Baharul Islam, J.
1. The Appellant has been convicted under Section 302 of the Penal Code by the Sessions Judge, Lakhimpur. The appeal is from jail.
2. The facts of the case are as follows:- On 17-6-1970 a first information report was lodged at Pengari Police Out-Post and it was sent to, and received at, Digboi Police Station on 18-6-1970. It was stated in that first information report that on that day, namely 17-6-1970, the appellant caused the death of his wife and a minor son, in his own house after closing the door from inside. The police registered a case and after investigation, submitted a charge-sheet under Sec, 302, I, P. C. Eventually he was committed to the Court of Session where also the charge under Section 302 was maintained. The appellant pleaded not guilty to the charge. His plea was one of insanity at the relevant time.
3. Dr. H. N. Ganguli who held the post-mortem examination on the dead body of the child, was examined before the committing Magistrate, and his evidence was tendered in the Sessions Court. His evidence is that he held the postmortem examination on the dead body of a minor child of the age of about li years end found the following injuries on his person.
(1) A cut would 3' X 1' on right side of occipital area starting li medial to right ear and running upwards and inwards and cutting the occipital bone, brain crushed.
(2) One punctured wound 1 1/2' x 1/2' about 1' below injury No. 1, punctured the medulla oblongata
(3) One punctured would 1' x 1/2' on left lumber area 2 1/2' above right hip bone through which intestine bulges out but it was not punctured.
On internal examination, the witness found the brain crushed on the occipital area and medulla ob longeta. In his opinion all the injuries were ante-mortem and the child died of haemorrhage from bone fracture and brain injury.
On the same day, he held post-mortem examination on the dead body of Ghangri Chetia, wife of the deceased. He found the following six injuries on her dead body,
(1) Cut wound 5' X 2' starting 3' above the chin and running upwards and inwards cutting the mandible eyebrow zygomatic bone on right side.
(2) Cut wound 2'X 1 1/2' on front side of face cutting the supra orbital bone and nasal bones.
(3) Cut wound 2' X 1'' starting 1/2' above right eye-brow running upwards and inwards and cutting the frontal bone on right side.
(4) One punctured wound 2'X 1/2' on right side of chest 2 1/2' below right nipple puncturing the upper surface of the liver.
(5) One punctured wound 1 1/2'X 1/2' on left side of chest 3' below the left nipple puncturing the upper lobe of the left lung.
(6) Cut wound 1 1/2'X 1/2' on back side of left forearm at its middle third.
In the opinion of the witness, all the injuries were ante-mortem and the woman died of haemorrhage, fracture of bones, liver punctured, lung punctured, and in his opinion, the injuries were sufficient, in normal course of nature, to cause the death of the injured person. In our opinion, therefore, there is no doubt that the injuries on the woman and the child were homicidal in nature and were the causes of the deaths of the two persons and that the two persons were murdered.
4. There is no eye-witness in the case. It depends on circumstantial evidence.
5. P.W. 1 Rajbor Chetia is the elder brother of the appellant. His deposition is that he lives separately from his brother, the appellant, who was living with his wife Chengeri and four children. The age of the youngest child was about 1 1/2' years. He deposes that the accused had delirium for about 2/3 days before the occurrence. That on the date of occurrence, he went to the neighbouring temple to offer some prasads for recovery of the appellant, Then hearing some hue and cry in the house of the appellant, he returned. P.Ws. 2, 3 and two or three other persons also arrived there. They found the door of the room of the appellant closed from inside. They requested the appellant to open the door and come out. The appellant then opened the door and came out with a spear in his hand and rushed at them, whereupon they ran away to their village. The appellant entered into the house of P.W. 1 where he was apprehended and kept tied there. He has proved material. Ext. 1, an axe, and material Ext. II, a spear, which were seized by the Police Officer who has stated that they belonged to the appellant. He is also witness to the seizure-list, Exhibits 2 and 3 corroborate P.W. 1.
6. The law is well settled that in order to convict an accused on circumstantial evidence, it must be proved that the innocence of the accused is incompatible with the prosecution case. In the instant case the pieces of evidence against the appellant are:- (1) that he was found inside his room all alone with the dead bodies of the two deceased; (2) that the door was closed from inside; and (3) that he had a spear in (his hand when he had come out on being asked by P.Ws. 1, 2 and others.
7. Sri. Kalita, the learned Counsel appearing as amicus curiae for the appellant, submits that in this case the guilt of the accused has not been established beyond reasonable doubt, inasmuch as he submits that there is a missing link in the evidence. His submission is that there is no evidence of bloodstains on the weapons seized in the case, and in support of his contention he cites the decision of the Supreme Court in the case of Mahmood v. State of U.P. reported in : 1976CriLJ10 , in which it has been laid down by their Lordships that no conviction can be based on circumstantial evidence if there be a missing link. In the instant case it appears there is a missing link, namely, that there is no evidence to show that the weapons which have been alleged to have been used in killing these two persons were stained with blood. But in our mind, the doubt is removed by another circumstance, namely, that the appellant, being a very near relation of the two deceased found all alone inside a closed room with his wife and child murdered he was silent when he was challenged by P.Ws. 1 and 2. It was expected of (him to explain the circumstances, if somebody else murdered them. His silence is eloquent about his guilt. Naturally, if somebody else killed those two persons, either in his presence or in hi* absence, he ought to have reported that facts to P.Ws. 1 and 2 and 3. But he did not do so. Therefore, the apparently missing link is replaced by his silence, and, in our opinion, there is no doubt that it wets the appellant who killed these two persons.
8. The alternative submission of learned Counsel is that the appellant was insane at the time of the commission of the murders. Section 84 of the Penal Code provides:
Nothing is en 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 la either wrong or contrary to law.
When an accused takes the plea of the general exceptions under the Penal Code, the burden is upon him to establish that plea, although he is not required to establish it beyond reasonable doubt. Any kind of unsoundness of mind or insanity is not enough few legal purpose. There Is great difference between medical insanity and legal insanity. Unsoundness of mind as contemplated by Section 84, I. P. C is legal insanity which means the state of mind in which an accused is incapable of knowing the nature of his act or that he is incapable of knowing that he is doing what is either wrong or contrary to law. In other words, bis cognitive faculties are such that he does not know what he has done or what will follow from his act. In the instant case, from the evidence of the P.Ws. 1, 2 and 3 there is no doubt that the appellant had some sort of mental disorder at the relevant time. But the question is whether it was legal insanity so as to give the accused the benefit of Section 84. Legal insanity of the appellant is negatived by the following circumstances: (1) When P.Ws. 1, 2 and 3 approached his room and asked him to open the door and come out, he did open the door and came out. This shows that his cognitive faculties were not completely lost. He understood that somebody asked him to open the door and come out, and he responded, although he came out with the spear in his hand (2) The second circumstance is that P.W. 2 immediately after the occurrence found the appellant sitting leaning near the door, as if sleeping, with the spear in hand. He and the other persons told him that they had not come to assault or arrest him, He then threw away the spear. This shows that when the P.Ws. approached him not as assailants he disarmed himself. (3) The third circumstance is that when P.W. 5, the Assistant Sub-Inspector of Police, put some questions to him at the time of his arrest, no reply was given. But when he was going to take him into custody, the appellant protested. This also shows that he was not completely insane, in the circumstances, it must be held that the appellant has failed to establish insanity in order to get the protection under Section 84 of the Penal Code.
9. In the result, this appeal fails and is dismissed.
D. Pathak, J.
10. I agree.