Raman Nayar, J.
1. The accused in this case was charged with the murder of his wife, with causing hurt to his child aged a year and a half, and with attempting to commit suicide. The learned Sessions Judge found that the accused did commit the acts alleged but, nevertheless, acquitted him on ground that 'he was, at the time of the commission of the acts, by reason of unsoundness of mind incapable of knowing the nature of the acts or that he was doing what was wrong or contrary to law; In other words on the ground of the general exception embodied in Section 84, I.P.C. Against this acquittal the State has appealed.
2. The accused, the deceased and their four children (the youngest of them being the victim of the hurt) were living together. The accused's father also was an inmate of the house, but at the time of the occurrence, which took place on the morning of the 4th December, 1955, he was away and the accused and the deceased and their Jour children were the only persons in the house. At about ten that morning, P.Ws. 6 and 7 and one Bhaskara Pillai who were standing by the side of a tank in front of the house, hardly 100 feet away, heard cries proceeding from the house and ran to the spot. On reaching there they found the deceased standing in the courtyard of the house with an injury in her abdomen through which her intestines had come out.
She had her child in her arms and the child also had a bleeding injury in its abdomen She told them that her husband had stabbed, her and asked them to go and fetch her people namely, her mother, uncle and brother who were living about 1 1/2 miles away. P.W. 6, at once left to fetch these persons, while P.W. 7 and Bhaskara Pillai helped the deceased to the verandah of her house and kept her there reclining against the wall. Some time later P.Ws. 1, 3, 4, 8 and 14 (P.W. 3 being a cousin of the deceased, P.W. 8 her uncle, P.W. 14 her mother, and P.Ws. 1 and 4 neighbours) came there on getting the news and to them the deceased stated that the accused had stabbed her and her child when she was sitting in the verandah of the kitchen of the house with the child in her arms after serving him with food. P.Ws. 1, 3, 4, 8, and 14 went inside the house and found the accused lying in one of the rooms with injuries on his neck and abdomen and with a blood-stained open pen-knife, M.o. 3, by his side. P.W. 3 fetched a taxi and took the 3 injured persons in it first to the Government dispensary at Kottarakara and from there to the District Hospital at Quilon where they reached at about 6 P.M.
The Hospital authorities informed the Sub-Inspector of Police, P.W. 10, and the Magistrate, P.W. 18. The Magistrate reached the hospital aS 6-30 P.M. and straightaway recorded the deceased's dying declaration Ex. P. 16, in which she repeated that her husband had stabbed her in his house at about 10 that morning for no reason whatsoever. The Magistrate then proceeded to record the dying declaration, Ext. P. 17, from the accused and in it the accused said that he had a knife with him when he sat down for his meal, that it was still with him when he got up after having had his meal, and that he did not know what happened thereafter. He added that for three or four months Past he was not well. He was silent and moody and was confining himself to the house and there were occasions when he did not know what was happening.
3. Meanwhile, P.W. 10, the Sub-Inspector of Police, also reached the hospital and, the deceased being unable to speak, he recorded the statement, Ext. P. 1, from P.W. 1 who was by her side and it was on this statement that the case was registered. Apart from this no importance attaches to Ext. P. 1.
4. The deceased died in hospital at 8-30 P.M., and the medical evidence shows that she had suffered an incised gaping wound, 6'x2', penetrating the chest cavity at the right fifth rib and entering the abdominal cavity, cutting through the fifth to the tenth ribs on the right side and piercing the diaphragm and the liver in the process. The injury was a necessarily fatal injury and must have been caused with a sharp pointed weapon like M, O. 3.
5. The child had suffered an oblique Incised wound 5'x1'x1' extending from an inch below the umbilicus obliquely downwards to the point of the left hip. The accused had suffered five incised wounds, two on the abdomen and three on the neck. All the five could have been self-inflicted and from their position and nature the injuries on the neck could not have been inflicted by another person. The injuries both on the child and, the accused must have been caused with a weapon like M. O. 1.
6. The motive alleged by the prosecution is that the accused was cross with the deceased and her people because he had not been asked to, or even informed of, the betrothal ceremony of the deceased's sister which had taken place in October 1955 or invited to the marriage which, was to take place on 8-12-1955. He had forbidden the deceased from attending the wedding, but the deceased while deciding not to attend the function in obedience to her husband, had arranged with a goldsmith, P. W. 17, for making a gold ring for toeing presented to her sister. This had made the accused very angry.
7. In the committing magistrate's court the accused stated that he had been unwell for some days past, that morning his father had gone to fetch an astrologer, that he did not remember what happened thereafter and that he regained his senses only on 12-12-1955. He had been ill for two or three months, and for about two or three years past his physical weakness was frequently affecting his mind as well.
8. At the trial when specifically questioned with regard to the evidence against him, the accused had nothing to say beyond that he was physically ill at the time and that, for many days past, he had not been going out of his house for fear of his enemies. For the rest, he knew nothing excepting that he was never in possession of a pen-knife and that, although he remembered having signed some paper, he made no such statement as Ext. P16.
9. Apart from the deceased, the accused was the only adult in the house at the time. This coupled with the circumstance that when P. Ws. 1,3,4,8 and 14 entered the house they found the accused lying there with, what the medical evidence has shown were self-inflicted injuries on his person and with the blood-stained knife M. O. 3 by his side, proves beyond doubt that the statement made to them by the deceased and earlier to P.Ws. 6 and 7 and later to the Magistrate, P.W. 18, that the accused had stabbed her and the child must be true. This was not denied by the accused in any of his statements, either in his dying declaration, Ext. P. 17, or in his statement, Ext. P. 28, in the committing Magistrate's Court, or in his statement when examined at the trial under Section 342, Cri. P. C., and all that he placed was that he could recollect what had happened.
No attempt is made now to dispute the finding of the learned Sessions Judge that the accused did commit the acts alleged, and the murderous intent behind the assault on the deceased being manifest from the very nature of the injury inflicted (in fact we think that even with regard to the injury inflicted on the child, the charge should properly have been under Section 307 rather than under Section 324, I.P.C.), and the intention to commit suicide from the nature of the injuries the accused Inflicted on himself, the only question to consider is whether the accused acted as he did at a time when, by reason of unsoundness of mind, he was incapable of knowing the nature of his acts or that what he was doing was wrong or contrary to law.
10. Of this we are constrained to observe there is no evidence whatsoever. No such plea was specifically taken by the accused himself, and in none of his statements does he go to the extent of saying that he was at any time actually insane. What he alleged was physical weakness which made him moody and silent and at times affected his mind. We have no evidence of his state of mind at the actual time of the commission of the acts and the presumption of sanity remains unweakened by any evidence of earlier insanity. On the contrary such evidence as there is, is that the accused was never insane. The learned Sessions Judge rested his conclusion of insanity on the statement of the deceased's brother P.W. 2, at the inquest that the accused was moody and unwell for one or two months before the occurrence and that they were thinking of calling in an astrologer to indicate a remedy, on the request of the police in the remand report, Ext. P. 18, that the accused be placed under medical observation with a view to ascertain his mental condition in view of the information gathered from some of the relatives of the accused that he was unwell and was suffering from a certain dullness of mind for two months past, and on the statement by the deceased that the accused had stabbed her for no reason whatsoever.
He also disbelieved the motive alleged by the prosecution, namely, that the accused was enraged that his wife should have thought of giving a wedding present to her sister, and considered it legitimate to infer that the omission to invite-the accused to the betrothal and to the wedding was deliberate and must have been due to the fact that he was of unsound mind. We are unable to agree. What P.W. 2 told the Police at the inquest might be good reason for disbelieving his evidence at the trial that the accused was quite sane, but it is not substantive evidence and, in any case, means no more than that the accused was moody and unwell. The information embodied in Ext. P. 8 is pure hearsay. It is not evidence and again, at best, only indicates that the accused was suffering from a certain dullness or mind.
As for the deceased's statement that the accused stabbed her for no reason whatsoever, it only means that she had given him no reason, and it would be dangerous to hold that, because a monstrous crime of this nature was committed for no apparent reason and for no proved motive, the offender must have been insane at the time. And that without any proof whatsoever of prior insanity.
11. We might also observe that if the accused were really insane at the time of the offence, or at any time before that, his father and the neighbours would have been competent to speak to this. Yet no attempt was made to call any of them as a witness. The statement, Ext. P. 17, made by the accused to the Magistrate that Very night is certainly not the statement of an insane man but the statement of a man very much in, his senses trying to discover some means of escape. The accused was kept under medical observation for a period of one month from the very day of the occurrence, and the evidence of the doctor, P.W. 5 is that no sign or symptom of insanity could be found. No inference of insanity can be drawn from the circumstance that, after having stabbed his wife and child, the accused made no attempt to escape or shield himself from justice, but proceeded to inflict injuries on himself and submit to fate. That is often the conduct of a perfectly sane man, who acting under some impulse, commits so monstrous a crime.
12. A number of decisions have been brought to our notice, notably the Full Bench decision in Emperor v. Parbhoo, ILR (1941) All 843: (AIR 1941 All 402) (A), to show that to bring his case within an exception, whether general or special, an accused person need not expressly plead or affirmatively establish it by evidence of his own; it is sufficient if, upon a consideration of all the materials placed before it, whether by the prosecution or the defence, the Court entertains a reasonable doubt in the matter; and the effect of Section 105 of the Evidence Act is not to detract from the golden rule of criminal jurisprudence that the benefit of any reasonable doubt must go to the accused. But we have not reached that stage in this case. The Court can act only on materials that are legally evidence and its doubt must spring from proved circumstances. Here we find that there is no legal evidence of insanity; and the proved circumstances only show that the accused did not behave like a normal man. But then some degree of abnormality is involved in all crimes, and we are afraid that the finding of the learned Sessions Judge is based on little more than a mere surmise for which he has sought to derive support from matters that are not evidence.
13. In the result we allow the appeal andconvict the accused under Sections 302, 324 and 309,I.P.C. We sentence him to rigorous imprisonmentof life for the offence under Section 302, I.P.C., torigorous imprisonment for three years for theoffence under Section 324, I.P.C., and to simple imprisonment for six months for the offence under Section 309, I.P.C., the sentences to run concurrently.