Judgment

SIKRI, J.:- This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh, Gwalior Bench, allowing the appeal of the State and convicting the appellant for having committed an offence punishable under Section 435, Indian Penal Code, and sentencing him to undergo imprisonment for one year. The only point involved in the present appeal is whether the appellant was a person of unsound mind within Section 84 of the Indian Penal Code at the time of the incident. The Magistrate held that he was not liable to punishment as he was insane at that time and did not know that he was doing anything wrong or anything contrary to law. The High Court, on the other hand came to the conclusion that the case of the appellant did not fall within the exception created by S. 84, I. P. C.

2. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. (See State of Madhya Pradesh v. Ahmadullah, (1961) 3 SCR 583. In D. C. Thakkar v. State of Gujarat, (1964) 7 SCR 361 it was laid down that "there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings." It was further observed:

"The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime."

3. The learned counsel contends that if regard is had to the circumstances which preceded, attended and followed the crime it would be clear that the accused is entitled to the benefit of Section 84 of the Indian Penal Code.

4. The prosecution case is that on January 22, 1965, the appellant set fire to the grass lying in the Khalyan of Nemichand at the time of the setting of the sun. He was caught at the spot while setting fire. On being asked why he did it the accused said; "I burnt it and do whatever you want". The accused was arrested on January 23, 1965, and he remained in police custody till February 2, 1965, when it was found that the accused needed medical, examination, and accordingly the District Magistrate ordered that he be medically examined. No explanation has been given why he was kept in police custody all that time. There is no evidence either to indicate as to his condition from the time of his arrest to the time when his case was referred for medical examination. These facts were within the knowledge of the police and we should have expected that the prosecution would lead evidence regarding his condition during this time. Further, the police made it impossible for the appellant to prove his mental condition at the time of the incident by keeping him in their custody from January 23 to February 2, 1965, not having him examined and not sending him to judicial custody earlier where he would have been examined by the jail doctor.

5. On February 20, 1965, V. S. Vaidya, Assistant Surgeon, Civil Hospital, Vidisha, reported to the Jailor, Sub-Jail, Vidisha, as follows:

"Subject: In Ref. to your letter No. 295, dated 8-2-1965.

Sir,

Ratanlal Prisoner was kept under observation as indoor patient during this tune. He was keeping silent, he never used to reply any question so in my opinion he should be refd. to some specialist for further investigation and needful".

On February 22, 1965, Y. D. Kamran, Civil Surgeon, Vidisha, reported as follows:

"Shri Ratanlal, undertrial, was examined by me. He does not appear to be deaf or dumb, but is mentally retarde