Hon’ble Manoj Kumar Gupta, J.—The instant appeal is directed against the judgment dated 29.1.2011 passed by Additional Sessions Judge (Court No. 2), Mahoba convicting the appellant under Section 304 I.P.C. for killing his own wife, Budhiya and sentencing him to 10 years rigorous imprisonment and fine of Rs. 5,000/- with a default stipulation.

2. The prosecution case was that the appellant, who was suffering from mental illness, killed his wife Budhiya in broad day light at 1.00 p.m. on 25.2.2009 by causing injuries with a weapon made of iron (saang). The incident took place when Budhiya was taking bath at a well on the field belonging to Kamlapat Lodhi, her father-in-law. The appellant came running from the village and inflicted injuries on her with saang. She died on the spot. The incident was witnessed by Prem Lal, the first informant, the owner of the adjoining field. The incident was also witnessed by his son Bharat and other villagers, who were present in the field, namely, Basora s/o Bhonia and Prakash s/o Ramsi. The First Information Report (Ex. Ka-13) was registered on the basis of written application (Ex. Ka-1) given by Prem Lal. The investigation was done by Sub-Inspector K.C. Tripathi. He prepared an inquest report (Ex. Ka-4) and sent the body of the deceased for post mortem. The post mortem report is Ex. Ka-4. The Investigating Officer during course of investigation recorded the statement of the witnesses and also recovered the iron saang (Ex. Ka-10) with which the appellant inflicted fatal blows on his wife resulting in her death. After completing the investigation, a charge-sheet (Ex. Ka-12) was submitted.

3. The Court of Sessions by order dated 29.6.2010 framed charge under Section 304 I.P.C. against the appellant. The prosecution examined Prem Lal, Basora and Prakash, the eye-witnesses of the incident, as PW-1, PW-2 and PW-3 respectively. Dr. Alok Ranjan Mishra, who carried out the post mortem was examined as PW-4, Smt. Vidya, the mother of the appellant and mother-in-law of the deceased as PW-5, Sub Inspector Krishna Chardra and Constable Siyaram as PW-6 and PW-7 respectively. The accused denied the charges leveled against him in his statement under Section 313 Cr.P.C. However, he did not lead any evidence either oral or documentary. The Court of Sessions found the appellant guilty of commission of offence under Section 304 I.P.C. and accordingly convicted and sentenced him by judgment dated 29.1.2011. Aggrieved whereby the instant appeal has been filed.

4. I have heard Shri Kapil Tyagi, who has appeared on behalf of the appellant, having been appointed as Amicus Curiae, as the appellant had failed to engage counsel on his behalf. Shri Faheem Ahmad and Shri Sushil Kumar Yadav, learned A.G.A, have advanced their submissions on behalf of the State.

5. Shri Kapil Tyagi, learned counsel appearing on behalf of appellant did not challenge the findings recorded by the Court of Sessions regarding killing of his wife Budhiya with iron saang in broad day light on 25.2.2009. However, his main submission is that the appellant was a person of unsound mind, incapable of knowing nature of the act, or that what he had done was either wrong or contrary to law and was thus, entitled to the benefit of Section 84 I.P.C.

6. On the other hand, learned counsel appearing on behalf of the State submitted that the appellant was involved in heinous crime of killing his wife and deserves no sympathy from the Court. He submitted that Section 84 I.P.C. is one of the provision in Chapter IV of the Indian Penal Code (I.P.C.) which deals with “general exceptions”. The defence under Section 84 being in the nature of exception, a person taking such defence has to prove the same. In support of his contention he has placed reliance on Section 105 of the Indian Evidence Act. He also referred to Section 328 Cr.P.C. wherein a detailed procedure is prescribed to find out whether the accused person is of unsound mind or not. He submitted that