S.S. Byas, J.
1. This is a jail appeal by accused Ganpat against the judgment of the learned Sessions Judge, Merta dated May 10, 1979 convicting the appellant under Section 302 and 309, IPC and sentencing him to imprisonment for life with a fine of Rs. 2,000/-, in default of payment of fine to further undergo six month's rigorous imprisonment on the first count and six month's simple imprisonment with a fine of Rs. 1,000/-, in default of payment of fine to further undergo three months' like imprisonment on the second count.
2. The charge against the accused is that he committed murder of his wife Smt. Dhapuri, aged about 22, years in the afternoon of 21-8-73 in his village Kod, Tehsil Degana, District Nagair. Briefly stated, the prosecution case is that at about 4 P.M. on that day Mst. Dhapuri was taking bath in her house. The asked her to wash his clothes. She refused to do so and abused the accused. The accused lost control & struck blows with an axe to Mst. Dhapuri resulting in multiple injuries some of which were on head. Mst. Dhapuri did not survive and passed away instantaneously. The accused ran from there & went to his well, where his mother was working. He dropped himself in that well in a bid to commit suicide. He was taken out from well and was tied with a rope to prevent his escape. Many persons of the village collected and report Ex. P/1 was drawn up. It was sent to police station, Thavala where a case was registered. 1 he Investigating Officer arrived on the spot and prepared the inquest report. The accused was also arrested. The blood stained clothes of the deceased-victim were sized and sealed. The blood stained soil was also seized. The post mortem examination of the victim's dead body was conducted on 22-8-78 by PW. 11 Dr. Rampratap - the then, Medical Officer-in-charge, Government Dispensary, Riyan Badi. He found three external injuries and some internal injuries, as mentioned in the post mortem examination report Ex. P/3. The came of death was slated to be severe bleeding and shock from the wounds. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Merta, who committed the case for trial to the Court of Sessions. The learned Sestions Judge framed charges under Section 302 and 309, IPC, to which the accused pleaded not guilty and claimed absolute innocence. In support of its case, the prosecution examined 14 witnesses and filed some documents. In defence, no evidence was adduced. Though, the accused did not take the specific plea of insanity in defence, there were circumstances pointing out that he was not sane at the time of commission of the murder. On the conclusion of trial, the learned Sessions Judge held the charges duly proved against the accused. The plea of insanity raised on his behalf was not accepted. The accused was consequent convicted and sentenced, as mentioned at the very out-set.
3. We have heard the learned Amicus Curiae & the learned Public Prosecutor The learned Amicus Curiae did not challenge the fact that the accused had committed the murder of Mst. Dhapuri and also had dropped himself in the well in an attempt to commit suicide. What has been argued by the learned Amicus Curiae is that the accused was insane at the time of the commission of the crime. The learned Sessions Judge did not properly appreciate the matter and erroneously held that the accused was not insane at the relevant time. It was argued that since the accused was insane at the crucial time of the commission of the offences, he is protected under Section 84 of the IPC. In reply, the learned Public Prosecutor submitted that the question of insanity was dealt with at length by the trial Court and correctly held that the accused was not insane at the relevant time. This finding is based on cogent reasons and should not be disturbed by us. We have taken the respective submissions into consideration,
4. We may point out that in the First Information Report (Ex. P/1) 10 dged with in a few hours of the occurrence, it has been clearly mentioned that the accused had become mad nearly 2 months' before that occurrence and since then, he was in that insane condition. Not only so, almost all the prosecution witnesses stated that the accused was insane at the material time PW 1 Mst. Puski is the real mother of the accused. She stated that the accused had become insane nearly three months before the occurrence and since then he remained insane. She also disclosed the illustrations as to how he used to action that insanity. The accused used to tear his clothes and at times used to become nude and violent. He used to address abusive words. PW 2 Mst. Bhanwari is the real sister of the deceased-victim. She is married to the accused's brother Though, in her examination-in-chief, she denied that the accused was insane, but admitted in the cross-examination that the accused was medically treated because he was mentally ill. PW. 5 Bheru Singh is a Ward Panch of Panchayat. In cross examination, he also admitted that the accused had become insane before the occurrence. He further stated that as the accused was insane, he could commit any act. He further admitted that the accused was got medically treated, but could not recover from insanity. PW. 6 Narayan Ram also admitted that the accused had become insane nearly before four months of the occurrence and was insane H it the relevant time. When the accused visited with the attacks of insanity, fie used to forget everything and could not understand what he was doing. PW. 7 Kana Ram also admitted that the accused had become insane nearly three months before the occurrence. When the fits of insanity were there, the It accused could not understand what he was doing. The same facts were admitted by PW. 8 Gheesa. According to him also, the accused was insane M before the occurrence and he was given medical treatment for that, but he K could not be cured. This witness is a close neighbour of the accused. PW 10 m Sultan is the brother of the accused. He also admitted in the cross-examination that the accused bad become insane nearly two or four months before the occurrence. He was medically treated, but could not be cured. Whenever fits of insanity were there, the accused was unable to understand what he was doing.
5. According to all these witnesses, as stated above, the accused was insane. He was visited with the attacks of insanity off and on and when fits m of insanity were there, he was unable to understand what he was going to do. PW. 13 Ranjeet Singh is the Investigating Officer, When he was asked as to why he did not get the accused medically examined, he took the plea that from the evidence of the prosecution witnesses, he could not gather that the accused was insane. As such, he did not think it proper to get the accused medically examined to find out whether he was sance or insane at the relevant time. We are unable to appreciate what he has stated. Almost all the Br prosecution witnesses have stated that the accused had become insane. This fact was brought to the notice, of the Investigating Officer as soon as the FIR was filed, in which it has been specifically mentioned that the accused was insane. PW. 14 Puskar Dutt, Dy. S.P. under whose supervision the investigating had taken place, is his cross-examination stated that he did not think it proper to get the accused medically examined because when he talked with him he found the accused normal. But we are unable to accept what he stated as correct. In his cross-examination, he admitted that during investigation, he came to know that the accused was admitted for treatment in Dodiana hospital and yet, he did not make any attempt to take the record from that hospital. He further admitted that during investigation, the witnesses told him that the accused was insane and yet he did not care to get the accused medically examined. We are unable to appreciate what he did. The statement of Investigating Officer, PW. 13 Ranjeet Singh, is not consistent Mr with that of PW. 14 Shri Puskar Dutt, Dy. S.P.
6. We are quite conscious of the fact that it is for the accused to prove the exception. But he is not required to lead any evidence. He can Hi rely upon the prosecution evidence in order to make out the plea of any exception available to him in law. Here, in the instant case, almost all the witnesses have stated that the accused had become insane and was so at the time of the commission of the offence. There are some other reasons also which induce us to arrive at a conclusion that the accused was not sane at the time of the commission of the offence. The victim was his real wife. The prosecution has not alleged any substantial motive as to why the accused committed her murder. The motive stated that as the victim refused to wash the clothes of the accused, he caused her death. In our opinion, this cannot be a motive for a sane person to commit the murder of his wife.
7. It is true that some of the witnesses speaking about insanity of the accused are his close relatives. But this cannot be a reason to discard what they stated on oath. In Ratan Lal v. State of Madhya Pradesh : 1971CriLJ654 , their Lordships of the Supreme Court held that the testimony of defence witnesses as to unsoundness of mind of accused should not be disbelieved merely because they are relation of accused. It is the relations who are likely to remain in intimate contact of the accused and, therefore, compent to state whether he was or was not sane at the time of the commission of the crime. In the instant case, apart from the evidence of the relative witnesses, there are independent witnesses who have come forward to state about insanity of the accused. As such, we are unable to agree with the finding of the learned Sessions Judge that the accused was not insane at the crucial time of the commission of the offence. In our opinion, the prosecution evidence clearly points out that the accused was insane when he committed the murder of his wife and when he threw himself in the well. It is painful for us to observe, that the Investigating Agency failed to get the accused medically examined when a clear case of insanity was put before it and the prosecution witnesses also stated so in the FIR.
8. For the reasons stated above, we are unable to maintain the conviction of the accused. His case is covered of the exception contaked in Section 84 of the Indian Penal Code. He is therefore, entitled to acquittal.
9. In the result, we allow the appeal of accused Ganpat. His conviction and sentence under Section 302 and 309, IPC, are set aside and he is acquitted thereof. He is in jail and shall be immediately setforth at liberty if not wanted in any other case.