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Baswantrao Bajirao Vs. Emperor - Court Judgment

LegalCrystal Citation
Decided On
Reported in1949CriLJ181
AppellantBaswantrao Bajirao
- - 2. i am satisfied, for the reasons given by my learned brother, that the accused killed his two wives. i am satisfied that he was not legally insane though there is no doubt that he was not a normal man and that he was not then in a normal state of mind, but i am clear that he knew the nature of his act and knew that he was doing wrong. except for the little girl shakuntala there was no one else in the house at the time, clearly no stranger could have entered the house and committed these murders without the accused knowing it. instead of that the accused refused to an3wer any question in the committal court and in the sessions court the burden of his song was 'i do not remember'.if this was the truth he would clearly have said that in the committal court too. it was not found in.....bose, j.1. my learned brother has examined the evidence and the law with his usual care and industry and i do not feel i can usefully add anything to his research. i agree with all his conclusions.2. i am satisfied, for the reasons given by my learned brother, that the accused killed his two wives. i am satisfied that he was not legally insane though there is no doubt that he was not a normal man and that he was not then in a normal state of mind, but i am clear that he knew the nature of his act and knew that he was doing wrong.3. it is clear to me that no one else could have killed the two women. except for the little girl shakuntala there was no one else in the house at the time, clearly no stranger could have entered the house and committed these murders without the accused knowing.....

Bose, J.

1. My learned brother has examined the evidence and the law with his usual care and industry and I do not feel I can usefully add anything to his research. I agree with all his conclusions.

2. I am satisfied, for the reasons given by my learned brother, that the accused killed his two wives. I am satisfied that he was not legally insane though there is no doubt that he was not a normal man and that he was not then in a normal state of mind, but I am clear that he knew the nature of his act and knew that he was doing wrong.

3. It is clear to me that no one else could have killed the two women. Except for the little girl Shakuntala there was no one else in the house at the time, Clearly no stranger could have entered the house and committed these murders without the accused knowing it. Also, had that been the case, his conduct thereafter would have been different. He would have been horrified and would at once have raised a hue and cry and would have sought assistance.

4. Had his behaviour been otherwise, the blood on the clothes might have been explainable. A man who sees his wives lying injured would naturally desire to ascertain whether they were still alive and would want to help them, His clothes could easily get bloodstained in the process. But, as I have said, he would behave differently, He would raise a hue and cry and ha would offer this simple and straightforward explanation from the start. Instead of that the accused refused to an3wer any question in the committal Court and in the Sessions Court the burden of his song was 'I do not remember'. If this was the truth he would clearly have said that in the committal Court too.

5. The discovery by the accused of the knife also show that he was the murderer. It was not found in the room where the women were killed, nor was it found in some place where a murdered trying to make good his escape might drop it. It was produced from a room in the upper storey of the house. Clearly no murderer would roam about the house like that with a little girl and the husband of the women in the place, I agree with my learned brother that the accused killed the two women.

6. I am satisfied also that he knew the nature of his not and that he knew it was wrong. His action in changing his bloodstained clothes and in taking the knife up stairs are the acts of a sane intellect in the legal sense of the term however abnormal the man might have been in other respects. Then also his reply to Rajaram (p. W. l) Have you not brought the Chief Saheb' indicates that he knew that the police come and investigate cases of abnormal death. It also shows that such investigations are usually con-ducted by a 'Chief Saheb' and not by an ordinary constable. This is good evidence to indicate that the man knew that the act was wrong and would require a police investigation.

7. There is in addition the evidence of p. W. 1 to the effect that the accused admitted to him that he had killed his wives and asked him 'why do you not bring the Chief Saheb.' This is corroborated by the second report Ex, p-1 which the witness sent to the police. I see no reason to doubt this evidence. This not only establishes the fact that the accused was the murderer but also the fact that he knew what he was doing. He knew the nature of his act, namely, that it involved the killing of a human being. He knew it was wrong and would require police investigation.

8. Dr. Roy's evidence is, to my mind, use-legs, and so far as I am concerned it is suspect from the start. His anxiety to be examined as a Court witness and not as one for the defence, which he in fact was, at once indicates his bias and his anxiety to pose as a disinterested scientist. The accused was represented by counsel and he would have sought the permission of the Court to cross-examine if that had been necessary, or would in the alternative have asked the Court itself to put questions to clear up any doubts.

9. That apArticle a medical witness who considers it unnecessary to examine a person, however sane at the moment, for suspected lunacy is not of much value. In this case Dr. Roy has attempted to substitute his judgment for that of the Court and that of course is not permissible. The question whether in given circumstances a man was sane or insane is for the Court to decide. An expert can only furnish a Court with data from which insanity can be inferred. It is beside the point whether in the opinion of the doctor the man was medically insane. Even that would be a dangerous conclusion on the slender data on which Dr. Roy proceeded, but however that may be what we have to decide is whether the man was legally insane and there, at bottom, the question is a simple and commonsense one which ordinary jurors can easily comprehend. I do not minimise the value of expert evidence in these cases, but I deprecate the attempt to cloud a simple issue in a deluge of scientific words which no ordinary juror would be able to under, stand. Even though cases of this type are tried without a jury in this Province the law is grounded on the assumption that the issues are ones which 'twelve good men and true' can comprehend and answer.

10. Dr. Roy's attempt to show that the two women could have been killed with one automatic stroke of the dagger is enough to make his evidence valueless, particularly when this theory is advanced in the face of injuries which suggest a struggle.

11. I agree with my learned brother that insanity in the legal sense of the term has not been established. The conviction and sentence are upheld and the appeal is dismissed.

Hidayatullah J.

12. This is an appeal by one Baswant Rao alias Dada, son of Baji Rao Maratha, Patil, against his conviction under Section 302, Penal Code and sentence of transportation for life imposed on him by Mr, K. T. Mangal-murti, Sessions Judge, East Berar Division, Amraoti, in Sessions Trial no. 10 of 1946, decided on 2nd September 1946.

13. The appellant who is apparently a respectable man of some influence was prosecuted for the double murder of his two wives, Mt. Kausalya and Mt. Gaya on the night of 16th March 1916. On the day in question, the appellant was in his house along with his two wives and an infant girl named Shakuntala (born to him by Kausalya). There was no other person living in the house. On the morning of the 17th idem, a report was made to the police which is Ex. P-18 by Vinayak Rao Jaiwant Rao Patil of Singnapur (P. w. 16) that Baswant Rao, the appellant, had severely beaten his two wives, on the previous night and that one Rajaram Chowkidar (p. w. 1) was sent to make inquiries and he reported that the clothes on the person of the appellant were smeared with blood. The police were asked to make 'immediate bandobast' and according to the evidence of Rajaram (p, w. l) and Indrapal, Head Constable (p. w. 17), the former was sent back to inquire and report if the wives of the appellant were living or dead. This appears to be at 10-30 A. M. in the morning and is apparent from ex. p-19 and the evidence of these two prosecution witnesses. There is some slight divergence as to what actually happened thereafter but in my opinion that makes very little difference to the case. Rajaram (P. W. l) on his return went again to the house of the accused and questioned him. The accused is then alleged to have asked this witness, 'Have you not brought the Chief Sahib.' When asked why the Chief Sahib should be brought the accused said that he had killed both his wives. On this a second report was sent to the police which is Ex. P-l. It reads thus:

It is submitted as follows: At the aforesaid mouza on being asked by Rajaram Choukidar Baswantrao Bajirao Patil told him that he had out both his wives. Hence you have been informed. Be it known, dated 17th March 1946.

I do not wish to attach much importance to the extra-judicial confession of the accused to Rajaram (p. w. l) of which this report is also a record because I am satisfied that the case against the accused of having caused the death of his two wives is proved without resort to it. The circum-stances are such that though there is no eyewitness, it could not have been anybody but the accused, who was responsible for the death of these two ladies.

14. On the morning of 17th March at about 8 or 4, a. m., certain cries were heard from the side of the house of the accused by Krishna Rai (P. W. 7) and Nathu Patwari (p. w. 15) from which it appeared that some sort of beating or quarrel was going on in the house. The witnesses have attempted to give the exact words which suggest that one of the wives of the accused shouted that she was stabbed and the other was asking for mercy, saying that the accused was their lord and master. It appears to me that the learned Sessions Judge acted with extreme caution in rejecting the testimony of these witnesses as to the exact words used by the murdered ladies. That apArticle it is dear from the rest of the evidence which has been accepted by the trial Court and which I see no reason to reject that the two women were beaten in the early hours of that morning. This fact is also corroborated by the report, Es. P-18, in which the fact of beating is also clearly mentioned. Further when the police arrived on the spot, and the accused was questioned, he is alleged to have made a statement to the effect that he had kept his blood-stained clothes which were earlier on his person and other saman in the upper part of his house. As a result of this statement, the blood-stained, clothes choli (Art. (A) and kurta (Art. B), were seized by the police and also the dagger (Art. o). These were found in the house of the accused in the upper storey of the house. The accused signed the seizure memoa. These clothes were proved by Sakharam washer, man (P. W. 8) to belong to the accused. They bear the mark which the witness had allotted to the laundry of the accused and this in my opinion is sufficient to connect the articles with the accused. The accused alleged that these two articles of clothing had been lost by the washerman who did not return them after laundering them and that they had not been in his possession for over 4 or 5 months previous to the date of the incident. This allegation was not proved and no attempt was made to cross-examine P. w. 8 on this point. I do not see any reason to reject the testimony of this washerman and accept the prosecution case that the clothes of the accused were smeared with blood. This blood was found to be of human origin. The learned Sessions Judge again acted with extreme caution in rejecting the statements which accompanied this discovery. I do not propose to discuss this question because in my opinion the fact of the finding of the clothes of the accused drenched with human blood is an important and decisive piece of evidence against the accused. Similarly the finding of the dagger inside the house is relevant. In addition, there is the evidence of witnesses to show that on the day in question the accused was seen on the gallery with his clothes stained with blood. The prosecution case thus is that it was the hand of the accused which had caused the injuries upon the persons of these two ladies and this is unchallenged, though a faint attempt was made by the learned Counsel appearing for the appellant to show that there was no proof that it was the accused who had caused the death of these two ladies. I am satisfied on the evidence in the case that it could have been none but their husband. I have, therefore, no hesitation in holding that he was responsible for the death of his two wives.

15. This brings me to the only defence which merits consideration in this appeal, namely, the defence of insanity. The accused has tried . to prove that the act was committed by him in a moment of insanity and for this purpose he has led evidence to show his conduct previous to the incident, his conduct immediately afterwards and also the evidence of an expert. I deal next with the evidence tendered to prove insanity, save that of the expert. The matter has been exhaustively discussed by the learned Sessions Judge who has accepted practically the whole of the evidence led in the case. In my opinion it makes no difference to his conclusions even if the evidence which he has rejected is also accepted, but I agree with him that the evidence rejected by him is artificial and not worthy of credence.

16. All this evidence relates -to unusual con- duct of the accused from the year 1942 up to the time of the murders. Shaikh Gulab (d. w. 8) deposes that the accused was assaulted by Anand Rao and Vishwas Rao in the year 1942 and that the accused had prosecuted these persons but the prosecution failed. This witness deposes that the accused was much grieved over the failure of his case and was unhappy thereafter. A certified copy of the judgment in criminal Case no. 95 of 1941 is produced by the accused as ex. d-12 to support the evidence of D, w. 8. There is no doubt that there was a case of this kind which was started at the instance of the accused- appellant and which failed. I do not see any reason, therefore, to doubt the evidence of Shaikh Gulab on this point and hold that the accused was perturbed by the failure of his case.

17. The rest of the evidence consists of statements of witnesses who allege that the accused was seen abusing people, walking about aimlessly, sometimes without adequate clothing, and looking distraught, refraining from answering questions or entering into conversation with the people. There is some slight evidence of violence on the part of the accused, but it has not been proved that the accused entertained any homicidal tendencies. The learned Sessions Judge in para. 26 of his judgment has given the history of the conduct of the accused from 1942 to 1946. I find it convenient to reproduce it here because in my opinion it summarises admirably the entire evidence led on the side of the accused as also on the side of the prosecution, Paragraph 26 of the learned Sessions Judge's judgment reads as follows:

The following is the summary of the personal history of the accused given in the above paragraph which is found to be reliable:-

1942. Went along the road abusing people (Manik RaoD. W. 17 (Para. 25 (b)).

1943. Did not sleep for 3 days.

Did not take food for 3 days except once.

Used to sit in the temple of Rama.

Did not talk to Anuauyabai D. W. 4 (Anusuyabai) D. W. 4 and post-card Ex. D-ll (para 25-0).

1944. Went along the road abusing people (Gulab) D. W. 8 (Para. 25-E). Did not talk to Ratnabai D. W. 2 on one occasion (Para. 25-D).

1945. Was sitting in his baithak, his eyes were red and he was staring and did not talk to Manikrao D. W. 17 (Para. 25-F).

Did not talk to Tulsiram D. W. 6, showed some forget fulness and abused filthily (Para. 25-G).

Did not talk to Govind D. W. 15 and his eyes were found to be red (Para. 25-H).

1946. Went along the road abusing people and beating his own chest. He had only a dhoti on at that time. (Mukunda D. W. 16 Para. 2S-I).

Did not talk to Basawantrao Mohod. D. W. 7 and was found by him to be in a contemplative mood. (Para. 25-J).

Peculiar behaviour of making the kingriwala boy a sing till about 3 a. m. and not allowing them to go and tying their turban round his head and saying he would give them as much as they wanted.

Did not reply when Bajlrao D. W. 11 asked him to let them go. When those boys left when he had gone downstairs he asked Bajirao D. W. 11 to go and search them out (Para. 25-K).

All this behaviour falls under the following heads: He went along the road abusing people on 4 occasions. ii. Did not get sleep for 3 days on one occasion. Did not take his food for 3 days except once on that occasion. Used to sit in the Rama temple during those 3 days. iii. Did not answer the questions asked on five occasions. His eyes were red on 3 of them and on one of them he was found to be in a contemplative mood, iv. Went about with only a dhoti round his loins on one occasion, v. Peculiar behaviour of making the kingriwala boys sing till 3 a. m, and not allowing them to go and tying their turban round his head and saying he would give them as much as they wanted. Did not reply when Bajirao D. W. 11 asked him to let them go. When those boys left when he had gone downstairs, he asked Bajirao D. W. 11 to go and search them out.

The conclusion of the learned Sessions Judge was that the accused was eccentric but was not of unsound mind, and that even if this be taken as unsoundness of mind, it was of a very minor type, There is evidence of only two acts of violence perpetrated by this accused. The first was the beating of one Sitaram Bhat with a stick and the other is mentioned in Exs. D-I.a and D.l-B. These two documents show that in 1942 the accused was beating the planks of a door and broke them. From his action it was felt that he then believed that British Raj was about to be replaced by Japan. In my opinion, these circumstances do not clearly indicate that the accused had lost all control over himself. This is obvious from the fact that throughout these four years there was no attempt on the part of the accused or any person related to him to get him (accused) treated for this disease. The accused also continued to look after his affairs and there is no evidence that he had to enlist the support of anybody to help him in his ordinary life.

17a] The conclusion of the learned Sessions Judge is, therefore, correct in all the circumstances of the case and even if the utmost credence is given to this evidence it can only be said that the accused was mildly insane at intervals in this period. I want to state clearly that the accused is not entitled to any benefit of the doubt as to his insanity because the burden is on him to prove strictly that he committed the act in a moment of insanity. Russell in his book 'On Crimes,' Edn. 9 page 18 says:

In Arnold's case, 16 St. Tr. 764 (765) Tracy J. told the jury that where a person has committed a great offence, the exemption of insanity must be dearly made out before it is allowed; that it is not every kind of idle and frantic humour of a man, or something un-accountable in his actions, which will show him to be such a madman as is to be exempted from punishment; .but that where a man is totally deprived of his understanding and memory, and doe 3 not know what he is doing, any more than an infant, or a wild beast, he will properly be exempted from the punishment of the law.

The same is the opinion of many eminent Judges mentioned by Russell on page 13 et seq of the book. In particular I refer to the opinions of Tindal 0. J. in It. v. Vaughan, (1844) l cox, 80, Maule J, in B. v. Higginson, (1848) 1 c. & K. 129. However, taking the evidence for what it is worth, it only shows that the accused was erratic in his conduct or, perhaps slightly unbalanced.

18. All this evidence is, therefore, only relevant (if it at all suffices) to prove a mild case of medical insanity but the law makes a distinction between medical and legal insanity. In Section 84, which summarises the law on the subject as found in India '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.' The accused has to prove this fact under Section 108, Evidence Act, and the burden is on him of proving that he did not know the nature of his act or that the action which he did was wrong or contrary to law. According to Mayne by the. first is meant the prisoner's consciousness of the bearing of his act on those affected by it and by the second the prisoner's consciousness, in relation to himself. It is an admirable summary of the tests to be applied in cases of insanity. In connection with cases of homicide the special relevance of these two tests are brought out by Mayne thus:

The words 'incapable of knowing the nature at act' may refer to two different states of mind, which are distinguished in the answers of the Judges, and in the English Draft Code of 1879, by the words nature and quality. A man is properly said to be ignorant of the nature of his act, when he is ignorant of the properties and operation of the external agencies which he brings into play. As if, for instance, an idiot should fire a gun at a person, looking upon it as a harmless firework. Hs is ignorant of the quality of his act if he knows the result which will follow, but is incapable of appreciating the elementary principles which make up the heinous and shocking nature of that result; as if, for instance, an idiot was unable to perceive the difference between shooting a man and shooting an ape. Both of these states of mind are no doubt intended by the authors of the Penal Code to be included under the words they have used. This ground of exemption will hardly ever be found to exist, except in the case of idiots, or of lunatics whose Insanity is so complete as to sweep away substantially all the reasoning power which distinguishes a man from a beast. But it seems to me most important to point out, that a person in this condition might have that consciousness, which is equally possessed by the lower animals, that the act which he intended to do was wrong in the sense of being forbidden, and one for which he might be punished. This, however, would not render him liable under the words of the second clause if he was incapable of knowing the nature of the act which he really did, and for which alone he could be indicted. A good illustration is to be found in the case, mentioned by Sir James Stephen, of the idiot who out oil the head of a man whom he found sleeping, because, as he explained, it would be such fun to watch him looking about for his head when he awoke. It is probable that the idiot was quite aware that the man was entitled to the possession of his bead, and expected that, if be was detected, he would be well cuffed by the man, and very probably taken up by the police. It is quite certain he bad no idea that his fun would be loft, because the man would never awake.

Second.-The next ground of exemption is the most important, as it is generally the test in the very numerous eases, where mental disease has only partially extinguished reason. One familiar instance of such partial extinction is the ease of delusions, which, apparently leave the mind unaltered outside the special ideas which they affect. The question put by the House of Lords to the Judges seem to have been specially addressed to this form of insanity. Their answers are perfectly clear, and are embodied in the following clause of the Draft Code of 1879, which puts the law in the most satisfactory manner.

'A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, unless the delusions caused him to believe in the existence of some state of things -which, if it existed, would justify or excuse bi3 act. Provided that insanity before or after the time he committed the act, and insane delusions; though only partial, may be evidence that the offender was, at the time when he committed the act, in such a condition of mind as to entitle him to be acquitted on the ground of insanity.

In my opinion, this statement of the law is correct.

19. The defence ease on this point fell short of proving legal insanity and, therefore, the accused tried to strengthen his case by citing an expert, viz., Dr. J. N. Roy, Superintendent Mental Hospital, Nagpur. In this appeal the evidence of this learned doctor was the main item of discussion and it was contended that his evidence together with the evidence elsewhere discussed by me clearly proved that the accused could not have had the necessary mens rea.

20. This doctor was originally cited as a defence witness and was examined on 29th July 1946, though he knew much earlier that he was going to be examined as a witness. See order sheet dated lath July 1946. On his appearance in Court, the doctor requested the Court of his own accord that he be examined as a Court witness. This is how his evidence is prefaced:

The witness requests the Court to examine him as a witness for the Court as he has been supplied a summery of the evidence and a list of points by the accused's counsel only this morning and he had not sufficient time to grant (sic) the fully and might have misunderstood them. So if possible the accused should not be deprived the opportunity of making those points clear by cross-examination.

The Public Prosecutor and the Court saw no objection to such a course being followed and the doctor was, therefore, examined a Court witness. I do not criticise the commendable solicitude for the accused's interests shown by the doctor but I find it very difficult to believe that the doctor who gave the evidence which he did,' did so without being in full possession of the material data earlier than the morning of the day on which he gave evidence in Court. If what the doctor says is true I am inclined to think that he was not sufficiently acquainted with the case to make his evidence acceptable to me. In this connection I would like to reproduce the fifth question in the Mc'Naughten Rules and the answer thereto:

Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but, who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law or whether he was labouring under and what decision at the time?

The answer was:

We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of these questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.

In Deorao v. Emperor I. L. R. (1946) Nag. 946 : A. I.R. 1946 Nag. 321: 47 Cr. L. J. 918) there is a passing reference to this question. Hemeon and Sen JJ. refer to this question and answer in the following words at p. 973:

The learned Counsel for the accused stated the facts and on the basis of those facts Dr. Boy gave his opinion. Under Section 45, Evidence Act, the opinion of an expert is relevant where a question of science is involved. The questions, whether the accused was of unsound mind at the time of the commission of the act, or by reason thereof he was incapable of knowing the nature the act, or that he was doing what was either wrong or contrary to law, are questions of fact which in England are decided by a jury and in India where the trial is with the aid of assessors by a Sessions Judge, But in arriving at a finding the opinion of an expert in mental diseases is relevant. This was recognised in the 5th answer of the Judges in Mc'Naughten's case (1843) 10 Clause & Fin 200. In cases involving a question of insanity an expert in mental diseases is generally examined as a witness.

Since this subject was merely touched and not discussed, I consider it necessary to point out for the guidance of subordinate Courts, certain aspects of this question. In the Mc'Naughten Rules the distinction' between appreciation of facts and an expression of opinion on questions of science is clearly' made. The answer to the fifth question is guarded and subject to many qualifications. As I read it the opinion of medical witness on the state of mind of the accused at the time of the commission of the murder is barely relevant as being helpful. The reason is obvious. It is for the Judge or the Judge and the jury, as the case may be, to give a decision on these matters. Mayne has stated the law on the subject in a manner which cannot be improved. He says in Criminal Law of India (4th Edition) at p. 181:

In dealing with the evidence of medical witnesses, it must always be remembered that their function is to assist, not to supersede the Judge. The medical witness states the existence, character, and extent of the mental disease. The Judge has to decide, or to guide the jury in deciding, whether the disease made out comes within the legal conditions which justify an acquittal on the ground of insanity.

In R. v. Frances, (1850) 4 cox. c. c. 57, the counsel for the prosecution put the following question to a physician who had been present in Court during the examination of other witnesses:

Whether from all the evidence he had heard, both for the prosecution and defence he was of opinion that the prisoner, at the time he did the act, was of unsound mind.

The answer to the fifth question in the Me' Naughten's case ((1848) 10 of. & Fin 200) was cited in support of this question. Alderson B. and Cresswell J. disallowed the question. Discussing this case Russell in his book 'On Crimes' vol. I (9th Edition) p. 35 says:

The proper mode is to ask what are the symptoms of insanity, or to take particular facts and assuming them to be true, to ask whether they indicate insanity. To take the course suggested is really to substitute the witness for the jury, and to allow him to decide upon the whole case. The jury have the facts before them, and they alone must interpret them by the general opinions of scientific men.

Cases in which this proposition of law has been accepted can be multiplied but I do not cite them here. The law under Section 45, Evidence Act is also the same and all that the law in India Bays is that such evidence is relevant. I am in complete agreement with the opinion of the learned author. I have quoted above that the opinion of a medical witness, however eminent he may be, must not be read as conclusive of the fact which the Court has to try. Such opinion may be invited in exceptional circum-stances where there is no dispute as to facts or their interpretation but it must be considered by the Court as nothing more than relevant. Any opinion which tries to determine the very issue which the Court has to try must be disallowed though the Court may consider it if there is no dispute as to facts whatever. I say all this because Deorao v. Emperor I. L. B. (1946) Nag. 946 : A.I.R. 1946 Nag . 321 : 47 Or. L, J. 918) must be understood in this sense. In my opinion that case does not lay down any contrary law. The distinction can be opitomised in the form of two questions:

Question No. 1: Do facts A, B and C show insanity and

Question No. 2: Do facts A, B and C show that the prisoner was insane ?

The first question is permissible but not the second. If this is not borne in mind Court are liable to be carried away by evidence of the kind contemplated by question 2, particularly where the medical witness is an expert and deals with technical matters based upon a knowledge of strange and difficult subjects.

21. It must be pointed out at this stage that the Mo'Naughten Rules regarding insanity stand unchanged till to-day in so far as English law is concerned. The only controversy that has . arisen is over the defence of uncontrollable or irresistible impulse. With regard to the fifth question and the answer of the Judges upon it, different Judges have taken different views. There are only two methods of approach involved in connection with irresistible impulse as in fact in all questions of insanity and they are:

(a) That the medical witness may be asked to describe the state of mind of the accused at the moment of time when the act was committed: and

(b) That the medical witness may be asked to say whether by reason of any disease affecting the mind the accused was incapable or prevented from controlling his conduct.

It is obvious that while the first question can be answered in general terms and the answer may be described as one based on a special knowledge of the subject of insanity, the second is really one of fact on which all kinds of opinions can be hazarded.

22. The first method of approach merely helps the Court and it may be convenient to put a question in such general terms based upon medical science but the second method of approach merely substitutes the judgment of the medical witness for that of the Court on the most vital question in the case. It is for this reason that legal theory does not tolerate the encroachment of an expert upon the province of the Court and one good reason is that partisan evidence is easy to give.

23. I am quite aware that the Me' Naughten Rules have not the approval of medical mentioned some lawyers have also not agreed with them. In Deorao's case, I. L. R. (1946) Nag. 946 : A.I.R. 1946 Nag. 321: 47 Cr. L. J. 918) criticism of these rules from various sources were collected though their Lordships in the end did not express dissent from these rules. Sir James Stephen criticised them because the questions were put in a general form and the . answers were probably not meant to be exhaustive. Mayne in his Criminal Law of India 4th Edn. at p. 169 has also some criticism to offer. Before I refer to the latest case of the Privy Council I consider it necessary to point oat that in 1922 the Lord Chancellor (the Earl of Birken-head) appointed a committee to reconsider the law with regard to insanity. This committee was appointed after the conclusion of the well-known trial of Ronald True in which the defence of irresistible impulse was negatived though M'Cardie J., did leave the question to the jury. The committee which goes under the name of Lord Atkin's Committee was really appointed with a view to suggesting reforms of a legislative character. It is to be noticed that the Me' Naughten Rules were affirmed with only one exception by the committee in their recommendations though the Medico-Psychological Association wanted to sweep away all the rules. It is not necessary to refer to the recommendations in their entirety but I quote the first two, recommendations. They are:

1. It should be recognised that a person charged criminally with an offence is irresponsible for his act when the act is committed under an impulse which the prisoner was by mental disease in substance deprived of any power to resist.

2. Save as above, the rules in Me' Naughten's case should be maintained.

The retention of the rules was advocated by the British Medical Association though they also recommended the change about uncontrollable impulse.

24. There is a certain difference in the legal and the medical approach to the problem of insanity. The difference really lies in the fact that the law only allows a crime to be excused when the intellectual or the cognitive faculties are impaired. As pointed out by Sidney Smith in his 'Forensic' Medicine' 1945 Edn. p. 407:

The crux of the whole position is that the law insists in regarding insanity as a disease of the intellect, whereas it is usually a disease o( the affective or emotional sphere o the mind. The criminal impulses spring from this derangement, and no examination of the intellectual functions will throw any light on the problem in such affective diseases.

What some medical men do not realise is the fact that the Me' Naughten Rules do not contain any definition of insanity at all. There are no tests indicated. All that the law requires is that before an offence becomes dis punishable it must be proved to the satisfaction of the Judge or the jury as the case may be that the accused at the time of the commission of the act did not know the nature and quality of the act or that the act was wrong or contrary to law. The fact remains that the Me' Naughten Rules have remained unchanged. A Bill entitled Criminal Responsibility Trials Bill was introduced by Darling L. J., in the House of Lords but at its second reading was withdrawn as the opposition was very great. This was the last legislative effort and it only related to the defence of irresistible impulse.

25. In the legal sphere also attempts were made to enlarge and supplement the Mc' Naughten Rules chiefly in respect of the defence of irresistible impulse but these attempts were negatived. See R. v. Kopsch, (1925) 19 Cr. App. Kep. 50 and B, v. Flavell, (1926) 19 Cr. App. Eep. 141. Recently in Sodeman v. B, (1986) 2 ALL. E. R, 1138 the Judicial Committee in a petition for special leave to appeal from the judgment of the full Court of the Supreme Court of the State of Victoria, refused to depart from the Me' Naughten rules. It is obvious that the Mc' Naughten Rules represent the law in England today.

26. In India we are governed by the Indian Penal Code which in essence reproduces these Rules. As pointed out by Mayne at p, 169:

In every subsequent case in England these opinions have been followed as the most authoritative expression of the law upon the subject. What is most important for our purposes is that they were apparently adopted by the Legislature of India.

What was true then is true to-day. It is needless to trace the history of legislation in India. The resulting position is stated in Section 84 and one has only to compare the answers to the second and third questions to find out that the law is in exactly the same terms. As pointed out by Mayne at 164 (ibid) Maoaulay's original draft Sections 66 and 67 represent the immunity from punish, ment which medical men claim. That, however, is not the law in India. It must, therefore, be clearly understood that there is no departure from the Mo' Naughten Rules till now and I say this because there is a likelihood of misunderstanding the correct legal position in view of the mass of writings on the subject and criticisms of writers drawn from medical as well as the legal professions. Some of these are noted in Deorao v. Emperor I. L. R. (1946) Nag. 946

27. In dealing with cases involving a defence of this kind 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 sane. In all cases 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 act; whether it was done in a manner which showed a desire to concealment; whether, after the crime, the offender showed consciousness of guilt, and made efforts to avoid detection; whether, after his arrest, he offered false excuses and made false statements. All facts of this sort are material, as bearing on the test which Bramwell, B. submitted to a jury in such a case: 'would the prisoner have committed the act if there had been a policeman at his elbow ?

It is to be remembered that these tests are good for cases in which previous insanity is more or less established. These tests are not always reliable where there is what Mayne calls 'inferential insanity.' As Mayne points out:

In cases of this sort no suspicion of insanity would rest upon the prisoner, apart from the crime, But from the character of the crime itself, its suddenness, violence, cruelty and atrocity, its apparent absence of motive or purpose, a suggestion is raised that the offender must have been insane at the time of its committal. A defence of this sort is generally set up, when the facts admit of no other, and it is usually eked out with evidence of previous outbursts of eccentricity or violence and suggestions of hereditary insanity or of former diseases which might possibly have affected the brain. It is needless to remark how utterly unsafe it would be to admit a defence of insanity upon arguments merely derived from the character of the crime. In such a case Role B. said: 'It would be a most dangerous doctrine to lay down, that because a man committed a desperate offence, with the chance of instant death and the certainty of future punishment before him, ha was therefore, insane, as if the perpetration of crimes was to be excused by their very atrocity. It. v. Stokes, (1845) 3 C.& K. 185.' ' (the underlining (here italicised) is mine).

The defence of insanity -which has been set up in the present case is an excellent illustration of the methods deprecated in the passage last quoted by me from Mayne. Applying the above teats to the question of insanity in the present case, I find that there is no proof of hereditary insanity, and no proof of established insanity in the case of the appellant. Medical evidence establishes only 'inferential insanity' based on the characteristic of the crime and the evidence of previous eccentric conduct is brought in to strengthen the case and vice versa, I have indicated above that the other evidence does not establish conclusively a case of insanity though I was inclined, reluctantly, to accept that the evidence, if true, did no more than to make out a case of mild insanity or eccentricity.

28. I proceed now to consider the evidence of Dr. Roy on its merits. At the outset I express my extreme surprise that the learned doctor did not offer to keep the accused under his observation. Dr. Roy knew very early that he was cited as a witness in this case and could and should have asked for a chance to examine the prisoner and also to be furnished with copies of the depositions of the witnesses in time to enable him to consider each aspect of the question. From the note appended to his evidence it is apparent, on his own showing, that he saw the summary of the evidence and read certain point B given by the defence counsel on the morning of the day on which he was examined. By observing the prisoner and examining him the witness could have found out many things. He could have tested the prisoner's mental condition at the time of examination and he could have found out the state of his general health. He could have found out all about his habits, his sleep, his food and numerous other details which would have thrown a flood of light. He could have questioned him about his past history, tested his memory about things in general and the fateful events in particular; in fact he could have collected the raw materials on which alone, psychiatrists obviously work. In answer to a question the doctor says that the man was at the moment perfectly sane and it was useless to keep him under observation. In paras. SOS and 209 of his evidence this is what he says:

Q. 208. - la personal examination of the accused by the expert necessary in such oases in order to enable the expert to give a definite opinion 1

Q. 209. - It is not necessary to base one's opinion on personal observation of the accused by keeping him under observation, if it is a question of scientific aspect about the existence of insanity as is implied in the answer to question No. 5 in the Mo' Naughten Rules, But it (sic) if it is a question of diagnostic type of mental disorder it may be necessary to keep him under personal observation, but a personal observation is not likely to help at this stage because the accused is perfectly sane at the time and a psychiatrist will even then have to depend on the facts of the case supplied by the Court, prosecution and defence.

29. This is an amazing reply. How could the doctor say that the man was 'perfectly Bane at that time' without examining him Advantage is being taken of the answer to the fifth question so that the witness might be enabled to confine his evidence to inferences from the actual crime and the circumstances attending it. In my opinion that answer was never meant to liberalise evidence of insanity nor must it be construed as giving a free charter to psychiatrists to ignore everything but the nature of the crime and the conduct of the accused immediately afterwards. Even in the Ronald True case where Dr. East (the author of Forensic Psychiatry on which Dr. Roy relies mainly for his opinion) gave evidence, the medical witness (as indeed every other medical witness) had True under observation, I am not aware of a single case in which a doctor has presumed to give evidence after seeing a few notes and those too on the morning of the day he gave evidence in Court. This to say the least is entirely wrong.

30. I now proceed to analyse Dr. Boy's evidence. Dr. Boy based his evidence on certain data contained in 14 points supplied by the defence counsel, I have summarised them here with great care so that the summary may be complete and accurate, (l) Good relations with his two wives. (2) No premeditation. (8) Position of the dead bodies and their description in the inquest report. U) Post mortem report. (5), The distance between the two dead bodies was about 2 to 8 feet. (6) Time of the murder was A.M. and cries of the deceased as heard by witnesses. (7) and (8) No attempt to conceal the bodies or make an escape, time and means being available. (9) and (10) No attempt to inveigle the victims to a lonely spot, the river Poorna being 200 paces away, (11) and (12) Accused seen with blood-stained clothes and admitted his guilt. (13) and (14) Accused did not resist his arre3t.

31. There is not a word about the previous conduct of the accused. This was put to the doctor at a later stage after he had given his opinion on these fourteen points.

32. The witness was questioned:

Will you he able to give on this data your opinion regarding the mental condition of the accused at the time he i8 alleged to have killed his wives

Dr. Boy's answer to this question was

Though the data is not quite complete it is possible to give a definite opinion on certain aspects of the case.

The answer surprises one because there is no hesitancy about the answer, such as one finds with experts who like to qualify their remarks particularly when the data on which they work is insufficient.

33. Dr. Roy in discussing the 14 points laid special emphasis on Points Nos. 1 and 2 and opined that the crime was motiveless. I shall take up the question of motive later but there is no warrant for the assumption that the crime was unpremeditated. Some premeditation there must have been because the accused had selected a weapon of a particular type and also inflicted injuries on vital parts of the body. He had also achieved his purpose with one fatal blow on each of his victims. He committed the crime at night when he could have these defence less women at a disadvantage. There is nothing whatever to suggest that the accused suddenly lost his head and started hacking about him either in a frenzy or in a dream state. There was some method in his madness and I am not prepared to accept the data that the crime was entirely unpremeditated.

34. As to the second point about motive. The prosecution did lead some evidence of motive but the learned Sessions Judge did not accept it. I do not differ from the learned Sessions Judge and give the accused the benefit of the doubt. One fact, however, stares me in the face and it is the failure of the two wives to bear a son to the accused. When a man destroys his two wives in the manner he did there might be a hundred different reasons which might have prompted the action. Though I do not go as far as Mayne J. did when he said: 'that it is never necessary to seek the motive for a murder when the person murdered is the man's own wife'- Mayne p. 185 (ibid)-I am of opinion that failure to prove a motive does not necessarily mean that there was no motive. In Beg v. Haynes, (1859) 1 P and P 666 : 175 B. Rule 898) Bramwell B. in summing up to the jury, said:

As to the defence of insanity, it has been urged for the prisoner that you should acquit him on the ground that, it being impossible to assign any motive for the perpetration of the offence, he must have been acting under what is called a powerful and irresistible in-fluence, or homicidal tendency. But I must remark as to that that the circumstances of an act being apparently motiveless is not a ground from which you can safely infer the existence of such an influence. Motives exist unknown and innumerable which might prompt the act. A morbid and restless (but resistible) thirst for blood would itself be a motive urging to such a deed for its own relief. But if an influence be so powerful as to be termed irresistible, so much the more reason is there why we should not withdraw any of the safeguards tending to counteract it.

The prisoner was found guilty and sentenced to death. In the present case Dr. Roy does not start with the assumption that the crime was motiveless, but sets out to prove from attendant circumstances that the crime presents the features of a genuine motiveless crime. Now ft doctor may legitimately base his conclusions on the fact that there was no apparent motive but it is not open to him to prove or give opinion that the crime was motiveless.

35. I show below that the approach of the doctor was entirely wrong and he cannot be permitted to give opinion on matters which are the province of the Court to decide. This is what the doctor said:

From the data supplied to me, and I am referring particularly to nos. (1) and (2) it seems that the defence-wants me to say that the crime-is motiveless.

The doctor then discusses why motive is important. He shows that a genuine motiveless crime is generally committed in a state of clouding of consciousness. He says that in such a state there are

symptoms of excitement or depression, hallucination or illusion, delusion or anxiety and is accompanied by emotional phenomena and reactions characteristic of these symptoms.

36. Thus the doctor instead of starting from the premise that the crime appears motiveless to a conclusion as to the mental state of the prisoner does exactly the reverse. He takes the conduct of the prisoner and says that the crime was motiveless. This is how he concludes:

Thus I have shown that the present crime presents the characteristics of genuine motiveless crime committed during a state of clouding of consciousness. This crime will have to be taken as motiveless.

It is really difficult to follow whether the doctor starts with this assumption or reaches this conclusion. If he assumes that the crime was motiveless as a basis of his conclusions in respect of the mental state of the prisoner, he would be traversing ground which question Ho. 5 of the Me' Naughten Rules permits but if he tries to give his opinion that the Court must accept the crime to- be motiveless be is exceeding his position as a witness, expert or otherwise.

37. I refer next to the conclusion as to the type of insanity described by the doctor. He diagnoses it to be manic-depressive-psychoses. In this mental derangement the person afflicted has alternate period of elation and depression. In its earlier stages it goes under the name of cyclothymia and in its extreme form it is known as manic-depressive-psychoses.

38. Now one of the important points to note in connection with this circular insanity is that the crime generally results from impulses and in the depressive state the victim often suffers from delusions and hallucinations. Now delusions are the most important signs of insanity. Dr. East describes them in these words in Ronald True's case ;

39. 'Delusions are one of the hallmarks of insanity.' Hallucinations themselves are delusions, not of the intellect but of the senses. It is significant that there is no evidence of any delusions or hallucinations in the present case.

40. Dr. Boy says that the present case was one of automatism in a state of clouding of consciousness. Automatism is usually connected with epilepsy and is the sequel to a milder attack of epilepsy which goes under the name of petit mal. The following quotation from Sydney Smith 'Forensic Medicine' puta the matter beyond all doubt:

The special interest of epilepsy, lies in the fact that all epileptics ate liable to have lapses of consciousness in which things are done without volition of the patient and about which he has no recollection whatever when consciousness returns. This is known as post-epileptic automatism, and as the acts performed may be criminal it is essential to have some idea as to what actions may be assumed to be automatic and what cannot be so considered. Automatism is, as a rule, more pronounced after an attack of petit mal than after a typical fit, but this may not always be the ease.

If automatic action takes place, it tends to occur after every fit in the same person, and to be of the same type in each attack. The action is either an habitual action in that individual or a caricature of such action, To illustrate such habitual acts or caricature of them we may quote the case of a man who walks into a shop, picks up something and walks out again, afterwards being arrested for theft, or one who exposes himself or micturates in a public place and is arrested for indecent conduct; or perhaps a person cutting something may inflict wounds or kills a child, or a person accustomed to firearms may shoot somebody. All these acts are habitual or allied to habitual nets. It should be noted that there is a faint blurred memory of the epileptic automatic phase.

But if a person lies in wait for a personal enemy and murders him by violence, or purchases a weapon for the purpose of commiting an assault, and then pleads epilepsy 'as the cause, there will be no difficulty in coming to a decision that such acts are cot automatic. 1' Page 401 Op. Cit. Sup.

In the present case there is no evidence to show that the accused was in the habit of using the jambia, and in a fit or under an automatic action used it on the victims instead of putting it to its legitimate use. It is to be remembered that Dr. East when giving evidence in Bonald True's case was closely questioned about automatism and this is the reply which he gave:

Question-Do you mind telling the jury the different forms of epilepsy which are possibly relevant to the present case I think there is only one really that is strictly relevant, is there not ?

Answer:-Two, I would say, epileptic mania, or fury, and epileptic automatism. They are both manifestation of an obscure nervous disease. The precise nature of the affection has not yet been detected by medical science.

The doctor went on to say in that case that epileptic mania indicates a permanent trouble and it lasts a short time with no recollection of the events. As to epileptic automatism he said that after the seizure the patient presents a dazed appearance for minutes or hours. After this the witness was put the following questions:

Question-When you examined the accused, you told us that you noticed nothing in his physical or mental state, habits, conversation which indicated that he bad suffered either from epileptic mania or epileptic automatism?

Answer.-Neither at the time when I first examined him, nor during any time when he has been under observation.

The witness was forced to admit in that case that there was no indication of epileptic mania or automatism apart from amnesia. Why could this not be done in this case I do not regard the opinion of Dr. East in True's case as evidence but I refer to Trues case because Dr. East's book 'Forensic Psychiatry' written in 1927 after Trues case seems to be one of the books on which Dr. Roy has based his replies and opinion. Unfortunately that book wag not produced for; our perusal and in spite of some efforts the library here was unable to secure a copy. I feel reasonably certain that the book would not have given any other description of automatism. I do not have to go to Dr. East. I have quoted from Sydney Smith and I have seen several other books. Epileptic automatism is described in almost any book on medicine. Even in an elementary book like the Universal Home Doctor (Times publications at pp. S05 and 306) there is a significant passage:

The importance of the minor attacks is mainly because their true character goes unrecognized till a major attack occurs, but also because it is after these minor attacks that mental disturbances may take place which bring the victim within reach of the law. While still in epileptic state, that state known as 'automatism' the patient may commit some crime during a maniacal outburst, of which, when he comes to himself, be baa no recollection. Many times has this post-epileptic state been pleaded as defence in a Court of law, but it is a plea which a considerable amount of medical evidence is needed to support.

There can, therefore, be no manner of doubt that Dr. Roy knew this very well.

41. Of course, there are cases of masked epilepsy and some mental disorders present the same features as epileptic automatism but such cases are characterised, among other things, by evidence of great violence. Such offences are committed in confusional state of the mind. Amnesia is generally pleaded. Sydney Smith says that 'in such cases it is always difficult to exclude simulation.' He suggests the following rules:

(1) In any case of alleged amnesia for purposeful acts some history of a possible cause is essential, and also a history that such cause has produced some previous signs of mental unstability. Such causes may be alohoholism, malaria, head injury, war neurosis.

(2) Total amnesia for the period of the alleged act and for a short time after it is very suspicious of malingering.

(3) If there is memory for anything which happened .in a true dream phase, then it is for things of greatest emotional importance. The remembrance of some unimportant details but amnesia for chief happenings Suggests malingering.

(4) In dream phase, statements may be made which are wholly or partially forgotten later.

(5) An epileptic may have dream states after or in place of fits, when associated with alchohol, but only during drinking bouts: p. 401.

Claiater in his Medical Jurisprudence and Toxicology (Bdn. 7) p. 419 quoting the authority of Hopwood and Snell says of Amnesia:

Their views are that the defence was not so successful as its frequency of presentation would presuppose, that amnesia cannot be diagnosed on the patient's word alone, but must be checked by known facts, since independent evidence is essential, and that real recovery does not occur until some weeks or months after the crime....A sudden return of memory almost certainly indicates malingering.

42. Applying these tests to the present case I find that there is no history of epilepsy or allied diseases. If Dr. Boy thought that the act was a post-epileptic automatism, he does not say so. In the evidence of one of the defence witnesses there is a faint suggestion thrown out and it is said that the accused once suffered from a fit but this does not appear to be an epileptic fit nor is there any other evidence that the accused suffered from this malady at any m time. Foundation was sought to be laid for Z this in the evidence but was not followed up and the expert was, therefore, constrained to abandon this in favour of manic-depressive psychosis. The tests mentioned by Sydney Smith and cited by me are not answered nor has the expert examined the accused for epilepsy and true amnesia. Indeed Dr. Roy has not advanced any opinion on anything which is capable of being tested or on which the Crown could examine another expert in rebuttal.

43. Dr. Boy puts the case on the footing of manic-depressive psychosis which I have already described above. This diagnosis itself is open to question. Dr. Pierre Janet writing in Principles of Psychotherapy (p. 102) says:

The psychosis called manic-depressive insanity is today much over-emphasised and applied wrongly or capriciously...

Crimes are committed both in a state of mania or depression. In the depressive stage which, according to the expert, is the case here, the patient suffers from delusions and hallucinations and his health generally suffers, As Sydney Smith says at p. 899:

Homicidal crimes are by no means infrequent, and often take place early in the illness and before any delusions have been formed. The crime may be committed in a confusional state, but frequently with complete consciousness, and then it may take the form of irresistible imfluse.

This clearly shows that the form the offence takes is not automatism but an impulse though there is complete consciousness, This is also the opinion of. Drs. Gonzales Vance and Helpern in 'Legal Medicine and Toxicology' at p. 428 where they say:

The maniacal stage may be severe, characterised by struggling and raving, or it may be mild in which the patient merely has a rapid and uncontrolled flow of ideas, due to excessive mental activity. The reasoning power is not lost, but ungoverned. The patient is seized with wild impulses, even homicidal in type, and he may act upon them. In the depressive stage the subject is depressed or even stuporous. He is attacked by delusions and may commit suicide under their influence. (underlining (here italicised), is mine),

See also Mental Abnormality and Crime pp. 66-68, S6. The other evidence led in the case tried to suggest circular insanity but I feel extremely suspicious of it. In my opinion it has been led purposely to give an impression of alternating mania and melancholia. The evidence is highly artificial and the witnesses were giving evidence which the defence wanted to fit in with the evidence of an expert later. The alternating character of elation and depression is to some extent brought out but all the essential concomitants like illusions, delusions, hallucinations etc., have been left out. This in itself is highly suspicious and it is not at all unexpected that the doctor first discusses the nature of the crime and diagnoses manic-depressive psychosis and then tries to explain the evidence of previous conduct on that hypothesis. To follow the reverse process would have been somewhat difficult for him.

44. Dr. Boy's conclusions are three:

(a) The offence was automatic and both the offences were committed under one single automatic impulse;

(b) There was confusion in the intellectual faculties;

(c) The clouding of consciousness was partial, i. e., the accused knew the nature and quality of the act but he did not know that it was wrong or contrary to law.

Once it is accepted that there is no automatism of the type known in epilepsy or similar dis. orders of the brain, the only argument that remains to be considered is whether the single impulse theory of the doctor saves the accused from all responsibility. Dr. Roy distinguishes this impulse from irresistible impulse. Unfortunately, the books on psychiatry on which Dr. Roy relies have not been placed before us for our perusal in spite of the warning contained in Deorao's case, (1946) Nag. 946 : A.I.R. 1946 Nag. 321 in the refusal to consider a statement from MoDougall as the book was not available. Had these books been cited at the bar, I would have been able to verify the correctness or otherwise of the medical evidence. But this is now well settled that un. controllable or irresistible impluse is no defence whatever. I have already quoted the authorities elsewhere. Dr. Roy in distinguishing irresistible impulse from the single driving impulse probably took his cue from Dr. Northward East as he refers to the book by this learned doctor. In the trial of True Dr. East said:

Apart from epilepsy and apart from irresistible impulse, Is there an; form of insanity that you can suggest to the jury which would cause him to take this woman's life? - He may have homicidal tendencies at that time.

Is that the same as 'irresistible impulse?' - No, it is not.

What is the distinction between homicidal tendenciea and iresistible impulse? - I think a homicidal tendency is usually a condition which arises in conjunction with another form of insanity. You may get a homicidal tendency in many different forms of insanity by itself.

What form of insanity would there be in homicidal tendency? - You might meet it in delusional insanity or states of melancholia.

45. It is well known that Dr. East's diagnosis in the case of True was insanity arising from chronic morphia habit. Apart from Dr. Roy's attempt to combine automatism with homicidal impulses, there is nothing difficult in this case. Automatism has not been proved. The presence of numerous injuries on the victims rules out a single automatic action. Dr. Roy slurs over these injuries, and does not name epilepsy or any other kind of disease. He suggests a single impulse. There does not appear to be any case in which such evidence has succeeded. Dr. Roy, who apparently has read a great deal, would undoubtedly have said so if there was a case supporting him, I need not refer in this connection to Deorao v. King-Emperor1. L. E. (1946) Nag. 946 in which Dr. Roy's evidence was accepted. Dr. Roy in fact modulates his evidence on that case. In the interpretation of the evidence of an expert an earlier decision is hardly relevant. It cannot be suggested that because Dr. Roy's evidence was accepted by a Court in one case it must be accepted in every other case. Deorao v. King-Emperor 1. L. E. (1946) Hag. 046 must be taken to have been decided on its own facts.

46. A crime is not excusable under the law whether done under an insane impulse or not unless it satisfies the grounds on which alone it can be excused. Those grounds are opitimised in Section 84, Penal Code. This brings me to the discussion of the second and the third point. The second point is that there was confusion of the intellectual faculties. Most oases of insanity admit of some confusion of the mind. But what the law requires is that confusion must reach a certain degree so as to impair the cognitive faculties completely. This brings me to the third point. Here Dr. Roy himself admits that the confusion or clouding of consciousness was only partial. He admits that the prisoner knew the nature and quality of the act. This he could not but admit because there was no evidence of delusions of any kind. He, therefore, says that at the time of the commission of the crime the prisoner did not know that what he was doing was wrong or contrary to law. It is indeed difficult to see how he could say that not being present at the time of the murder. Within four or five hours the accused knew that his actions were wrong because he admitted his guilt and that it was contrary to law because be asked whether the police had come. Dr. Roy says that the consciousness that his deed was wrong and contrary to law was slowly dawning on him. Now it is impossible for a doctor to depose to-the exact state of an accused at the time of the commission of the offence. It is easier to say that the accused knew that his act was wrong or contrary to law than to say the contrary. Many doctors have frankly admitted this. Dr. Northward East frankly admitted his inability in True's case:

Is it possible to speculate definitely upon the mental processes of a person who is suffering from disease of the mind-to say what he understands and ha does not understand, and what he thinks or does not think-It is extermely difficult.

* * * *Is it your view that if this man did this act under the influence of insanity it was a sudden frenzy? What manifestation of insanity was there? What caused him to murder this woman? What sort of mind could he be in?_I do not think I can tell; I was not there.

I am not citing this as evidence but as an indication of the fact that doctors whose books Dr. Roy has read to derive his own knowledge had not thought it possible. Dr. Norward East's book was written in 1927 only four years after the trial of True. It is interesting therefore to see how the very author whose books seem to be relied upon by Dr. Roy reacted under cross-examination.

47. It remains finally to consider why Dr. Roy thinks that the accused did not know that what be was doing was wrong or contrary to law. This be deduces from the fact that there was no attempt at secrecy and no adaptation to the manifest results of the crime upon the accused, According to the witness, the accused could have inveigled the victims to a lonely spot and killed them, secretly disposed of the bodies, run away or created an alibi. His openly admitting the guilt and making no attempt at conceal, ment obviously satisfied the doctor. I express my entire agreement with the learned Sessions Judge in rejecting both the premises and the conclusion.

48. To begin with, the accused had committed a double murder of his two wives. It would be impossible for him to conceal the two dead bodies or to transport them to the river for disposal without the neighbours and others knowing anything about it. His appearance in bloodstained clothes was not continued because the witnesses saw him only once on the balcony with his clothes stained with blood. Thereafter he took off his clothes and put them away. This shows that he was conscious of the fact that they had been soiled. In an offence of this type, which a man perpetrates with perfect realisation that there is no escape for him there would be no concealment. Criminals have been known after committing a murder to have walked straight to the police and informed them. They have taken the police round and shown all the material things and spots because they knew that it was impossible to avoid detention or to escape from justice. Desperate crimes are committed by people who though knowing the consequences of their action are completely ready to face them. The present accused appears to be of that type. In any event there is nothing to show that his subsequent conduct was in a dream state as the learned doctor suggests. I can understand a theory of an impulse which was too powerful for the accused and which in fact had become either uncontrollable or irresistible. That defence is not a valid defence, however, in law as I have pointed out already. But it is too much to say that the accused answered all the questions mechanically or in a stupor, just as he committed the murders in a dream phase. There is no evidence that the accused was in a dream state and I do not accept the evidence of Dr. Roy because he did not make any effort to test the memory of the accused at any time.

49. I am surprised that the learned doctor took such uncertain facts as the description of the two dead bodies (particularly their relative positions and the distance between them) into account. He constructs from this meagre information a theory that the two bodies were lying Bide by side and the accused therefore could kill them with a single automatic stroke. He also considers that the unfortunate women were asleep. This he does from the fact that the pupils of the eyes were described as 'normal' by the doctor who conducted the post mortem examination. There is no authority cited that a person murdered in his sleep invariably has pupils of normal size. I have looked into several post mortem reports after this case and have found at least in one case that this fact was not found. I am, therefore, not inclined to accept the premise. The learned doctor also ignores and slurs over the presence of small cuts and injuries which suggest a struggle such as a person would put up against the murderer. These injuries did not fit in with his theory of automatic action, and he had, therefore, to explain them somehow. He says that they were also the result of an automatic action particularly towards its tail end, I do not agree with this view and I agree with the learned Sessions Judge that these injuries counteract the theory of automatic action.

50. All that I have said above is sufficient to show that the plea of insanity raised by the convicted man has not been strictly proved, and I am of opinion that he knew the nature and the quality of his act as well as that it was wrong and contrary to law. I do not accept the evidence of Dr. Boy because it is based upon insufficient data and because he did not keep this accused under his observation. I deprecate the giving of evidence of the type given in this case which serves to substitute the decision of the learned doctor for the derision of the Court and by the intricate mass of learning incorporated in it is apt to confuse the issue.

51. In my opinion the accused was legally sane, and therefore his conviction under Section 302, Penal Code is correct. As he has been awarded the lesser penalty there is no room for interference in his case. Before I leave this subject, however, I would say that the conduct of this accused does present some features which show that he was abnormal and that he was labouring under some form of mild insanity and acting on an impulse committed these two crimes, I cannot show him any leniency because the law does not allow me to impose a sentence less than transportation for life. The Provincial Government may, however, consider his case and if they agree, show such clemency to him as may appear just in the circumstances of the case. With this recommendation I would dismiss the appeal.

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