Prinsep and Stephen, JJ.
1. The jury have convicted the accused of murder, but the Sessions Judge has refused to accept this verdict because he considers that the jury, while finding that the 'accused killed the boy Ratneshwar should also have found that he was by reason of unsoundness of mind incapable of knowing, the nature of his act or that he was doing what is either wrong or contrary to law (Section 84 of the Penal Code), and that on this ground the jury should have acquitted the accused.
2. The evidence shows that the accused is addicted to intemperate habits by excessive use of opium, and that occasionally or for some days before and after killing the boy he was irresponsible for his actions. The manner in which the boy was killed amply confirms this.
3. The only doubt in our minds is whether the case falls under Section 84 or Section 85 of the Indian Penal Code. Under Section 84 unsoundness of mind producing incapacity to know the nature of the act committed or that it is wrong or contrary to law is a defence to a criminal charge, but by Section 85 such incapacity is no defence, if produced by voluntary drunkenness. If, however, voluntary drunkenness causes a disease which produces such incapacity, then Section 84 applies, though the disease may be of a temporary nature. Without attempting to lay down any rule as to what constitutes such a disease, we are of opinion that there was such a disease in the present case, which consequently falls under Section 84. The accused must therefore be acquitted. We so find in the present case. The accused must be kept in custody pending the orders of the Local Government, to which the case should be reported by the Sessions Judge under Section 471 of the Code of Criminal Procedure. We are further of opinion that, if the case had been more clearly explained to the jury, and they had been made to understand that they should find, not only that the accused had killed the boy under circumstances which would ordinarily amount to murder, but also whether the act comes within Section 84 of the Penal Code, they would probably have returned a proper verdict, so as to have rendered this reference unnecessary.