B.K Behera, J.:— The appellant stood charged under S. 302 of the Penal Code with having committed the murder of Gaja Khadia (hereinafter described as the “deceased”) on Sept. 20, 1976 at about 7 P.M at village Tangerpalli. The appellant was under treatment by two Gunias (sorcerers), namely, the absconding accused Lalu and Bandhu (P.W 9) owing to his illness and he called the deceased who had come to take his wife (P.W 7) from the house of his father-in-law (P.W 8) and abruptly taking out the Gupti which had been brought, by Lalu, stabbed the deceased on his chest which resulted in his death. Information was lodged with the police authorities and P.W 11 took charge of the investigation. He examined witnesses, seized some articles on the spot, arrested the appellant, took steps for his medical examination as he noticed abnormalities in the conduct of the appellant and on the completion of investigation, placed a charge sheet against the appellant and the absconding accused Lalu. The appellant's plea at the trial was that he had not stabbed the deceased. From the statement of his recorded under S. 313 of the Code of Criminal Procedure and from the trend of cross-examination of the prosecution witnesses, the case of the appellant was that he was insane at the time the incident took place.

2. To bring home the charge to the appellant, the prosecution had examined eleven witnesses of whom P.Ws 7 to 9 were witnesses to the occurrence and all of them had testified that the appellant stabbed the deceased on his chest by means of a Gupti. Two witnesses for the defence had been examined and one of them was the Jail Medical Officer who had observed the appellant from September 24, 1976 to Nov. 28, 1976. He had noticed many abnormalities and his report (Ext. A) had been admitted in evidence. D.W 2, a resident of village Tangerpalli where the incident had taken place, had also been examined to establish the case of the defence that the appellant was insane at the time the occurrence took place. On a consideration of the evidence, the learned Sessions Judge found that the appellant had stabbed the deceased which had resulted in his death. He negatived the plea of insanity set up by the defence. Accordingly, the appellant was convicted under S. 302 of the Penal Code and sentenced thereunder to undergo imprisonment for life.

3. It is not disputed at the Bar that the deceased died a homicidal death as a result of the injury on his chest which had caused internal injuries affecting vital organs. Mr. Rangadhar Behara the learned counsel for the appellant has not challenged the finding of the trial court that the appellant had stabbed the deceased to death and in our view, rightly so, in view of the clear and acceptable evidence of P.Ws 7 to 9 in this regard. He has, however, contended that the act of the appellant would not be culpable in view of the provision contained in Section 84 of the Penal Code as the appellant, as would be clear from the evidence, was insane at the time the incident took place. Mr. P.K Mohanty, the learned Additional Standing Counsel, has supported the order of conviction and has submitted that there were some circumstances showing signs of insanity subsequent to the occurrence, but it could not be said that at the time the deceased was killed by the appellant, the latter was insane for which he could get the benefit of Section 84 of the Penal Code.

4. Section 84 of the Penal Code reads:—

“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.”

5. The crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this is on the accused. An accused person is not, however, to prove his case beyond reasonable doubt and it is sufficient if his case is established by the preponderance of probabilities as in a civil case. Such a plea can be established from the circumstances which preceded, attended and followed the crime. The Court is concerned with legal insanity and not with medical insanity. Law presumes that every person of the age of discretion knows the consequences of his act. The defence of insanity cannot be accepted upon arguments derived merely from the character of the crime. The mere absence of proof of motive would not by itself, show that a person was insane although it could be a factor to be taken into consideration along with the other circumstances while judging such a plea. The prosecution must prove that the accused person had committed the offence with the requisite mens rea.

6. The prosecution hart not established any motive for the commission of the offence. Mysterious is the working of the human mind. The prosecution is not obliged to establish a motive for the commission of an offence in every case. However, while judging the question as to whether the appellant was insane at the time when the act was committed, this aspect may be kept in mind.

7. The prosecution sought to show that, it was the appellant who called the deceased to his house. This had been deposed to by P.W 7, but as would appear from her statement made to the Investigating Officer, she had not stated so before him.

8. P.Ws 7 and 8 had testified that after the occurrence, the absconding co-accused Lalu took away the Gupti with which the appellant had stabbed the deceased and ran away and the appellant also took to his heels. Such evidence had evidently been led to show that the appellant was behaving normally and was conscious of the act committed by him. But the evidence of P.W 9 would show that the appellant did not run away after the occurrence and instead, remained in his courtyard.

9. Undoubtedly, the appellant was suffering at the relevant time for which two sorcerers had been called including P.W 9. According to P.W 7, the appellant had been talking with the other persons inside the room. She had not however, stated to the Investigating Officer that the appellant had been talking with others. P.W 7 did not know if the appellant had been attacked by evil spirits and whether his mind was out of order.

10. The evidence of P.W 9 would give a clear indication as to how designedly and deliberately the prosecution wanted to lead evidence to show that the appellant was in a normal, state of mnid at the time of the occurrence. P.W 9 had deposed:—

“I have never seen him behaving like a mad man. The accused used to come to our side to collect fuel wood and at that time I had talked with him on many occasions and found him in normal condition.”

11. He had, however, stated to the Investigating Officer that the appellant had been shouting incoherently and behaving in an irrational manner and that due to chanting of hymns, the appellant calmed down a bit, but was making loud noise in between. Apparently this statement had been made at the stage of investigation with reference to the occurrence inside the house of the appellant when he was being treated by the two persons. P.W 9 had disowned these statements made by him at the stage of investigation. Thus having stated first in point of time about the abnormal behaviour and conduct of the appellant, P.W 9 had deliberately introduced another theory at the trial to negative a case of insanity.

12. The Investigating Officer (P.W 11) had deposed:—

“On 20-9-76 at 8-30, P.M when I reached the spot I found the accused Mitu lying on the courtyard of the house near the spot. The accused was not replying to my questions put there, at that time. He also did not give reply to my questions even after arrest. During that night I kept him under surveillance at the spot.”

13. For the abnormal conduct noticed by him, P.W 11 had taken steps before the Sub-divisional Judicial Magistrate to get the appellant examined medically while he was in the court custody. It would appear from his evidence that he had examined Mohanlal Khadia. Suru Khadia and Shamlal Khadia on the question of insanity of the appellant. But the prosecution did not examine any of them in the court. In the circumstances of the case, these persons, were undoubtedly material witnesses and the non-examination of such persons would cast a serious reflection on the fairness of the trial. An inference can legitimately be drawn that the prosecution withheld the examination of these persons as their evidence, if adduced, would have gone against it.

14. We would next come to the evidence of D.W 1, the Medical Officer in charge of the Circle Jair at Sambalpur, who had kept the appellant under observation. He had noticed during his observation that the habits of the appellant were not normal and he talked very little and his talk was also abnormal. He had not been taking food regularly and had been passing stool and urine here and there. He had been sleeping naked. He had not been sleeping normally. He had not been taking any interest in the surroundings. Ext. A was the report of D.W 1. D.W 1 had stated in his cross-examination that generally after the commission of an offence of murder, a person might have some psychological effect and might be depressed. He had stated that he did not find that the appellant was not completely abnormal. What was found by him during his observation for a little over two months would undoubtedly show, that the appellant was not sane.

15. On a careful consideration of the evidence adduced by both the sides, we find that the appellant, who was under treatment at the time when the unfortunate incident took place, abruptly stabbed the deceased on his chest, by picking up a Gupti which was not his and had been brought by Lalu without any motive whatsoever and the evidence of the witnesses referred to above with regard to the conduct and behaviour of the appellant preceding, attending and following the incident of which due notice had not been taken by the learned Sessions Judge would clearly establish that at, the time the appellant stabbed the deceased, he was incapable of knowing the nature, of his act by reason of un-soundness of mind and that he did not know that what he was doing was either wrong or contrary to law. The prosecution had failed to establish that the appellant had committed the offence with which he stood charged with the requisite mens rea.

16. For the aforesaid reasons, we find that, the exception provided in S. 84 of the Penal Code would apply to this case and the appellant could not legally be held to be guilty of the charge of murder. In the result, the appeal succeeds and the same is allowed. The order of conviction and sentence passed against the appellant under S. 302 of the Penal Code is set aside. The appellant be act at liberty forthwith.

R.C Patnaik, J.:— I agree.

17. Appeal allowed.