KANTA BHATNAGAR, J. - (1.) NOW, we would discuss the alternative argument of Mr. Mathur, that, even if the appellant is held responsible for the murder of his wife Smt. Kastoori, he should not be convicted because of his insanity.
(2.) MR. Mathur referred to the statements of three prosecution witnesses viz. Gautam (P. W. 1), Bhimji (PW. 3) and Roopa (P. W. 6) to substantiate his contention that the appellant was suffering from mental disorder for about a year prior to the date of the occurrence. These three witnesses were examined about a year after the date of occurrence, In cross-examination Gautam (P. W. 1) has stated that Nagji was made for one and a half year and was behaving as a mad man. On being questioned by the court, the witness stated that prior to the incident accused was himself cultivating his field. That, he sometimes willingly took his food while sometimes he used to throw away the food. The witness further stated that be sometimes was keeping altogether quiet while at other times he went on talking continuously. Bhimji (P. W. 3), in the cross-examination, has stated about the accused being insane for the last two years. Replying to the court question the witness state that Nagji was not taking his food himself. That, during the days of occurrence he sometimes used to speak and sometimes used to keep quiet. The witness further stated that he was not tearing off his clothes. That, he was not doing the cultivation for about a year. That, his brother and mother used to make him put on his clothes. That, he was not going to graze his cattle and his wife and mother used to do that work. Roopa (P. W. 6) has stated, that for one and a half or two years Nagji was made. He did not speak anything. The witness then stated that he used to take his food and also bath. Learned Amicus Curiae strenuously contended that by this evidence the defence had succeeded in establishing the fact that accused was suffering from insanity and was incapable of understanding the nature and consequence of his act, and therefore, he should be given benefit under section 84 of the Indian Penal Code. In order to find out whether there is material on record to nullify the prosecution evidence regarding guilt of the accused we will see the prosecution evidence and surrounding circumstances to find out whether at the time of commission of the crime, the appellant, by reason of unsoundness of mind, was incapable of knowing the nature of his act. Section 84 of the Indian Penal Code which is attempted to be invoked by the learned Amicus-Curiae reads as under:- "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". The burden of proving the offence is always on the prosecution. But in case the accused takes a particular plea it is upon him to prove the same. Section 105 of the Evidence Act places upon the accused the burden of proving the exception relied upon by him. It is well settled,that if the defence wishes on to nullify the evidence produced against the accused, by invoking the provisions of section 84 of the Indian Penal Code, the burden to prove that the accused to the time of the commission of the crime suffered from unsoundness of mind would always be on the accused. It is pertinent to note that the crucial point of the time at which the unsoundness of mind, as described in section 84 has to be established, is when the crime is actually committed Mere evidence about the accused suffering from unsoundness of mind prior to the occurrence and even subsequent to it will not be sufficient to bring his case within the ambit of section 84 Indian Penal Code. What is required is the incapability of understanding the nature of the act at the crucial time, that is at the time of the commission of the crime. It is this principle which is enunciated in the case of State of Madhya Pradesh vs. Ahmadulla (1 ). In that case the accused tried for a charge of murder had invoked section 84 of the Indian Penal Code on the ground, that he had an epileptic type of insanity. Apart from the ocular evidence there was the evidence of medical expert to substantiate the defence theory that the accused was suffering from that disease sometime prior to the occurrence and also while in jail. Their lordships, in view of the facts and circumstances of the case i. e. the accused bore ill will to the deceased, the act was committed at the dead of night, he obtained access to the house by stealth by scaling over a wall and the behaviour of the accused subsequent to the occurrence, were of the opinion that at the crucial point of time, that is, at the time of the commission of the crime, he was not suffering from any epileptic insanity so as to bring his case within the ambit of Sec. 84 of the Indian Penal Code.
(3.) WHEN provisions of section 84 Indian Penal Code are invoked, courts are to look for the evidence as to whether from the plea taken by the accused or the evidence taken from the defence side or even from the prosecution evidence it is spelt out that at the relevant time the accused was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Cases are not rare in which it is not possible for the accused to produce evidence to substantiate the plea that at the crucial time of the commi-ssion of the crime he was suffering from unsoundness of mind. Even in extreme cases of insanity there may be lucid intervals. If the act is committed during lucid interval the culprit would not be entitled to the benefit under section 84 of the Indian Penal Code. It is sometimes very difficult to exactly locate the moment when an insane person has the lucid intervals. In the case like the present one, where the accused had remained mute throughout the trial it is still more difficult to find out as to what exactly the state of mind might have been at the time of the commission of the crime. In such cases the surrounding circumstances assume importance. In the case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat (2), their Lordships have been pleased to enunciate the following principle which may be taken as a guide line by the Courts in deciding cases where benie-fit under section 84 of the Indian Penal Code is claimed: - "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 lime 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 S. 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime". In that case, their Lordships were also pleased to discuss the 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. Then their Lordships discussed the provisions of Sec 105 of the Evidence Act and were pleased to observe that the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the court shall presume the absence of such circumstances. According to their Lordships the accused has to satisfy the standard of a "prudent man" and the material placed before the court, such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of a "prudent man". The accused may not have completely discharged his burden under section 105 of the Evidence Act but may raise reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. That was also case of the murder of the wife by the husband. The plea of insanity was taken. The entire conduct of the accused from the time he killed his wife upto the time of commencement of the Sessions proceedings was held to be inconsistent. ;