MANOJ KUMAR GUPTA,J. - (1.) The instant appeal is directed against the judgment dated 29.1.2011 passed by Additional Sessions Judge (Court no. 2), Mahoba convicting the appellant under section 304 I.P.C. for killing his own wife, Budhiya and sentencing him to 10 years rigorous imprisonment and fine of Rs. 5,000/- with a default stipulation. The prosecution case was that the appellant, who was suffering from mental illness, killed his wife Budhiya in broad day light at 1.00 p.m. on 25.2.2009 by causing injuries with a weapon made of iron (saang). The incident took place when Budhiya was taking bath at a well on the field belonging to Kamlapat Lodhi, her father-in-law. The appellant came running from the village and inflicted injuries on her with saang. She died on the spot. The incident was witnessed by Prem Lal, the first informant, the owner of the adjoining field. The incident was also witnessed by his son Bharat and other villagers, who were present in the field, namely, Basora s/o Bhonia and Prakash s/o Ramsi. The first information report (Ex. Ka-13) was registered on the basis of written application (Ex. Ka-1) given by Prem Lal. The investigation was done by Sub-Inspector K.C. Tripathi. He prepared an inquest report (Ex. Ka-4) and sent the body of the deceased for post mortem. The post mortem report is Ex. Ka-4. The Investigating Officer during course of investigation recorded the statement of the witnesses and also recovered the iron saang (Ex. Ka-10) with which the appellant inflicted fatal blows on his wife resulting in her death. After completing the investigation, a charge-sheet (Ex. Ka-12) was submitted. The Court of Sessions by order dated 29.6.2010 framed charge under section 304 I.P.C. against the appellant. The prosecution examined Prem Lal, Basora and Prakash, the eye witnesses of the incident, as PW-1, PW-2 and PW-3 respectively. Dr. Alok Ranjan Mishra, who carried out the post mortem was examined as PW-4, Smt. Vidya, the mother of the appellant and mother-in-law of the deceased as PW-5, Sub Inspector Krishna Chardra and Constable Siyaram as PW-6 and PW-7 respectively. The accused denied the charges leveled against him in his statement under section 313 Cr.P.C. However, he did not lead any evidence either oral or documentary. The Court of Sessions found the appellant guilty of commission of offence under section 304 I.P.C. and accordingly convicted and sentenced him by judgment dated 29.1.2011. Aggrieved whereby the instant appeal has been filed. I have heard Shri Kapil Tyagi, who has appeared on behalf of the appellant, having been appointed as Amicus Curiae, as the appellant had failed to engage counsel on his behalf. Shri Faheem Ahmad and Shri Sushil Kumar Yadav, learned A.G.A, have advanced their submissions on behalf of the State. Shri Kapil Tyagi, learned counsel appearing on behalf of appellant did not challenge the findings recorded by the Court of Sessions regarding killing of his wife Budhiya with iron saang in broad day light on 25.2.2009. However, his main submission is that the appellant was a person of unsound mind, incapable of knowing nature of the act, or that what he had done was either wrong or contrary to law and was thus, entitled to the benefit of Section 84 I.P.C. On the other hand, learned counsel appearing on behalf of the State submitted that the appellant was involved in heinous crime of killing his wife and deserves no sympathy from the Court. He submitted that Section 84 I.P.C. is one of the provision in Chapter IV of the Indian Penal Code 1 which deals with "general exceptions". The defence under Section 84 being in the nature of exception, a person taking such defence has to prove the same. In support of his contention he has placed reliance on Section 105 of the Indian Evidence Act. He also referred to Section 328 Cr.P.C. wherein a detailed procedure is prescribed to find out whether the accused person is of unsound mind or not. He submitted that since the appellant had not taken any defence of being a person of unsound mind, consequently, the trial judge has not held inquiry contemplated under Section 328 Cr.P.C. The appellant himself has not led any evidence to prove that he was a person of unsound mind, incapable of understanding the nature of his act. He also referred to the findings recorded by the trial judge in contending that the appellant was capable of knowing the nature of his act. Thus, he has rightly not been extended the benefit of Section 84 I.P.C. In support of his contention he has placed reliance on decisions of Supreme Court in Sulalman Pillai Vs. State of Kerala2, Bhansingh Vs. State of Madhya Pradesh3, Meh Ram Vs. State4 and State of Madhya Pradesh Vs. Ahmadulla5. Learned counsel for the appellant opposed the submissions made by learned AGA by contending that the mere fact that the defence under Section 84 was not specifically pleaded, it would in no manner deprive the appellant of the benefit thereof inasmuch as the factum of the appellant being a person of unsound mind, was admitted in the first information report, the charge-sheet, the order of the Court of Sessions dated 29.6.2010 framing charge against the appellant, the statement of the defence witnesses, as well as the other documentary evidence brought on record by the prosecution itself. It is urged that once the factum of the appellant being a person of unsound mind is admitted, it was not necessary for the appellant to plead or prove the same. The trial judge was under obligation to extend the benefit of section 84 I.P.C. to the appellant, in view of the own case of the prosecution. In support of his submission, he placed reliance on the judgments of the Supreme Court in Shrikant Anandrao Bhosale Vs. State of Maharashtra6, Division Bench judgments of this Court in Sita Ram Vs. State of U.P.7 , Smt. Rukhsana Vs. State of U.P.8 and Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat9 and certain judgments of this Court and other High Courts. Before coming to the submissions advanced by learned counsel for the parties, a brief reference to the evidence which ultimately resulted in conviction of the appellant is necessary. The post mortem report (Ex. Ka-2) mentions about six stab injuries near the heart and abdomen. The nature of injuries on the body of the deceased fully supports the prosecution case that she was killed by use of a weapon (iron saang). PW-1, who was eye witness of the incident, and on whose application first information report was registered, is an independent witness not related to any party. He narrated in detail the entire incident and categorically stated that while he was on his adjoining field alongwith his son Bharat, he saw the appellant come running from village side. At that time, his wife Budhiya, the victim was taking bath at the well in the adjoining field belonging to her father-in-law. The appellant stabbed his wife with iron saang resulting in her death on the spot. He was challenged by the first informant and those others present there but he succeeded in running away. PW-2 Basora and PW-3 Prakash, who were also eye witnesses, made similar statements. Smt. Vidya, the mother of the appellant and mother-in-law of the victim was examined as PW-5. She also deposed against the appellant. She supported the prosecution case and stated that at the time of incident she alongwith her younger son were present in the field. Her daughter-in-law Budhiya was taking bath at the well. She alongwith her son Gajraj went to the well to drink water and thereafter they were resting under a (berri) tree. The appellant came from the village side with an iron saang in his hand and killed his wife by stabbing her with the same. She alongwith Prem Lal, Basora, Prakash and others shouted at him but he succeeded in running away. The trial judge has duly taken notice of the entire documentary and oral evidence and has thereafter concluded that the appellant had killed his wife. This Court does not find any reason whatsoever to take exception to the finding recorded by the trial judge in this regard. In fact, as noted above, even learned counsel for the appellant has not advanced any argument assailing the said finding. This Court accordingly upholds the finding recorded by the trial judge regarding involvement of the appellant in the killing of his wife. Now coming to the main submission regarding there being no intention or motive on part of the appellant in committing the offence, being a person of unsound mind, and thus entitled to benefit of Section 84 IPC, the first and foremost aspect which requires consideration is whether in the absence of a specific plea having been raised in this regard by the appellant, could he be extended benefit of Section 84 IPC. Section 84 IPC is one of the provisions contained in Chapter IV which deals with General Exceptions. It reads 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." Section 105 of the Indian Evidence Act which deals with burden of proof stipulates that the burden of proving the existence of circumstances bringing the case within the General Exception is on the person seeking its benefit. A specific illustration to Section 105 of the Evidence Act in reference to Section 84 provides as under:- "(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A." In Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat10 the Supreme Court having regard to the cardinal principle of criminal jurisdiction that there is presumption of innocence of an accused and the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt laid down that even if the evidence placed on record by the accused is not sufficient to discharge the burden cast upon him under Section 105 of the Evidence Act, but it may raise reasonable doubt in mind of a judge as regards the requisite intention envisaged by Section 299 IPC. If the judge has such reasonable doubt, he has to acquit the accused, the prosecution having failed to prove conclusively the guilt of the accused. In other words, the burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It has been held thus:- It is a 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 Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as Section 84 of the Indian Penal Code 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 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 con- sider 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 Indian Penal Code. 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. 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, mensrea; 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 s. 84 of the Indian 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. (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. A Division Bench of this Court in Smt. Rukhsana Vs. State of U.P.11 has held that even if a specific plea is not taken by the accused claiming benefit of one of the exceptions, still if the evidence brought on record from the side of prosecution and circumstances appearing in the case establishes that the accused acted within the confines of the exceptions or that there is a reasonable doubt regarding the existence of the essential ingredients of the offence, it is open to this Court to extend him the benefit of General Exception. The observations made in this regard are as under:- "It is now well established that failure of the accused to plead the exception would (sic not) foreclose his right to rely on the exception once and for all. Rule of pleading does not apply to criminal cases. Even where the accused in his statement under Section 311 Cr.P.C. does not raise the plea of exception, yet it is open to the criminal court to extend benefit of the exception to the accused if it finds from the evidence brought on record from the prosecution side and from the circumstances appearing in the case that the accused acted within the confines of the exception or that there is a reasonable doubt regarding the existence of the essential ingredients of the offence with which the accused is charged for". The Supreme Court in Kashiram Vs. State of Madhya Pradesh12 has held that though Section 105 of the Evidence Act enacts a rule relating to burden of proof but it does not follow therefrom that the plea of private defence should be specifically taken by the accused in his statement before the Court and if not taken, shall not be available to be considered albiet established from the evidence brought on record. Such a plea can be introduced in cross-examination of prosecution witnesses or in the statement of the accused recorded under Section 313 Cr.P.C. or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes, still it can be raised during the course of submission by relying on the probabilities and circumstances obtaining in the case. None of the judgments cited by learned A.G.A lay down any principle to the contrary.Thus, in the opinion of the Court, failure on part of the appellant to plead the benefit of Section 84 would not prevent the Court from extending the benefit thereof, if the facts and circumstances of the case and the evidence on record so warrant. The second aspect is whether the appellant, in the facts and circumstances of the case, is entitled to the benefit of Section 84 IPC. The Supreme Court in Dahyabhai Chhaganbhai Thakkar (supra) has laid down that the crucial time for ascertaining the existence of the circumstances bringing the act within the purview of Section 84 IPC is the time when the offence is committed. It has been held thus:- "When a plea of legal insanity is set up, 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 was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime". The Rajasthan High Court in Vidhya Devi Vs. State of Rajasthan13 enumerated the kind of mental illness in which a person could be extended the benefit of Section 84 as under:- "29. There are four kinds of persons, who may be said to be non compos mentis (not of sound mind): (i) an idiot; (ii) one made non compos by illness; (iii) a lunatic or madman; and (iv) a drunkard i.e. one who is drunk. 30. A lunatic is one who is, as described by older English writers, "afflicted by mental disorder only at certain periods and vicissitudes; having intervals of reason. Such persons during their frenzy are criminally as irresponsible as those whose disorder is fixed and permanent". Keeping the above principles in mind, the facts and circumstances which merit consideration are as under:- (a) The appellant has concededly killed his own wife with an iron saang in broad day light in presence of large number of eye-witnesses. (b) The first information report was lodged by a neighbour in whose presence the incident took place. It specifically states about the mental condition of the appellant, being a person of insane mind and under going treatment at Gwalior since last 3-4 years. (c ) The charge-sheet filed by the police dated 27.3.2009 (Ex. Ka-12) also specifically states that the appellant who had killed his own wife was a patient of mental illness. (d) The charge framed by the Court of Sessions on 29.6.2010 specifically refers to the cause of commission of the offence as mental illness of the accused. (e) P.W.1 Prem Lal, in his statement again stated that the appellant was suffering from mental illness for last 2-3 years and was undergoing treatment at Gwalior since then. He further stated that he was being kept tied at his house, but somehow he succeeded in untying the knots and killing his wife. (f) P.W.5, who is the mother of the appellant and was examined as prosecution witness also stated that the appellant was being treated in a mental hospital at Gwalior. She further disclosed that Ram Autar, the appellant had also attacked her with an axe. She took her to the hospital at Gwalior for admitting him, but the hospital refused to admit him. He had, in the past, also attacked the other family members. (g) PW. 5, further stated that on the date on which the incident took place she came out of the house after tying him with janjeer in the courtyard. She also locked the outer door of the house. She expressed surprise as to how he succeeded in coming out of the house. Her wife Budhiya started running when she saw Ram Autar coming towards her but Ram Autar succeeded in over taking and killing her. (h) P.W.3 also in his statement admitted that the appellant was undergoing treatment in a mental hospital at Gwalior for last 3-4 years and he was kept tied with iron ropes. Absolutely, no evidence, nor even suggestion to any witness, is there on record in regard to the motive behind the offence. Although, the Court of Sessions has observed that the appellant was harbouring suspicion about the character of his wife leading to the incident but it has been rightly pointed out by learned counsel for the appellant that there is absolutely no evidence to the effect and the passing observation made in the judgment of the trial judge in this regard, is based on oral submission alone. In the considered opinion of the Court, it cannot form basis for recording finding regarding intention behind the killing. Apart from the aforesaid facts and circumstances, the Court notices that there is a report dated 23.5.2016 submitted by the Chief Judicial Magistrate, Mahoba which states that the appellant, who was confined at Central Jail, Naini, Allahbad was shifted to Mental Hospital, Varanasi on 7.12.2015. These facts and evidence on record firmly establishes that the appellant prior to the date on which offence was committed as well as at the time of incident and thereafter, had been suffering from mental illness and was being treated therefor. Complete lack of evidence in regard to the motive behind the crime, the callous manner in which the crime was committed, the attending circumstances, clearly establish that he was suffering from mental illness; that he was not in a position to know the nature and seriousness of the act he was indulging in; he was in a fit of insanity. The most remarkable feature is that although charge levelled against the appellant itself states that the appellant killed his wife as he was suffering from mental illness, but no attempt was made by the trial court to get the appellant medically examined. The mere fact the the appellant succeeded in procuring an iron saang, running away from the site of accident, made attempt to hide the weapon are not sufficient to infer that he was capable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. It is the totality of the facts and circumstances which are to be kept in mind in extending the benefit of Section 84 and not a few isolatory acts. Having regard to the evidence and the facts and circumstances narrated above, this Court is of the firm opinion that the appellant was entitled to benefit of Section 84 IPC and accordingly the conviction and the sentence of the appellant cannot be sustained. For the foregoing reasons, the appeal is allowed and the judgment of the trial court is set aside. Since, it appears from the record that the appellant is still suffering from unsoundness of the mind and is undergoing treatment in the Mental Hospital, Varanasi therefore, the accused shall not be released but shall be retained in safe custody at the mental hospital where he is presently undergoing treatment, having regard to the provisions of Section 335 Cr.P.C. The Medical Superintendent, Mental Hospital, Varanasi and the Jail Superintendent, Central Jail, Allahabad are directed to follow the procedure prescribed in Sections 338 and 339 Cr.P.C. in releasing the appellant or in delivering him to the care of a relative or friend. The Registrar General is directed to send a due intimation alongwith certified copy of this order to the Jail Superintendent, Central Jail, Allahabad and Medical Superintendent, Mental Hospital Varanasi for ensuring observance of the provisions of Sections 338 and 339 Cr.P.C. ;