P.K. Mohanti, J.
1. The appellant Nakula Chandra Aich has been convicted under Section 302 I.P.C. of having, on 20th Mar. 1977 at 1 P. M., committed the murder of one Akuli Baral of village Jenapur in the district of Cuttack and has been sentenced to undergo imprisonment for life.
2. The deceased Akuli Baral was a pan vendor while the appellant is a cycle repairer at the Station Bazar of Jenapur. On 20th Mar, 1977. at about mid-day the appellant visited the temple of the deity Mangala situated by the side of the path leading from the Station Bazar to the village. While, proceeding towards the temple he snatched away an axe from P. W. 4 Menaka Dei. On the way he met the deceased and both of them proceeded towards the temple. The deceased was going ahead of the appellant. Suddenly the appellant dealt an axe-blow on the head of the deceased and after he fell down the appellant dealt two blows on his chest as a result of which he died, Thereafter, the appellant ran away with the axe and entered into the till in shop of his brother Arjun Aich. P. W. 10 Nakula Rout, a servant of Arjun Aich was present in the shop at that time. The appellant threw away the utensils, tea kettle etc., inside the shop and asked P. W. 10 to get out of the shop and threatened him with assault, if he disobeyed, p. W. 10 came out and on the advice of p. W. 11 Prafulla Kumai Mohanty, he closed the doors of the shop and locked it. The appellant was kept confined in the room till arrival of the Investigating Police Officer, F.I.R. was lodged by P. W. 9 Narahari Baral, a Gramarakhi at about 4.30 P. M. The Investigating Officer visited the village at 5 P. M., held inquest over the dead body and despatched it for post-mortem examination. He visited the shop of Arjun Aich where the appellant was kept confined and arrested him. While in custody, the appellant stated before the Investigating Officer that he had concealed the axe inside a coal heap in the shop room and so saying he led the Investigating Officer and the witnesses inside the shop and gave recovery of; the axe (M.O. I). On 26-3-1977 the appellant made a judicial confession (Ext. 6). After due investigation, he was charge-sheeted by the police.
3. At the trial, the appellant abjured his guilt and contended that on the date of occurrence he went to the shop of one Khati Dalai where he was made to smoke Ganja. Then he went to his brother's shop where he threw away the tea kettle and other articles and he was kept confined in the shop room till the arrival of the police. He denied any knowledge about the death of Akuli Baral. Being confronted with his judicial confession, he stated that he did not remember what he had stated before the Magistrate.
4. In order to substantiate the charge, prosecution examined 18 witnesses of whom p. Ws. 1 and 2 were said to be witnesses to the occurrence, P. Ws. 3, 4, 7, 8, 10. 11 and 14 were cited as witnesses to depose about certain circumstances connecting the appellant with the crime. But all these witnesses did not support the prosecution case at the trial and were cross-examined by the Public Prosecutor. The order of conviction is based mainly on the retracted judicial confession of the appellant.
5. Mr. R. Mohanty, the learned Counsel appearing on behalf of the appellant contended that the confessional statement made by the appellant cannot be taken into account as it is not proved to be true and voluntary. His contentions are:
(i) there is no material on the record to show that the appellant was produced from jail custody at the time of recording his judicial confession on 26-3-1977;
(ii) the Magistrate who recorded the confessional statement did not question the appellant as to why he was making the confession; and
(iii) there is also nothing to show that the Magistrate told the appellant that he would not be remanded to the police custody even if he did not confess his guilt.
Reliance was placed on the case of Devendra Prasad Tiwari v. Stale of U.P. : 1978CriLJ1614 . It was further contended that the appellant was insane at the time the occurrence took place and that, therefore, his case is covered by Section 84 I.P.C. In support of this contention emphasis is laid on the total absence of any motive for the murder.
6. In the judicial confession (Ex. 6) the appellant stated that on the date of occurrence he went to the shop of his brother Arjun Aich and took tea. Then he went to the cycle repairing shop of Khati Dalai, and helped him. There he along with others smoke Ganja. Then he ran towards the deity Mangala. He saw P. W. 4 going with an axe. He snatched away the axe from her and thought of sacrificing his maternal uncle Bhima before the deity. At the moment he came across the deceased Akuli Baral. Both of them proceeded towards the deity. Near the deity he asked the deceased to sit and said that he wanted to sacrifice him before the deity. When the deceased suddenly stood up, he thought for a while and then dealt an axe blow on his head as a result of which he fell down, Then he dealt two other blows on the neck of the deceased and ran towards the shop of his brother with the axe in his hand. P. W. 10 Nakuli was present there. He told Nakuli that he had dealt out blows on the deceased. P. W. 11 Prafulla Kumar Mohanty wanted to snatch away the axe from him. But he did not leave it. Then Prafulla kepi him confined in the shop room and in the evening he was brought out of the room by the police.
7. The S. D. J. M. of Titilagarh who recorded the confessional statement was examined at the trial as P. W. 13. Ha gave evidence that on the date of occurrence the appellant was produced before him at 3 p. m. and he disclosed his identity to the appellant. He warned the appellant that he was not bound to confess and that any confession made by him might be used as evidence against him. Then he remanded the appellant to jail custody for cool reflection. On 26-3-1977, the appellant was produced before him from jail custody and was kept in charge of his court peon. He again disclosed his identity to the appellant and repeated the warnings. He gave one hour's time to the appellant for reflection inside the court hall while he was kept in charge of the court peon. In spite of repeated warnings, the appellant wanted to confess and the confession was recorded at 1.30 P.M. Before recording the confession, he was satisfied that the appellant was going to confess voluntarily.
The above evidence of the Magistrate gains corroboration from the order-sheet dated 25-3-1977 and 26-3-1977 of the Magistrate's records. The evidence of the Magistrate that on 26-3-1977 the appellant was produced before him from jail custody was not challenged by cross-examination. From the record of confession it appears that the Magistrate told the appellant that he was a Judicial Magistrate of the first class and ha was not bound to confess. He also told him that any confession made by him might be used as evidence against him even if it was subsequently retracted. He further told him that he should not make any confession on account of any threat or undue influence by the police or anybody else. To the questions put by the Magistrate the appellant replied that he had understood everything and that he was making the confessional statement as he wanted to tell the truth. Thus, it is evident that the Magistrate observed all the formalities and recorded the confessional statement after he was satisfied that the appellant was going to confess voluntarily.
8. The decision of the Supreme Court relied upon by the learned Counsel for the appellant is clearly distinguishable on facts. In that case the accused was produced before the Magistrate from police custody on 6-9-1974 and the Magistrate sent him to jail for a day and recorded his confessional statement on 7-9-1974. In the absence of any material on the record, their Lordships were not inclined to believe that the accused was actually detained in jail custody before he was produced for recording his confessional statement on 7-9-1974. In the present case, there is clear evidence of the Magistrate that the accused was produced before him from jail custody on 26-3-1977. This evidence of the Magistrate went unchallenged. No doubt, the accused was not assured by the Magistrate that he would not be sent back to police custody in the event of his not making a confession. But we do not think that we can reject the confession merely on that ground. The statutory provisions in Section 164 Cr. P.C. do not require the Magistrate to assure the accused that he would not be sent to the police custody in the event of his failure to make a confession. Since the accused was produced from jail custody the question of sending him back to police custody did not arise. It was, therefore, not necessary for the Magistrate to tell the accused that he would not be sent back to the police custody in the event of his failure to make a confession. It is, no doubt, true that the Magistrate did not enquire from the accused as to why he was making the confession. It appears, however, from the record of confession that in answer to the questions put by the Magistrate, the accused said that he wanted to tell the truth. This shows that the accused wanted to make a confession out of repentance. Their Lordships of the Supreme Court did not lay down a general proposition of universal application that the Magistrate must invariably enquire from the accused as to why he was going to confess. The case before their Lordships was decided on its own facts The decision of the Supreme Court referred to above has been distinguished in two Division Bench cases of this Court vide State of Orissa v. Aity Gouduni Govt. Appeal No. 85 of 1977 disposed of on 12-3-1980 and Thala v. The State, Jail Criminal Appeal No. 149 of 1977 disposed of on 29-8-l980.
In the case of State of Orissa v. Aity Gouduni referred to above, a Division Bench of this Court consisting of one of us P.K. Mohanti, J. it was held as follows:.The object of putting questions is to enable the Magistrate to be quite sure that the confession was voluntary and if the same result can be achieved by other questions the confession cannot be rejected merely because a particular question was not asked. No set form of question is prescribed by the Code. The form and extent of question depend largely on the facts of each case. What is important is that there must be a real endeavour to find out by appropriate questions whether the confession was voluntary.
9. In the instant case, the Magistrate cautioned the accused that he should not make a confession on account of any threat or undue influence by the police or anybody else. He warned the accused repeatedly and recorded the confession after being fully satisfied that the accused wanted to confess out of his own free will. In the particular facts and circumstances of the case, we hold that the confession was made voluntarily and it is not open to any legal objection.
10. Truth of the confessional statement is established by the evidence on record. P, W. 4 Menaka Dei corroborates the confessional statement to the extent that on the date of occurrence the accused snatched away a Tangia from her. The statement of the accused to the effect that after dealing the axe blows on the deceased he ran away to the shop of his brother and was kept confined there till the arrival of the police gains corroboration from the evidence of P. Ws. 10, 11 and 18. It is the evidence of P. W. 18 that after the accused was brought out of the shop room and was arrested he disclosed that he had concealed the axe inside a coal heap of the shop room and gave recovery of the axe (M.O. I) which was stained with blood, On chemical examination and serological test human blood was detected on the axe. This circumstance also lends corroboration to the confessional statement, on a review of the evidence on the record, we agree with the trial court that the confessional statement is trustworthy. The evidence as discussed above, which has been believed by the trial court, establishes the charge against the appellant.
11. The next question which has been pressed before us is whether the case of the appellant is covered by Section 84 I.P.C. There is a clear distinction between 'medical insanity'1 and 'legal insanity' and the courts are concerned only with the legal insanity. Section 84 I.P.C. lays down two tests, viz. that (1) by reason of unsoundness of mind the accused is incapable of knowing the nature of the act; or (2) that for the same reason he is incapable of knowing that what he is doing is either wrong or contrary to law. The first incapacity refers to the inability of the accused to understand the nature of the act committed by him and the second is the inability to understand his own responsibility for the act. As to the first incapacity we are inclined to hold that the accused did understand the nature of his act. We have evidence to the effect, that before committing the murder he told the deceased that he wanted to sacrifice him before the deity. After committing the murder he told P. W. 10 that he had inflicted cut blows on the deceased. The appellant selected a lethal weapon and inflicted blows with It on the vital parts of the body of the deceased. He ran away from the spot to the shop room of his brother and concoaled the blood-stained axe inside a coal heap. This conduct affords a strong indication of the existence of consciousness in his mind that he had done what was wrong and he made efforts to avoid detection of the crime. It is in the evidence of the Investigating Officer that at the time of his arrest the accused was in a normal condition of mind. P. W. 6 who is a Grama Rakhi stated that the appellant was holding a watch, radio and cycle repairing shop for five years before the occurrence. There is no credible evidence to show that the appellant suffered from madness before or after the occurrence. We are, therefore, inclined to hold that although the mind of the appellant was deranged it was not a derangement that affected his cognitive faculties. He knew that he was causing the death of the deceased and he also knew that he was doing something wrong and contrary to law. It is, no doubt, true that there is no evidence regarding the existence of any motive on the part of the appellant to cause the death of the deceased. But in the particular facts and circumstances of the case, the mere absence of any motive on the part of the appellant cannot establish the defence case that the appellant was insane at the time he committed the offence. We accordingly hold that the appellant was rightly convicted of murder.
12. In the result, we uphold the conviction and the sentence passed against the appellant and dismiss the appeal. But having regard to the fact that the appellant was suffering from mental derangement at the time the occurrence took place, we direct that a copy of this judgment be forwarded to the State Government in the appropriate department with our recommendation that the case be dealt with under Section 432 Cr. P.C. in such manner as deemed proper.
B.N. Misra, J.
13. I agree.