Telangana High Court

Odela Ravi Kumar vs The State Of Telangana on 29 October, 2022

Bench: A.Venkateshwara Reddy, G.Anupama Chakravarthy

      HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
                           AND
     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

               CRIMINAL APPEAL No.652 of 2014

JUDGMENT:(Per GAC, J)

        This appeal is arising out of the judgment dated 28.04.2014

in S.C.No.86 of 2014 on the file of the II Additional Sessions

Judge, Jagtial, Karimnagar District.


2.      The appellant is the sole accused. A charge sheet is filed

against the accused for the offence punishable under Section 302of

IPC. The trial Court, after considering the evidence on record,

convicted the appellant under Section 235(2) of Cr.P.C. for the

offence punishable under Section 302 of IPC and sentenced him to

undergo imprisonment for life along with a fine of Rs.500/-, and in

default of payment of fine, to undergo simple imprisonment for ten

days.


3.      The brief case of the prosecution is that on 03.03.2008, the

appellant married PW-1 and they lead happy marital life for about

three months and thereafter, the appellant left to Saudi for eking
                                   2
                                                         AVR, J & GAC, J
                                                     Crl.A.No.652 of 2014



out his livelihood. After seven months, the appellant returned to

India and suspected the fidelity of PW-1 (wife) and used to quarrel

with her very often. In the year 2009, PW-1 gave birth to a male

baby and he was named Odela Sai @ Jitender. Even thereafter, the

accused used to pick quarrels with his in-laws and PW-1, for

which, the elders held panchayat and resolved the disputes and

directed the appellant/accused to stay with his wife at his in-laws'

place at Raikal. Inspite of it, the accused suspected the character of

his wife/PW-1 and one day, he forcibly removed the 'pustelatadu'

from the neck of PW-1 and left to his native place, Sirpoor. Later,

PW-1 along with the new born child, went to Sirpoor and started

leading marital life with the appellant but the appellant, as usual,

picked up quarrels with PW-1 and used to say that the child was

not born through him and he intends to kill the boy/deceased.


4.    On 06.05.2013, at about 4.30 p.m., while the boy was

playing in front of the house, the accused took him on his bicycle

saying that he will purchase chocolates for him, further took the

boy to agricultural well of one BeenaveniPeddalimmanna, cut the

legs of the boy with a knife above the anklets and thrown him into
                                  3
                                                        AVR, J & GAC, J
                                                    Crl.A.No.652 of 2014



the Well and the boy died due to drowning. The accused, after

returning to the house, cleaned the blood stained knife and pant,

concealed them in the house and when PW-1 questioned the

accused about the boy, the appellant stated that he had cut the legs

of the boy and thrown him into the waters of the Well. After

hearing the accused, PW-1 along with her co-sister, rushed to the

Well and found the dead body of the boy floating on waters in the

Well and immediately reported the same to the Police i.e. Ex.P-1,

who in turn, registered a case against the accused in Crime No.58

of 2013, dated 06.05.2013 of Mallapur Police Station. During the

course of investigation, the investigating officer conducted

panchnama over the body of deceased in the presence of

panchayatdars and also prepared the crime detail form, forwarded

the body of deceased for postmortem examination, recorded the

statements of witnesses, effected the arrest of the accused, recorded

the confession panchanama and pursuant to the confession, seized

material objects M.Os.1 to 5 including the crime weapon and the

blood-stained pant of the accused. After receiving the postmortem

report of the deceased and on completion of investigation, the
                                  4
                                                        AVR, J & GAC, J
                                                    Crl.A.No.652 of 2014



investigating officer filed charge sheet against the accused for the

offence punishable under Section 302 of IPC.


5.    A charge was framed against the accused for the offence

punishable under Section 302 of IPC, read over and explained to

him, for which, he pleaded not guilty and claimed to be tried.


6.    On behalf of the prosecution, PWs.1 to 11 were examined

and Exs.P-1 to P-16 were marked. The accused was examined

under Section 313 Cr.P.C. and he denied the incriminating

evidence of the prosecution and pleaded not guilty for the offence

charged.


7.    It is relevant to mention the relationships between the

witnesses for better appreciation of the facts. The deceased boy is

the son of PW-1 and the accused. PWs.2 and 3 are the father and

sister of PW-1 respectively, PW-4 is the resident of the same

village, PW-5 is the Photographer, PW-6 is a toddy tapper who

recovered the body from the Well at the instance of the Police.

PW-7 is the panch witness for scene of offence panchanama and

also for the inquest panchanama, PWs.8 and 9 are the panch
                                   5
                                                          AVR, J & GAC, J
                                                      Crl.A.No.652 of 2014



witnesses to the confession statement of the accused, who turned

hostile. PW-10 is the Doctor who conducted autopsy over the

body of the deceased and opined that the deceased died due to

drowning followed by asphyxia and other external injuries. PW-11

is the investigating officer who investigated the case and laid

charge sheet against the accused for the offence punishable under

Section 302 of IPC.


8.    Heard learned counsel for the appellant and the learned

Public Prosecutor. Perused the record.


9.    It is urged by the learned counsel for the appellant that there

is no direct eye witness to the incident and the trial Court convicted

the appellant basing on the sole testimony of PW-1, who is none

other than the wife of the accused and the mother of the deceased.

It is the specific contention of the learned counsel for appellant that

the appellant was suffering from mental illness even prior to the

incident but the trial Court did not consider the said fact and

convicted the accused, even in the absence of proper evidence and
                                     6
                                                           AVR, J & GAC, J
                                                       Crl.A.No.652 of 2014



therefore, prayed to set aside the conviction passed by the Court

below.


10.       In order to support his contentions, the learned Counsel for

the appellant (Legal Aid Counsel Mr.M.K.Ratnam) relied on the

judgment of Hon'ble Supreme Court in BoyaAkuthotaNagaraju

v. State rep. by Public Prosecutor, High Court of A.P.1,

wherein, their Lordships have held as under:


          "Extra-judicial confessions, if inspires confidence of
          Court and true version of the accused is mentioned on
          extra-judicial confession, conviction can be recorded
          if corroborated by other circumstances. But, extra-
          judicial confession itself alone cannot form the basis
          for conviction and such conviction is illegal. Before
          touching the evidentiary value of the extra-judicial
          confession, the Court must look into various
          circumstances like prior acquaintance with the
          persons with whom the accused allegedly gave
          statement and whether it is voluntary in nature."

11.       On the other hand, the learned Public Prosecutor contended

that the prosecution has proved the guilt of the appellant beyond

reasonable doubt and prayed to confirm the judgment of the trial

Court.



1
    (2018) 2 ALT (Cri.) 290 (DB)
                                   7
                                                         AVR, J & GAC, J
                                                     Crl.A.No.652 of 2014



12.   Now, the point for determination is;

      Whether the trial Court is proper in convicting the
      accused/appellant for the offence punishable under
      Section 302 of IPC and whether the prosecution has
      proved the guilt of the appellant beyond reasonable
      doubt for the said offence?

13.   The criminal law was set into motion basing on the

information given by PW-1, who is the wife of the accused. The

report given by her is Ex.P-1. It is important to mention that the

entire case of prosecution rests on circumstantial evidence as none

has witnessed the alleged murder that is said to have been

committed by the appellant.


14.   The cardinal principles of criminal law are that the

prosecution shall prove the guilt of the accused beyond reasonable

doubt and the accused shall be presumed to be innocent till the

offence is proved and benefit of doubt has to be extended in case

the prosecution fails to prove the guilt of the accused beyond

reasonable doubt.


15.   In order to prove an offence punishable under Section 302 of

IPC, it is for the prosecution to prove that the death of the deceased
                                    8
                                                          AVR, J & GAC, J
                                                      Crl.A.No.652 of 2014



is caused maliciously, with a specific motive, the bodily injury

caused by the offender is within the knowledge that such an injury

might cause the death of the deceased and further, the injury

inflicted is sufficient to cause the death of the deceased.


16.   The evidence of PW-10/Doctor is crucial to prove whether

the death of the deceased is homicidal or natural. His evidence

discloses that on 07.05.2013 at about 9.00 a.m., he received

requisition from Mallapur Police Station, to conduct postmortem

examination on the dead body of the deceased, named Odela Sai @

Jitender. Accordingly, she conducted autopsy over the dead body

of the deceased boy aged about four years and found the following

external injuries:

      1.

Lacerated wound on the back side of both lower limbs measuring about 2½ cm x 1½ cm x 1 cm deep exposing muscles and arteries.

2. Abdomen and chest was found swollen profusely due to swallowing of water.

Both the injuries are ante-mortem in nature.

17. The postmortem report of the deceased is Ex.P-13. Her

evidence further disclose that she preserved the viscera of the

AVR, J & GAC, J Crl.A.No.652 of 2014

deceased and handed over the same to the Police for further

forwarding the same to Regional Forensic Science Laboratory

(RFSL) for chemical analysis. Ex.P-14 is the RFSL report. It is

specifically opined by her that the deceased died of drowning

followed by asphyxia and other external injuries.

18. On perusal of the RFSL report, it is evident that diatoms

were found in the viscera of the deceased and also in the sample

water (which was collected from the Well) and as such, it can be

construed that the deceased swallowed water while drowning

which corroborates the opinion of the Doctor and hence, it is

concluded that the death of the deceased is not natural. It can also

be understood as the deceased was aged about four years, he

cannot himself commit suicide and as such, the death of the

deceased would be either homicidal or accidental and it is for the

prosecution to prove that the accused committed the murder of the

deceased.

19. The evidence of PWs.1 to 3 also disclose that they have not

directly witnessed the incident, but they suspected that the accused

AVR, J & GAC, J Crl.A.No.652 of 2014

might have committed the murder, as he suspected the fidelity of

PW-1 and was under the impression that the deceased was not his

son. The evidence of PWs.1 to 3 clearly disclose that the accused

suspected he character of PW-1. It is the specific evidence of

PW-1 that on the date of incident at about 4.00 p.m., the accused

took her son on his bicycle, in order to purchase chocolates and at

about 6.00 p.m., he returned back alone and when questioned by

her, the accused informed that he had cut the legs of the boy and

thrown him in the agricultural well. On that, she along with the

other persons, rushed to the Well and noticed the body of the

deceased floating on waters.

20. In the cross-examination, it is specifically admitted by PW-1

that she never preferred any complaint against the accused that the

accused tortured her or suspected her fidelity and further admitted

that the accused used to suffer with mental illness. It is also

admitted by PW-1 that Ex.P-1 was not scribed by her and she does

not know the name of the scribe. PW-1 denied the suggestion that

the deceased died due to accidental fall into the Well.

AVR, J & GAC, J Crl.A.No.652 of 2014

21. The evidence of PWs.2 and 3 are also is of no help to the

prosecution as their evidence is a hearsay evidence. PW-3 turned

hostile and her 161 Cr.P.C. statement was marked as Ex.P-2.

However, their evidence discloses that the accused is suffering

with mental illness.

22. PW-4 is the kirana shop owner, who is cited to speak about

the 'last seen theory' i.e. being the last person to see the deceased

and accused together at his shop, while purchasing chocolates, but

he turned hostile. His 161 Cr.P.C. statement is marked as Ex.P-3.

Except the sole testimony of PW-1, there is no other evidence on

record to prove that the accused took the deceased along with him

on the date of incident from the house of the accused, under the

guise of purchasing chocolates from the shop of PW-4, and from

there, the accused took the deceased boy to the agricultural Well of

one Beenaveni Pedda Lingaiah, Sirpur village, cut the legs of the

deceased with a knife and thereafter, thrown the boy into the Well.

23. The other witnesses in this case are PW-5/Photographer who

photographed the scene of offence and PW-6 who brought the dead

AVR, J & GAC, J Crl.A.No.652 of 2014

body of the deceased, on to the land from the Well at the instance

of the Inspector of the Police. There is no dispute as to the scene

of offence from where the body was recovered, hence, not much

relevance can be given to the evidence of PWs.5 and 6.Exs. P-4 to

P-6 are the photographs along with the CD relating to the body of

the deceased as well as of the scene of offence.

24. PW-7 is the panch witness for the scene of offence as well as

for the inquest panchnama of the dead body of the deceased.

Ex.P-7 is the crime detail form and Ex.P-8 is the inquest

panchnama. It is specifically deposed by PW-7 that he noticed the

cut injuries over the legs of the dead body and it is opined by the

inquest panchayatdars that the boy was thrown into the well after

inflicting the injuries on the boy.

25. PWs.8 and 9 are the panch witnesses for the confession-

cum-seizure panchnama. Exs.P-9 and P-10 are the signatures of

PW-8 on the confession panchnama and on the slip which was

affixed on the knife respectively. Exs.P-11 and P-12 are the

AVR, J & GAC, J Crl.A.No.652 of 2014

signatures of PW-9 on the confession panchnama and on the slip

which was affixed on the knife respectively.

26. In the cross-examination, PWs.8 and 9 specifically deposed

that they advised the parents of the accused, to send the accused to

mental asylum for treatment but the father of the accused stated his

inability in view of poor financial condition.

27. It is pertinent to mention that LW-13 Chittibabu/Sub-

Inspector of Police of Mallapur Police Station received Ex.P-1 on

06.05.2013 at 7.30 p.m. from PW-1 and basing on it, he registered

a case in Crime No.58 of 2013 against the accused for the offence

punishable under Section 302 of IPC and issued express FIR to all

the concerned. Ex.P-15 is the original FIR. LW-13/Sub-Inspector

of Police was not examined before the Court for the reasons best

known to the prosecution.

28. PW-11 is the C.I. of Police, who received Ex.P-1 and the

copy of Ex.P-15 from LW-13/Chittibabu and further investigated

the case. During the course of investigation, he visited the scene of

offence, recovered the dead body of the boy with the help of PW-6,

AVR, J & GAC, J Crl.A.No.652 of 2014

photographed the scene of offence through PW-5, prepared the

crime detail form and held inquest in the presence of panchayatdars

and blood relatives of the deceased. Later, forwarded the dead

body of the deceased for postmortem examination to Government

hospital, Metpalli. Further, he collected the blood stain earth,

control earth, sample water from the Well, examined and recorded

the statements of witnesses, forwarded the material objects to

RFSL for chemical analysis. Also apprehended the accused at his

house, recorded the confession-cum-seizure panchnama in the

presence of panchayatdars, effected the arrest of accused and

produced him before the Court for judicial custody. M.O.1 is the

control earth, M.O.2 is the blood stained earth, M.O.3 is the water

sample, collected under Ex.P-7/crime detail report. M.Os.4 and 5

are the knife and pant of the deceased seized under Ex.P-16/portion

of confession-cum-seizure panchnama. PW-11 was cross-examined

at length but nothing could be elicited in favour of the accused.

29. The trial Court, considering the confession made by the

accused to PW-1, convicted the accused though there is no other

direct evidence on record.

AVR, J & GAC, J Crl.A.No.652 of 2014

30. In the judgment of Hon'ble Supreme Court in the case of

Sudhakar @ Sudershanv. State rep. by Inspector of Police,

Srirangam Police Station, Tiruchi2, it is held in para 17 as under:

"Then, next comes to the question what is the difference between a related witness and an interested witness ? The plea of "interested witness", "related witness" has been sufficiently explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand, PWs.1 and 5 were not only "related witnesses" but also "interested witnesses" as they had pecuniary interest in getting the accused punished. (refer State of U.P. v. Kishan Pal3). As the prosecution has relied upon the evidence of "interested witnesses", it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."

31. In another judgment of the Apex Court in Mahender Singh

& others v. State of M.P.4, their Lordships have relied on the

judgment reported in VadiveluThevar v. The State of Madras5

and held as under :

"Hence, in our opinion, it is a sound and well established rule of law that the Court is concerned

(2018) 5 SCC 435

(2008) 16 SCC 73 = (2010) 4 SCC (Cri) 182

2022 LiveLaw (SC) 543

1957 SCR 981

AVR, J & GAC, J Crl.A.No.652 of 2014

with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely,

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category cases that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."

As per the above ratio, the witnesses are of three types, (1) wholly

reliable (2) wholly unreliable and (3) neither wholly reliable nor

wholly unreliable.

32. The aforesaid judgments of the Apex Court are squarely

applicable to the facts of the present case.

33. In the present case, the evidence of PWs.2 and 3 can be

treated as hearsay evidence and the evidence of PW-1 comes under

the third category i.e. 'neither wholly reliable nor wholly

AVR, J & GAC, J Crl.A.No.652 of 2014

unreliable' and the trial Court ought to have looked for

corroboration in material particulars either direct or circumstantial.

There is no corroboration as to the material particulars for the

evidence of PW-1. Hence, it can be construed that the evidence of

PW-1 would fall in the category of 'neither wholly reliable nor

wholly unreliable'. Further, PWs.1 to 3 do come under the

category of "interested witnesses" as their intention is to see that

the accused is punished.

34. Section 25 of the Indian Evidence Act envisages that no

confession made to a Police officer shall be proved against the

person accused of any offence. Hence, the confession made by the

accused to the investigating officer/PW-11 is hit by Section 25 of

Indian Evidence Act.

35. Further, as per Section 27 of the Indian Evidence Act, when

any fact is deposed an a subsequent discovery is made in

consequence of information received from the accused person of

any offence, in the custody of the Police Officer, so much of such

information, whether it amounts to a confession or not, as relates

AVR, J & GAC, J Crl.A.No.652 of 2014

distinctly to the fact thereby discovered, may be proved. Thus, as

per the said provision, it is only the information which has to be

taken into consideration as to the discovery of the fact. In the

present case, it is the case of the Prosecution that pursuant to the

confession of accused, M.Os.4 and 5 were discovered. But, PWs.8

and 9 have turned hostile and did not support the case of

prosecution and both of them in one tone have stated that they

made their signatures at the instance of the Police and never

supported the confession alleged to have been made by the accused

before the Police. Further, the evidence of PW-11 was silent as to

the Letter of Advice, though RFSL report/Ex.P-14 is on record.

Ex.P-14 discloses that Item Nos.1 to 6 i.e. blood-stained pant of the

accused, control earth, blood-stained earth, pieces of lung,

stomach-intestines of the deceased and sample water from the Well

were received for chemical analysis and human blood was detected

on Item Nos.1 and 3, but blood group could not be determined and

diatoms were detected in the viscera of the deceased.Ex.P-14.

36. This is only helpful to the case of the prosecution to prove

that the deceased died after swallowing water from the Well i.e. by

AVR, J & GAC, J Crl.A.No.652 of 2014

drowning. Therefore, it can be safely construed that the

prosecution has failed to connect the accused with the crime as the

RFSL report do not disclose that the pant of the accused contains

the blood of the deceased. Furthermore, the knife which is alleged

to be recovered by the Police at the instance of the Police was not

sent for chemical analysis, to connect the accused with the crime.

37. In State of U.P. v. Dr.Ravindra Prakash Mittal6,the Apex

Court held as under :

"The essential ingredients to prove guilt of an accused person by circumstantial evidence are: (1) The circumstances from which the conclusion is drawn should be fully proved; (2) the circumstances should be conclusive in nature; (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.

.....As pointed out supra, there is no direct evidence to connect the respondent with this offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients

(1992) 3 SCC 300

AVR, J & GAC, J Crl.A.No.652 of 2014

to prove guilt of an accused person by circumstantial evidence are:

      (1)         The circumstances from which the
                  conclusion is drawn should be fully
                  proved;
      (2)         the circumstances should be conclusive
                  in nature;
      (3)         all the facts so established should be
                  consistent only with the hypothesis of
                  guilt and inconsistent with innocence;
      (4)         the circumstances should, to a moral

certainty, exclude the possibility of guilt of any person other than the accused."

38. The evidence of PWs.1 to 3 clearly disclose that the accused

used to suspect the fidelity of PW-1 and used to torture her and

also suspected that the deceased boy might not have born out of

their wedlock and therefore, murdered the deceased boy. As

already discussed supra, there is no direct evidence on record and

entire case is based on circumstantial evidence. PW-4 is the kirana

shop owner who was supposed to speak about the 'last seen theory'

of the accused and the deceased while purchasing chocolates at his

shop, but he turned hostile, which makes the chain of events

incomplete.

39. During the course of investigation, the accused was arrested

and it is the case of the prosecution that the accused has voluntarily

AVR, J & GAC, J Crl.A.No.652 of 2014

confessed about murdering his son and basing on the said

confession of the accused, M.Os.4 and 5 were recovered. As

already stated supra, the evidence of PW-10 only discloses that the

deceased died of drowning followed by asphyxia and other internal

injuries, and the ante-mortem injuries are found on both the lower

limbs of the deceased boy. There is no medical evidence on record

which talks about the weapon used to inflict injuries on the lower

limbs of the deceased. Admittedly, the panch witnesses to the

confession statement i.e. PWs.8 and 9 disclose that they only

signed on the confession statement and have not seen the accused

in the Police Station.

40. As stated supra, the present case is based only on the

circumstantial evidence and the prosecution has failed to prove the

complete chain of circumstances, connecting the events so as to

convict the appellants, therefore, the conviction is bad in the eye of

law. In a case of homicide, it is for the prosecution to prove that the

accused has inflicted injuries on the deceased with M.O.4/knife and

later thrown the boy into the Well, which ultimately resulted in the

death of the deceased boy.

AVR, J & GAC, J Crl.A.No.652 of 2014

41. It is relevant to mention that the accused has taken a specific

plea of unsound mind which is admitted by PWs.2, 3, 8 etc. It is

the specific case of the accused that he is suffering with mental

illness since many years and took treatment at Karimanagar as well

as Erragadda mental hospital and was also referred to Erragadda

mental hospital for treatment even during the course of judicial

custody, which formed part of his examination under Section 313

Cr.P.C. He has also submitted two medical bills pertaining to his

treatment.

42. Section 84 of IPC reads as under:

"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."

43. On perusal of the receipts relied on by the accused, it is

evident that those receipts are much earlier to the date of offence

and even the record reveals that the accused was referred to mental

asylum, Erragadda for treatment while he was in judicial remand.

Hence, it can be taken into consideration that the accused is of

unsound mind, but as on the date of the offence, whether he was

suffering with mental illness or not, is the question to be

AVR, J & GAC, J Crl.A.No.652 of 2014

determined. Admittedly, the trial Court did not consider the fact

that the accused was suffering with mental illness as on the date of

offence, as there is no material on record. Admittedly, there is no

contra evidence on record, to prove that the deceased was not

suffering with mental illness. The receipts relied on by the accused

disclose that the accused was suffering with mental illness even

since prior to the date of incident and he was also suffering with

mental illness subsequent to the date of incident and as such, the

prison authorities have referred him to mental asylum during the

course of judicial remand.

44. Record also reveals that the accused has no financial means

and a legal aid counsel was appointed to defend the case before the

trial Court and as such, it can be presumed that the accused has not

lead any defence evidence by examining the Doctors to prove his

insanity/mental illness, as on the date of offence and no proper

advice was given to him to defend the case under general

exceptions i.e. u/Sec.84 of the Indian Penal Code.

AVR, J & GAC, J Crl.A.No.652 of 2014

45. In the judgment of Hon'ble Supreme Court in Shrikant

Anandrao Bhosale v. State of Maharashtra7, their Lordships

have held as follows :

"At this stage, it is necessary to notice the nature of the burden that is required to be discharged by the accused to get benefit of Section 84 IPC. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat [(1964) 7 SCR 361] this Court has held that 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 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. The burden of proof on the accused to prove insanity is no higher than that rests upon a party to civil proceedings which, in other words, means preponderance of probabilities. This Court held that :

"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 mens rea; 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 evidenceoral, documentary or circumstantial,

(2002) 7 SCC 748

AVR, J & GAC, J Crl.A.No.652 of 2014

but the burden of proof upon him is no higher than that 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.""

46. As per the above proposition, the unsoundness of mind

before and after the incident for which he underwent treatment in

the hospital was a relevant fact. Therefore, it can be construed that

even if the prosecution establishes the guilt of the accused, the

accused is entitled for benefit of doubt as per the General

Exceptions under Section 84 of IPC,

47. As seen from the testimony of PW.1, it is amply clear that

she did not witness the incident and only saw the accused taking

the deceased with him for purchasing chocolates, which is highly

doubtful as it is not supported by the evidence of PW-4. Her

evidence would fall in the category of 'neither wholly reliable nor

wholly unreliable'. As such, no conviction could be based by