J. N. BHATT, J. R. VORA, J.

( 1 ) WHETHER, the appellant-accused is guilty of offence punishable under section 302 of the Indian Penal Code (IP Code), or his act falls within the exception under section 84 of the IP Code, is the question posed before us, in this appeal, against the judgment and order of conviction recorded by the learned Additional Sessions Judge, Sabarkantha, in Sessions Case No. 103/95, on 23. 4. 1996.

( 2 ) PURSUANT to the direction contained in the order dated October 28, 1997, in Criminal Appeal No. 976/97 arising out of SLP (Crl.) No. 2615/97, passed by the Honble Supreme Court, this appeal came to be re-admitted and record and proceedings were called for and since the appellant is in custody and he could not secure service of private Advocate and it seems he is an indigent person, he was provided with, legal aid in his defence. While disposing of the appeal, the Honble Supreme Court observed to dispose of this appeal, as expeditiously as possible, preferably, within a period of three months from the date of communication of the order. [it is, really, very unfortunate that this High Court could not hear the matter within the time-frame desired in the order and failed to honour the wish of the Apex Court, apparently, as it seems to be on account of the heavy workload. However, upon our attention being drawn in current sitting with such business which began on 12. 6. 2000, we, urgently, heard the appeal. ]

( 3 ) A few, material, and relevant facts, leading to the rise of this appeal, need narration, so as to appreciate, the merits of the appeal and the challenge by the respondent State. The appellant, who, is the original accused, came to be charged for having committed offence punishable under section 302 of the IP Code, for committing the murder of his wife, Jiji, by giving axe blows, on 10. 6. 95, around 2. 00 p. m. in his house, situated, at village Digthali, Taluka Khedbrahma, District Sabarkantha, Gujarat, to which the accused denied and also raised the plea of insanity.

( 4 ) ACCUSED, according to the prosecution, entertained a superstitious belief and a notion that his deceased wife was practising witch-craft, as a result of which, the health of the accused was affected and deteriorated. Deceased, Jiji and accused, her husband, lived the married life more than a quarter-century and out of which there were six children. Prosecution witness Vanabhai was the eldest son. Prosecution witness No. 1, Rashma Hira, was the brother of the accused, who had lodged the complaint, Ex. 9, before PSI, Khedbrahma, on the same day after the incident occurred.

( 5 ) PURSUANT to the complaint of prosecution witness, Rashma, the investigation was commenced. Muddamal axe, allegedly, used by the accused was recovered from the venue of offence having blood marks.

( 6 ) THE defence raised on behalf of the accused is that of an insanity. In support of this version, defence, witness Dr. R. B. Agarwal, M. D. , in Phychiatrist was also examined. It is, therefore, the defence that the act of the accused is covered by the exception prescribed in Section 84 of the IP Code. Since the accused could not afford to engage the service of a private advocate, the appeal came to be filed through Jail, and, therefore, he has been provided with legal assistance in support of his defence in the appeal.

( 7 ) SO far as, the homicidal death of deceased, Jiji, wife of the accused is concerned, there is no dispute. The prosecution has, successfully, established by leading evidence in general and the medical evidence of the prosecution witness No. 10, K. T. Akhani, at Ex. 27, in particular, that deceased, Jiji, died a homicidal death on account of the injuries sustained by her, which were possible by muddamal axe produced, at article No. 5. The P. M. report is produced, at Ex. 28.

( 8 ) THE case of the prosecution that the author of the homicidal death is the husband-accused, the appellant in this appeal, is also proved without any doubt in view of

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