The burden of proof for insanity defense rests on the accused, and the court must consider the accused's mental condition at the time of the offense.

JUDGMENT :

A. Pasayat, J. - In this appeal from jail, Kapila alias Pramod Mohapatra (hereinafter referred to as 'accused') questions legality of conviction for offence punishable under Sections 302 and 323 of Indian Penal Code, 1860 (in short, 'IPC') and consequential sentence of imprisonment for life and six months respectively as awarded by learned Addl. Sessions Judge, Sambalpur. Accused faced trial on the accusation of having committed triple murder and injury to one Kamala Naik (P.W.2)

2. In a nutshell, prosecution version as unfolded during trial is as follows:

On 28.9.1990, in the morning hours at village Prabhasuni Gogua, accused dealt blows by spade on the head of one Madan Sahu, while latter was ploughing his field. Madan sustained severe head injuries and met an instantaneous death. Accused assaulted and dealt blows on the head of one Bijay Sahu who also met similar fate. When Kuni, another person who lost her life, and injured Kamala (P.W.2) and Rukmani Padhi (P.W.3) tried to intervene, accused attacked them by a lathi. At first, he dealt two blows on P.W.2 but she saved herself by jumping into a canal. As Kuni protested she was attacked and as a result of assault by lathi on her head, she also lost her life. The villagers caught hold of accused who made extrajudicial confession of his guilt before them. On the basis of information lodged at Deogarh P.S., investigation was undertaken and on completion thereof, charge sheet was placed.

3. Accused pleaded innocence. Though a specific plea was not taken, an alternative plea of his insanity surfaced. As indicated above, P.Ws. 2 and 3 were stated to be witnesses to the occurrence, while P.Ws. 1, 4 and 6 were post occurrence witnesses. Placing reliance on evidence of P.Ws. 2 and 3, and extra-judicial confession before P.Ws. 4 and 6, learned trial Judge found accused guilty and convicted and sentenced him as aforesaid.

4. In support of appeal, learned counsel for appellant submitted that evidence of P.Ws. 2 and 3 cannot be accepted as they were interested for the prosecution and they have not explained motive for killing. Alternatively, it was pleaded that a case for bringing in application of Section 84, IPC has been made out and learned trial Judge was not justified in discarding the plea.

5. Section 34 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in the IPC. Courts have mainly created this expression as equivalent to "insanity". But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A Court is concerned with legal insanity and not with medical insanity. The burden of proof rests on accused to prove his insanity, which arises by virtue of Section 105 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') and is not so onerous as that upon the prosecution to prove that the accused committed the act with which he is charged. The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding. {See Dayabhai. v. State of Gujarat, AIR 1964 SC 1563). In dealing with cases involving a defence of insanity, distinction must be made between cases, in which insanity is more or less proved and the question is only as to the degree of irresponsibility, and cases, in which insanity is sought to be proved in respect of a person, who for all intents and purposes, appears same. In all case, where previous insanity is proved or admitted, certain considerations have to be borne in mind. Mayne summarises them as follows:

"Whether there was deliberation and preparation for the acts whether it was done in a manner, which showed a desire to concealment; whether after the crime, the offender showed consciousness of guilt and effo