JUDGMENT : (M. W. CHANDWANI, J.) 1. Heard. 2. The appeal is directed against the judgment of conviction dated 26.04.2018 passed in Sessions Trial No.53 of 2015 by the Ad hoc Additional Sessions Judge, Khamgaon, District Buldana, thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced him to suffer rigorous imprisonment for life with a direction to pay fine of Rs.2,000/-. 3. The appellant was convicted for the offence punishable under Section 302 of the IPC on the allegation that he committed the murder of his wife - Sadikabi and son – Mudassir at his residential house. The prosecution case is that informant PW-3 – Naseebabi Jaribkha lodged a report with Tamgaon Police Station alleging therein that, on the intervening night of 23.10.2014, the appellant assaulted his wife and son by means of axe, wherein they died on the spot. The police prepared spot panchanama after seizing a blood stained axe having 26.5 inch. wooden handle, a pillow, a quilt, plastic palam, green coloured night pant, blood stained soil and soil sample etc. from the spot. The post-mortem was conducted on the dead bodies of Sadikabi and Mudassir. On 23.10.2014 at about 14:30 hours, the accused came to be arrested. After completion of investigation, charge-sheet came to be filed. The accused was put on trial and at the conclusion of trial, the Trial Court recorded the findings of conviction and sentenced the appellant for the aforesaid crime. 4. Having heard the learned counsel for the appellant as well as learned Additional Public Prosecutor for respondent/State, we have gone through the record and judgment of the Trial Court. 5. The Trial Court in its judgment convicted the accused relying on extra judicial confession made by the appellant to PW-6 Ravindra Chintaman Wankhade - Police Patil, PW-11 Tourabi Sk. Bismillah - real sister of the appellant and other circumstances appearing on record. 6. At the outset, it is necessary to mention here that there is no direct eye witness to the alleged incident. The prosecution solely relied on circumstantial evidence. Bismillah - real sister of the appellant and other circumstances appearing on record. 6. At the outset, it is necessary to mention here that there is no direct eye witness to the alleged incident. The prosecution solely relied on circumstantial evidence. It is well to remember that in cases where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn in the first instance should be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such that they exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so complete that it does not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. A reference can be made to the case of Hanumant vs. State of Madhya Pradesh, AIR 1952 SC 343 . 7. The prosecution relied on the version of PW-6 Ravindra Chintaman Wankhade, who was working as Police Patil. According to his version, on 23.10.2014 at about 07:30 a.m., when he was returning from his field on his motorcycle, the appellant stopped his motorcycle and asked him to come his house where he confessed that he committed the murder of his wife Sadikabi and son Mudassir and made a request to inform the police. The dead bodies of the appellant’s wife and son were lying on the ground in a pool of blood. PW-11, Tourabi Sk. Bismillah, who is the real sister of the appellant, has also testified that on the day of Diwali i.e. on 23.10.2014, the appellant had been to her house and informed her that he killed his wife and son. Therefore, she went to his house, where she saw the dead bodies of the appellant’s wife and son. 8. No doubt, extra judicial confession is a weak piece of evidence and the Court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. Therefore, she went to his house, where she saw the dead bodies of the appellant’s wife and son. 8. No doubt, extra judicial confession is a weak piece of evidence and the Court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is also to be ensured that the confession must be voluntary and must inspire confidence, only then it can be acted upon to base the conviction. A reference can be made to the case of Subramanya vs. State of Karnataka, 2022 AIR SC 5110, relied upon by the counsel for the appellant where the Hon’ble Supreme Court in para 54 of the case has held as under : “54. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction.” 9. Considering the settled position of law that extra judicial confession is a weak type of evidence and requires appreciation with a great deal of care and caution, it is necessary to scrutinize the other circumstances which have been brought on record by the prosecution. 10. PW-6 Ravindra Chintaman Wankhade, Police Patil further testified that after the appellant made the confession to him, he went inside the appellant’s house and found dead bodies of his wife – Sadikabi and son – Mudassir lying in a pool of blood on the floor. Likewise, PW-11 Tourabi Sk. Bismillah - real sister of the appellant, on receiving information, immediately reached the appellant’s house and witnessed the same scene as testified by PW-6. 11. PW-7 Barkatbeg Hanifbeg testified that on 23.10.2014 in the morning when he was going to his work, he noticed crowd at the house of the appellant and saw the dead bodies of the appellant’s wife and son. 12. PW-10 Dr. Amol Madhukar Banait, who conducted post-mortem on the dead bodies of Sadikabi and Mudassir, has noticed two injuries. 11. PW-7 Barkatbeg Hanifbeg testified that on 23.10.2014 in the morning when he was going to his work, he noticed crowd at the house of the appellant and saw the dead bodies of the appellant’s wife and son. 12. PW-10 Dr. Amol Madhukar Banait, who conducted post-mortem on the dead bodies of Sadikabi and Mudassir, has noticed two injuries. One on the back of her neck on the right side of the person of deceased Sadikabi and one fracture of the cervical vertebra below the aforesaid injury. Whereas, in the case of Mudassir, he noticed lacerated wounds over the scalp in the right occipital region and fracture of the right occipital bone of the scalp. He also noticed blood and water fluid oozing from nostril of Mudassir. 13. This takes us to the spot panchanama at Exh- 45. The axe which was seized during spot panchanama was examined by PW-10 Dr. Amol Madhukar Banait, who opined that the injuries on the person of Sadikabi and Mudassir are possible by axe. The said axe had a bloodstain of group - A and the blood group of the deceased wife is also group – A. 14. All the material available on record goes to show that the axe which was the weapon of the alleged crime was found at the spot of incident i.e. in the house of the appellant. Rather, the homicidal death and spot of incident is not disputed by the defence at all. In this scenario, it was obligatory on the part of the appellant to explain how his wife and son, who were residing with him in the said house, have been killed; particularly when the foundational fact of death of deceased Sadikabi and Mudassir in the appellant’s house, where they were residing with him has been proved. However, the appellant failed to provide any explanation about the incident or the cause of death of his wife and son. We do not find any illegality in the judgment of the Trial Court whereby a reliance is placed upon Section 106 of the Indian Evidence Act, 1872. Therefore, we are concurrent with the findings of Trial Court that it is the appellant who caused the death of his wife and son by assaulting them with an iron axe. 15. We do not find any illegality in the judgment of the Trial Court whereby a reliance is placed upon Section 106 of the Indian Evidence Act, 1872. Therefore, we are concurrent with the findings of Trial Court that it is the appellant who caused the death of his wife and son by assaulting them with an iron axe. 15. Put altogether, extra judicial confession made by the appellant which is corroborated by other circumstances is made voluntarily to PW-6, Police Patil and PW-11 - real sister of the appellant. Therefore, we do not find any fault with the findings of the Trial Court that the extra judicial confession inspires confidence of the Court to record conviction. 16. This takes us to the alternate submission of the learned counsel for the appellant that the act of the appellant is not an offence, since the appellant at the time of doing it, by reason of his mental health, was incapable of knowing the nature of the act. The appellant was suffering from mental disease and was lacking mens rea, he had no motive to kill his wife and son. According to him, even before the trial, he was suffering from unsoundness of mind and therefore, the trial could not begin initially. The version of PW-11 and PW-6 also goes to show that prior to the said incident, the appellant had committed some act of violence in a Dargah under cognitive impairment. Therefore, the appellant is entitled to the benefit of exception under Section 84 of the IPC. 17. Conversely, learned Additional Public Prosecutor for respondent/State submitted that even if Section 84 of IPC is considered, the defence has failed to prove that at the time of offence, the appellant was incapable to do the act of such violent nature by reason of unsoundness of mind. There is nothing on record to suggest that the appellant at the time of commission of the offence was suffering from any mental disorder. Rather, the trial was conducted after the appellant was declared fit for trial which itself goes to show that the appellant is in a fit state of mind. According to her, once the offence has been proved, the burden lies on the accused to prove that his case falls under the exception which the appellant has failed to prove. Rather, the trial was conducted after the appellant was declared fit for trial which itself goes to show that the appellant is in a fit state of mind. According to her, once the offence has been proved, the burden lies on the accused to prove that his case falls under the exception which the appellant has failed to prove. Therefore, according to her, the Trial Court has rightly convicted the appellant for the offence punishable under Section 302 of IPC and prayed for dismissal of appeal. 18. Section 84 of the IPC carves out the exception which runs as under: “84. Act of a person of unsound mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” 19. Section 84 of the IPC, thus, contemplates only unsoundness of mind which naturally impairs the cognitive faculties of mind that can form a ground of exemption from criminal liability, therefore, for reason of unsoundness of mind which intakes a person from knowing the nature of the act or that he is doing what is either wrong or contrary to law. There is no definition of unsoundness of mind in the Indian Penal Code, 1860. 20. On the point of criminal responsibility, Modi in his textbook of Medical Jurisprudence and Toxicology, the 24 th Edition 2012, comments that: “In law, responsibility means liability to punishment. In criminal cases, where mental ill-health is raised as a plea of irresponsibility, the burden of proving it lies on the defence. Mental ill-health may be proved from facts alleged or proved by the prosecution or independently by the defence. When a person/accused of murder is alleged to be mentally ill, the presiding officer of the Court generally asks the medical officer to keep the accused under observation and to verify whether he is mentally ill or not. The medical officer must consider the following points before deciding whether the murder was a result of mental ill-health. (1) Personal History of Murderer. (2) Absence of Motive - Not only does a mentally ill person commit murder without any motive, but also often kills his nearest and dearest relations, for e.g., his wife and children. The medical officer must consider the following points before deciding whether the murder was a result of mental ill-health. (1) Personal History of Murderer. (2) Absence of Motive - Not only does a mentally ill person commit murder without any motive, but also often kills his nearest and dearest relations, for e.g., his wife and children. It must, however, be difficult to trace a motive though there may be one. (3) Absence of Secrecy - The murderer, if he happens to be mentally ill, does not try to conceal the body of his victim, nor does he attempt to evade law by destroying evidence of his crime or by running away from the scene of murder. (4) Multiple Murders - A sane person usually murders only one person with whom he has a grievance. On the other hand, a mentally ill person may kill several persons, mostly his friends and relatives, for whom he has great regard and affection. (5) Want of Preparedness or Pre-Arrangement – A mentally ill person does not make any pre-arranged plan. (6) Want of Accomplices - A mentally ill person has no accomplice in the criminal act.” 21. It is a matter of record that the prosecution has not proved that the appellant had motive to commit the murder of his wife and son. The prosecution has also not brought on record that the appellant was trying to run away from the spot. Rather, the appellant himself informed PW-6 Police Patil regarding the alleged acts committed by him. Further, there is nothing on record to suggest that the appellant made preparation for committing the murder of his wife and son. The version of PW-11, real sister of the appellant, goes to show that 8 to 9 days prior to the incident, the accused had tried to cause destruction in a Dargah for no reason. In her deposition also she deposed that her cousin had taken the accused to a psychiatrist at Akola and thereafter, he was admitted to Nagpur Mental Hospital for his treatment for six months. PW-8 Jaher Ali Jagir Ali deposed about the incidence of destruction at Peer Baba Dargah by the appellant at midnight. This witness alongwith other 2 to 3 companions controlled the appellant and handed him over to his brother. PW-8 Jaher Ali Jagir Ali deposed about the incidence of destruction at Peer Baba Dargah by the appellant at midnight. This witness alongwith other 2 to 3 companions controlled the appellant and handed him over to his brother. It is also appearing from his version that the conduct of the appellant was similar to that of a lunatic person. It is also a matter of record that after the arrest of the appellant, he is behind the bars in the same matter as a lunatic person would be and vide order dated 16.12.2014, he was sent to Mental Hospital, Nagpur as an inpatient by the learned JMFC, Sangrampur and he was declared unfit for trial. Therefore, the trial was also in limbo for quite sometime. 22. A reference can be made to the case of Shrikant Anandrao Bhosale vs. State of Maharashtra, 2003 SCC (Cri) 144, wherein the Hon’ble Apex Court held that unsoundness of mind of accused before and after the incident for which he underwent for treatment in hospital was a relevant fact. The nature of burden of proof to claim benefit of Section 84, the nature of burden of proof on the accused is not higher than that which rests upon a party in civil proceedings i.e. preponderance of probability. 23. The fact that the appellant’s behavior prior to and after the incident suggested unsoundness of mind for which he underwent treatment while in jail custody coupled with the absence of motive, him remaining at the scene of the crime even after reporting the incident to others and the nature of multiple murders lead us to the reasonable inference that the appellant was of unsound mind at the relevant time i.e. at the time of incident. He was under the influence of a mental disorder. Having regard to the existence of these circumstances, it can be said that the appellant was incapable of knowing the nature of his act by reason of unsoundness of mind. Thus, he is entitled to get the benefit of Section 84 of IPC and therefore, the conviction and sentence of the appellant cannot be sustained. The appellant succeeds in proving on the test of preponderance of probability that he is entitled to get the benefit of the exception contemplated under Section 84 of IPC. Thus, he is entitled to get the benefit of Section 84 of IPC and therefore, the conviction and sentence of the appellant cannot be sustained. The appellant succeeds in proving on the test of preponderance of probability that he is entitled to get the benefit of the exception contemplated under Section 84 of IPC. Therefore, the conviction recorded by the Trial Court for the offence punishable under Section 302 of IPC is set aside. The appellant is acquitted of offence punishable under Section 302 of IPC. 24. When an acquittal is recorded under Section 373 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred as, “the BNSS”), then the procedure contemplated under Section 374 of the BNSS has to be followed, which runs as under : “374. Person acquitted on ground of unsoundness of mind to be detained in safe custody .- (1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence, - (a) order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit; or (b) order such person to be delivered to any relative or friend of such person. (2) No order for the detention of the accused in a public mental health establishment shall be made under clause (a) of sub-section (1) otherwise than in accordance with such rules as the State Government may have made under the Mental Healthcare Act, 2017 (10 of 2017). (3) No order for the delivery of the accused to a relative or friend shall be made under clause (b) of sub-section (1) except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or Court that the person delivered shall - (a) be properly taken care of and prevented from doing injury to himself or to any other person ; (b) be produced for the inspection of such officer, and at such times and places, as the State Government may direct. (4) The Magistrate or Court shall report to the State Government the action taken under sub-section (1).” 25. (4) The Magistrate or Court shall report to the State Government the action taken under sub-section (1).” 25. In view of the above, we direct that the appellant shall be kept in safe custody in Amravati Jail till the State Government takes action in the matter who may decide where the appellant is to be kept pending action under Sections 377 and 378 of the BNSS as the exigency of the case may require. While taking decision, the State Government shall have due regard to the examination of the appellant by Civil Surgeon/Head of Mental Hospital/Head of Psychiatry Department and report by the said Authority. 26. The order passed today be communicated to the State Government in terms of Section 374 for taking further action in terms of Sections 377 and 378 of the BNSS. A copy of this judgment shall also be sent to the Inspector General of Prisons who is empowered in terms of Section 375 to perform and discharge the functions under Sections 377 and 378 of BNSS for further necessary action in the matter. The said authorities be asked to submit report of action taken from time to time till it is necessary. The first report of action taken be placed before this Court within three months from the date of receipt of this judgment. The matter be accordingly listed on board thereafter. 27. The fees of appointed learned counsel be quantified as per rules.