Honble PASAYAT, J.–Challenge in this appeal is to the judgment of a Division Bench of the Rajasthan High Court at Jodhpur dismissing the appeal filed by the appellant who was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC) and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- with default stipulation. The order of conviction was recorded by learned Special Judge SC/ST, (Prevention of Atrocities) and Additional Sessions Judge, Partap Garh, Rajasthan.

(2). Prosecution version as unfolded during trial is as follows: On 26.8.1995 at about 8 a.m. Mithu Singh (PW1) heard the scream that "run run he will kill her". On hearing the scream he rushed towards the house of appellant where Smt. Bhanwar Kanwar, Smt. Nand Kanwar, Smt. Jagdish Kanwar and Smt. Mohan Kanwar were shouting loudly. Smt. Phool Kanwar told him that the accused is beating his wife. It was found by the informant on looking inside from the roof top that the accused was carrying a sickle in one hand and the chopped head of Smt. Govind Kanwar (hereinafter referred to as the deceased) in other hand. The sickle was blood stained and the blood was flowing on the floor from the body. Number of other persons including Ram Singh and Chain Singh came to the spot. Sohanlal and Udai Singh who belonged to the police force also reached at the spot. Constable Udai Singh climbed up to the roof and looked into the house. He also found that the accused was standing in the house with the chopped head of a lady in one hand and a blood stained sickle in the other hand. With efforts made by the people present at the spot, door was unbolted by the accused and he was arrested by the police.

(3). Information was lodged at Partap Garh police station at about 8.30 p.m. After investigation charge sheet was filed. To further prosecution version 15 witnesses were examined. The learned trial Judge also examined the accused under Section 313 of the Code of Criminal Procedure, 1973 (in short the Cr.P.C.). Five witnesses resiled from their statements made during investigation. However, considering the evidence on record the trial court found the evidence to be credible and cogent and accordingly convicted and sentenced the accused- Gajraj Singh. During trial a plea was taken that the accused was of unsound mind and, therefore, entitled to protection under Section 84 IPC. Same was rejected by trial Court. The High Court also found that the plea regarding applicability of Section 84 IPC was not acceptable. It found that though some of the witnesses stated about the accused suffering from unsoundness of mind, the crucial question was whether at the time of commission of offence the accused was incapable to understand the nature of the act committed by him or suffered from insanity and had to be given protection under Section 84 IPC. The High Court found that Section 84 IPC has correctly been applied.

(4). Learned counsel for the appellant with reference to the evidence of some of the witnesses submitted that the police officials themselves wanted protection from the Court being disturbed by the violent behavior of the appellant. It was submitted that grand father and the uncle of the accused suffered from insanity and, therefore, the trial Court and the High Court were not justified in refusing the protection under Section 84 IPC.

(5). Learned counsel for the respondent-State on the other hand supported the judgment of conviction as recorded by the trial Court and as upheld by the High Court. According to him though there is material on record to show that the accused appellant at some point of time suffered from unsoundness of mind, that is not sufficient to bring in application of Section 84 IPC. Additionally, the application filed by the father of the accused was after about one year of the incident.

(6). We shall first deal with the question whether Section 84, IPC has application to the facts of the case.

(7). Section

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