1. This is a reference under Section 341, Criminal P. C. by the Magistrate, First Class, Aska, in a preliminary enquiry that was conducted by him against one Arakhit alias Jada Moharana, a deaf and dumb person, for an alleged offence under Section 302, I. P. C. The Magistrate, while holding the enquiry, was satisfied that the accused Arakhit was incapable of making a defence as he was unable to understand the nature of the proceedings pending against him. The Magistrate examined the maternal aunt of the accused, one Bayani Maharanani, the elder sister of the accused Sunna Maharanani; & a neighbour Natabar Panda who lives 60 to 60 cubits away from the house of the accused. All these witnesses say that the accused is deaf and dumb since his birth, that he cannot understand anything even when it is expressed by gestures and that he is capable of understanding only a very few things by gestures such as directions to come, go, sit, stand and eat, but nothing else. The Magistrate put a number of questions by means of gestures and also directed the maternal aunt and the sister of the accused to make certain gestures in order to convey certain ideas but the accused failed to understand them and made some unintelligible sounds which satisfied the Magistrate that the accused was incapable of understanding anything. He has, therefore, made this reference under Section 341, Criminal P. C. to this Court as he was also satisfied, on the evidence itself in the case, that the accused did commit the murder of his father Joyadeva Moharana as alleged by the prosecution.
2. The prosecution case against him is that on the morning of the 27th December 1948 the deceased Joyadeba Moharana was sitting on the village mandap a few yards away from the house of the accused. The accused went with a knife to his father and made a few gestures to show that he was very hungry and that he was going to cut and bring fuel. His father then directed him not to get fuel but to go out and beg, and bring some food. The accused then pointed out his swollen knee joints and pleaded inability to go out and beg for food. What happened subsequently is not borne out by any direct evidence but from the evidence of P. W. 1 (Suna Maharanani) it appears that very soon after this exchange of gestures the father was killed and was lying dead on the mandap, and that the accused had disappeared. (After narrating prosecution evidence the judgment proceeds:) This is all the evidence regarding the occurrence, adduced by the Prosecution.
3. It is clear that the accused had been without food for three days preceding the date of occurrence and that on the day of occurrence he was asked by his father to go out and beg for alms. The accused pleaded inability to walk on account of his swollen knee-joints and wanted to go out for fuel. Immediately after this P. W. 1 raised a cry that her father had been killed. It is also in evidence that the father prodded the accused on his stomach with a stick. There is no direct evidence of the commission of the offence but the evidence of P. Ws. 1, 2 and 6 together with the circumstantial evidence of the recovery of the knife and the blood-stained cloth and banian, belonging to the accused are sufficient to warrant the inference that the accused himself committed the murder of his father.
4. The question however remains to be considered as to whether the accused is guilty of murder having regard to the fact that he is a congenital deaf and mute and a mental defective. It is true that he is capable of understanding the nature of a few elementary things such as sitting, standing, eating, etc. but the evidence of his relatives, who were examined, is clear that he is incapable of understanding anything else. The law is quite clear that although a presumption may be made in the: case of a deaf and mute in favour of an. absence of mind, it cannot always be taken as an irrebuttable presumption; and that every case must be judged on the evidence available in that particular case. The conduct of the accused immediately after the occurrence is very much in his favour: he made no attempt to screen himself or to screen the weapon which he kept by his side in his house. Having regard to the fact that prior to the commission of the offence the accused was incapable of understanding anything other than a few elementary things, the nature of which could be communicated to him through gestures only and having regard to his conduct immediately after the occurrence I am satisfied that this case falls within the Exception provided in I Section 84, I. P. C., and would hold that the accused! was incapable of understanding the nature oil the act at the time he committed the offence. While it is clear that he did cause the death of his father by giving him a blow with the knife, it is not established that he had any intention to kill his father or that he knew the nature of the act he was doing. The circumstances are all in favour of holding that he was not conscious of the nature of his act. The finding therefore should be that while the murder was committed by him he was not conscious that he was doing something wrong and he cannot therefore be held guilty of the offence of murder.
5. Accordingly we find that the accused did kill his father but that by reason of unsound-ness of mind he was incapable of knowing that he was doing an act which was wrong or contrary to law and that he is therefore not guilty of the offence specified in the charge, namely murder. The Court accordingly directs that the accused Arakhit should be acquitted, but that under Section 471 (1), Criminal P. C. he should be detained in safe custody in jail, pending orders of the Provincial Government to whom a copy of this judgment shall be sent.
6. I agree and wish to say a few words. Strictly speaking Section 471 Criminal P. C. may not apply by its own force when a reference is made under Section 341, Criminal P. C. because there has been no trial consequent on the inability of the accused to understand the proceedings. But there are someauthorities to support the view that even ona reference under Section 341, Criminal P. C. theHigh Court may pass an order under Section 471,Criminal P. C. if, on the evidence collected bythe Magistrate, the Court is of opinion that theaccused committed the act but that he did notknow that the act was wrong or contrary tolaw. See 'Queen Empress v. Somir Bowra', 27Cal 368; -- 'Emperor v. Dost Muhammad', 12Cri LJ 613 and -- 'Emperor v. Ram Manohar'36 Cri LJ 880. I would, therefore, agree withthe order passed by my learned brother underSection 471, Criminal P. C.