JUDGMENT
Sharma, J.
1. Appellant Rajendra has been convicted by the learned Additional Sessions Judge, Khetri District Jhunjhunu for having committed offence under Section 302 1PC. In that on October 16, 1993 he gave blows with Gandasi on the person of Manju aged 2 years and Aabid 9 years who under the impact of the blows died. The appellant was sentenced to suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer three Months Simple Imprisonment.
2. From the material on record it is established that the appellant had no motive behind the alleged criminal act and on this strength, a plea of insanity under Section 84 IPC was raised before the learned trial court, which was rejected.
3. In the instant appeal also only contention of learned Amicus Curiae is that the appellant by reason of unsoundness of mind, was incapable of knowing the nature of the act therefore, in view of Section 84 IPC, he did not commit any offence.
4. The question that requires consideration is whether the appellate at the time of commission of offence suffered from insanity? And whether it was legal insanity so as to give the appellant the benefit of Section 84 IPC?
5. The burden of establishing the plea of insanity is by virtue of Section 105 of the Evidence Act on the accused. Their Lordships or the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujrat (1), indicated that evidence that falls short of proving insanity may still raise a reasonable doubt about the requisite intention. It was observed as under:-
“The doctrine of burden of proof in the context of insanity may be stated thus:-
(i) The prosecution must prove beyond reasonable doubt that the , accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution form the beginning to the end of the trial;
(ii) There is a rebuttable presumption that the accused was not insane, when he committed the crime in the sense laid down by Section 84 IPC. The accused any rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial but burden of proof upon him is no higher than that rests upon a party to civil proceedings;
(iii) 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 regard one or more of the ingredient of the offence, including means 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.”
6. For the purpose of obtaining the benefit of Section 84 IPC the accused will have to establish the circumstances which alone will enable him to claim the said benefit. Section 84 provides 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 that is either wrong or contrary to law.” In dealing insanity following principles have to be borne in mind:-
(a) Unsoundness of mind as contemplated by Section 84 IPC is legal insanity which requires that cognitive faculties of the accused are such that he does not know what he has done or what will follow from his act.
(b) The court shall presume absence of Insanity.
(c) To get the benefit of Section 84 IPC the accused must establish any one of the three elements necessary under the section. Incapability of knowing (1) the nature of the act, or (2) that the act was contrary to law or (3) that it was wrong.
7. It is not always realised that there is distinction having a widely differing effect, between incapacity at the time of doing the act charged and incapacity at the time of trial. While both the induced by unsoundness of mind, the former is substantive which excuses the offence under Section 84 of the IPC; the latter affects procedure and merely postpone the trial under Section 329 IPC. In the instant case there was no abnormality in the behaviour of the appellant. Karan Singh Shekhawat, Investigation Officer (PW. 25) in his deposition categorically stated that the appellant was absolutely normal at the time of commission of offence and nothing came to his notice during investigation that the appellant was incapable of knowing the nature of his criminal act. The legal conception of insanity differs considerably from the medical conception. It is not every from in insanity or madness that in recognised by law as a sufficient excuse. All minor aberrations of mind which are recognised by the medical science as amounting to madness are excluded in the eye of law. Even eccentricity or unsound-ness of mind of a very minor type is not sufficient. It is not every kind of idle and frantic humour of a man or or something unaccountable in his actions, which will show him to be such a mad man as is to be exempted from punishment.
8. In the case on hand the appellant is not able to establish conclusively that he was insane at the time he committed the offence some of the prosecution witnesses viz. Savita (PW.15) and Sukhdev (PW.14) although in the cross examination deposed that the appellant become mad before the incident but this oral testimony fails short of proving insanity at the time of commission of offence. Appellant in our opinion, has been rightly convicted and sentenced under Section 302 IPC.
9. In view of what we have discussed herein above, we do not find any merit in
the appeal. In stands dismissed accordingly.
10. We record our appreciation for the assistance rendered by Mrs. Alka Bhatnagar, learned Amicus Curiae.