeal No.211 of 2018) “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 Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 , it was laid down that ‘there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the 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’.” 16. In the light of above observations of the Supreme Court, now, we are going to examine the evidence available on record. 17. Learned Counsel for the appellant relied upon the statements of the defence witnesses, namely, Dr. Satish Shrivastava (DW- 01), Dr. Mariyam Vatsala (DW-02) and Sunita Kujur (DW-03) wife of the appellant and submitted that from the statements of these witnesses it is established that at the time of the alleged incident, the appellant was suffering from unsoundness of mind and this fact has not been considered by the trial Court. 18. Perusal of the statement of Dr. Satish Shrivastava (DW-1), who examined the appellant on 17.01.2012, 22.01.2012, 12.02.2012 reveals that he found that the appellant was suffering from alcohol dependence syndrome with substance induced psychosis diagnosis and in such condition the patient does not understand the consequences of his actions due to mental instability. 19. Dr. 18. Perusal of the statement of Dr. Satish Shrivastava (DW-1), who examined the appellant on 17.01.2012, 22.01.2012, 12.02.2012 reveals that he found that the appellant was suffering from alcohol dependence syndrome with substance induced psychosis diagnosis and in such condition the patient does not understand the consequences of his actions due to mental instability. 19. Dr. Mariyam Vatsala (DW-02), who examined the appellant on 12.07.2012, has also stated that while examining him she found that the appellant was a habitual drunkard and for the last six days of the examination he had not consumed liquor and, therefore, he had complications. 20. The alleged incident occurred on 08.07.2012. The appellant was examined by Dr. Satish Shrivastava (DW-01) on 17.01.2012, 22.01.2012 and 12.02.2012 i.e. prior to 5-6 months of the alleged incident. Dr. Mariyam Vatsala (DW-2) had examined him after four days of the alleged incident and during examination it was found by her that he was a habitual drunkard and he was not able to identify anyone. If we consider the entire statements of both the above defence witnesses as it is, it is only established that the appellant was a habitual drunkard and he was suffering from alcohol dependence syndrome with substance induced psychosis diagnosis. However, it is not established that the appellant was suffering from unsoundness of mind at the time of the alleged incident and for this reason it is not established that he was unable to know the nature of the act or what he has done is either wrong or contrary to law. 21. Sunita Kujur (DW-03), who is the wife of the appellant has only stated that in the year 2011 when the appellant had come to their house on leave, at that time, his behavior was not natural. But, she has not stated anything regarding his unsoundness of mind or any behaviour relating to same. Further, the facts remain that the appellant is a constable and he has been working continuously in the police department. If the condition of the appellant had of unsound mind, he would not have been able to perform his duty in the department in such a situation or he would have been on leave or he would have been hospitalized for his treatment. 22. If the condition of the appellant had of unsound mind, he would not have been able to perform his duty in the department in such a situation or he would have been on leave or he would have been hospitalized for his treatment. 22. Considering the entire evidence available on record, we are of the view that it is not a case where the act committed by the appellant is the act committed by a person of unsound mind and for this reason he is not entitled to get benefit of Section 84 of the IPC. 23. The trial Court on the basis of the evidence available on record has rightly convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment. 24. Accordingly, the appeal, being devoid of merits, is liable to be and is hereby dismissed. 25. Records be sent back along with a copy of this judgment.