Smt. Savitri Devi vs State of U.P.

U.S. Tripathi, J.—This appeal from jail has been directed against the judgment and order dated 7.2.1996, passed by Smt. Sadhana Chaudhary, the then learned I Vth Additional Sessions Judge, Etah, in Sessions Trial No. 302 of 1993 convicting the Appellant u/s 302, I.P.C. and sentencing her to imprisonment for life and a fine of Rs. 1,000. In default of payment of fine she was further sentenced to undergo R.I. for a period six months.

The prosecution story, briefly stated, was as under:

Smt. Bhagwati (45) deceased was the wife of Mulayam Singh. Mulayam Singh and Smt. Bhagwati had four sons, namely ; Ram Phal (P.W. 2), Ved Ram, Salik Ram alias Manik Ram (P.W. 1) and Tej Pal. Ram Phal (P.W. 2) was married with Smt. Beti (P.W. 3) and they had two sons Durgpal deceased aged about 5 years and Mohan Lal deceased aged about 3 years. Ved Ram was married with Smt. Savitri Devi Appellant and they had a daughter aged about 3 years. Salik Ram alias Manik Ram (P.W. 1) and Tej Pal were unmarried. Ram Phal (P.W. 2) and Ved Ram were living separately with their family and Salik Ram (P.W. 1) and Tej Pal were living with their parents Mulayam Singh and Smt. Bhagwati deceased. Since Smt. Savitri Devi Appellant had no male issue and Ram Phal had two sons, Smt. Savitri Devi was jealous of Ram Phal (P.W. 2) and Smt. Beti (P.W. 3). She was also suspecting that her husband Ved Ram had illicit connection with Smt. Beti (P.W. 3) and the sons born to her were begotten by him (Ved Ram).

On the morning of 9.4.1993 Ram Phal (P.W. 2), his father Mulayam Singh and Ved Ram had gone to their fields to harvest wheat crop. At about 10 a.m. Salik Ram (P.W. 1) was providing water to his cattles. Smt. Beti (P.W. 3) was collecting cow dung cakes, outside the house for preparing food. Smt. Bhagwati deceased was preparing flour for bread. Durgpal and Mohan Lal deceased were playing in the house. Smt. Savitri Devi Appellant caused injuries with khurpi on Durgpal and Mohan Lal. Hearing their shrieks Smt. Bhagwati rushed to save them and Smt. Savitri Devi Appellant inflicted khurpi blows on her also. She also raised alarm. Hearing their shrieks Salik Ram (P.W. 1) and Smt. Beti (P.W. 3) rushed inside the house and saw that Savitri Devi was inflicting khurpi blows on Smt. Bhagwati. Smt. Bhagwati told that Smt. Savitri Devi had cut two children and also inflicted khurpi blows on her. Durgpal died on the spot. When Salik Ram (P.W. 1) and Smt. Beti (P.W. 3) tried to save Smt. Bhagwati the Appellant attacked on them, but they receded, and she entered into her room. The villagers also rushed on the cries of witnesses. Information was sent to Ram Phal (P.W. 2), Ved Ram and Mulayam Singh at the field who came to their house and saw that Smt. Savitri Devi was present in the room with khurpi and her saree was blood stained. Ram Phal (P.W. 2) snatched khurpi from her. He went inside the house and saw that his son Durgpal was dead and Mohan Lal and Smt. Bhagwati were injured.

Ram Phal (P.W. 1) got prepared report (Ext. Ka-1) from one Pandit of his village and came to police station Sidhpura along with dead body of Durgpal, injured Mohan Lal and Smt. Bhagwati, Mulayam Singh and Smt. Beti and blood stained khurpi (Ext. 1), which he snatched from the Appellant and lodged report at 11.45 a.m. Chik F.I.R. (Ext. Ka-13) was prepared by Constable Clerk Vishram Singh (P.W. 6), who made an endorsement of the same at G.D. report (Ext. Ka-14) and registered a case under Sections 302 and 307, I.P.C. against the Appellant. He took into possession the blood stained khurpi and prepared recovery memo (Ext. Ka-2).

Investigation of the case was taken up by R. P. Singh, (P.W. 7). He interrogated Constable Vishram Singh (P.W. 6) and Ram Phal (P.W. 2) at the police station. He directed Sub-Inspector Angad Ram to conduct inquest of the dead body of Durgpal, who conducted inquest at the police station and prepared inquest report (Ext. Ka-3) and other relevant papers (Ext. Ka-4 to Ka-7). He sealed the dead body and sent it for post-mortem. The Investigating Officer Sri R. P. Singh (P.W. 7) interrogated Smt. Bhagawati and Mohan Lal at Patiyali Crossing on 9.4.1993 and recorded statement of Smt. Bhagwati (Ext. Ka-15) and sent them to district hospital for medical examination and treatment. The Investigating Officer thereafter came to the spot and interrogated Manik Ram (P.W. 1). He took into possession blood stained and simple earth from the spot and prepared recovery memo. Thereafter, he inspected place of occurrence and prepared site plan (Ext. Ka-17). He arrested Smt. Savitri Devi Appellant from the room and took into possession her blood stained saree and prepared recovery memo (Ext. Ka-18). The injured Mohan Lal and Smt. Bhagwati were sent to District Hospital, Etah where they were medically examined by Dr. Vinod Tyagi, who prepared injury reports (Exts. Ka-19 and Ka-30).

Smt. Bhagwati was admitted in District Hospital, Etah where she died on 9.4.1993 at 3 p.m. Sub-Inspector, Hira Lal (P.W. 5) posted at P.S. Kotwali Nagar, Etah, got information about the death of Smt. Bhagwati, came to the hospital and conducted inquest of her dead body and prepared inquest report (Ext. Ka-8) and other relevant papers (Exts. Ka-9 to Ka-12). He sealed the dead body and sent the same for post-mortem.

Autopsy on the dead bodies of Smt. Bhagwati and Durgpal were conducted on 10.4.1993 by Dr. Staya Mitra (P.W. 8), who prepared post-mortem reports (Exts. Ka-20 and Ka-21).

Mohan Lal was shifted to Jawahar Lal Nehru Medical College, Aligarh, for further treatment where he died on 12.4.1993 at 12.20 a.m. The information regarding his death was sent to P.S. Civil Lines, Aligarh. Sub-Inspector Vinod Singh Sengar (P.W. 9) came to Medical College and conducted inquest of the dead body of Mohan Lal and prepared inquest report (Ext. Ka-22) and other relevant papers (Exts. Ka-23 to Ka-27). He sealed the dead body and sent it for post-mortem.

Autopsy on the dead body of Mohan Lal was conducted on 13.4.1993 by Dr. R. P. Sharma, who prepared post-mortem report (Ext. Ka-28).

Investigating Officer, Sri R. P. Singh (P.W. 7) completed investigation and submitted charge-sheet (Ext. Ka-20) against the Appellant on 17.5.1993.

Cognizance of the case was taken up by Magistrate, who committed the case to the Court of Sessions.

Appellant Smt. Savitri Devi was charged with the offence punishable u/s 302, I.P.C. She pleaded not guilty and contended that she wanted to go to redeem certain ornaments in connection with marriage of her brother, but she was brought to police station and she showed ignorance about the incident.

The prosecution in support of its case examined Manik Ram (P.W. 1), Ram Phal (P.W. 2), Smt. Beti (P.W. 3) as witnesses of fact, besides Sub-Inspector Angad Ram (P.W. 4), Sub-Inspector Heera Lal (P.W. 5), Constable Clerk Vishram Singh (P.W. 6), Sub-Inspector R. P. Singh, Investigating Officer (P.W. 7), Dr. Satya Mitra (P.W. 8), Sub-Inspector Vinod Singh (P.W. 9), Sri Hari Shanker Upadhyay, Pharmacist (P.W. 10) and Dr. Narendra Babu (P.W. 11). The Appellant did not adduce any evidence in her defence.

The learned Sessions Judge on considering the evidence of the prosecution held that the prosecution has proved its story beyond shadow of doubt and the contention of the Appellant that she was mentally disbalanced could not be entertained, nor it can be said that she had committed three murders at the time when she was mentally unstable. With these findings she convicted the Appellant u/s 302, I.P.C. and sentenced her to undergo imprisonment for life and to pay fine of Rs. 1,000.

Against her conviction and sentence the Appellant had sent this appeal from jail.

Since the Appellant was in jail and could not engage any counsel, this Court appointed Sri A. K. Awasthi, advocate, as Amicus curiae to argue the appeal on behalf of the Appellant.

We have heard Sri A. K. Awasthi, learned Amicus Curiae for the Appellant and learned A.G.A. for the Respondent and have perused the entire evidence on record.

According to prosecution Smt. Bhagwati, Durgpal and Mohan Lal sustained injuries by khurpi and died on account of above injuries. The Appellant showed her ignorance about the injuries on the above deceased persons and their death on account of above injuries.

Dr. Vinod Tyagi had examined injuries of Mohan Lal and Smt. Bhagwati on 9.4.1993. Since he was suffering from Cancer, injury reports (Exts. Ka-29 and Ka-30) were proved by Dr. Narendra Babu (P.W. 11), who was acquainted with the hand writing and signature of Dr. Vinod.

According to his injury report Mohan Lal has sustained following injuries:

(1) Incised wound 7 x 1.6 cm. x bone deep on the back of head soft red clotted blood present. Soft traumatic swelling on fore head. The patient was deeply unconscious. General condition low, pulse 132 per minute. B. P. 90/58. Injury was caused by sharp heavy cutting object. Kept under observation and advised X-ray. Duration fresh.

Smt. Bhagwati sustained following injuries:

(1) Incised wound 0.7 cm. x 0.3 cm. x muscle deep over middle of right eye brow transverse.

(2) Multiple incised wounds in an area 10 cm. x 4 cm. on the right side face below right eye muscle to bone deep varying in direction.

(3) Multiple incised wounds in an area 18 cm. x 8 cm. on the right lower and upper jaw, right half of upper and lower lips with fresh bleeding, the wounds are muscle to bone deep and varying in direction.

All injuries were caused by some sharp heavy cutting object. Injury No. 1 simple while all other injuries were kept under observation and advised X-ray. Duration fresh.

Dr. Satya Mitra (P.W. 8) stated that he conducted autopsy on the dead body of Smt. Bhagwati deceased and found following ante-mortem injuries:

(1) Incised wound 0.7 cm. x 0.3 cm. x muscle deep over middle of right eye brow. Transversely placed.

(2) Multiple incised wounds in an area 10.5 cm. x 4 cm. on right side face below right eye, muscle to bone deep and varying in dimensions from 2.5 cm. x 1 cm. to 1 cm. x 0.3 cm. Maxilla bone right fractured.

(3) Multiple incised wounds over right side upper and lower jaws, R half of upper and lower lips and right side of upper part of neck in an area 18 cm. x 8 cm. Wounds varying in dimensions from 0.5 cm. x 0.2 cm. to 3.5 cm. x 1 cm. and muscle to bone deep. Mandible fractured. Muscles right facial artery right external carotid artery were cut.

He further stated that cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.

Dr. Satya Mitra (P.W. 8) further stated that he conducted autopsy on the dead body of Durgpal (5) and found following ante-mortem injuries on his person:

(1) Incised wound 5 cm. x 1 cm. x brain matter deep over right side of head, 2 cm. above and behind right ext., ear, margins clean cut.

(2) Incised wound 1 cm. x 0.5 cm. x scalp deep over right side head, adjacent to posterior end of injury (1).

(3) Incised wound 1.5 cm. x 0.5 cm. x scalp deep over right side head, 0.5 cm. below injury No. 1 middle. On dissection, right parietal and temporal bone fractured. Margins cut and brain matter coming out of the wound.

He further stated that death was caused due to shock and haemorrhage.

Dr. R. P. Sharma, who conducted autopsy on the dead body of Mohan Lal had died and therefore, his handwriting and signature on post-mortem report (Ext. Ka-28) were proved by Hari Shanker Upadhyay (P.W. 10), the then Pharmacist, Malkhan Singh District Hospital, Aligarh. According to above post-mortem report deceased Mohan Lal had sustained following ante-mortem injuries:

Incised wound 6 cm. x 1.5 cm. x bone deep on the left side head, 9 cm. above and back of head. Underneath the injury left temporal bone fractured and brain tissues protruding out.

Internal examination showed that there was fracture of left temporal bone. Membranes were lacerated. Clotted blood was present over the hemisphere of brain. Spleen and kidney were congested.

The death of the deceased was caused due to coma as a result of injury described above.

The above medical evidence has not been challenged and, therefore, it is established that Smt. Bhagwati, Durgpal and Mohan Lal had sustained incised wounds caused by some sharp heavy cutting object (khurpi) and they died on account of above injuries.

Before adverting to the other points raised by learned Amicus Curiae, we would like to refer the ocular testimony and res-gestae evidence adduced by the prosecution.

Manik Ram (P.W. 1) younger brother-in-law of the Appellant, stated that he had four brothers, namely, Ram Phal (P.W. 2), Ved Ram, himself and Tejpal. Ram Phal and Ved Ram were married and were living separately with their family in separate rooms of the same house. He and Tejpal were living with their parents separately from their elder brothers in the same house. Smt. Bhagwati deceased was his mother. Durgpal and Mohan Lal deceased were sons of Ram Phal (P.W. 2). On the date of occurrence at about 7 a.m., his father and his brothers Ram Phal and Ved Ram had gone to harvest wheat crop. At about 7.30 a.m. Smt. Savitri Devi caused injuries with khurpi on his mother Smt. Bhagwati and his two nephews Durgpal and Mohan Lal. At that time, his mother was preparing flour for bread. Smt. Beti (P.W. 3) wife of Ram Phal, was collecting cow dung cakes and he was providing water to his cattle. He heard shrieks of his mother and Durgpal, rushed inside the house and saw that Smt. Savitri Devi was inflicting khurpi blows on his mother. He raised alarm. Smt. Beti also came. He tried to save his mother, but Smt. Savitri Devi chased him with khurpi and, therefore, he receded back. Savitri Devi went inside her room. Other persons of the village also came. His brothers and father were called through Khusi Ram. Durgpal was injured but alive. Smt. Bhagwati was alive. She had injuries on her mouth and head. His mother had told that Smt. Savitri Devi had caused injuries to Mohan Lal and Durgpal with khurpi and when she tried to save them, injuries were caused on her. Saree of Smt. Savitri Devi was blood stained. Smt. Savitri Devi had one daughter aged about 1, and 1/2 years. Ram Phal had two sons. Quarrel often took place between Smt. Savitri Devi and Smt. Beti. Smt. Savitri Devi was complaining that the two sons of Smt. Beti were begotten by Ved Ram, her husband. Ram Phal took the injured and dead body of Durgpal to police station. Sub-Inspector came to the spot and apprehended Smt. Savitri Devi and took into possession her blood stained saree.

Ram Phal (P.W. 2) stated that on the date of occurrence he along with his brother Ved Ram and his father Mulayam Singh had gone to harvest wheat crop. At about 10 a.m. Khusi Ram told him that Smt. Savitri had caused injuries on his mother and his two sons with khurpi. He came to the house and saw Smt. Savitri in the kothri of his father. She was having a khurpi. He snatched khurpi from her. Saree of Savitri was also blood stained. He went inside the house and saw that his sons Durgpal and Mohan Lal were lying injured. Near them his mother Smt. Bhagwati was also lying injured. He got prepared report of the occurrence and came to the police station along with injured and dead body of Durgpal and lodged report. Smt. Bhagwati died in the hospital on same day. He took Mohan Lal to Aligarh for further treatment, but he also died after three days.

Smt. Beti (P.W. 3) stated that Durgpal and Mohan Lal were her sons. Smt. Bhagwati was her mother-in-law. At about 10 a.m. on the date of occurrence she had gone to collect cow dung cakes. She heard shrieks, reached to the house and saw that her sister-in-law Smt. Savitri was cutting her mother-in-law with Khurpi. Her brother-in-law Manik Ram also came. Her mother-in-law was injured and lying on the floor. Her two sons were lying injured. She and her brother-in-law Manik Ram tried to save Smt. Bhagwati, but Smt. Savitri chased them with khurpi. She enquired from her mother-in-law as to who caused injuries on her sons. Then she told that Smt. Savitri had caused injuries on them and when she tried to save them injuries were inflicted on her also. Saree of Smt. Savitri was blood stained. After sometime her elder son Durgpal died.

This was the gist of ocular evidence as well as res gestae evidence.

The motive for the offence alleged by the prosecution was that Smt. Savitri was jealous of the sons of Ram Phal (P.W. 2) and Smt. Beti (P.W. 3) as she has only one daughter and no son and was also suspecting that her husband Ved Ram had illicit connection with her sister-in-law Smt. Beti and that her two sons were begotten by him. Salik Ram (P.W. 1) and Smt. Beti (P.W. 3) have stated about the above motive. Smt. Beti (P.W. 3) stated that her entire family was aware of her illicit connection with Ved Ram. Her husband also had quarrelled several times with her regarding it. That Smt. Savitri was openly leveling allegations against her that she had illicit connection with her husband Ved Ram. Manik Ram (P.W. 1) also stated that Smt. Savitri was jealous of sons of Smt. Beti, as she had only one daughter and Smt. Beti had two sons, who were allegedly begotten by her husband. Generally, woman does not tolerate the illicit relation of her husband with any other lady. Jealousy about not having male issue is also prevalent in the ladies. The above evidence of Manik Ram (P.W. 1) and Smt. Beti (P.W. 3) further indicates that Smt. Savitri was jealous that her husband had begotten two sons to another lady and she was unable to give birth to a male issue. Out of this jealousy, she could go to any extent. Therefore, it is established that Smt. Savitri had motive to commit murder of two sons of her sister-in-law. Smt. Beti.

Though no specific motive has been alleged against Smt. Bhagwati, mother-in-law of the Appellant, but evidence on record shows that while the Appellant was inflicting injuries on the two children of her sister-in-law, Smt. Bhagwati tried to save them and, therefore, the Appellant became infuriated and caused injuries on her also with khurpi. The motive for committing murder of Smt. Bhagwati thus developed on the spot. The above conduct of Appellant is also apparent from the fact that when Manik Ram (P.W. 1) and Smt. Beti tried to save Smt. Bhagwati, the Appellant also chased them with khurpi. As such, the prosecution has established that the Appellant had motive.

The date, time and place of occurrence is also not disputed. According to prosecution, occurrence took place on 9.4.1993 at about 10 a.m. at the house of Appellant and the deceased. The ocular witnesses Manik Ram (P.W. 1) and Smt. Beti (P.W. 3) have stated about the above date, time and place of occurrence, which has not been challenged. Ram Phal (P.W. 2) also came to the spot from his field and saw his two children and his mother lying injured in the house. The Investigating Officer had collected blood from the spot. He had also arrested Smt. Savitri from room of her house. No doubt, Manik Ram (P.W. 1) stated that occurrence took place about 7-7.30 while Smt. Beti stated that occurrence took place at about 10 a.m., but the time of occurrence stated by Manik Ram appears a slip of tongue and occurrence had actually taken place at about 10 a.m. as stated by Smt. Beti (P.W. 3) and Ram Phal (P.W. 2). Therefore, date, time and place of occurrence are also established.

Regarding complicity of Appellant in the murder of the three deceased, there is eye-witness account of Manik Ram (P.W. 1) and Smt. Beti (P.W. 3) as well as oral dying declaration of Smt. Bhagwati before, Ram Phal (P.W. 2), Smt. Beti (P.W. 3) as well as the Investigating Officer Sri R. P. Singh (P.W. 7). No doubt, Manik Ram (P.W. 1) and Smt. Beti (P.W. 3) are close relatives of the deceased, but this is no ground to discard their testimony. The occurrence had taken place inside the house and these two witnesses were present in the vicinity of the house and they had to reach first on hearing shrieks of the deceased. Therefore, their presence on the spot was natural and probable. No doubt, the Appellant was leveling allegation of illicit connection of her husband with Smt. Beti (P.W. 3) and was also jealous with her, but on this ground, the testimony of Smt. Beti cannot be discarded. She was the real mother of two deceased and daughter-in-law of Smt. Bhagwati and she would have hardly spared the real assailant and had falsely deposed against the Appellant.

Smt. Bhagwati had also told just after the occurrence to Manik Ram (P.W. 1) and Smt. Beti (P.W. 3) that the Appellant had caused injuries to her and deceased Durgpal and Mohal Lal. She was also interrogated by the Investigating Officer on the date of occurrence and stated this fact before the Investigating Officer. Her above statement comes within the purview of dying declaration and is admissible in evidence. Smt. Bhagwati was inside the house and hearing shrieks of her two grandsons, it was but natural for her to rush to save them and when she tried to save them the Appellant inflicted khurpi blows on her. It is also clear from the evidence of Ram Phal (P.W. 2) that when he came to the spot, he saw Smt. Savitri with khurpi in the room of his father. He took the above khurpi and deposited it at the police station. He also stated that khurpi was blood stained. Constable Clerk Vishram Singh (P.W. 6) stated that khurpi was produced before him, which was blood stained. The injuries on the person of the deceased were incised wounds which could be caused by khurpi.

The ocular testimony of Manik Ram (P.W. 1) and Smt. Beti (P.W. 3) is thus, corroborated by res gestae evidence of Ram Phal (P.W. 2), F.I.R. which was promptly lodged, dying declaration of Smt. Bhagwati and medical evidence. Therefore, the prosecution has successfully established that the Appellant inflicted khurpi injuries on the three deceased, due to which they died.

Learned Amicus Curiae contended that the Appellant was below 16 years of age at the time of occurrence, therefore, she was entitled to benefit of Juvenile Justice Act and Children Act. In support of his above contention he placed reliance on Division Bench decision of this Court in Pran Singh v. State of U.P. 2003 (1) ACrR 488 : 2003 (46) ACC 531 and Apex Court decision in Bhola Bhagat and Ors. v. State of Bihar 1997 (35) ACC 835.

Appellant has nowhere taken the plea that she was a child, below 16 years of age, on the date of occurrence. Contrary to it she had given her age in her statement u/s 313, Cr. P.C. as 20 years. Her statement was recorded on 22.1.1996, i.e., near about three years after the occurrence and if that age is taken correct, her age on the date of occurrence was above 17 years. Probably the above plea was raised on the basis of the statement of Manik Ram (P.W. 1), who stated in his cross-examination that age of Savitri Devi Appellant was about 10-15 years. This age given by the witness appears speculative. The evidence on record shows that Smt. Savitri was married before 6-7 years of the occurrence and at the time of occurrence she was also having a daughter aged about 1-1/2 years. Manik Ram (P.W. 1), also stated that Smt. Beti was aged about 18 years, while Smt. Beti gave her age as 22 years. Thus, above statement of Manik Ram was thus, speculative and did not denote the correct age of the Appellant. Since Smt. Savitri was not below 16 years of age at the time of occurrence, she had not raised this plea during trial. In view of it, we find no force in the above contention and there is nothing on record to prove that Smt. Savitri Appellant was child, below 16 years of age, on the date of occurrence and therefore, she was not entitled to benefit of any provision of Children Act or Juvenile Justice Act.

Learned Amicus Curiae then contended that it is clear from the evidence of Manik Ram (P.W. 1) that Smt. Savitri Devi Appellant was a person of unsound mind and she was under influence of some spirit and, therefore, was unable to understand what she was doing. Thus, she could not be said to have committed an offence.

Section 84, I.P.C. 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 what is either wrong or contrary to law. The principle embodied in Chapter IV of the Indian Penal Code is based on the maxim "actus non facit reum, nisi mens sit rea" i.e., an act is not criminal, unless there is criminal intent.

Under the Evidence Act, the onus of proving any of the exception mentioned in the Chapter IV of I.P.C. lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because of the version given by him casts a doubt on the prosecution case.

The Apex Court held in the case of State of Madhya Pradesh Vs. Ahmadullah, , that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the Section 84, I.P.C. lies on the accused, who claims the benefit of this exemption vide Section 105 of the Evidence Act (Illustration (a) ).

Dealing with the plea of insanity, the scope of Section 84, I.P.C., the attending circumstances and the burden of proof, the Apex Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat 1965 (2) ACC 93 (SC), held as below:

It is 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. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong, or contrary to law. This being an exception, u/s 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. The accused has to satisfy the standard of a ''prudent man''. If the material pleaded before the Court such as oral and documentary evidence, presumptions, admissions or even the prosecution evidence satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden u/s 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the I.P.C. If the Judge has such reasonable doubt, he has to acquit the accused for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is on the prosecution and which never shifts and the special burden that rests on the accused to make and his defence of insanity.

In the case of Bhikari Vs. State of Uttar Pradesh, , the Apex Court held as below:

There is no doubt that the burden of proving an offence is always on the prosecution ; and that it never shifts, it would, therefore, be correct to say that intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. Thus, if a person deliberately strikes another with deadly weapon, which according to the common experience of man-kind is likely to cause an injury and sometimes even a fatal injury depending upon the quality of the weapon and the part of the body on which it is struck, it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury, which in fact resulted for the act. In such a case the prosecution must be deemed to have discharged the burden which rested upon it to establish an essential ingredient of the offence, namely, the intention of the accused inflicting a blow with a deadly weapon. Section 84 of the Indian Penal Code can no doubt be invoked by a person for nullifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Now it is not for the prosecution to establish that a person, who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong of contrary to law. Every one is presumed to know the natural consequences of his act. Similarly every one is also presumed to know the law. These are not facts which the prosecution has to establish. It is for this reason that Section 105 of the Evidence Act places upon the accused person the burden of proving the exception upon which he relies.

The Apex Court further held in the case of T.N. Lakhmaiah v. State of Karnataka 2001 (3) ACrR 2766 (SC) : 2001 (43) ACC 1129, relying on the above noted decisions as below:

In a case where the exception u/s 84 of the Indian Penal Code is claimed, 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 is doing what is either wrong or contrary to law. Entire conduct of the accused ; from the time of commission of the offence upto the time, sessions proceedings commended, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or afterthought.

The above plea was probably developed on the statement of Manik Ram (P.W. 1), who stated in his cross-examination that Devata (evil spirit) used to come on Smt. Savitri Devi once or twice in a month. But he repelled the suggestion of the Appellant that Smt. Savitri Devi was a lady of unsound mind and fits of unsoundness often came to her. Ram Phal (P.W. 2) and Smt. Beti have denied the suggestion that Smt. Savitri Devi Appellant was suffering from attack of unsoundness of mind. The learned Sessions Judge had also obtained a report of Jail Doctor, District Jail, Etah, which showed that she was perfectly mentally fit. The Appellant had also appeared before the learned Sessions Judge and she had noted down in the judgment that she had found nothing abnormal in the behaviour of the Appellant. There is no medical report to other documentary or oral evidence that the Appellant at any point of time specially at the time of commission of offence was suffering from unsoundness of mind and she was not capable of knowing what she was doing was wrong or contrary to law. Thus, there is nothing on record to show that the Appellant was at the relevant time incapable of knowing nature of act or that what she was doing was either wrong or contrary to law. Therefore, in the instant case, there is no scope for the pleading of general exception contained u/s 84 of Indian Penal Code, to the Appellant.

In view of our above discussions and observations, we find that the prosecution has successfully proved the guilt of the Appellant that she intentionally and knowingly murdered the two children of her brother-in-law and her mother-in-law and, therefore, she was rightly convicted u/s 302, I.P.C. and sentenced to imprisonment for life. There is no force in the appeal. We, accordingly, dismiss the appeal.

The Appellant is in jail and will serve out the sentence awarded to her by the trial court.

Office is directed to send copy of this order of C.J.M., Etah, for information and necessary action.