Baharul Islam, J.
1. The appellant, Benar Singh Tanti, was tried by the Sessions Judge, Lakhimpur and Dibrugarh at Dibrugarh, under Sections 302 and 326 of the Penal Code. He was sentenced to imprisonment for life under Section 302, and sentenced to rigorous imprisonment for 3 years under Section 326 of the Penal Code. Both the sentences were directed to run concurrently.
2. The prosecution case, in brief, is that on 6-3-1970 the appellant, who was a tea garden labourer, killed a girl aged about 13 years and injured 3 other persons, namely, Khirdhar Tanti (P.W. 7), Musstt. Lakhi Tanti (P.W. 8) and Dilip Lohar (P.W. 6). The garden authority having informed the police over the telephone, the police of Chabua Police Station recorded a G.D. entry and the officer-in-charge immediately left for the place of occurrence. On the spot he received a written information Ext. 1. The police registered a case and after investigation submitted a charge sheet against the appellant. In due course the committing Magistrate committed the appellant to the Court of Session to stand his trial. During the course of investigation a confessional statement, marked as Ext. 5, was also recorded by the Magistrate, Shri B.N. Sarma, on 9-3-1970. In the Sessions Court also the appellant stood trial under Sections 302 and 326 of the Penal Code.
3. The appellant pleaded not guilty to the charge. His plea was one of insanity.
4. The prosecution examined as many as 10 witnesses including the Medical Officer who held the post-mortem examination on the dead body and also examined the injuries on P. Ws. 6, 7 and 8 and after trial the learned Sessions Judge convicted the appellant as aforesaid.
5. So far as the charge under Section 302 is concerned, there is no eye witness. The evidence of P.W. 1 is that on the date of occurrence in the afternoon an hearing hue and cry he came out and saw the appellant running away with something in his hand and he saw one girl falling down on the road by uttering the word 'mother'. He has not stated that he saw the appellant assaulting or cutting the girl. The only other piece of evidence in support of the prosecution case for the offence under Section 302 is Ext. 5, the alleged confessional statement which has been retracted. In order that a confessional statement may be admissible and used against an accused, it must be proved to be voluntary. The voluntary nature of the evidence can be judged from the internal evidence of the document and also from the evidence of the Magistrate recording the confession. In the instant case the Magistrate has not been examined. It appears from Ext. 5, the original record of the confessional statement, that the learned Magistrate did not take the matter seriously and he did his job in a perfunctory manner. At the very beginning the learned Magistrate has written his name as Shri B.N. Sarma, but he has retained in the printed form of Ext, 5 his. description as '1st Class Magistrate' and also the description 'specially empowered in this behalf' after cancelling 'second Class' below the line under 'first Class'. Similarly in column No. 2 he has not mentioned the date on which the appellant was arrested, nor has he mentioned in column No. 4 the name of the person in whose care the appellant was put during the period of contemplation. In column 10 he has not mentioned whether the accused was forwarded to the police hazat or to the judicial custody. He has simp'y stated 'The accused is forwarded to hazat at 3-15 P.M.' It also does not appear that the accused was given sufficient time for contemplation. In the circumstances, we hold that Ext. 5 has not been proved to be voluntary and is not admissible.
6. In the result we hold that the prosecution has failed to establish the charge under Section 302, Indian Penal Code.
7. With regard to the charge under Section 326, the evidence is of P.W. 8, Mustt. Lakhi Tanti, who herself was injured. Her evidence is that on the date of occurrence when she was taking bath, the appellant came and gave a blow on her neck with an axe, and another blow on her hand. She was examined by P.W. 3, Dr. Guha, who deposes that he examined her and found one incised wound 3' X 1/2' X bone deep on the back of the neck. According to him the injury was grievous and caused by dangerous weapon. The appellant has not denied that he caused grievous hurt to P.W. 8. In our opinion therefore, the charge under Section 326 has been well proved.
8. As stated above the appellant has taken the plea of insanity. So under Section 105 of the Evidence Act, the burden is upon him to prove insanity. In support of his defence, he examined D.W. 1. Musstt. Gubha Tanti, his wife. Her evidence is that she was married to the appellant about 20 years ago and that they were living in the Balijan Tea Estate. After 2 years of their marriage her husband became 'mad' off and on and assaulted her. Some days before the occurrence, he again turned 'mad' and he became so for the last two years. One day, she further deposes, after return from work he chased her with a dao, when she, along with her children, fled away. P. Ws, 1 and 4 also have admitted in cross-examination that the appellant's head was 'occasionally out of order'. There is, therefore, little doubt the appellant occasionally became mad or he was of unsound mind.
9. Section 84 of the Penal Code under which the appellant has taken shelter, reads:
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.
10. There are various degrees of insanity known to the medical man or psychiatrist; but law does not recognise all kinds of insanity. Legal insanity, as contemplated by Section 84 of the Penal Code, is that unsoundness of mind, in which a person completely loses his cognitive faculties and is incapable of knowing the nature of his act or that what he was doing was either wrong or contrary to law. In the instant case from the evidence on record it does not appear that the appellant completely lost his cognitive faculties; for, P.W. 4 deposed that after injuring P.W. 6 with an axe when the appellant wanted to assault him (P.W. 4) he snatched away the axe from him. The appellant then fled away by running. P.W. 4 is corroborated by P.W. 6 and P.W. 5. This conduct of the appellant rules out that he did not know the nature of his act; on the contrary it shows that he apprehended that P. Ws. 4, 5 and 6 would catch and punish him.
11. In the circumstances the plea of insanity as contemplated under Section 84, Indian Penal Code has to be rejected.
12. In the result We set aside the conviction and sentence of the appellant under Section 302 of the Penal Code but affirm the order of conviction and sentence under Section 326 of the Penal Code. The appeal is partly allowed.
13. Before we part with the record we like to make a few observations. The appellant was sentenced to imprisonment for 3 years under Section. 326, I.P.C. The period is already over. The evidence on record clearly shows that he occasionally goes mad and becomes violent. If he is set at liberty forthwith, he may be a danger to the society. The authority will do well to send him to some mental asylum for observation and treatment and may be released after he is cured
K. Lahiri, J.
14. I agree.