T.P. Naik, J.
1. The non-applicant accused Chhotelal was convicted of murder of his wife and child by the Sessions Judge, Nimar, and sentenced to death. The case has been referred to us for confirmation of that sentence under Section 374 of the Code of Criminal Procedure. The accused has declined to appeal.
2. The learned counsel for the accused Chhotelal did not dispute the factual responsibility of the accused for the homicide of his wife Mst. Pyaribai and his daughter Narbadi, committed on the night of 9-12-1956 at mauza Sirra. Indeed, the evidence on the point is overwhelming and the accused himself admitted it, by pleading guilty to the charge at the commencement of the Sessions Trial. The only point pressed before us that in the circumstances proved, the plea of insanity raised by the counselfor the accused in the Court of Session had been established.
3. The facts of the case shortly stated are as follows: The accused was a workman in the railway gang No. 98 working at mauza Sirra. He lived in one of the railway quarters along with his wife and child. These quarters are near Sirra railway crossing. Sunday, the 9th December, was his weekly day off and therefore he had not gone for work that day. He was due to join duty on the 10th morning but he did not go to work that morning. Paridin (P.W. 7) is the mate of the gang. He was sitting in the railway crossing chauki at noon of the 10th when the accused passed by. He was coming from the side of the Sirra railway Station. According to Paridin (P.W. 7),
'I asked him whether she was suffering from fever. He replied, 'No 1 hacked (her)'. Then I looked at his clothes and saw that blood had stuck to them.'
Paridin informed the Patel Shamlal (P.W. 1) who also questioned him (the accused) when the accused again confessed to have cut his wife and daughter with an axe. The accused then went towards his quarters.
4. Shamlal (P.W. 1) and Paridin (P.W. 7), accompanied with several others, then went to his quarters. The doors were open and on being called, the accused replied, 'Sir, I am taking meals, I am comings. Immediately thereafter, he came out with a 'lota'. On going inside, the witnesses saw the dead bodies lying on a cot covered with a quilt. The matter was reported to the police. The police came in the afternoon and went to his quarters. His blood-stained clothes, which he was still wearing, were seized.
He also produced a blood-stained axe (Article A). The Serologist confirmed the presence of human blood, both on his clothes as well as on the axe (Article A). The dead body of Mst. Pyaribai was lying supine on her right side, the right hand supporting the head for a pillow, and the child was lying supine on her left side in the posture of suckling the milk from the breast of her mother. There were six incised injuries on the person of Mst. Narbadi.
5. The brutal character of the attack can be gathered from the nature and the location of the injuries which were as follows:Injuries on the person of Mst. Pyaribai, vide Exh. P. 1:
1. Incised transverse injury: -- on the upper part of the left clavicle 3'x 1/2'x21/2' maximum depth lateral-wards.
2. Incised transverse injury 1/2' above injury No. 1, 2'x 1/2''x2 1/2' joining injury No. 1 in its depth lateralwards.
On further examination it was found that the jugular vein was cut as also in soft parts below.
3. Incised transverse injury on left side of the face starting from in lower end of the nose and extending lateral wards 4 1/2 x 1/2' laterally, lateral half, bone-deep and medial half, joining in cavity of the mouth below.
4. Incised oblique injury starting from the lateral left junction of the two lips 4' x1' bone deep, fractured upper end of the left mandible which is seen exposed, joining the cavity of the mouth.
5. Incised oblique injury, 5'x2' extending from the mid and anterior part of the body of the mandible and going downwards and lateralwards, in medial part is bone deep and the lateral part is muscle deep. The mandible body is seen fractured into three pieces.
6. Incised injury of the tongue transverse 2 1/2' behind the tip 1 1/2' long cut muscle deepin two.
Injuries on the person of Mst. Narbadi
(Vide Exh. P. 2).
1. Incised injury longitudinal on the right side of the head 5'x1' maximum in the centre, extending from the lower part of the right eye-upwards to the back cutting the bone below and reaching the brain below.
2. Incised injury longitudinal 4' long and 1 1/2' in breadth, lateral to injury No. 1 and joining injury No. 1 upwards.
3. Incised injury, oblique, 1/2' lateral to in-jury No. 2; 3'x 1/2' extending upwards and joining injury No. 2.
4. Incised injury right ear, upper part, longitudinal, 1 1/2' long cutting the ear muscle in two parts;
5. Incised longitudinal injury of head, right side, 5 l/2' x 1/2' x brain deep, 1/2' below the end of injury No. 1.
6. The circumstances relied on by the learned Counsel for the defence for establishing the pleaof insanity some of which are detailed by the learned Sessions Judge in paragraph 20 of his judgment shall now be considered.
7. Before doing that, we may however dispose of one contention of the learned Counsel for the non-applicant that it was not necessary for the accused 'to prove' his insanity but that it was enough if he succeeds in creating a reasonable doubt in the sanity of the accused in the mind of the Court because then the presumption of sanity having beendisplaced, the prosecution would have failed to prove its case beyond reasonable doubt. He also relies on a decision of the Patna High Court in Kamla Singh v. State, (S) AIR 1955 Pat 209 in support of his proposition.
8. It is settled law that
'all persons who have reached the age of discretion are presumed to be sane, and criminally responsible, and in cases where a person subject to attacks of insanity has lucid intervals, the law presumes the offence of such parson to have been committed in a lucid interval, unless it appears to have been committed in the time of his distemper. It lies on the accused to prove that he was insane at the time of the commission of an offence, so as not to be liable to punishment as a sane person.' See Russel on Crime, Vol. I, p. 45. Bhattacharya's Insanity and Criminal Law, page 54, Mayne's Criminal Law of India, 4th Edition, part II, p. 179 and Deorao v. Emperor, ILR (1946) Nag 946 at p. 901 : (AIR 1946 Nag 321 at p. 330).
This defence the accused may establish by direct evidence or by asking the Court to infer it as a reasonable inference from the circumstances appearing in the prosecution evidence. This onus of proving insanity of the accused, as pointed out by the Privy Council in Sodeman v. Rex, (1936) 2 All ER 1138 is not higher than the burden which rested upon a plaintiff or defendant in civil proceedings. In a recent case R. v. Dunbar, (1957) 3 WLR 330 at page 334, Lord Goddard Chief Justice who delivered the judgment of the Court of Criminal Appeal said :
'That case R. v. Carr-Briant, 1943 KB 607 which is binding on us, decided that where either by statute or at common law some matter is presumed against an accused person unless the contrary is proved the jury should be directed that it is for them to decide that the contrary is proved, and that the burden of proof required is less than that required at the hands of the prosecution in provingthe case beyond a reasonable doubt and that this burden may be discharged by evidence satisfying the jury of the probability of that which the accusedis called on to establish. This is often cited as showing that where an onus is placed on an accused person it may be discharged by proving what would be enough to support a verdict in a civil action, and that to use the words of Willes, J., in Cooper v. Slade, (1858) 6 HLC 746 at p. 772, in civil cases the preponderance of probability may constitute sufficient ground for a verdict.''
9. The decision of the Patna High Court, (S) AIR 1955 Pat 209 (supra) relied on by the learned Counsel for the non-applicant has been expressly dissented from by a Division Bench of this Court in Ramhitram v. State of M.P., 1956 Nag LJ 304 at p. 310: ((S) AIR 1956 Nag 187 at p. 190), wherein the learned Judges observe :
'With all due respect to the Division Bench in the Patna case, we dissent from the view expressed by them in that case. The rule in Woolmingron v. The Director of Public Prosecutions, 1935 AC 462 is not with reference to a case in which a plea of insanity is set up : See Chan Kau v. The Queen, (1955) 1 All ER 266. As a general rule insanity when relied upon as a defence must be established by the accused. In fact, their Lordships of the Privy Council in (1936) 2 AH ER 1138, on which the learned Judges of the Division Bench rely merely indicate the upper limit for the proof while the learned Judges have deduced the lower limit. The higher limit is the proof required of a plaintiff or a defendant in a civil action. The lower limit will depend upon the circumstances of each case, but certainly it must take into account the fact that insanity sufficient to make the offence dispunishable has to be, established. In this connexion the definition of 'Proved' in the Indian Evidence Act is relevant :
'A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.' We express our opinion that the accused in discharging the burden has to lead evidence of circumstances which establish the degree of insanity required by law or make its existence so probable that a prudent man ought under the circumstances to act on the supposition that it existed.'
The contention of the learned Counsel for the non-applicant that the accused is entitled to the benefit of Section 84 of the Indian Penal Code, even if he succeeds in creating a reasonable doubt regarding the sanity of the accused in the mind of the Court is therefore not correct.
10. The question then arises, 'what exactly has the accused to prove?' The tests for the determination of the question of exemption from legal responsibility on the ground of insanity arc laid down in Section 84, I. P. C. in the following terms :
''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.'
11. The principle underlying the section is substantially based on the welt-known Macnaughton Rules, and consequently considerate assistance in understanding its content can be had from the English decisions on the question. Further, it may be observed that we are concerned with 'unsound-ness of mind' as defined in the section and notwith 'unsoundness of mind' as understood in the medical science, for, speaking medically, the 'unsoundness of mind' would admit of a variety of conditions of varying degrees of severity manifesting far too many characteristics to justify any precise definition applicable to all cases.
It is for this reason that we find that in law the expression 'unsoundness of mind' of a person has been given different content according to the nature and degree of the protection it is intended to be given to him. For example, in Contract Act, when defining a 'sound mind' the emphasis is on the capability of understanding and on the person's capacity to form rational judgment as to the effects of the contract on his interest (Section 12 of the Indian Contract Act).
In probate cases, the test usually employed is 'Was the testator of a sound disposing mind i.e., was he able to understand the nature of the act and its effect, the extent of the property which he was disposing and the claims he ought to give effect to.' In Section 95 (2) of the Indian Lunacy Act, the law is concerned with 'whether the person is of unsound mind so as to be incapable of managing his affairs.' For the purposes of the criminal law, the emphasis thus appears to be on 'unsound-ness of mind' which incapacitates the person from knowing the nature of the act or that he is doing what is either wrong or contrary to law.
In the aforesaid phrase the word 'mind' has been used as the term is generally understood in the sense of mental faculties of reason, memory and understanding, and consequently it is sometimes said that it is only unsoundness of mind which materially impairs the cognitive faculties of mind that can form the ground of exemption from criminal 'responsibility' Queen Empress v. Kadar Nasyer Shah, ILR 23 Cal 604.
In this view, insanity effecting the will and the emotions has been left outside the exception though it is difficult to say that those disturbances can have no connection with the unsoundness of mind. With the development of psychiatry as a recognized branch of medical science, we may have to revise our opinion regarding what constitutes unsoundness of mind for the purpose of Section 84 I.P.C. as laid down in some of the old cases.
In the Macnaughton Rules, the emphasis is on 'defect of reason' from disease of the mind, the latter words 'from disease of the mind' having been put in for the purpose of limiting the effect of the words defect of reason'.
'A defect of reason is by itself enough to make the act irrational and therefore normally to exclude responsibility in law. But the Rule was not intended to apply to defects of reason caused simply by brutish stupidity without rational power. It was not intended that the defence should plead: 'Although with a healthy mind he nevertheless had been brought up in such a way that he had never learned to exercise his reason, and there-Fore he is suffering from a defect of reason.' The words ensure that the defect is due to a diseased mind and not simply to an untrained one. There is insanity within the meaning of the Rule': Regina v. Kemp, (1957) 1 QB 399 at p. 408.
12. Summarising the present trend of the law on the subject, Kenny in Outlines of Criminal Law, 16th edition, page 70, says:
'The result has been that though the doctrines laid down after M' Naghton's trial remain theoretically unaltered, the practical administration of them affords a wider immunity than their language would at first sight seem to recognize. For many forms of insanity, which do not in themselves constitute those particular defects of reason which the judges recognized as conferring exemption from responsibility, are now habitually treated as being sufficient evidence to show that one or other of those exceptive defects was also actually present, A man who, after killing his child, goes forthwith to the police station to surrender himself, and gives a lucid account of what he has done, would certainly seem to know the nature and quality of the act committed, and to know that in doing it ha did wrong. Yet if he had previously shown some sym-toms of madness, and has killed this child with no discoverable motive and no attempt at concealment, a judge would probably encourage a jury to regard these facts as evidence of his labouring under such insanity as would render him irresponsible.'
13. Giving a summary of the English law on the subject at the present day, Roscoe in Criminal Evidence (16th edition), page 997, states:
'English law divides, and would seem to be Fully justified in dividing, insane persons into two classes :
(a) Those lunatics over whom the threats and prohibition of the criminal law would exercise no control, and on whom, therefore, it would be gratuitous cruelty to inflict its punishments; and
(b) Those whose form of insanity is only such that -- to use Lord Bramwell's apt test -- 'they would not have yielded to their insanity if a policeman had been at their elbow'.'
14. Laying down the criteria for determining the question where there is evidence of previous insanity, Mayne in the Criminal Law of India says:
'In all cases where previous insanity is set up, it is most material to consider the circumstances which have preceded, attended and followed the crime: 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.'' (4th edition, page 182, part II).
15. We will now examine the facts of the instant case under four broad heads:
1) Previous history of the accused;
2) Nature and character of the crime;
3) Conduct subsequent to the crime &
(4) Conduct during and after the trial; and see if the cumulative effect of all the circumstances established can lead to the reasonable inference that the accused was of 'unsound mind' within the meaning of Section 84 I.P.C. at the time of the commission of the offence charged.
16. (1) Previous history of the accused:
As regards previous history, there is the evidence, of Mumtaz Ahmad Khan (A.W. 1) and of Ganpatrao Vaidya (P.W.9). The former i.e. Mumtaz Ahmad Khan (A.W. 1) is an L.M.P. and he bad examined the accused on 3-5-1956 when he was taken to him for examination by his father Gangadin. 'At that time he (the accused) was very furious. He was shouting aloud and was running to attack others. It was with difficulty that he could be made to sit'. He was also 'morbid and resdess'. (See the evidence of Mumtaz Ahmad Khan (A.W.1). He diagnosed the case as of ''temporary insanity' and treated him for it.
Ganpatrao (P.W. 9) is a vaidya who examined the accused on or about 18-6-1956 when according,to him he found the accused suffering from delirium due to fever. At that time 'he used to remain silent for some time and then used to speak at ransiom.' Even when he was at Sirra working as a labourer in the railway gang, his co-labourers found him to be unsociable, one who avoided society and shunned company. There is also evidence that he had lost two children in succession within a space of 8 to 12 months before the incident, which may have also affected him.
17. (2) Nature and character of the crime:
The evidence on record shows that the accused and his wife lived normally and that their relations were quite happy. There is no evidence of any quarrel between the spouses, (see the evidence of Mohan (P.W. 3), Mst. Bhagniya (P.W. 6), and Pari-din (P.W. 7). The murder was committed at night. There is no evidence of any preparation or pre-meditation. Mst. Bhagniya (P.W. 6), who is a neighbour, states that she did not hear any quarrel taking place in the house of the accused on the fateful night.
The position of the dead bodies -- the woman was suckling the young child from her breast -- indicates that the accused caught them unawares. The evidence of Shamlal (P.W. 1) and Dukhai (P.W. 4) that the accused gave a reason for the crime -- that the wife refused to extinguish the lamp -- is contradicted by Paridin (P.W. 7) and does not commend itself to us. We are therefore satisfied that there was no apparent motive for the crime. The brutality of the act is apparent from the nature of the injuries.
Six incised wounds were inflicted on the deceased wife and five on the child. The blows were given with mechanical brutality as more than one blow was dealt on the same spot. We are therefore satisfied that it was a brutal and cruel crime committed without apparent motive, suddenly, without apparent preparation, pre-meditation or provocation and that these are the circumstances which in the instant case can be taken into consideration in determining the state of the mind of the accused at the time of the commission of the offence.
18. (3) Conduct subsequent to the crime:
There is overwhelming evidence that the accused made no attempt at concealment. He made no attempt to escape or to hide himself. He confessed to the commission of the offence quite casually to Paridin (P.W. 7) and Shamlal (P.W. 1) and showed them the dead bodies. He was wearing the blood-stained clothes all through till his arrest when the clothes were seized from his person. The evidence of Shamlal (P.W. 1) and Gopal (P.W. 2) also discloses that immediately after confessing to the crime, he went back to his house and started taking his meals in the very room where the dead bodies were lying.
The accused betrayed no emotion whatever throughout the proceeding and was talking as if nothing serious had taken place. It therefore appears that the accused had no consciousness of the guilt and was quite non-reacting and unresponsive to the gruesome surroundings betraying an abnormality which we will have to take into consideration in considering whether it could reasonably be inferred that he was conscious of the 'nature of the act' or that 'he was doing what was either wrong Or contrary to law'.
19-20. The conduct of the accused during the trial has been succinctly stated by the learned Sessions Judge in paras 5 to 14 of his judgment, which showed that his behaviour was not quite normal.It is also significant that though the Civil Surgeon (P.W. 12) did not find any evidence of insanity during the period he kept him under observation in the jail, he killed an undertrial fellow-prisoner for no apparent reason.
'The Penal Code contemplates, as grounds of exemption from criminal responsibility, two completely different mental conditions arising from unsoundness of mind, viz., an incapacity : (1) to know the nature of the act; (2) to know that he is doing what is either wrong or contrary to law. Of these, the first seems to refer to the offender's consciousness of the bearing of his act on those who are affected by it; the second, on his consciousness of its relation to himself. Each species of consciousness is ordinarily present to the mind of a normally sane person. Either, or both, or neither may be absent from the mind of one who is mentally diseased. The absence of both, or either, relieves the offender from liability to punishment.' (Mayne's Criminal Law of India, 4th edition, part II, p. 172).
21. Considering the first condition with reference to the facts of the case, there can be no doubt that the accused was conscious of the nature of the act because there is evidence to show that the accused had stated to Shamlal (P.W. 1) and Paridin (P.W. 7) that he had cut his wife and daughter with an axe and that they were dead as a result of the injuries so inflicted by him on them.
22. The next question is whether the accusedknew that he was doing what was either wrong orcontrary to law, as required by the second condition. In R. v. Layton, (1849) 4 Cox CC 149, Rolfe,B., said,
'Perhaps it would be going too far to say that a party was responsible in every case, where he had a glimmering knowledge of what was right and wrong.'
In the instant case also, it cannot be doubted that in a vague way the accused knew that he had killed human beings and that he ought to be hanged for it. In fact, he has been insisting that he be hanged as early as possible and he has shown his exasperation at the normal requirements of a criminal trial.
At the commencement of the trial, he bad admitted his guilt and prayed to be hanged, so that it would not be unreasonable to infer that he knew that he had committed something which was contrary to law for which the prescribed punishment was hanging. Vet, looking to the circumstances detailed in para 14 et seq. it appears to us that his reaction to the abhorrent act was not the normal reaction of a! sane person. Says Mayne,
'When we talk of a man knowing that murder is wrong and contrary to law, we mean that the knowledge forms an essential part of the stock of principles which govern every moment of his life. That whenever he is tempted to commit a murder, his mind must necessarily at the same time contemplate the fact, that if he does commit it, he will probably be hung, and in any case his life will become a burthen to him, from the constant chance of his being found out. There is , no ordinary murderer of whom this, at least, may not be stated with certainty. But can it be said of all lunatics? Of many, no doubt, it can, but certainly not of all. When we say of a lunatic that 'his mind is unhinged', we use a phrase which seems to me to embody a very important truth. His mind is still there, but it is dislocated. The facts which make up his knowledge are still there, but they have ceased to be in connection with, or to bear upon each other. They have passed from being principles of conduct to being barren pieces of information -- such as the statement that we may each drop down dead at any moment -- which everyone believes, and by which no one is influenced.' (page 176, supra).
Every criminal when he commits a crime has an instinctive dread of the consequences. To a normal man, the sanction provided by the criminal law acts as a deterrent, 'influencing, guiding and controlling his conduct.' But in the instant case we find that though the accused had a 'glimmering knowledge' that his act was contrary to law, the facts which made 'up his knowledge' had ceased to he 'in connection with each other or to bear upon each other.'
They had passed from being 'principles of conduct to being barren pieces of information' which were absolutely incapable of 'influencing, guiding or controlling his conduct.' Applying the test laid down by Lord Kenyon C. J. in R. v. Hadfield, (1800) 27 St. Tr. 1281, under the circumstances of the case the accused could not be said to be 'under the guidance of reason' so that we can reasonably infer that he was of unsound mind at the time he committed the act.
23. We are therefore satisfied that the accused was of unsound mind within the meaning ofSection 84 I. P. C. at the time of the commission of theoffence and consequently was exempt from criminalresponsibility on that account. We therefore decline to confirm the sentence of death passed onthe accused, set aside his conviction and the sentence of death passed on him and acquit him ofthe charge of murder. We further direct the Sessions Judge to take action under Section 471 of the Codeof Criminal Procedure and to order the detentionof the accused in safe custody in such place andmanner as he thinks fit and to report the actiontaken to the State Government.