The burden of proving unsoundness of mind in a criminal case lies on the defense, and the defense must prove that the accused was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.

BARMAN, J.

( 1 ) THE accused Durga Charan Barik (appellant) herein, a young barber aged twenty-two years, killed one Sankar alias Lingaraj Mekap, a boy of eighteen years, by causing three long gaping injuries by razor cuts in the neck and throat in the heart of Puri town in front of jagannath Temple at broad day light in the morning of February 25, 1962. The defence took the plea of unsoundness of mind. The learned trial Judge convicted the accused of murder and sentenced him to death.

( 2 ) WHAT happened was this. The accused was a proprietor of a saloon, in Puri town and he had an assistant. On February 25, 1962 which was a Sunday, at about. 7-30 A. M. in the morning, the deceased went to the saloon of the accused for getting himself shaved. By that time two persons had already come for shaving and hair cut. In fact, there were two shaving chairs In the saloon so that two men could be served at a time. The deceased, in his turn, sat on one of the shaving chairs and he was being shaved by the accused's assistant while the accused himself was serving one after another on the other chair. While thus the accused was shaving one of his customers, there was some talk between the deceased and the other customers about some body, intimately known to the accused, having stolen shoes. In the midst of the talk, for reasons not quite clear from evidence on record, the accused suddenly left the further shaving of the other customer and took up the shaving of the deceased and asked his assistant to shave the other customer. A little while after the change of place of the barbers in course of shaving operation, the accused inflicted a long gaping cut injury on the right side of the neck of the deceased. The accused was then holding the hairs of the deceased. The deceased was struggling to leave the place. The deceased managed to release himself and ran out of the saloon towards an adjacent shop. The accused pursued the deceased. The accused was still holding the open razor in his hand with the blade of the razor smeared with blood. The accused again caught hold of the hairs of the deceased, and, inflicted another razor cut on the upper surface of the left jaw spreading to the neck. The accused did not rest there. He gave another razor cut on the front side of the neck of the deceased thereby cutting the throat deep. The deceased died on the spot. The accused then sat on the chest of the deceased who was lying dead on the ground. The evidence of the eye-witnesses is that the accused then thrust his fingers into the opening caused on the front side of the neck of the deceased by razor cut and pulled out some cords from inside. By that time people on the road intervened and gave the accused a few blows and one of the eye witnesses poured some hot water on the accused. The accused then left the deceased and ran away from the place. Then some of the persons who assembled chased the accused and there was an alarm raised by the people. In the meantime a Havildar with a Constable was coming on the way the accused was running. At the sight of the policemen, the accused turned round and ran to the direction from which the accused was coming. Some persons then apprehended the accused. The accused was brought back to the place where the dead body of the deceased was lying. In due course, investigation was taken up by the police. The accused was arrested, kept under observation of a doctor and ultimately sent up for trial.

( 3 ) THE only question is: Was the accused, at the time of killing the deceased, a person of unsound mind in the legal sense of the term? Section 84 in Chapter IV of the Indian Penal Code, laying down the 'general Exceptions', provides as follows:

"84 Act of a person of unsound mind. 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. " as regards burden of proof,