Debabrata Mookerjee, J.
1. This appeal by the State Government is directed against am order of the Sessions Judge of Howrah acquitting the respondent Fatik Naskar of a charge of murder and directing his detention under Section 471 of the Code of Criminal Procedure.
2. The respondent was tried for the murder of one Bhusan Naskar who was his agnatic relation. Bhusan was lying in his khamar bari when the accused entered the shed and struck him on the neck with a katari causing bleeding injuries which resulted in instantaneous death. The deceased's wife saw the accused going out of the shed with a katari in hand; he was apprehended two hours later still holding the weapon in his hand.
3. The respondent pleaded not guilty and the defence was that he had been falsely implicated out of grudge and enmity on account of some land dispute between him and the deceased. It was further suggested On behalf of the accused that even if he had committed the act which resulted in Bhusan's death, he committed no offence in view of the provision contained in Section 84 of the Indian Penal Code. Thus it was the accused's case that he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law on account of unsoundness of mind.
4. The Jury were, divided in their verdict; 3 of them found the accused, not guilty; 2 of themfound him not guilty on account of unsoundness of mind; the remaining 4 found him guilty of murder.
5. The learned Judge treated the verdict as one of not guilty by a majority of 5: 4 and accepted it. He, however, directed the respondent's detention under Section 471 of the Code of Criminal Procedure and made a report to the State Government.
6. It has been contended On behalf of the State that the learned Judge seriously misdirected the Jury in his summing up with the result that the verdict resulted in a serious miscarriage of justice. It has also been argued that the manner in which the verdict was obtained, accepted and acted upon by the learned Judge indicated that there was considerable misunderstanding as to how a verdict in a case like this where unsoundness of mind was pleaded, should be taken.
7. There is, in our view, considerable force in the contentions put forward by Mr. Roy on behalf of the State. While dealing with Section 84 of the Indian Penal Code the learned Judge nowhere told the Jury that every man is presumed to be sane and to have the competent use of his understanding; he is also presumed to have a sufficient degree of reason to be responsible for his actions. Section 84 of the Indian Penal Code was just put before the Jury without any explanation whatever. The learned Judge did not tell the Jury that in order that the accused might avail himself of the provision of Section 84 it was necessary for him to prove that at the time of committing the act charged, he was labouring under such defect of reason or disorder of the mind as not to know the nature and quality of the act, or if he knew it, he did not know what he was doing was wrong or contrary to law. The three alternatives mentioned in the section, proof of any one of which would entitle the accused to the benefit of the section were not explained in any manner to the Jury. The Jury should have been told that any of the three elements stated in the section, if proved, would entitle the accused to the protection provided in the section. We think, therefore, the proper questions to be submitted to the Jury for their consideration were not put. They were not told to consider with reference to the evidence in the case whether it could be said that at the time of doing the act charged, the accused was by reason of unsoundness of mind incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The section, such as it is, was placed unaccompanied with any observation or explanation which the circumstances of the case required.
8. While dealing with the question as to how the accused's plea of unsoundness of mind was to be dealt with, the jury were advised that it was for the accused to establish the plea. In this, the learned Judge was entirely right but he gravely misdirected the Jury by omitting to tell them that the burden of proof required of the accused was less than that required at the hands of the prosecution in proving the case beyond reasonable doubt, and that the burden might be discharged by evidence satisfying the Jury of theprobability of that which the accused was called upon to establish. It is not enough to say that for the purpose of discharging the burden, the accused could depend upon the cross-examination of prosecution witnesses and that he was not obliged to call evidence himself. It was essentially necessary to tell the Jury that the burden of proof which rested on the accused in a case like this, was less onerous than the burden which jested on the prosecution.
9. In course of his summing up the learned Judge, surprisingly enough, referred to the reaction said to have been produced by the act of the accused on his neighbours. While dealing with the question of the accused's unsoundness of mind at the time of the commission of the act the learned Judge drew the Jury's attention to the conduct of neighbours and their reactions to the assault for the purpose of assisting the Jury to a conclusion as to whether or not the accused was of unsound mind. It was suggested to the Jury that when neighbours collected on the other side of a khal some distance away, it could not but be said that they took the accused to be of unsound mind. At the reappearance of the accused after the lapse of some time at the khamar which was the scene of crime, the boys of the locality melted away and that was taken as a circumstance suggestive of the fact that the neighbourhood was of the opinion that the accused was of unsound mind. These are grave misdirections which, in our view, vitiated the Jury's verdict The question is not what the reactions of the neighbourhood were when the accused was seen at the time of the alleged crime or thereafter; it was not a question of a particular kind of reaction being produced upon the minds of the neighbours; the real question was whether from the conduct of the accused before, at and after the incident the Jury could conclude whether the plea of unsoundness of mind taken in the case was available to the accused.
10. We think these are grave misdirections which vitiated the Jury's verdict and brought about a failure of justice.
11. The manner in which the learned Judge questioned the Jury for the purpose of ascertaining their verdict does not appear to us to have been appropriate. In a case where the plea of unsoundness of mind is taken, it is necessary to ascertain from the Jury their view as to whether the accused was, by reason of unsoundness of mind, incapable of knowing the nature of the act or of knowing that he was doing what was either wrong or contrary to the law. It is true, there is no provision in the Code of Criminal Procedure which enables the Judge presiding over a trial at the Sessions to take what may conveniently be called 'special verdict'. But where a special plea like insanity is taken in which the act committed has to be excused on the ground of unsoundness of mind, it is necessary that the Judge should ascertain from the Jury their view as to whether the plea was, available to the accused. While two of the jurors stated that in their opinion the accused was of unsound mind and therefore not guilty of the offence charged, no attempt was made by thelearned Judge to ascertain what the opinion of the other three jurors was, who also had found the accused not guilty. Section 303 provides that the Judge may ask the Jury such questions as are necessary to ascertain what their verdict is. We consider in a case of this kind where insanity was pleaded, the Judge should have availed himself of the provision of Section 303 of the Code of Criminal Procedure to ascertain what exactly the view of the Jury or of the majority of them was, as respects the question of unsoundness of mind. We consider the language of Section 303 to be quite wide so as to enable the Judge to put the necessary questions for the purpose of ascertaining what the verdict of the Jury is in a case of this kind.
12. The order of conviction or acquittal has ,to be made by the Judge upon the verdict of the Jury. Section 470 of the Code of Criminal Procedure provides that whenever a person is acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding must state specifically whether he committed the act or not. This provision is indicative of the correct procedure that has to be followed in obtaining the Jury's verdict in a case where a plea of unsoundness of mind has been entered. The section requires that there must be a specific finding as to whether the person charged committed the act or not. This is not all. Section 471 further provides that whenever the finding states that the accused person committed the act alleged, the Court before which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence, order such person to be detained in safe custody in such place and manner as the Court thinks fit and shall report the action taken to the State Government.
13. It is quite obvious that when a plea of unsoundness of mind is found established by the Jury, the Jury have to be asked as to whether the act alleged was in fact committed by the person charged. If the finding of the Jury or of a majority of them is that the person charged did in fact commit the act but was not liable in view of the provision contained in Section 84, then the Court is directed to deal with the accused in a particular manner as laid down in Section 471 and the succeeding sections of the Code come into play. It is, therefore, essential that there must be some basis for the action which the Court takes in a case of this kind, and that basis is furnished by the Jury's opinion as to whether the accused was entitled to the benefit of the protection of Section 84 and whether in fact the accused committed the act charged. Thus, reading Sections 303, 470 and 471 together, we think it is reasonably plain that in a case where a plea of unsoundness of mind is taken, the Judge presiding over a trial held with the aid of a jury, is required to obtain the Jury's view, not only as to whether facts have been established entitling the accused to the benefit of the protection of Section 84, but also as to whether the Jury, in fact, found that the accused had committed the act charged.
14. The present case illustrates the difficulty in not following the procedure envisaged above, which we think ought to be followed in a case of this kind. Although two of the jurors thought that the accused being of unsound mind at the time of the commission of the act, was not guilty of the offence charged, he had nevertheless committed the act. The learned Judge took the view of these two jurors as sufficient authority for making an order under Section 471 of the Code. In order that the learned Judge might act properly under Section 471, there should have been before him a verdict of the Jury or of a majority of them that the accused was not guilty of the offence by reason of unsoundness of mind and a further opinion that the accused had committed the act charged. Such verdict and opinion when obtained, would alone entitle the Judge to proceed under Section 471 of the Code. The question of unsound-ness of mind was essentially a question for the Jury to decide. So also was the question as to whether the person charged had in fact committed the act. The Judge's finding would necessarily have to be based upon the finding of the Jury but that was not done in the present case.
15. In the result the appeal succeeds and is allowed.
16. We think it would not be right for us in the circumstances of this case, to enter into evidence and decide the question of accused's innocence or guilt ourselves. We do not think the respondent has had a fair trial. We accordingly set aside the Jury's verdict and the order of acquittal passed by the learned Judge and direct that the accused be retried in accordance with law upon a charge under Section 302 of the Indian Penal Code.
17. Pending retrial the accused will continue in custody.
D.N. Das Gupta, J.
18. I agree.