Baharul Islam, J.
1. Appellant Lonimohon Das was convicted by the Additional Sessions Judge, Manipur, under Section 302, of the Indian Penal Code and sentenced to imprisonment for life.
2. The facts are very brief. The deceased and the accused are own brothers who were living together in the same house with separate messes. On the date of occurrence, viz., 8-10-1967, at about 3.00 p. m. P.W. 4. while going to a village heard some shouts that the appellant had become mad, and so he went to the house of the appellant and found the appellant with an axe in his hand. The appellant then at the sight of P.W. 4, raised the axe to attack him where upon P.W. 4 made good his escape nut of fear and called P.W. 5, Dineshchandra Das. P.W. 7, Labeinachandra Das, and others to the place of occurrence. At the sight of these persons, the appellant threw away the-axe and ran away towards the nearby jungle. In spite of the request made by P.W. 5, the elder brother of the appellant, the appellant did not stop but continued running towards the jungle. Soon after the arrival of the above-mentioned persons, the injured Diges chandra Das succumbed to his injury. Thereafter, P.W. 7 left the place of occurrence to Borobekra Police Outpost where he lodged the First Information Report. Ext. P/7, On the basis of the said report, the Officer--in-charge of the Jiribam Police Station, drew up a formal First Information Report and registered a case and, after investigation submitted charge-sheet against the appellant. On the dale of occurrence itself, the appellant was arrested at about 8-15 p. m. in the jungle. The learned committing Magistrate committed the appellant to the Court of Session for trial under Section 302 of the Indian Penal Code, who after trial convicted and sentenced the accused-appellant as stated above.
3. There is no eye-witness to the occurrence. The prosecution, for the conviction of the appellant, relies on an alleged confessional statement proved as Ext. P/5 in the case, and some circumstantial evidence.
4. A confessional statement is to be recorded in accordance with the provisions of Section 164 of the Code of Criminal Procedure. Sub-Section (2) of Section 164, Criminal Procedure Code inter alia, provides that confessions shall be recorded and signed in the manner provided in Section 364 and the statement shall be recorded in full, in the language in which the accused is examined, or, if that is not practicable, in the language of the Court or in English and such record shall be shown or read to him, or if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.
5. In the instant case, it appears from Ext. P/5, that the appellant did not make am Statement on his own. When the appellant was produced before the Magistrate, the latter started putting questions to him in order to elicit answers. The first relevant question put to the accused was question No. 3, which is in the following term:
Did you kill Digeschandra Das with an axe?
The answer was 'Yes. T killed him with an axe.' The next question was, 'why did you kill the person--(Digeschandra Das)?' Then, in answer the appellant gives some reasons. This shows that the accused did not make any statement voluntarily but answers were elicited by the Magistrate by questions put by him. A confessional statement is voluntary, only when it is made voluntarily. In the instant case, as stated above, no such confessional statement was made, by the appellant and as such the so-called confessional statement as per Ext. P/5 is not admissible and has to be ruled out from evidence.
6-8. (Their Lordships discussed the evidence and proceeded.)
9. On a consideration of these pieces of circumstantial evidence, the learned Additional Sessions Judge, came to the finding that in the instant case there could be nobody else, but the appellant, who committed the injury on the body of the deceased. We find no reason to differ from him. The appellant also has not denied that he caused the injuries. The defence is that at the relevant time the appellant was insane and as such his act of the homicide was no offence under Section 84, Indian Penal Code.
10. Section 84 provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of un-soundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
11. It is settled law that when an accused takes the plea that his act comes within the General Exception in the Penal Code, the burden is upon him to establish it. In this case, in cross-examination, the appellant has brought out certain pieces of evidence from the P. Ws. Shri B. B. Sen, learned Counsel appearing for the appellant, submits that although no evidence was adduced from the side of the defence, the evidence brought out by different cross-examination is sufficient to establish the defence of appellant. P, W. 4, in his cross-examination, has stated that 'the accused became a lunatic on three occasions before the occurrence.' But at the same time this witness says, 'there were lucid intervals.' P.W. 5, in his cross-examination, deposes that the appellant became insane after he had got married about three years before the occurrence, that the accused assaulted other persons before the occurrence and that at times he along with the deceased brother of the appellant tied the appellant with a rope for about three years. P.W. 7, has admitted in cross-examination that the appellant had become insane on three occasions prior to the occurrence, P.W. 8, in his cross-examination, has stated that the appellant had become lunatic on three occasions before the occurrence and that there were lucid intervals in the case of the accused. The evidence established by defence only shows that the appellant at times was of unsound mind, but he had lucid intervals. There is nothing to show that at the time of the commission of the homicide in question, the appellant was of unsound mind, and that by reason of that unsound-ness of mind, he was incapable of knowing the nature of the act. On the contrary the evidence of P. Ws. 4, 5 and 7 shows that after the commission of the act, the appellant threw away the incriminating axe and ran away to the jungle. This shows he was capable of knowing the nature of his act. That being so, the appellant has failed to discharge his burden of bringing the case within the exception of Section 84 of the Indian Penal Code.
12. In the result this appeal fails and is dismissed.
D. PATHAK J.
13. I agree.