Madhavan Nair, J.
1. The scene of the incident in this case is the verandah of a building belonging to P. W. 3. It abuts on a road and has three rooms facing north, with a long verandah in their front. The western room is let to P. W. 1 who runs a copra business there; and in the other two rooms P. W. 3 himself conducts a grocery shop and a tea shop. At the western end of the verandah is a platform which the scene mahazar shows to be 8 ft. long, 3 ft. wide and cement plastered. Adjoining this verandah is an accessory verandah I1/2 ft. in width. The height of the platform from the accessory verandah is 3 feet 3 inches. The shops of P. W. 3 are usually attended to by him and, in his absence by his sons. Ahmedkutty was a son of P. W. 3 whose pass in the B. Sc. degree examination was announced only 3 or 4 days before the incident. On June 23, 1966, P. W. 3 was not in. station. At about 10 a.m. Ahmedkutty went to attend the shops and relieved his brother who was there till then. He got a daily newspaper to read. At about 11 a.m. P. W. 1, who was then inside the shop with its shutters removed, saw his reclining on the abovesaid platform with his head to the north and reading the daily. In a little while P. W. 1 heard a faltering sound and beating of legs from the platform, and looking that side he found the accused holding Ahmedkutty by his chin and cutting his neck with a dagger-knife. P. W. 1 raised a loud cry. P. W. 2, who was then approaching the shop for purchasing soap, heard' the cry and rushed into the courtyard and saw the accused cutting the neck of the deceased. By then P. W. 1 came out to the verandah and the accused ran away with the dagger in hand. The post-mortem certificate shows that the trachea, gullet and the major arteries on both sides of the neck were cut completely, and the spinal chord was cut and exposed at the level of the third cervical vertebra. Mammunny went in a jeep to fetch P. W. 3 and he came in the jeep to the shop by about 4 P. M. P. W. 1 went to the Police Station at 4 p.m. and gave the First Information. At about 5-30 p.m. the accused was arrested from the house of a cousin of his and a blood-stained dagger and its sheath recovered from him. The Sub-Magistrate, Kozhikode-II, committed the accused for trial to the Sessions Court. The accused denied to have had anything to do with the murder. The Sessions Judge, Kozhikode, found him guilty, convicted him under Section 302, I. P. C. and sentenced him to death. R. T. No. 3 of 1966 is the reference made to this Court under Section 374, Cri. P. C. and Criminal Appeal No. 55 of 1966 is the appeal preferred by the accused.
2. That the accused had killed Ahmed-kutty is not now disputed. It is argued that the accused was suffering from schizophrenia and therefore did not know the nature of the act he did or that it was wrong and that he is entitled to the benefit of Section 84, I. P. C.
3. The evidence shows that the deceased was then lying on his back and reading a daily newspaper, with his head to the north. Unless the accused approached him cautiously from the north and caught him unawares by the chin and immediately cut his neck in the butcherly way he did, the offence could not have been committed so swiftly. The deceased could only falter out a little sound and beat the floor with his legs as his neck gave way to assailant's knife. P. W. 1, who was within a few feet, did not hear any noise before the dagger-knife had plunged deep into the deceased's neck. The circumstances make it obvious that the accused had approached the deceased without making any noise, even of footsteps, and caught him by surprise. It is also obvious that the accused, even as he approached the deceased, had the knife ready in hand for the cut without even a moment's delay. If there was any, the shortest time lag between the catch and the cut, the deceased could and would certainly have made some noise and P. W. 1, who was within a few feet, would have heard it. P. W. 1 and P. W. 2 have sworn that the accused caught the deceased by the chin with his left hand and cut his neck with his right hand. The accused must then be on the deceased's right side. The accused was thus on the accessory verandah and the deceased was lying on the platform 31/4 high. The accused is a man of 60, and the deceased a youth of 22. But for the stealth in the approach, the firmness of the grip and the suddenness of the cut, it was impossible to have the incident executed in the manner it was actually done. The mode of execution of the murder does not spell out any doubt on the mental capacity of the accused at that time. The fact that he ran away, when he saw P. W. 1 and P. W. 2 come to the spot, also shows that he was conscious of his act being wrongful.
4. 'All persons who have reached the age of discretion (fourteen years) are presumed to be sane and criminally responsible', says Russel on Crime (10th Edn., p. 45) 'and in cases where a person subject to attacks of insanity has lucid intervals, the law presumes the offence of such person 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 lime of the commission of an offence, so as not to be liable to punishment as a sane person'.
Same is the law in India as Section 84 of the Indian Penal Code reads:
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.' and Section 105 of the Evidence Act throws the burden of proving the existence of circumstances bringing the case under Section 84, I. P. C., on the accused and directs 'the Court shall presume the absence of such circumstances' So the question is whether the appellant had discharged the onus that lay on him of satisfying the Court that, on balance of probability at the time he killed Ahmedkutty he was labouring under a disease of the mind and that by reason of that unsoundness of mind he did not know the nature of his act or that his act was wrong or illegal. Unless the answer is in the affirmative the accused cannot escape conviction in view of the finding that it was he who killed Ahmedkutty.
5. The plea of schizophrenia is sought to be made out by the testimony of D. Ws. 1 and 2. D. W. 1 is an Assistant Professor of the Medical College, Calicut, who had treated the accused sometime before the event. He has sworn,.I saw the accused only 3 times and they were on 23-10-1964, 27-3-1965 and 17-5-1965.... The accused was never under my observation except for a few minutes when I' met him on the third occasion; and on the first of these 3 occasions he was perfectly normal. The symptoms which I have mentioned in Chief examination of schizophrenia are the general symptoms which are found in patients. I have not noted any of these symptoms in the accused except fear complex and hearing of people abusing him. The family history of the accused I have noted in Ext. D-2 is purely hearsay information. It was either the accused or some persons who accompanied him who told me about it. The medicines I prescribed for the accused are good prescriptions even for slight mental aberrations. They could be effective medicines even for patients who could distinguish between right and wrong, I am not a specialist in mental diseases...I did not advise the accused to go to a mental specialist, because when I examined him I thought it was not necessary.
I am competent to treat mental patients.... The name of the disease I wrote in Ext, D-2 was after examining the accused closely for about 30 minutes. To treat a patient for insanity he need not be kept under observation. Observation can be done in 1/2 an hour or in 7 days......Except the fear complex which the accused mentioned I did not notice anything else in him.... Fear complex in the licensed was fear of others coming and abusing him....
Ext. D-2, the register kept by D. W. 1 concerning his treatment of the accused, contains the following entry on March 27:
Now he has mental trouble. He hears people abusing and so runs about at home. He has got good fear complex.
O. E. (on examination) There is nothing abnormal except the schizophrenia picture.' There is no entry on the date May 17,
D. W. 2, the Superintendent of Mental Hosptal, Kozhikode, and an Assistant Professor in Psychiatry in the Medical College, has sworn,..In Paranoid Schizophrenia the personality of the patient may be preserved though it may gradually get deteriorated.
If the patient had fearfulness and excitement alone he would not have a tendency to commit homicide or suicide. A person, if he has only fearfulness and excitement, would be in a position to distinguish between right and wrong. From the mere fact that a person has good fear complex and excitement it cannot be taken that that person is suffering from Schizophrenia....
Whether good fear complex of a particular person and his hearing that people are abusing him are really due to the fact that he is suffering from Schizophrenia can be known only after keeping him under observation for a number of days. That disease cannot be diagnos-ed by merely examining them for 30 minutes...
If a person is closely observed for about 30 minutes a provisional diagnosis of Schizophrenia can be made. But one can successfully come to the conclusion only by keeping him under observation for a number of days....
All that has been testified by D. W. 1 is that on March 27, 1965, i.e., about 3 months before the incident, the accused had a fear complex and an illusion of hearing people abusing him, and no other symptoms of Schizophrenia. He was positive 'except the fear complex which the accused mentioned I did not notice anything else in him'. On May 17, he examined the accused only 'for a few minutes'. His evidence does not show what the result of his examination on that day was. His register does not show any entry concerning the treatment of examination on that day. He had prescribed that day Eskazine and Pacitane to the accused and the same had been repeated on May 25 for another week. He has sworn that these medicines are good prescriptions even for slight mental aberrations. They could be effective medicines even for patients who could distinguish between right and wrong'. The expert witness, D. W. 2, is positive that a case of Schizophrenia cannot be diagnosed with confidence by examination for 30 minutes and that if a person has only fearfulness and excitement he will 'be in a position to distinguish between right and wrong'. Hence, the evidence of D. W. 1 is quite insufficient to make out a case of Schizophrenia in the accused even on March 27, 1965, much less, at any other time, and has no relation to the time of the offence. Between May 17 when D. W. 1 last saw him and June 23 when the incident took place, that is to say, for an interval of about one month immediately preceding the event, there is no evidence (except that of D. W. 3, a son of the accused) as to the behaviour of the accused. Evidently, the accused was not under any treatment for at least a fortnight before the event.
6. To earn exemption under Section 84,I. P. C., the defence has to prove insanity of the accused at the time of the offending act. In State of Madhya Pradesh v. Ahmadulla : 3SCR583 the Supreme Court cited and followed the following observations of Reading, C. J.:
Every man is presumed to be sane and to possess sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing-that is, the physical nature and quality as distinguished, from the moral-or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong....
To the same effect are the observations in Dahyabhai v. State of Gujarat : 1964CriLJ472 and Bhikari v. State of U.P. : 1966CriLJ63 . As mentioned already there is no proof of mental disease or delusion in the accused at the time he killed Ahmedkutty.
Behaviour antecedent, attendant and subsequent to the event may be relevant in finding the mental condition at the time of the event, but not these remote in time. Excepting a fear complex and its attendant excitement, no mental disease is made out in the accused in March-May. In June he has not been taken to any medical practitioner. His behaviour immediately before the event, and the manner in which he executed the act do not betray any violent surge of emotion or any mental incapacity. His conduct immediately after the act pointed only to an awareness in him of his act being wrongful. He ran away as soon as he saw P. W. 1 and P. W. 2 coming to the spot. He did not go to his usual residence but went to a cousin living elsewhere. After that day he had been in jail for about six months before his trial. There is nothing to show that he developed symptoms of schizophrenia in the interval. D. W. 3 admitted that for a month after the accused was taken to custody he had not told anybody of the accused's susceptibility to schizophrenia. At the trial before the Sessions Judge the accused gave a long and sensible statement referring to past events and to the witnesses examined for the prosecution. It betrays not only cogency and relevancy but also sharp memory, which are not indications of any mental unsoundness. In these circumstances, the absence of a plea by the accused of an insane impulse as the cause for his act becomes very significant.
7. Counsel contended that no motive for the offence has been made out by the prosecution and therefore it may be safely assumed that the accused did the act in an insane impulse. Fear complex, excitement or irresistible impulse, with loss of self-control, even if such be taken as been proved in the case, affords no defence to a crime under the Indian law and is therefore irrelevant except for a mitigation of the offence from murder to culpable homicide in certain circumstances. No insane delusion connected with the act is alleg-ied, much less proved. The manner in which the accused approached the deceased and caught him unawares with a firm grip on his chin and before he could even think of wriggling plunged the dagger-knife deep across his entire neck betray not an impulsive pounce but a planned attack. The Sessions Judge has found enmity with the family of P. W. 3 to have been the reason for the murder. The Public Prosecutor adds that jealousy at the graduation of the deceased might also have contributed to the act. Even if all that be not correct, the mere absence of a motive, cannot prove a mental incapacity or disease in the offender.
In many relevant aspects, the facts in Attorney General of South Australia v. Brown, 1960 AC 432 are similar to these here. Brown, who was employed as a station-hand, shot his employer, Neville Lord, on his head on the 3rd day of his appointment. Five days after the murder he surrendered to the police, asked them if his employer was dead and told them that neither the deceased nor any other person there had given him any reason to bear malice or had any argument with him. To the charge of murder the only defence urged was insanity on account of Schizophrenia. Abbot, J., in the course of his summing-up, told the jury:
You will remember Mr. Elliott (counsel for accused) drawing your attention to the fact that there was no motive for this alleged crime. Gentlemen, throughout the centuries of civilisation crimes have repeatedly been committed without any apparent or discoverable motive. That is one of the reasons why, in our childhood, we were taught never to put temptation in anybody's way and what would be temptation for another man, might be no temptation whatsoever to us. You may, perhaps, remember the words of Shakespeare- 'How oft the sight of means to do ill deeds makes ill deeds done'. There, standing before his eyes in Dave's empty room was the rifle and ample ammunition and there were the means to do ill deeds. Do you think that perhaps these means to do ill deeds made the ill deeds done in this particular case.? You may, perhaps, think that on November 23. the accused, when he shot Neville Lord was acting on an uncontrollable impulse-a dreadful impulse which arose suddenly and which he was unable to control. If that view should commend itself to you, it is my duty to direct you that that is no defence in law. The defence of uncontrollable impulse is unknown to our law, and if that, in your considered view, is the only, explanation of the death caused by the accused on November 23, it is your duty to bring in a verdict of guilty of murder.' The accused was found guilty and sentenced to death. An appeal to the Full Court of the Supreme Court having failed, the accused appealed to the High Court of Australia who quashed the conviction and ordered a new trial, observing: '.....it (uncontrollable impulse) may afford strong ground for the inference that a prisoner was labouring under such a defect of reason from disease of the mind as not to know that he was doing what was wrong' and blaming the trial Judge for not telling the jury 'the true operation of uncontrollable impulse as a possible symptom of insanity of a required kind and degree'. The Slate appealed to the Privy Council and their Lordships of the Judicial Committee advised Her Majesty 'that the appeal be allowed, the judgment of the High Court set aside and the verdict and judgment of the trial Court restored' (though their Lordships felt envy towards a happily married attractive young couple to be the cause for the unmotivated murder). Lord Tucker, in delivering the opinion of the Privy Council, said that the law will not refuse to listen to 'medical evidence... to the effect that if a man has an obsession and if he gives way to that obsession and does the thing which is always before his mind as the thing he wants to do, then in doing it he does not know the quality of his act, he does not know what he is doing, and does not know whether it is right or wrong' but 'it will refuse to listen to evidence of irresistible impulse per se'. Their Lordships refused to accept the presumption of law indicated in the High Court's judgment that uncontrollable impulse is a symptom of insanity and clarified it thus:
'Their Lordships are not, of course, suggesting that legal insanity cannot be sufficiently proved without medical evidence. The previous and contemporaneous acts of the accused may often be preferred to medical theory. But where the whole case for the defence is based upon the accused having a particular form of mental disease such as schizophrenia, the nature and symptoms of which are known to psychiatrists but knowledge of which cannot be attributed to a jury, the law will not step in to instruct a jury in the absence of medical evidence as to the 'true operation of uncontrollable impulse as a possible symptom of insanity of a required kind and degree.
I think that the standard of proof required by the law of India under Section 84, I. P. C. read in the light of Section 105, Evidence Act, is not any the less, and that a mere lack of proof by the Prosecution of a motive for the offence cannot be a substitute for the positive proof required of the Defence. In my opinion, the evidence in this case does not fulfil the onus which was on the accused to establish insanity.
8. In the result, I dismiss the appeal and accept the conviction entered by the Sessions Judge under Section 302, I. P. C.; but in view of the advanced age and the medical evidence of some disease of the mind of the accused- though not of the requisite kind and degree to make an exception-, I do not think the extreme penalty of law is called for and therefore reduce the sentence in this case to one of imprisonment for life.
Anna Chandy, J.
9. I agree.