Vaidya, J.
1. This appeal is directed against an order dated 29th April, 1987 under which the learned Additional Sessions Judge, Sawantwadi (Mr. S. R. Ghanvatkar) had convicted the appellant for an offence punishable under S. 302 of the Indian Penal Code and was sentenced to suffer imprisonment for life. The name of the victim was Ajappa Fakirappa Dasapanawar. The appellant was also convicted of offences punishable under sections 353 and 332 of the Indian Penal Code for causing hurt to police constable Desai who was on duty on the scene of offence at the relevant point of time. For the first mentioned offence, the appellant was sentenced to suffer R.I. for six months and to pay a fine of Rs. 200/-, in default to suffer R.I. for one month. For the latter mentioned offence, the appellant was sentenced to suffer R.I. for two years and to pay a fine of Rs. 300/-, in default to suffer R.I. for three months. The substantive sentences were ordered to run concurrently.
2. The offence in question is alleged to have taken place on 7th April, 1986 at about 2 p.m. at Banda Bazarpeth. According to the prosecution story, a woman by name Gangava Naikkar, sister of the appellant, had reported at Banda police station that the victim was trying to assault her in Bazarpeth, village Banda. She was a Kannada speaking woman and the A.S.I. who was on duty at the police station could not make out what she was saying in her language. Therefore, he had deputed constable Desai with her to go to the Bazarpeth and to bring to the police station the person against whom she had some grievance. Accordingly, constable Desai had proceeded to the Bazarpeth and found out the person viz., the victim Ajappa. When constable Desai and Ajappa were about to leave the place for the police station, the appellant who was standing in the vicinity armed with a weapon called Pal Koyta (a heavy broad sickle) came forward and started assaulting the victim. Constable Desai attempted to resist the appellant, but while doing so, he suffered an injury on his arm and fell down. The appellant is said to have made an advance towards the victim and given a forcible blow on the neck of the victim Ajappa. Ajappa was beheaded. After he fell down on the ground, the appellant took the head part of the body and threw up the same in the air to the height of about 10 to 15 feet twice or thrice. Thereafter, the appellant had kept the head of the deceased near the body and had then chopped the head into pieces. The brain matter fell out of the skull. Thereafter, again the appellant had picked up the head and thrown it in the air. At about the same time, police constable S. L. Sawant who was on patrolling duty on the Bazarpeth, had rushed to the spot and had snatched from the hands of the appellant the sickle which was used for beheading the deceased. The appellant was then brought to the police station and F.I.R. was lodged by constable Desai. The F.I.R. was recorded by the A.S.I. on duty. The offence was registered at C.R. No. 36/1986 of Banda police station and Dy.S.P. Bhujangrao Shinde had undertaken the investigation. The weapon of attack was attached under a panchanama, inquest was held, panchanama of the scene of offence was made and the blood-stained clothes found on the person of the appellant were seized. The investigation proceeded further and statements of several witnesses who were on the scene of offence at the relevant point of time were recorded. Finally, a charge-sheet was submitted on 1-7-1986 to the Chief Judicial Magistrate. It appears, however, that as the Chief Judicial Magistrate was on leave, the charge-sheet was, in fact, received by the Addl. Sessions Judge who was himself in charge of the Court of the Chief Judicial Magistrate. The case was committed to the Sessions Court on 5th August, 1986 and charge vide Exh. 4 dated 14th November, 1986 was framed by the learned Addl. Sessions Judge, Sawantwadi, against, the appellant for the offences alleged.
3. The evidence was recorded in course of time and the accused was defended at the trial by an Advocate appointed by the State under the Legal Aid Scheme. The defence of the appellant at the trial was that at the relevant point of time, he was insane and that as such, he did not know the nature of the act committed by him. He had specifically claimed that he had fallen within the scope of S. 84 of the Indian Penal Code and that, therefore, he should not be held guilty for any of the offences alleged. He had examined in defence three witnesses to prove his defence. It was contended at the trial that in the circumstances of the case, the appellant could not be held guilty of any of the offences charged against him and that he deserved an acquittal.
4. The learned Addl. Sessions Judge rejected the defence of the accused and finding him guilty of the offences in question, he proceeded to award conviction and sentences to the appellant, as stated at the outset.
5. Having felt aggrieved by this decision, the appellant preferred a jail appeal contending that the learned Addl. Sessions Judge had failed to appreciate and apply properly the provisions contained in S. 84 of the Indian Penal Code to the facts of the case and further, that he had erred in appreciating the evidence on record which was in favour of the appellant. The learned advocate for the appellant relied upon the ruling in Ratan Lal v. State of M.P., : 1971CriLJ654 and submitted that when the appellant was deprived of the opportunity right from the initial stage to establish his insanity at the relevant point of time, the learned Addl. Sessions Judge should have appreciated that fact in its due perspective and should have held that on the basis of the evidence on record, the appellant had succeeded in proving his defence in its totality by rebutting the ordinary presumption of sanity which becomes available to the prosecution in usual cases of this type. He submitted that the circumstances preceding the incident of offence, attending the incident of offence as well as the subsequent circumstances prove amply enough, that the appellant had rebutted the presumption of sanity and that the evidence on record did prove to the satisfaction of the Court his defence of insanity at the relevant point of time. He, therefore, submitted that the appeal be allowed and the conviction and sentences awarded to the appellant be set aside and that the appellant be set at liberty.
6. Mrs. Rao, the learned Addl. Public Prosecutor appearing on behalf of the State, relied upon several rulings on the point of presumption of sanity, the rebuttal thereof and contended that in the circumstances of the case, the very fact that the appellant had attacked a person against whom he had had some grudge, itself indicated that the act of the appellant in committing the murder in question was motivated, a circumstance which could prove that he was not insane at the relevant point of time. According to her, the act of the accused was an act of cold-blooded murder in broad day-light in a most cruel manner and, therefore, the appellant was a rightly convicted by the learned Addl. Sessions Judge. She prayed that the conviction and the sentences awarded to the appellant be confirmed.
7. The fateful incident for which the appellant was tried was not much in dispute before us. A.S.I. Chavan (P.W. 8) who was the police station officer on 7th April, 1986 from 8.30 a.m. onwards has told in his, deposition that at about 1.35 p.m. Gangavva Naikkar, admittedly a sister of the appellant, had come to the police station at Banda and had reported that she had come to Banda weekly bazaar on that day, which was Monday, for selling potatoes and onions and further, that one person by name Ajappa (victim) had quarrelled with her over the purchase of goods. He added that as the woman was not able to speak Marathi, he had directed constable Desai to go along with her to the spot and to ascertain what had happened there and further, to bring the miscreants, if any, to the police station. An entry was taken in the station diary about this. P.W. 1 constable Desai told that Gangavva had taken him along with her to the Bazarpeth Telaali and had shown from a distance of 10 to 15 feet the man against whom she had grievance. Constable Desai approached that person, and as that person was not aware of the arrival of the police constable on the spot, pulled his arm and had asked him to accompany constable Desai himself to the police station. He added that at that point of time, the appellant, who was standing in the vicinity with a heavy sickle (pal koyta), rushed towards the person who was taken in charge by constable Desai. The person with the heavy sickle was identified as the appellant-accused. Constable Desai told that anticipating an attack from the appellant on the person accompanying him, he had to intervene and that in that attempt, he himself had sustained an injury on his left hand because the blow of sickle fell on him instead of the victim. Constable Desai told, further, that then he fell down on the ground and the assailant gave blows with the heavy sickle on the neck of the victim so much so that the victim fell down. The appellant is then said to have chopped off the head of the victim from the latter's body and threw it up in the air twice or thrice. He added that, thereafter, the appellant kept the separated head near the trunk remaining body of the deceased and then chopped it into pieces so that the brain matter came out of the skull. Thereafter, the appellant is said to have thrown the head once again in the air. He added that constable S. L. Sawant, who was on patrolling duty in the same lane, then rushed to the scene of offence, snatched from the hands of the appellant the weapon of attack and then blow whistles of alarm. According to him, the appellant was then taken to the police station and after completing the preliminaries, a F.I.R. was drawn. He stated that the deceased had murdered the brother of the appellant a couple of years ago and, therefore, there was some enmity between the appellant and the victim. In the cross-examination, he admitted that he himself did not understand Kannada language nor could he speak the same. He did not know whether or not, Gangavva had come to the police station with a written complaint, but he wanted to stick up to his averments in the F.I.R. that she has come with a complaint. No such written complaint appears to have been recorded. A.S.I. Chavan (P.W. 8) denied the suggestion to that effect in his cross-examination. Though an entry of the reported incident is said to have been taken in the station diary, the extract of the station diary does not appear to have been produced on record through A.S.I. Chavan. A specific suggestion made on behalf of the defence that Gangavva had come complaining that the deceased was trying to commit rape on her and had had tried to remove her clothes was denied by the A.S.I. The statement of Gangavva was recorded in the course of investigation but for the reasons best known to the prosecution, though she appeared to be an eye-witness to the incident and on whose account the whole question is said to have taken place, she was not examined by the prosecution at the trial. Constable Desai denied the suggestion that immediately after the attack on the victim, the appellant had become quiet on the scene of offence. This last version, however, is not supported by other eye-witnesses.
8. P.W. 3 Shankar Nagzarkar was the second eye-witness and in his examination-in-chief he had narrated the story almost in similar terms as it was narrated by the first informant constable Desai. This witness narrated, however, unlike constable Desai, that there was scuffle between constable Desai and the assailant before constable Desai had fallen down. This appeared to be an improvement on the version of Desai himself about the alleged attack on constable Desai. This witness admitted in his cross-examination that shop of Gangavva, the sister of the appellant, was in that bazaar. He admitted also that after the attack on the victim, the appellant stood fast on the scene of offence and it was then that the police had caught him. In the opinion of this witness, it was not correct to say that an ordinary man would not do an act of the type that was allegedly committed by the appellant. The eye-witnesses who came thereafter in witness-dock, however, had a different opinion on that point. P.W. 4 Imam Husen Naragatti was another eye-witness who supported broadly the averments regarding chopping of the head of the victim and other acts of the accused but he was totally silent either about the scuffle between the appellant and constable Desai or the alleged attack on constable Desai. In his cross-examination, this witness admitted that the appellant was there till the whole incident was over and that an ordinary person would not have done an act of the type done by the appellant in a broad daylight. The next eye-witness was P.W. 5 Francis Fernandis who supported constable Desai's version broadly, but who also was, like P.W. 4 Imam Husen Naragatti, silent on the point of assault allegedly made by the appellant on constable Desai. The next eye-witness was P.W. 6 Dinanath Govekar who broadly supported the version of constable Desai on the point of the appellant's attack on the victim, but he was silent about the alleged attack on constable Desai and the so-called scuffle between appellant and constable Desai. He admitted in his cross-examination that the appellant did not try to run away till the arrival of the police on the scene of offence. Similar was the type of version given by the next eye-witness P.W. 7 Yeshwant Sherlekar. This witness also had told in his cross-examination that after the incident, the appellant was sitting on the scene of offence quietly and had not made any attempt to run away from the place. He opined that a person in sound mind would not have done an act of the type in broad daylight. P.W. 9 was police constable S. L. Sawant who had come to the rescue of constable Desai. He told substantially the same story as told by constable Desai except the blow which had fallen on constable Desai but he told that he had seen constable Desai fallen on the ground with an injury. Different witnesses referred to above have different versions as to the duration of the occurrence of the whole incident. Ranging from two to five minutes, the variations are up to 40 to 45 minutes. It is certainly possible to say that the incident of the type in question would have taken quite a few minutes. The presence of most of the witnesses referred to above on or near the scene of offence was most natural and there was nothing substantially in the cross-examinations of any of those witnesses which could enable us to think that any of those witnesses was not telling the truth or was prone to make any undue exaggeration. So far as the incident of attack on the victim Ajappa is concerned, the learned Addl. Sessions Judge has scanned the evidence carefully in his judgment and has arrived at the conclusion that the incident as told by the witnesses has been duly proved. The evidence of eye-witnesses stands duly corroborated by F.I.R. (Exh. 12), post-mortem notes (Exh. 14) as proved by Dr. Kallappa Holikatti (P.W. 2), the inquest report (Exh. 17) as proved by P.W. 3 Shankar Nagzarkar, panchanama of the seizure of weapon and production thereof by constable S. L. Sawant vide Exh. 30 as proved by P.W. 5 Fernandis, etc. The learned Advocate for the appellant took us through the aforesaid evidence in details and on carefully considering the same, we are of the view that the act of killing deceased Ajappa at the hands of the appellant as alleged by the prosecution has been sufficiently proved by the evidence on record.
9. As regards the alleged assault on constable Desai, however, the learned Addl. Sessions Judge has fallen into serious error. Indeed, constable Desai himself had told in his deposition that the blow of the sickle had fallen on him while he was in the process of intervening in the matter to prevent an attack on the victim. The scuffle as told by P.W. 3 Shankar Nagzarkar was the version only of that witness, uncorroborated even by constable Desai. As already stated above, the other witnesses were almost silent about the blow that had fallen on constable Desai. This is not to say that constable Desai was not injured at all on the scene of offence. The word of constable Desai himself as corroborated by injuries certificate (Exh. 15) and the evidence of other eye-witnesses in respect of injuries sustained by constable Desai can reasonably be believed. The question is whether or not, the appellant is said to have voluntarily caused the hurt to constable Desai. In the circumstances of the case and in view of the evidence of constable Desai himself, the finding on the point has got to be in the negative. Much less is there in evidence that the blow was given by the appellant deliberately either with intention to prevent or deter constable Desai from discharging his duty as a public servant or that a force was used Against him with that intention. The conviction of the appellant for the offences punishable under sections 353 and 332 of the Indian Penal Code deserves to be set aside on facts which have come on record, irrespective of the question whether or not the appellant falls within the exception carved out by S. 84 of the Indian Penal Code. Needless to say that as we are of the view that the appellant does fall within the scope of S. 84 of the Indian Penal Code, the convictions and sentences awarded for the aforesaid offences much more deserve to be set aside. Accordingly, we do so.
10. Coming then to the arguments on the point of S. 84 of the Indian Penal Code, the section itself says 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. The section falls in Chap. IV of the Indian Penal Code which deals with 'General Exceptions'. The reading of this section will not be complete unless it is read with S. 105 of the Indian Evidence Act, 1872 and particularly illustration (a) to that section. The text of the section and the illustration may be quoted here with advantage :-
'When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustration
(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.'
The learned Addl. Public Prosecutor relied upon, in this context, the classic ruling in State of Madhya Pradesh v. Ahmadulla, : [1961]3SCR583 which laid down that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by S. 84 of the Indian Penal Code lay on the accused who claimed the benefit of that exemption. In that case, the defence had led evidence of a District Civil Surgeon and Superintendent of the Mental Hospital both of whom had given evidence about the nature of epileptic insanity. On facts, it was held that the evidence could not prove the mental condition of the appellant at the time of the act. It must be pertinently noted that it was not a plea in that case on behalf of the defence that the appellant was not in a position to prove because of his insanity, that at the relevant point of time he was insane.
11. The next ruling relied upon by the learned Addl. Public Prosecutor was in S. W. Mohammed v. State of Maharashtra, : 1972CriLJ1523 in which it was observed that the law presumed every person of the age of discretion to be sane unless the contrary was proved. A caution note was sounded that it would be most dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime and that the mere fact that no motive has been proved for the offence in question or that he had made no attempt to run away, though it was possible for him to do so, would not indicate that he was insane. Laying down the similar proposition as laid down in the former ruling, the conviction of the appellant before the Supreme Court was confirmed by that Court after finding on facts, that the appellant had failed to prove the required state of mind at the time of the commission of the offence. In this case also, it was not the plea of the defence that the appellant was unable to prove his defence of insanity on account of his insanity.
12. In Oyami Ayatu v. State of M.P., : 1974CriLJ305 , the Supreme Court had again referred to the presumption in favour of sanity of the person of discretion and the awareness of the natural consequences of his act. It was pointed out the presumption was rebuttable and that the accused could rebut it by placing before the Court all the relevant evidence. It was also pointed out that the burden, in such cases, though not as heavy as upon the prosecution in a criminal case, is upon the accused to prove that he was of unsound mind at the time of the commission of the offence and as such, incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. In this case, the Supreme Court had noted (in para 5 of the AIR report) that no plea was taken on behalf of the appellant at the trial that he was not a sane person. Much less was there a plea on behalf of the defence in the trial Court that the accused before the Court was not in a position to prove, on account of his insanity, his insanity at the relevant point of time.
13. A reference was made to a ruling of the Madhya Pradesh High Court in Shivraj Singh v. State of M.P. . Apart from the aforesaid propositions, it was observed in that ruling that the burden on the accused could not be equated with the burden of proof on the prosecution in criminal cases and could not be rated higher than a burden on a party to civil proceedings wherein a finding could be based on preponderance of probabilities. It was also pointed out that there was no conflict between the general burden, which was always on the prosecution and which never shifted, and the special burden that rested on the accused to make out of insanity. On examination of the evidence before the High Court, it was concluded that the accused was not insane in any sense at the relevant point of time.
14. In Keshaorao v. State of Maharashtra similar propositions were laid down emphasising more on the propositions made out in the aforesaid rulings that the legal insanity was not medical insanity and that the two ought not to be confused with each other. It was observed that it was only the legal insanity with which the Court was concerned and that it was by the test laid down in S. 84 of the Indian Penal Code, as distinguished from the medical test, that the criminality of an act was to be determined.
15. Somewhat similar propositions about legal insanity were stated in State v. E. Lemos AIR 1970 Goa. 1 : 1970 Cri LJ 36.
16. There could be no dispute about the propositions laid down in the aforesaid rulings, but none of them could cover the contingency which was specifically dealt with by the Supreme Court in Ratan Lal v. State of M.P., : 1971CriLJ654 . After stating the law as laid down in State of Madhya Pradesh v. Ahmadullah, : [1961]3SCR583 and D. C. Thakkar v. State of Gujarat, : 1964CriLJ472 in the terms as stated above, the Supreme Court had turned to the facts of the case which was before it. The appellant before the Supreme Court had taken a specific plea of unsound mind at the time of the commission of the offence. The Supreme Court observed, however, that the accused was arrested on or about the date of the offence and had remained in police custody for about ten days when it was found that he needed a medical examination. The District Magistrate had then ordered that he be medically examined. There was no explanation on record as to why the accused was kept in police custody all that time. There was no evidence either to indicate as to his condition from the time of his arrest to the time when his case was referred for medical examination. The Supreme Court recorded that those facts were within the knowledge of the police and that the Supreme Court would have expected that the prosecution would adduce evidence regarding the condition of the accused during the aforesaid time. Noting that the police had made it impossible for the appellant to prove his mental condition at the time of the incident by keeping him in their custody for ten days from the date of the arrest, not having him examined and not sending him to judicial custody earlier where he would have been examined by the jail doctor, the defence had led evidence in that case as to the condition of the appellant-accused before the incident in question. Reference was made to the evidence of the prosecution witnesses about certain facts regarding the circumstances attending the alleged commission of offence. So also, reference was made to the other evidence pertaining to the subsequent circumstances. It was then concluded that in view of that evidence, the defence had discharged his legal burden to rebut the presumption in favour of sanity and had succeeded in proving that the appellant was not capable of understanding the nature of his act at the time of the commission of the offence. The trial Court had acquitted the appellant for such a reason, but at the appellate stage, the appellant was convicted. The Supreme Court allowed the appeal and confirmed the decision of the trial Court by acquitting the appellant before it. In our view, the principle laid down by this ruling squarely covers the facts of the present case and entitles the appellant to seek an acquittal at our hands. None of the rulings cited by the learned Addl. Public Prosecutor deals with the point which was dealt with and decided by the Supreme Court in the present case. Those rulings, therefore, do not squarely cover the facts of this case, though the legal propositions laid down by the said rulings are undisputable.
17. Having seen the position of law, in this respect, it may now be worthwhile to refer to the facts of the case as they stand proved by the evidence on record. In the first place, it may be worthwhile to note the chronology of events. The offence in question was allegedly committed on 7th April, 1986 and on the same day and on the scene of offence itself, the charge of the appellant was taken by the police and he was arrested in course of time. The record shows that he was produced before the Chief Judicial Magistrate on 8th April, 1986 and police custody remand was taken up to 15th April, 1986. The said remand was again got extended up to 22nd April, 1986 by subsequent order of the Chief Judicial Magistrate. On 22nd April, 1986, the appellant was taken in judicial custody and he was in judicial custody till the date of submission of charge-sheet on 1st July, 1986. As already stated above, the charge-sheet was received by the Addl. Sessions Judge who was in charge of the Court of Chief Judicial Magistrate, but it is not very clear whether or not the Addl. Sessions Judge had an opportunity to see the demeanour of the appellant-accused at least on that day. On 5th August, 1986, the appellant was committed to the Sessions Court and the record shows that at that time, for the first time, it was recorded that the appellant needed legal assistance at the trial. The record does not show that till then legal assistance was made available to the appellant at the committal stage or earlier. At the earlier stage of this appeal, the learned Additional Public Prosecutor was given time to bring before the Court, in the interest of justice, the file maintained about the physical and mental condition of the appellant. The learned Addl. Public Prosecutor pointed out from that file a letter dated 6th August, 1986 from the Civil Surgeon, Ratnagiri, to the Superintendent of Prisons, Sawantwadi, that as the accused was found talking irrelevant, behaving abnormally, mentally confused, it was necessary to refer him to the mental hospital for further observation and treatment. It appears from this letter that before this letter, the appellant was produced before the Civil Surgeon. It was then that the Civil Surgeon had recorded the aforesaid facts. From the evidence of defence witness No. 1 Dr. Vavahare, it transpired that the appellant was, in fact, produced before him in pursuance of the aforesaid request, on 12th August, 1986 and he was examined at the Mental Hospital, Ratnagiri on 14th August, 1986. He had taken his own time to observe the mental condition of the appellant since then and had found him insane ultimately under a certificate dated 26th August, 1986 (Exh. 36). The relevant part of this document showed that the Doctor had found that the appellant could not tell regarding the criminal act, but had a negative approach. His talks were irrelevant and he expressed delusion or persecution. It was certified that the appellant was a lunatic and a proper person to be taken charge of and detained for the treatment. He admitted that on 5th November, 1986, he had requested the District Superintendent of Police, Ratnagiri, to afford protection to the appellant. According to him, a patient having a epileptic fits could sometimes be peevish and could commit brutal murders. He stated that such type of persons do not even try to run away after committing the murder. According to Dr. Vavahare, hereditary could be a cause of lunacy. He stated also that it was a rare possibility that a lunatic would assume that a person coming before him was a wild beast or a thing. Dr. Vavahare told in his cross-examination that the accused himself had not told any history, but his brother had told him (the doctor) about him. It was, however, not on record of Dr. Vavahare that the appellant-accused was previously a lunatic and was treated as a lunatic. The evidence of Dr. Vavahare thus provided, at least that right on the next day of committal of the appellant to the Sessions Court for trial, the appellant was found insane and that he continued to be so at least till 14th November, 1986. Thereafter, the record of the Sessions Court shows that on 20th March, 1987, the Advocate appointed to defend the accused made to the Sessions Court an application (Exh. 32) praying that he should be referred to the Mental Hospital for treatment. The said application came to be rejected and the trial proceeded. As already stated, the defence of insanity was the main, if not the only defence, taken on behalf of the appellant at the trial. The record of the present appeal, therefore, shows that the matter had come up before a Division Bench consisting of S. K. Desai and V. V. Kamat, JJ. on 13th June, 1989 when an order was passed directing that the Jailor, Yerawada Prison should have the appellant-accused examined by a panel of qualified doctors in the field of Psychiatry and submit a report as regards the then prevailing mental state of the appellant accused. The appeal was adjourned till 24th July, 1987 for the receipt of the report. This order was complied with and a report dated 7th July, 1989 was received by this Court. The panel of doctors had then noticed that the behaviour of the appellant during the period of observation was within normal limits, that he did not have any attacks of insanity or epilepsy, that he was not treated for any mental illness at the Yerawada Central Prison or the Civil Hospital or the Central Mental Hospital and further, that he was able to do work and was given work in the Textile section of the the Yerawada Central Prison, Pune. As regards the mental state, the observations were that he was conscious, relevant and rational and he did not have delusions or perceptual disorders. It was also observed that he was oriented to time, place and person and that he did not show any personality deterioration. Further, he was found to have had insight and judgment with adequate emotional response. This chronology of events indicates that at least subsequent to the commission of the offence and after the committal of the appellant to the Sessions Court for trial, the appellant was found positively insane.
18. The evidence of the defence witnesses deserves to be appreciated on the background of the aforesaid facts which have authentically come on record. D.W. 2 Hanamant Lingardi happens to be a brother of the appellant. He told in his deposition that the mental condition of the appellant was not satisfactory for about two years prior to the incident and that it had particularly become so when one of the brothers of the appellant, by name Ramappa, was murdered by deceased Ajappa about five years ago. (It may be noted here that the first informant constable Desai had also referred to this murder, but had told that it was committed two years ago). According to defence witness Hanamant, after Ramappa's murder, the appellant became mentally affected and had become an insane. He had started having fits of lunacy and, while in such fits, he used to say that a tiger was coming to eat him or to kill him. He used to hear the voice of tiger and used to refuse to take his food. Hanamant told that the accused used to have sleepless nights and if at all he was asleep, he used to get up and run away under the stress of fear from tiger. He added that whenever he saw deceased Ajappa (victim), the appellant used to say that a tiger was coming and that he (tiger) would kill him or eat him. Hanamant told that in such conditions of the appellant, it was for Hanamant himself to control the accused. He stated that as the family had no money for proper medical treatment, he was not taken to a hospital or a doctor, but was taken to a village medical practitioner in ayurvedic medicines for removing the accused from the influence of evil spirits. He told that the appellant used to be out of his fits for sometime, but mostly reverted back to his fits of lunacy. Hanamant added that on the date of the offence, the appellant was wandering in the forest with a heavy sickle (pal koyta) expecting a tiger to come. He added that the appellant was indulging in making gestures with that weapon for killing an animal. Referring to the incident of the alleged offence, the witness added that at the relevant point of time, the appellant-accused was a lunatic. In his cross-examination, he said that the appellant used to work for cutting woods in the forest. The learned Addl. Sessions Judge thought that this was a circumstance showing that the appellant was a sane and sober being. That is not necessarily so. It is a common experience that insane persons are tolerated by employers at work out of compassion and the mere fact that the appellant had worked at one place or other for cutting woods in the forest, an unintelligent job, could not necessarily mean that he was not insane. Indeed, if at all he was a worker employed in the forest for cutting woods, the possession of the heavy sickle at the relevant point of time also stands explained. The second consideration which made the learned Addl. Sessions Judge to think that the appellant was not insane was that he was never taken by the family members to any mental hospital for treatment. Admittedly, the appellant and his family members belong to a poor class of society living at a far off place like Banda, or the interior thereof and working in the forest, at the mercy of others, for their own survival. It should not be a matter of surprise that a lunatic from that strata of society was not treated properly at the hands of qualified doctors or in a mental hospital. May be that the city of Belgaum where the mental asylum is said to be located, was at a distance of some miles away from the native place of the accused. Ratnagiri was still a farther place. It was certainly not possible for a poor family to afford to send the appellant along with somebody else to the mental hospital for treatment especially when, in spite of his insanity, he could work as a worker in the forest for cutting woods and contribute something to the earning of the family. The evidence of witness Hanamant ought not to have been disbelieved, in the circumstances of the case, merely because he happened to be a brother of the appellant-accused. Who else, except a brother like him, could have been a proper witness, in the circumstances of the case It is pertinent to note, in this context, that Gangavva, though a material witness for the prosecution and a sister of the accused, was not examined by the prosecution, in spite of the fact that her evidence was material to the prosecution on some other points as well. It was a specific suggestion made to the Investigating Officer that Gangavva's evidence was eliminated by the prosecution only because she could have said something about the mental illness of the appellant. P.W. 10 Dy.S.P. Shinde admitted in his cross-examination that it was the practice of the police to refer an accused to the mental hospital or to the Civil Surgeon if it was transpired during the period of police custody remand of the accused that he was insane. He added that in this particular case, the accused was accordingly referred to the Civil Surgeon after arrest. If so, we have every reason to presume that some report must have been collected from the Civil Surgeon or the Mental Hospital regarding the mental condition of the appellant at about the time when the appellant was in police custody. If so, we fail to see any earthly reason as to why that particular report was not tendered by the prosecution in any Court whatsoever and for any legitimate reason whatsoever. As stated earlier, when this particular appeal had come up for hearing before my learned brother Shah, J., the matter was adjourned with a direction to the learned Addl. Public Prosecutor to secure from the jail authorities or any other authorities the record, if any, available showing the mental condition of the appellant soon after his arrest. The learned Addl. Public Prosecutor was at pains to submit before us that in spite of all correspondence made by her, no such record had become available. It is pertinent to note, in this context, that the subsequent reference made to the Civil Surgeon and the Mental Hospital after the committal was not same as the reference made to them by the police authorities while the appellant was in police. custody. Dy.S.P. Shinde had no knowledge, according to his own version in the cross-examination, about that second reference at all, much less about the findings arrived at by the said authorities in respect of the mental condition of the appellant. One other important relevant fact which came on record in the cross-examination of Dy.S.P. Shinde was that police head constable Patil was deputed by him to Yarzare village, the native-place of the appellant-accused, to record the statements of some of the relatives of the deceased, possibly those witnesses also could have stated about the mental condition of the appellant. In any event, it was obligatory on the police machinery, finding the circumstances surrounding the incident of offence and antecedent thereto, to record, in all fairness, the statements of the relatives of the appellant-accused also to bring on record the state of mental condition of the appellant at about the relevant point of time. The police machinery, as we believe, is not meant only to launch prosecution and secure convictions in cases where launching of the prosecution would not have been called for. One more circumstance which had come on record in the cross-examination of Dy.S.P. Shinde was that the appellant-accused was a Kannada speaking person and even Dy.S.P. Shinde had to take help of a constable acquainted with Kannada language to explain what the appellant-accused wanted to convey to the police in the course of his interrogation. If such a person, ignorant of the local language Marathi, was produced before the Magistrate for police custody remand, he should have ordinarily been interrogated by the Magistrate with the help of an Interpreter. At no stage, before the committal proceedings or after the committal proceedings, the services of an Interpreter appeared to have been availed of. If under such circumstances, an unrepresented person like the appellant-accused, not conversant with the local language Marathi and labouring under the stress of the act committed by him as well as the subsequent arrest and Prosecution, has not said anything before the Court, of his own accord about his mental illness, that omission must be ascribed to his inability as well as the failure on the part of the relevant authorities to take necessary Precautions to refer the appellant to the Proper authorities for ascertaining the exact nature of the mental condition of the appellant.
19. The evidence of the third defence witness Pawar is to be read on this back-ground. He happens to be a village Medical Practitioner as well as probably a person professing himself to be remover of evil spirits. Those who are conversant with the life in the remotely situated interior of hilly areas of southern Konkan are convert ant with the practices adopted by such professionals and they would not be surprised at the relatives of the appellant taking the appellant to such a professional for treatment. His evidence need not be discarded on the background of the aforesaid circumstances connected with the appellant. However, even if his evidence is accepted with a pinch of salt along with the story made out by the appellant's brother that the appellant had delusion about tiger, etc. one thing is clear from the evidence of this person that the mental condition of the appellant was not normal before the incident, at about the time of the incident or after the incident.
20. Having seen the facts preceding the incident of offence as well as those subsequent to the incident of offence which are pointer to the insanity of the appellant, one may have a look at the circumstances attending the incident of offence which also point out in the same direction. The learned Addl. Public Prosecutor submitted that the very fact that the appellant was standing in the weekly bazaar with the weapon of attack and that on seeing the deceased going away from the place in the market, the appellant had made a violent attack on the victim indicated, when coupled with the antecedents of the murder of the brother of the appellant-accused by the victim a few years before that, the appellant had premeditated plan to assault the victim in the market place on that day and to do away with him. She submitted vehemently that this circumstance also could indicate that the appellant was not insane at that juncture, as also that he was capable of understanding the consequences of what he was doing. On giving a considered thought to these submissions advanced by the learned Addl. Public Prosecutor, we think that these are not the only inferences that could be drawn on the facts of the case. It is to be noted that according to the prosecution story itself, the victim as well as Gangavva, the sister of the appellant, were in the market since before 1.30 noon and it was only at 1.30 noon that Gangavva had one to the police station to make a report against the deceased. It is nobody's case that the appellant had come to the market at about that time. This means that if the appellant was in market since the late morning and if he was predetermined to make an assault on the victim so as to teach him a lesson, he could have had made the attack on the victim as soon as the victim was first seen by him on that day. He would not have waited till about 2 p.m. He would not have, in ordinary course of things, chosen to attach the victim when the victim was accompanied by police constable and that too, at the busiest hour of the weekly bazaar. Nobody had ever anticipated an attack from the appellant on the victim at the relevant point of time. Every eye-witness to the incident told in his deposition that the act of the appellant-accused in making an attack on the victim was sudden. The force used by the appellant must have been great because the result of the attach was beheading the deceased, but that circumstance, by itself, could not enable one to impute any intention of the appellant in the given circumstances because the appellant, being a wood-cutter in the forest, was probably used to giving forceful strikes. The conduct of the appellant in attacking the victim in the presence of several persons who could have watched him committing the offence is one of the pointers to his mental condition. The second important thing is that after beheading the deceased, he picked up the head and threw it in the air twice or thrice. This was certainly not a conduct of a normal human being. Much less so was the conduct of the appellant in bringing the head back near the dead body and chopping it so much so that the brain matter fell out. The appellant had not stopped even at that time. After breaking the head, he again picked it up and blew it up in the air. Having done all this, if he was sane, he would have certainly made an attempt to ran away from the place. The appellant-accused did not do so. As admitted by eye-witnesses, he stood or sat quietly near the scene of offence till he was taken to the police station by the police. He did not offer any resistance to the police nor is he said to have exhibited any recalcitrance towards the police authorities. It is significant to recall here the evidence given by Dr. Vavahare who told that the person in a fit of insanity could be brutal in his act and could be as tranquil or motionless as one could imagine after the brutal act was completed. All these circumstances attending the act of the alleged crime could be a pointer to the insane mental condition of the appellant. We are aware of the caution sounded by the Supreme Court that mere nature of the act allegedly committed by the accused should not be given undue importance to determine the mental condition of the accused at the relevant point of time. Here in the present case, it is not merely the nature of the act but, as already said above, the circumstances preceding and subsequent to the incident of offence do warrant a conclusion that the appellant has sufficiently discharged the burden of proof cast upon him by law to prove that he was falling within the four corners of the ambit of Section 84 of the Indian Penal Code. The presumption of sanity stands rebutted by the facts which have come on record. The case of the present appellant thus clearly falls within the principle propounded and laid down by the decision of the Supreme Court in Ratan Lal v. State of M.P., : 1971CriLJ654 .
21. In the result, we conclude that as the case of the appellant is proved to be falling within the scope of Section 84 of the Indian Penal Code, he is not proved to have committed the offence of murder as alleged by the prosecution. He is, therefore, entitled to an acquittal. Accordingly, we allow the appeal, set aside the conviction and sentence awarded to the appellant and acquit him of all the charges levelled against him. The appellant is directed to be set at liberty forthwith, unless required in any other case, in view of the fact this pending appeal he was found to be cured of his lunacy.
22. Order accordingly.