Kanta Bhatnagar, J.
1. Appellant Nagji was tried for the offence under Section 302 Indian Penal Code by the Sessions Judge, Partapgarh and by the judgment dated August 28, 1976 convicted for that offence and sentenced to imprisonment for life and a fine of Rs. 200/-, in default of payment of fine to undergo two months rigorous imprisonment.
2. Briefly stated the prosecution case leading to the trial und conviction of the appellant is as under: On July 9, 1975 early in the morning Gautam (P.W. 1) brother of the appellant Nagji, whose houses are adjacent to each other, came out of his house to make water. Appellant Nagji enquired as who was there and on Gautam telling him that it was he, the former cried that his wife had died. Gautam asked him as to how that had happened. Nagji told him that he bad done away with her. On being questioned as to for what reason he had done so, Nagji told that he had done so in connection with the ornaments. Gautam (P.W. 1) immediately rushed to his father-in-law's house and informed his father-in-law Khatiya (P.W. 2) about Nagji killing his wife. Gautam (P.W. 1) and Khatiya (P.W. 2) then went to Bhimji (P.W. 3) and narrated what had happened. Bhimji (P.W. 3), at the instance of Gautam (P.W. 1) and Khatia (P.W. 2) went to lodge the report at police out-post Kotdi. Gautam (P.W. 1) and Khatia (P.W. 2) returned to the house of Nagji to keep watch Nagji went inside his house and bolted it from inside. Bhimji (P.W. 3) went to police out-post Kotdi and informed Natwarsingh (P.W. 7), Constable of the out-post, about the incident. Natwarsingh directed Bhimji to go to police, station. Arnod and himself went to the house of Nagji Natwarsingh (P.W. 7) some-how managed to catch hold of Nagji and kept him under watch. Bhimji (P.W. 3) reached police station Arnod and lodged on oral report at about 11.45 a.m. with the Station House Officer Bherusingh (P.W. 11). The Station House Officer reduced the report into writing which is Ex. P. 2. The Station House Officer went to village, Jirawata to the house of appellant Nagji. Natwarsingh (P.W. 7) was sitting there catching hold of the appellant Nagji. A number of persons of the vicinity were also there. The Station House Officer entered the room and found the dead body of Smt. Kastoori, wife of the appellant lying there in a pool of blood. Her clothes were smeared with blood. The Station House Officer prepared the panchnama of the dead body which is Ex. P. 1. He also prepared the site inspection memo Ex. P. 3 and site plan Ex. P. 4. He took the blood smeared earth from the site. The accused-appellant was arrested vide memo Ex. P. 8. His shirt Ex. 4 and Dhoti Ex. 5, having blood stains on them, were taken in possession vide memo Ex. P. 7. On that very day the appellant furnished information to the Station House Officer for getting recovered the 'aleta' (wooden lathi having an iron blade). The information reduced into writing is Ex. P. 10. In pursuance of that information the appellant got recovered 'aleta' Ex. 6, which the Station House Officer took in possession vide memo Ex. P. 6. It was suspected to have blood on the blade and some hair. The articles recovered were sealed then and there. The dead body of Smt. Kastoori was sent for post mortem examination to General Hospital, Partapgarh with Chamansingh, Constable at 4.30 p.m. On July 9, 1975 Dr. Ganendra Nath Rai conducted the autopsy over the dead body and prepared the post mortem examination report Ex. P. 5. The Doctor noted three punctured wounds, fourteen incised wounds and two contusions on the various parts of the dead body. On dissection the Doctor noted internal fractures on the head. According to the Doctor all the injuries were ante-mortem in nature and were sufficient in the ordinary course of nature to cause death. The duration of death according to the Doctor was within 12 to 24 hours. The cause of death was shock and haemorrhage on accourt of the injuries sustained by Smt. Kastoori. The clothes of the dead body were received from the Doctor in a sealed condition by the Station House Officer. The Station House Officer sent the clothes with other articles to the Chemical Examiner, Jaipur, through Gulam Rasool (P.W. 10). The report of the Chemical Examiner is Ex. P. 12 and that of the Serologist is Ex. P. 13. The blood on all the articles sent was detected to be human blood.
3. Upon completion of necessary investigation, charge sheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Partapgarh. The learned Magistrate finding a prima-facie case, exclusively triable by the courts of sessions, committed the appellant to the Court of Sessions Judge, Partapgarh to stand his trial. As the accused was not represented by any Counsel, the learned Sessions Judge appointed Amicus-Curiae to plead on his behalf. Since the accused was keeping totally quiet, the court considered it proper to ascertain whether he was capable of understanding the proceedings of the Court. The learned Judge, therefore, referred the appellant to the Chief Medical Officer, Partapgarh for mental examination. The Chief Medical Officer, Partapgarh requested the Court for getting the appellant examined at Udaipur Medical College. The appellant was sent to Udaipur Medical College for observation and examination. He was kept under observation there and examined on October 29, 1975. The Court received the report of Dr. P.S. Gehlot to the effect that nothing could be detected from the observation and examination of the accused to point out that he is insane. The learned Judge examined Dr. P.S Gehlot on March 9, 1976 in the Court. Dr. Gehlot stated that the behaviour of Nagji was normal and he was deliberately avoiding answering the questions. That, he was properly taking meals and was obeying the instructions properly. In the opinion of the Doctor, the accused was capable of understanding the proceedings of the Court. Having obtained this opinion through the report and the statement of Doctor Gehlot, the learned Sessions Judge charge-sheeted the appellant on March 9, 1976 for the offence under Section 302 Indian Penal Code. The accused did not reply to the charge. The then Sessions, Judge having been transferred charge under Section 302 Indian Penal Code was again framed and read over and explained to the accused on July 16, 1976. At that time also the accused did not reply to the charge and remained standing looking towards the ground. The learned Judge proceeded with the trial. Prosecution examined eleven witnesses in all to substantiate its case against the appellant. Questions were put to the accused for examining him under Section 313 of the Code of Criminal Procedure but he did not answer to any question and remained mute. No defence witness was examined. The trial Judge placed reliance on the prosecution evidence and held the appellant guilty and sentenced him as stated earlier.
4. Being aggrieved by his conviction and sentence the appellant filed an appeal through the Superintendent, Central Jail Udaipur. As he was unrepresented, Mr. H.C. Mathur was appointed Amicus-Curiae to plead on his behalf in this appeal.
5. We heard Mr. H.C. Mathur, learned Amicus-Curiae and Mr. H.C. Bhati, learned Public Prosecutor for the State and carefully examined the record of the case.
6. Mr. Mathur's criticism on the findings of the learned Sessions Judge is two fold. His first contention is that the prosecution case solely rests on the extra-judicial confession of the accused as coming forth from the evidence of Gautam which in the absence of any corroborative piece of evidence, cannot be made the basis of conviction. The second line of argument adopted by Mr. Mathur is that the appellant was insane and is, therefore, entitled to the benefit under Section 84 of the Indian Penal Code.
7. The learned Public Prosecutor controverting these contentions submitted that, besides the evidence of Gautam (P.W. 1) there is the evidence of Smt. Sajjan (P.W. 8) and Gordhan Dass (P.W. 9) throwing light on the motive of the accused to commit the crime. According to the learned Public Prosecutor the recovery of the 'aleta' (alleged weapon of offence) from the house of the appellant in pursuance of the information furnished by him and the blood stained clothes from his person at the time of his arrest, his extra-judicial confession before his real brother Gautam (P.W. 1) immediately after the commission of the crime are strong circumstances against the appellant.
8. Murder of Smt. Kastoori was committed sometime in the intervening night of 8th and 9th July, 1975. According to Gautam (P.W. 1) it was early in the morning that he had gone out of his house to make water. That his brother Nagji appellant cried from his own house that his wife has died and on enquiry, he further told that it was he (appellant) who had done away with her. The witness further deposed that on being questioned, the appellant told him that he had done so on account of the ornaments. The witness has stood the cross-examination well. The only ground pointed out by the learned Amicus-Curiae to disbelieve his statement is, that, after the arrest of the appellant this witness was cultivating his field and therefore, must be interested in getting the appellant convicted so that he may enjoy his property. The argument is not appealing. The reason is that there was no enmity between the two brothers. Gautam (P.W. 1) has stated that he was giving the yields of the cultivation to the mother of the appellant. There is not an iota of evidence to suggest that the two brothers had any enmity so that one may falsely implicate the other. On the other hand there is the evidence of Smt. Sajjan (P.W. 8), the mother-in law of the appellant to the effect that when the appellant had gone to her to get the silver anklets of his wife about a fort-night prior to the occurrence and got the tehrir written because of the failure of Smt. Sajjan to give the anklets to his brother, Gautam had accompanied him. According to Gor-dhan Das (P.W. 9) the scribe of tehrir, it was given by Nagji to his brother Gautam. This shows the cordial relations between the two brothers. If one brother is in custody, the other brother would naturally look after his fields and from that it cannot be inferred that he would falsely state against the brother in custody to continue in possession of the property. Gautam (P. W. 1) has stated about his going to Khatia, his father-in-law and informing him about what he had heard from Nagji. Both of them are said to have gone to Bhimji (P.W. 3) and narrated before him what had happened and sent him to police station to lodge the information. Khatiya (P.W. 2) and Bhimji (P.W. 3) have supported Gautam in this regard.
9. Mr. Mathur stressed that the version of Gautam what he was told by his brother that he had killed his wife because of the ornaments is an after thought as this fact does not find place in his police statement Ex. D. 1. Simply because this fact does not appear in the police statement of the witness it cannot be said that he was improving the story. The reason is that there is evidence of Smt. Sajjan (P.W. 8) and Gordhan Dass (P.W. 9) that the appellant and Gautam had gone to Smt. Sajjan in connection with the silver anklets of Smt. Kastoori.
10. Another circumstantial evidence against the accused is his relations with his wife not being cordial. This is spelt out from the statement of Smt. Sajjan who had stated about his daughter Smt. Kastoori going to her a few days prior to her death and informing about her being hungry for four days and leaving her husband's house. It is also evident from the statement of Smt. Sajjan that Nagji wanted silver anklets of his wife back and the witness had told him to return the same after the crop. That, upon the instance of the appellant, Smt. Sajjan (P.W. 8) assembled some persons and got a 'tehrir' written in favour of the appellant and asked him not to trouble her daughter as she would return the ornaments and anklets after the crop. Nagji had taken Smt. Kastoori at the time and it was only after about a fortnight that Smt. Sajjan was informed by one Roopa (P.W. 6) about her daughter's death. This version taken together with the statement of Gautam lends strength to the argument of the learned Public Prosecutor that the appellant was not having cordial relations with his wife and that might have been the cause of the murder of Smt. Kastoori.
11. Be it as it may, in the absence of any specific evidence as to what exactly happened at the spur of the moment when the alleged incident happened, this much is proved that immediately after the murder, the accused had confessed before his real brother Gautam. In such circumstances we find no reason to disbelieve the version given by Gautam.
12. So far as the recovery of the 'aleta' is concerned, the learned trial Judge has not considered it to be in pursuance of the information given by the accused. In view of the statements of the two motbirs viz. Dhanna (P.W. 5) and Roopa (P.W. 6) we do agree with the findings of the learned trial Judge that the recovery could not be said to be in pursuance of the information furnished by the appellant. The learned Judge has however considered the recovery of the 'aleta' from inside the room belonging to the accused in which the dead body was lying, as a connecting link of the prosecution case. The 'aleta' was found stained with human blood according to the report of the Serologist.
13. Another important circumstance implicating the accused with the commission of the crime is the blood stained shirt Ex. 4 and dhoti Ex. 5 which he was wearing at the times of his being apprehended by the police. The blood on them was detected to be human blood by the Serologist.
14. From the above discussed evidence we are inclined to agree with the learned trial Judge that prosecution has established by convincing evidence that the appellant was the author of the murder of Smt. Kastoori.
15. 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.
16. Mr. Mathur referred to the statements of three prosecution witnesses viz. Gautam (P.W. 1), Bhimji (P.W. 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 mad 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 he 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 stated 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 mad. He did not speak any thing. The witness then stated that he used to take his food and also bath.
17. 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 concequence of his act, and therefore, he should be given benefit under Section 84 of the Indian Penal Code.
18. 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.
19. 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.
20. 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 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 a the tine 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 v. Ahmadulla : [1961]3SCR583 . 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 well and the behaviour of the accused subsequent to the occurrence, were of the opinion that pt 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 Section 84 of the Indian Penal Code.
21. 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 commission of the crime he was suffering from unsoundness of mind. Even in extreme case 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.
22. In the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat : 1964CriLJ472 . 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 benefit 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 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 Penal Code can only be established from the circumstances which preceded, attended, and followed the crime.
23. 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 Section 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 o 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 a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. That was also a 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 up-to the time of commencement of the sessions proceedings was held to be inconsistent.
24. The principles enunciated in the above referred cases were further followed by their Lordships of Supreme Court in the case of Bhikari v. The State of Uttar Pradesh AIR 1966 SC
25. Now we would turn to the case on hand and examine it keeping the above principles in mind.
26. The accused had remained mute throughout the trial and therefore, there arises no question of his taking the plea of insanity. It was because of his remaining quiet that the learned trial Judge referred the matter for medical opinion to ascertain whether the accused was capable of understanding the proceedings of the Court. While narrating the facts of the case we have referred to the opinion of Dr. P.S. Gehlot, Reader in Psychiatrsit, R.N.T. College, Udaipur. The Doctor had opined that the accused was neither deaf nor dumb. He was capable of understanding the proceedings of the Court. The Doctor did not find any mental infirmity in his behaviour during the period he remained under observation. The Doctor also stated in the court that the accused deliberately kept mute and would not reply to the questions put to him. Though this opinion of the Doctor was pr or to the trial and there being no cross-examination of the Doctor so as to make its use against the accused, still this opinion being obtained by the Court to ascertain the capacity of the accused to underhand the proceedings of the trial carries importance. From that, this at least can be said that accused at the time of the trial was capable of understanding the proceedings of the Court. In the absence of any evidence from the defence side to nullify that opinion, it can safely be said that there is nothing on record to suggest that the accused had suffered from any mental infirmity during the period, he remained in custody. To put it in other words, merely because the accused remained quiet when charge was read over to him and his statement under Section 313 of the Code of Criminal Procedure was recorded, it cannot be inferred that he was an insane person.
27. So far as the defence version about the unsoundness of mind prior to the occurrence is concerned, we have already referred to the relevant portion of the statements of the three witnesses viz Gautam (P.W. 1) Bhimji, (P.W. 3) and Roopa (P.W. 6). It is pertinent to mention that none of these witnesses has stated about any such act of the accused such as tearing off clothes or giving a beating to the persons or committing any such mischief so as to establish that he was in a mentally derailed condition Apart from it, even on the petty points of taking food and cultivating the field, the three witness have contradicted each other. Witness Bhimji (P.W. 3) has stated about the accused not cultivating his own held since one year prior to the occurrence. Gautam (P.W. 1) has stated that the accused was cultivating his field prior to the date of occurrence Gautam has no where stated that the accused was not in a position to put on his own clothes prior to the occurrence. Even assuming the statement of Gautam to be correct, he has himself stated that the accused was sometimes insane and sometimes sane. From this type of vague evidence it cannot be said that the accused at any time prior to the occurrence was suffering from any such insanity so as to be incapable of understanding the nature and concequence of his act. Even assuming for the sake of arguments that he was not of normal mental condition sometime prior to the occurrence, still it will have to be seen whether at the crucial time that is at the time of the commission of the crime he was suffering from such unsoundness of mind that he was incapable of understanding the nature of the act. In order to form an opinion in this regard the surrounding circumstances are to be looked into.
28. The accused after commission of the crime disclosed this fact to his real brother Gautam (P.W. 1). He had not only said what he had done but had also given the reason for the same. His conduct subsequent to that also shows that he was in a position to understand that his act was wrong and illegal. Gautam (P.W. 1) has returned to the house of Nagji along with Khatia (P.W. 2) after sending Bhimji (P.W. 3) to lodge the report and found that the accused was inside his room and had bolted it from inside. A person not understanding the consequence of his act would not have cared to bolt the room from inside. It was only with efforts that Natwar Singh, Constable (P.W. 7) could manage to take him out and catch hold of him and keep his so, till the arrival of the Station House Officer. There is not an iota of evidence to suggest the abnormal behaviour or conduct of the appellant at the time of his apprehension or subsequent to that. Mere keeping mute during the course of trial cannot be said to be an abnormal act.
29. In such circumstances, we do not find any material on record by which Section 84 Indian Penal Code can be successfully invoked and the appellant may claim any benefit under that provision. We, therefore, find no reason to interfere with the findings of the learned Sessions Judge for convicting and sentencing the appellant for the murder of his wife Smt. Kastoori.
30. Consequently, the appeal having no merits is dismissed.