C.C. Ghose, J.
1. The accused in this case was charged under Section 302, I.P.C., with having committed the murder of Mr. G.H.W. Davies, I.C.S., District Magistrate and Collector of Chittagong, on 20th April 1928, and was tried before the learned Additional Sessions Judge of Chittagong Mr. A.E. Porter and a jury.
2. It was urged on behalf of the accused in the Committing Magistrate's Court and also in the Sessions Court that at the time when it was alleged that he had committed the murder in question he was of unsound mind and that, in the circumstances, he was not responsible for what he did. The jury unanimously found the accused guilty under Section 302, I.P.C., and further that the accused could not claim any exemption under the provisions of Section 84, I.P.C. In answer to a question put by the learned Sessions Judge, whether the jury were of opinion that the accused was of unsound mind at all, six of the jurors were of opinion that he was not but the remaining three thought that he might have been. The learned Judge accepted the unanimous verdict of the jury and sentenced the accused to death. The learned Judge observed as follows:
I agree with the minority of the jury that the accused was of unsound mind at the time when the crime was committed. As there is a clear finding that his unsoundness of mind was not such as to exempt him from criminal liability, however, I do not consider that this opinion, especially in view of the finding of the majority of the jury, justifies the imposition of any sentence by me save the maximum. I therefore sentence the accused to be hanged by the neck until he be dead, subject to the confirmation of the High Court.
3. In his letter of reference to this Court the learned Judge further observed as follows:
There is clear oral evidence on the record that the conduct of the accused for some considerable time preceding the commission of the offence was such as is identical or analogous with conduct upon observation of which the Civil Surgeon declared it to be his opinion that the accused is of unsound mind; there is no reason to disbelieve this evidence and it is corroborated by a considerable number of documents, in the proved handwriting of the accused, which must have been in preparation over a long period and which there is no reason to believe to have been fabricated for any fraudulent purpose. There appears to me to be no ground for holding that the madness displayed by the accused was feigned. I am clearly of opinion that, upon the evidence, the jury erred in not finding that the accused was of unsound mind when he committed the crime although I hold that, there is nothing to show that, even so, ho is entitled to the benefit of Section 84, I.P.C. In view of the clear verdict of the jury, however, I did not consider it open to me to give effect to my own conviction that the accused is of unsound mind and was so when he committed the offence.
4. The facts involved, shortly stated, are as follows: The accused Kazi Bazlur Rahman called on the late Mr. Davies at his bungalow on 20th April 1928, at about 7 a.m. and asked the orderly on duty Kala Mian to take in his card which ran as follows:
Kazi Bazlur Rahman. I have got title Byron Lord. And Student Oxford University England.
5. This card is Ex. 11 in this case. Mr. Davies had not come to his office room then and the orderly asked him to wait. In the meantime, another visitor, namely Babu Kali Sankar Dutta (Witness No. 8) who is the local Government pleader .attached to the Munsif's Court, arrived. He too, was asked to wait. Shortly thereafter Mr. Davies came into his office room and the orderly Kala Mian took the accused's card to him and, under Mr. Davies's orders, the accused was called in. The accused sat down on a chair on the left of Mr. Davies who was facing the west. Mr. Davies gave to Kala Mian a key to open a box 'containing certain papers. Kala Mian opened the box and took out the papers and then went outside the room. Mr. Davis and the accused were then conversing. The Collectorate Nazir Babu Mahendra Lal Sankar (Witness No. 2) had meanwhile arrived with a deputation of about 50 people for submitting a 'representation to the Magistrate in connexion with a night-soil depot for the removal of which the Municipality had taken and was taking no steps. About 5 or 6 of the members of the deputation accompanying the Nazir came inside the southern verandah where Bubu Kali Sankar Dutta was waiting and some others remained in the compound and some on the steps leading up to the gate. The Nazir was speaking to Kala Mian when the latter heard a sound of something falling. What happened thereafter is described by Kala Mian as follows:
I heard the Collector say 'pakro pakro. ' I ran forward up to the thereshold of the room. I saw that the Collector had fallen with his head slanting and on a shelf which had fallen He was on his back and was struggling. The accused was drawing out a knife from the chest of the Collector who was kicking. The accused stabbed again and the blow fell on his leg. I can't say which leg it fell on. I went to seize the accused and he threatened to stab me. I jumped back and the Nazir caught hold of the accused from behind. After that I also seized his elbow and Kadar Baksh (the Collectorata peon, witness 4), seized his wrist. The gardener and others came and seized him and Kader Baksh snatched away the knife which I can recognize. This (Ex. 1) is the knife and the price ticket on it was on it then. It was . then open. The Collector was bleeding from the chest. He could not speak. The Ayah and the bearer Dasarath took him away. He took the accused on to the verandah. The police came and took him into custody. The accused is the man who came and stabbed the Collector. The Collector, died 4-5 minutes after. I was then present. He was unable to say anything after the wound. There was no one but the Collector and the accused in the room.
6. The Nazir's account is as follows:
I saw that the accused was then withdrawing a knife from the chest of the Collector The Collector was kicking. I raised an alarm. I called out that the Collector was stabbed, catch the murderer. Kala Mian and I entered the room. Kala Mian went to the right and I went behind him. The accused was then trying once more to stab the Collector on the chest but as he was kicking the blow fell on his left leg. Kala Mian went to the right and tried to catch the hands of the accused. He was trembling. Seeing him the accused jumped up and threatened to stab him. I went round to his back and pinned his arms to his sides with my arms. Kala Mian, Kadar Baksh, Abdul Malek (Witness 5) and Antil came up and seized the accused. Kadar Baksh caught the right wrist of the accused in which the knife was and took the knife from him. The Collector was bleeding from the chest. The bearer and the Ayah took the Collector away. The Collector looked at me when I pinned the accused's arms to his side but he could not speak. We removed the accused to the verandah. I left the accused with my peons etc., and went into the room to see the Collector. I found him gasping but unable to speak.
7. Kadar Baksh (Witness 4) after describing how he seized the accused's wrist states:
We did not strike nor abuse the accused. He did not say anything to us. He struggled to escape when we seized him.
8. Dasarath, the bearer (Witness 6) who was in the southern verandah of the house talking with the Nazir gives a similar account and states as follows:
I saw the accused taking out a knife from the chest of the Collector. He struck again but, as the Collector was kicking his legs, the blow fell on his leg. Kala Mian went to catch him but the accused aimed a blow at him and he went back. The Nazir went to the back of the accused and secured him.
9. After the accused had been taken into custody he was brought to the bungalow of the Sadar Sub-Divisional Magistrate (witness 10). The latter's evidence is as follows:
I told him I was a Magistrate, that he was not bound to make any statement, but that if he made any statement I should record it and it would go in evidence against him. He replied that if it was to be used against him he would not make a statement.
10. The Sadar Sub-Divisional Magistrate wrote in his order-sheet as follows:
Accused Kazi Bazlur Rahman brought under arrest under Section 302, I.P.C. He is remanded to hajut till 2nd May 1928. He refused to make any statement before me. He has got slight marks of injury on the left temple and right leg.
11. At the trial before the learned Additional Sessions Judge the main contention on behalf of the defence, as indicated above was that the accused was insane at the time when it was alleged that he had committed, the crime in question. No less than 29 witnesses for the defence were called in support of this contention. The learned Additional Sessions Judge has in the course of his very careful charge to the jury analyzed the evidence on behalf of the accused including the documentary evidence and has shown what the state of the accused's mind was from 1921 up to shortly before the date of the occurrence. According to the witnesses on behalf of the accused, the latter was subject to fits of insanity, the last of which beginning in 1925-1926 had been practically uninterrupted up to or shortly before the date of the occurrence. It is not necessary for the purposes of this judgment to reiterate herein the summary of the evidence as given by the learned Judge. The learned Judge states as follows:
We have evidence which, if believed, shows him suffering from delusions, e. g. that he is a person with ability and qualifications which he has not, with titles to which he has no right, claiming unusual powers (a saint, Imam Mahdi etc.) anxious to complete his education in England. All those delusions are evidenced not by witnesses only but by documents whose volume makes it unlikely that they were fabricated for the purposes of any possible action. They are amongst the observations on which P. W. 1 (Major Hodge, I. M. S.) the local expert, bases his opinion that the accused is unsound in mind. As I said before whilst directing the jury to consider the fitness of the accused to stand his trial, the opinion of P. W. 1 (Major Hodge) on the point may be disregarded but only on very valid and certain grounds and to disregard it, would ba extremely unusual and unwise: If the jury accept it for the present state of the accused and believe the evidence of conduct of the accused before trial I am unable to point to any. consideration on which the jury can fail to come to the conclusion that from 1925-1926 up to the day before the crime the accused was of unsound mind. That unsoundness also evidently was of the cognitive faculties for it prevented him from knowing what he was doing when, e. g. he addressed imaginary audiences, thought he was a person of distinction, imagined he could become a barrister in England within a few months, etc. If the unsoundness that is now present is proved up to a short time before the crime, in the absence of evidence, the presumption is that it continued up to the time of the commission of the crime.
12. It appears that the accused was committed on 16th May 1928 after the necessary preliminary enquiry by the Committing Magistrate to the Sessions Court for trial. At the enquiry before the Magistrate the accused was represented by a, vakil named Babu Jogendra Chandra. Dutta, a Member of the Comilla Bar. On 17th May 1928 the Sessions Judge directed that the trial should begin on 11th June 1928. On the last-mentioned date the trial opened before the Additional Sessions: Judge and the charge under Section 302, I.P.C. being read, over to the accused he pleaded not guilty. The jurors were then chosen in accordance with the directions contained in the judgment of this Court dated 5th December 1927 Vide A.I.R. 1928 Cal. 83 (F.B.). Babu Rama. Prosanna Singha, pleader, a member of the Ohittagoing Bar, who was present in Court, intimated to the learned Additional Sessions Judge that he had been engaged and had received a power from the accused, but that a senior having been, also engaged under whom he was to act. he had no instructions. The senior referred to was apparently Babu Jogendra, Chandra Dutta and he was absent. Babu Rama Prosanna Singha stated that he had received instructions from his senior that in the event of the trial being taken up on 11th June the accused would be undefended, whatever that might mean. A petition purporting to be filed by the brother of the accused was put in applying for an adjournment. This application was refused. The case thereupon proceeded and the first point for determination was whether the accused was in a fit condition to stand his trial. Major Hodge, the Civil Surgeon of Chittagong, was ex-amined-in-chief. Babu Rama Prosanna Singha having stated that he was not prepared to conduct the case for the accused in the circumstances, the accused was asked to cross-examine Major Hodge. He refused or was unable to put to Major Hodge any relevant questions in cross-examination. The jury after listening to Major Hodge's evidence were unanimously of opinion that the accused was capable of making his defence and of standing his trial. The learned Judge agreed with and accepted the verdict of the jury on this point and it was directed that the case should proceed. It then became necessary to consider whether steps should not be taken to secure the representation of the accused by a legal adviser. The learned Judge in his order sheet observed as follows.
In the present case the accused was represented in the Committing Court by Babu Jogendra Chandra Dutta. Three lists of witnesses were filed for him after the commitment. He was represented in this Court by Babu Rama Prosonna Singha who, on 5th June 1923, filed an application for adjournment on his behalf. At the time of hearing, Babu Rama Prosanna Singha intimates that he is a junior only in this case and is not prepared to prosecute the defence as he has not acquainted himself with the brief, and that his senior is Babu Jogendra Chandra Dutta. No power for this pleader has been filed in the Sessions Court, but none is apparently necessary. I see no reason to disbelieve Babu Rama Prosanna Singha. If what he says is true, legal advice was retained for the accused and I cannot find that he is unable to afford to employ counsel for his defence. I am prepared to certify in the circumstances that the accused can afford to engage lawyers for his defence. At the same time the rules do not appear to take away my discretion to require the accused to be represented for the ends of justice. In the present case I am clearly of opinion that he should be represented because there is already on the record evidence that the plea of insanity suggested in the lower Court is a genuine plea and I hold it to be essential in the interests of justice to determine the fact of the accused's sanity at the time of the crime. A large number of witnesses have been cited for the defence and their evidence cannot be elicited satisfactorily without great waste of time unless a pleader appears for the accused. The District Magistrate will therefore be requested to arrange as early as possible for the representation of the accused. Meantime the witnesses for the prosecution will be examined and the accused will be given an opportunity to cross-examine them. If he applies for their recall for further cross-examination after the appointment of a representative they will be recalled for further cross-examination.
13. It appears that thereafter the District Magistrate appointed Babu Mahim Chandra Guha, Vakil, of the Chittagong Bar, to defend the accused. Mr. Wilkinson, the District Magistrate, in his affidavit filed in his Court states as follows:
That it was on 12th June that I was asked by the Additional Sessions Judge to engage a pleader to defend the accused and that I thereupon selected Babu Mahim Chandra Guha, a leading pleader of this Bar and of the same calibre as the Government Pleader in order that the accused might be defended as ably and vigorously as possible.
14. But Mahim Chandra Guha appeared before the learned Additional Sessions Judge on 12th June, but as he had no previous instructions the learned Addl. Sessions Judge acceded to his request to allow him to take notes of the deposition of the prosecution witnesses who had been examined up to that date and to postpone their cross-examination till all the prosecution witnesses had been examined and then to begin the cross-examination from the next day, i.e., 13th June 1928. On 13th June Babu Jogendra Chandra Dutta of the Comilla Bar appeared for the accused before the learned Additional Sessions Judge but he said that he would refuse to act as junior to the vakil appointed by the Crown for the defence of the accused. There was some discussion about the power which Babu Jogendra Chandra Dutta had from the accused. The facts will be found set out in the learned Additional Sessions Judge's order dated 13th June 1928 in the order-sheet. In the end, the learned Addl. Sessions Judge came to the conclusion that the trial should proceed and that in the Circumstances the accused should be represented by the vakil appointed by the District Magistrate i.e., Babu Mahim Chandra Guha.
15. It appears that thereafter all the prosecution witnesses were cross-examined by Babu Mahim Chandra Guha and that 29 witnesses for the defence were examined by him. Major Hodge, the Civil Surgeon, who had the prisoner under his observation since 4th May and who had given evidence before the learned Sessions Judge on 11th June 1928, was not crossexamined by Babu Mahim Chandra Guha apparently because of the fact that according to him, Major Hodge's opinion on the question of insanity was not un-favourable to the accused.
16. The accused has been defended before us by a very able Advocate Mr. A.K. Fazlul Huq. If we may say so, the accused's case could not have been in better hands, Mr. Fazlul Huq has argued that there has been no proper trial in this case and that, in the circumstances which have happened, our obvious course is to set aside the verdict of the jury and the sentence passed on the accused and to direct a retrial. Mr. Huq's point is that at the time when the jury were empanelled the accused was unrepresented and that the jurors not having been challenged the constitution of the jury was not in accordance with law. Mr. Huq has further argued that the learned Additional Sessions Judge was wrong having regard to the provisions of Section 340, Criminal P. C, in not allowing Babu Jogendra Chandra Dutta to conduct the defence on behalf of the accused when he appeared in Court on 13th June 1928 and that the trial was vitiated thereby. Mr. Huq has also argued that Major Hodge, the Civil Surgeon, not having been recalled for cross-examination on behalf of the accused, his evidence should go out of the record altogether and that that in itself is a sufficient circumstance, justifying his prayer for a retrial of the accused.
17. Before I proceed further into the merits I propose to dispose of the three points taken by Mr. Fazlul Huq and indicated as above.
18. In my opinion it is not correct to say that on 11th June 1928 the accused was wholly unrepresented. As will appear from the order-sheet, Babu Eama Prosanna Singha, pleader, who had been engaged on behalf of the accused, was present in Court. Apparently there was another gentleman who was his senior who had also been engaged on behalf of the defence but he was absent. It was open to the defence to challenge the jurors as their names were called out but Babu Eama Prosanna Singha did not challenge any body. He contented himself by saying that he was only a junior. In this proceeding I am not concerned with the conduct of Babu Rama Prosanna Singha or of his senior. The only question which is immediately before me is whether the constitution of the jury was in accordance with law. There can be no doubt, in my opinion, on the facts appearing on the record that the constitution of the jury cannot be assailed and that Mr. Fazlul Huq's first point must be decisively negatived. The duty of an advocate charged with the defence of a person accused of a very serious crime will be found dwelt upon by Lord Brougham in his celebrated defence of Queen Caroline where the topic of fidelity to the client is exhaustively discussed. Entire devotion to the interests of the client, warm zeal in the maintenance and defence of his rights and the exercise of his utmost learning and ability, these are the points which can only satisfy the truly conscientious advocate. Every man accused of an offence has a constitutional right to a trial according 'to law and the duty of his counsel re-quires him to scan with legal knowledge the forms of the proceeding against the accused. (See in this connexion Professor Christian's note to 4 Blackstone's Commentaries, 356 ; Lord Erskine, 6, Campbell's Lives of the Lord Chancellors, page 361).
18. As regards Mr. Fazlul Huq's .second point, there is no substance in it and it will appear from the record that there were justifiable grounds for coming to the conclusion that the absence of representation of the accused by legal advisers, the ineffective representation by them between the 11th and 13th June was part of a plan which had already been determined upon : See in this connexion the petitions put in on 5th and 11th June respectively. No exception can be taken to the conduct of Babu Mahim Chandra Guha for it is to be remembered that counsel assigned for the defence of an accused charged with the offence of murder cannot decline the office, nor can he abate a jot of his duty to the accused and to the Court, because of the querulous attitude taken by another counsel who is asked to associate himself with the counsel assigned to the accused : See per C.J. Hale 3 Campbell's Lives of the Lord Chief Justices 20; Sharswood's Professional Ethics, p. 92. I am satisfied that the learned Sessions Judge in the orders he passed on 13th June did not seek to interpose between the accused and his friends.
19. As regards Mr. Fazlul Huq's third point, I am satisfied from the affidavit of Babu Mahim Chandra Guha placed before us that in the circumstances of this particular case, no prejudice whatsoever has been caused to the accused by reason of the. non-cross-examination of Major Hodge, the Civil Surgeon. The examination-in-chief of Major Hodge showed that his opinion was not hostile to the accused and Lam not prepared to say that Babu Mahim Chandra Guha did not exercise a wise discretion in not cross-examining Major Hodge. The object of cross-examination is not to produce startling effects but to elicit facts which will support the theory intended to be put forward. If the facts are already on record, the skilful cross-examiner knows when not to make an unskilful use of the right of cross-examination.
20. In this view of the matter, I must negative Mr. Fazlul Huq's plea for a retrial of the accused and I will now proceed to consider the other points urged by him. Mr. Fazlul Huq has argued that at the time when it was alleged that the accused had committed the crime in question he was of unsound mind and that his condition of mind was such as would bring him within the rule of law laid down in Section 84, I.P.C. He said that upon the evidence it might be perfectly clear that the accused was the man who had inflicted the fatal wound on Mr. Davies but the question of his culpability for the act which the accused committed had not been properly considered. The Civil Surgeon was examined before the Committing Magistrate and the Sessions Judge who asked him if the accused was in a fit condition of mind to stand the trial. But that did not prove that the accused had lapsed into sanity at the time of the alleged murder. The Civil Surgeon also said that he did not know the accused's past history. There was evidence that the accused thought himself to be a great poet, he had written cart-loads of poetry and thought that he was Byron, Shelly, and Wordsworth, that he lectured before imaginary audiences on every conceivable subject under the sun for several hours together every day. The opinion of the Civil Surgeon should have been asked as to what he thought of the man with such a history.
21. The law relating to the plea of insanity has been laid down by eminent Judges from time to time, but it may not be wholly out of place to state very briefly what I conceive to be the true position. It is for the jury to determine whether the prisoner, when he committed the offence with which he stood charged, was incapable of distinguishing right from wrong or under the influence of any delusion which rendered his mind at the moment insensible of the nature of the act he was about to. commit -- since in that case he would not be legally responsible for his conduct. On the other hand provided the jury should be of opinion that when he committed the offence he was capable of distinguishing right from wrong and not under the influence of such a delusion as disabled him from discerning that he was doing a wrong act or one contrary to law, he would be amenable and held guilty in the eye of the law. In other words, to establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act, the party accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. If the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrary to the law of the land, he is punishable. The standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong.
22. Once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law, it was punishable by law. It has also been said by a very high authority that one must see that the accused's disease of the mind was formed before the act was done. Any disease which so disturbs the mind that you cannot think calmly and rationally of all the different reasons to which we refer in considering the rightness or wrongness of an action, any disease which so disturbs the mind that you cannot perform that duty with some moderate degree of calmness and reason may be fairly said to prevent a man from knowing that what he did was wrong. The onus of proof where the plea of insanity is taken on behalf of the accused lies on him and it must be proved affirmatively that the accused was insane at the time when he committed the act in question. Uncontrollable impulse co-existing with the full possession of the reasoning powers is no defence in law nor is moral insanity i.e., existence of delusions which indicate a defect of sanity such as will relieve a person from criminal responsibility, any defence in law. It is not mere eccentricity or singularity of manner that will suffice to establish the plea of insanity ; it must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question. If there is evidence of premeditation and design or evidence that the prisoner after the act in question tried to resist arrest, the plea of insanity may be negatived. A prisoner trying to resist arrest after he had committed the act in question shows that he is well aware that he has committed an act which in law is criminal : per Erle, C. J., R. v. Leigh  4 F. & F. 915. It is a mistake to suppose that in order to satisfy a jury that the plea of insanity is well-founded, scientific evidence must be adduced. If the existence of facts is such as to indicate an unsound state of mind, that is quite sufficient: per Brett, L.J., R. v. Dart  13 Cox. C.C. 143.
23. Bearing these principles in mind I have examined the record in this case minutely and I have not failed to keep ever present in my mind the terms of the verdict of the jury, of the judgment of the learned Sessions Judge and of his letter of reference to this Court. I am unable to come to the conclusion that the evidence on record discloses circumstances which would enable the accused to claim exemption under the provisions of Section 84, I.P.c. It is abundantly clear on the evidence on record that it was the accused who killed Mr. Davies and that there was premeditation and design on the part of the accused. Some evidence of the state of mind of the accused in 1924, 1925 and 1926 had been given which showed that he was of an eccentric character and had occasional delusions about his position and capacities. But what was his condition in 1928? He had come all the way from Tippera to Chittagong, written perfectly lucid letters, asked for an interview with Mr. Davies, went there correctly attired, and had taken the precaution of going there early in order to avoid the presence of other interviewers. When he was caught, he struggled. Six hours after the occurrence when the Committing Magistrate saw him and told him that if he made any statement to him (Magistrate) the same might be used against him (accused) the accused declined to make any statement. The accused had provided himself with a knife which was new: see the evidence on record, pp. 16, 19, 21, 22, 25 and 26, If as a matter of fact there was premeditation and design, as we hold there was, the plea of insanity must at once be negatived. The accused cannot claim any exemption whatsoever under Section 84, I.P.C. Further, there is considerable evidence that immediately after the act in question there was a struggle between the accused and those who rushed up to him for the purpose of arresting him. The accused tried his best to resist arrest. He did not succeed because he was overpowered by the people who had assembled in the verandah of the Magistrate's bungalow. The fact that the accused tried to resist arrest shows unmistakably that he was well aware at the time that he had committed an act which in law was criminal. This circumstance would also show that the accused cannot claim any exemption under Section 84, I.P.C. The jury found that the accused cannot claim exemption under Section 84, I.P.C., an opinion with which the learned Judge agreed. Nothing has been shown to me which would justify me to take a different view. I am therefore constrained to hold that the accused has committed an act punishable under Section 302, I.P.C. It was argued before us that no motive is discernable on the record and that that lent considerable support to the plea of insanity. Now if the facts are clear so far as the act complained of is concerned the motive is irrelevant. If the facts are not clear, motive may explain what otherwise would be difficult of explanation. The want of motive for the commission of a crime and its being committed under circumstances which render detection inevitable are no doubt important points to be taken into consideration coupled with the other evidence on record bearing on the question of insanity. In my opinion it is not the law that because a horrible murder has been committed with no apparent motive, in circumstances as have been spoken to by the prosecution witnesses, one may conclude therefrom that the perpetrator of the deed in question must have been mad at the time.
24. The question now arises about the sentence which we should pass on the accused. There can be no doubt that he was not in a healthy state of mind for some considerable time before the date of the occurrence. His mind was one which had been morbidly affected. The evidence on record abundantly justifies that view and we are to a considerable extent fortified by the opinion of Major Hodge. On the question of sentence the learned Sessions Judge's opinion must carry great weight with us. In these circumstances, we think the ends of justice will be sufficiently met by our commuting the sentence of death passed on the accused to one of transportation for life. We direct accordingly.
25. The appellant has been convicted of the murder of Mr. G.H.W. Davies, I.C. S., and sentenced to death.
26. The prosecution case is that on the morning of 20th April the appellant called on Mr. Davies and, at the close of an interview lasting about 10 or 15 minutes, stabbed him in the chest with a knife inflicting injuries of which Mr. Davies died in the course of a few minutes. No one was present at the time but, hearing the noise caused by Mr. Davies falling and crying out, Mahendra Lal Sarkar Nazir and Kala Mian, orderly, who were in the verandah attached to the office room where this took place, rushed into the room followed by others. They saw the appellant withdrawing a knife from Mr. Davies chest and then inflicting another wound on his leg as he lay on the floor helpless but kicking out with his legs. The Nazir seized the appellant from behind and Kala Mian then snatched from him this knife Ex. 1.
27. That the appellant stabbed Mr. Davies with a knife and so caused his death is not now disputed. It is merely urged that he did not use the knife Ex. 1 to which a price label is attached showing that it was newly purchased. This suggestion loses all force in so far as it is intended to negative premeditation, when we find that during the course of the examination of the prosecution witnesses, the accused stated that his knife had no price ticket, he had removed it the night before. This statement shows that, in any case, he brought a knife with him. Moreover there is overwhelming evidence that Ex. 1 is the knife actually taken from the hand of the accused at the time.
28. It is admitted that the learned Judge's summing up was eminently fair but it is urged on behalf of the appellant that he was not properly represented at the trial inasmuch as the learned Judge refused to allow the pleader engaged by the appellant's brother, to defend the appellant. The order on the order-sheet dated 13th June 1928 shows that, in fact, the learned Judge refused to allow Babu Jogendra Dutta to appear for the accused on that date without a power from the accused whom the jury had found to be capable of defending himself and as the pleader refused to certify that he was satisfied that the accused had validly executed a power. Whatever may have been the propriety of this order, a perusal of the affidavit filed by the defence pleader Babu Mohim Chandra Guha Dey Barma (one of the leaders of the Chittagong Bar) shows that there is no substance in this objection to the manner in which the trial was conducted. On the first day of the trial, viz., 11 June Babu Rama Pd. Singha intimated to the Court that he had received a power from the accused and that a senior was also engaged under whom he was retained, but that he had no instructions and that his senior had instructed him that if the trial were taken up that day the accused was to be undefended. Thereupon Mahim Babu was appointed by the District Magistrate to defend the accused.
29.It is urged that the accused was prejudiced inasmuch as Major V. S. C. Hodge, the Civil Surgeon was not recalled for examination after he had had the past history of the accused put before him as detailed by the witnesses. However, in the affidavit referred to above, it is explained that Major V. S. C Hodge was not recalled because his evidence as it stood was very favourable to the accused, and that Mahim Babu's decision not to examine him again was entirely approved by the relatives of the accused. It is significant that in the very detailed and elaborate petition of appeal filed by the appellant there is no suggestion that the appellant was in any way prejudiced by the District Magistrate's appointment of a pleader to defend him, on the contrary he candidly admits that the vakil did whatever lay in his power, and further makes no complaint regarding the non-appearance of Babu Jogendra Dutta.
30. But in any case these prelminary points need not be considered as the learned advocate for the appellant does not press them in view of the order which we propose to pass.
31. The only question which remains to be considered is whether, at the time he stabbed Mr. Davies, the appellant was, in the words of Section 84, I.P.C. 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.
32. There is evidence indicating that since 1925, the appellant used at times to talk incoherently and to himself. In 1926 he claimed at different times to be (or. to have. received the titles) Shelley, Wordsworth, Byron, and Iman Mahdi. Then in 1927 we find him writing the incoherent and unintelligible letters Ex. D, Ex. D/l, Exs. E and E/l which certainly indicate a disordered mind.
33. On the day before the occurrence he wrote the letter Ex. 18, which, though indicating a weak intellect and wandering mind, is quite intelligible. Finally just before the occurrence he sent in his card to Mr. Davies inscribed:
Kazi Bazlur Rahman -- I have got title Byron Lord and student Oxford University, England.
34. It is clear therefore that up to the time of the occurrence he was more or less mentally unsound. Notwithstanding this, his conduct up to the time of the occurrence and the evidence of the Post Master and other witnesses regarding his enquiries on the previous day about the non-delivery report of a telegram, shows that he was quite capable of transacting business intelligently.
35. The evidence of Mr. Siddique Rahman, Public Prosecutor, Comilla, throws some light on the object of his visit to Mr. Davies. Eight or ten days before the occurrence he wanted to see the District Magistrate at Comilla in connexion with some previous correspondence (cf. Ex. D and Ex. D/l) and Mr. Siddique Rahman told him that, Mr. Nelson, the Magistrate with whom he had corresponded was no longer there. He then said that he would go to see the Commissioner at Chittagong if his case had been transferred there. He further made a parade of his poetic powers referring to Byron, Shelly and Wordsworth and said he had heard that Mr. Nelson talked very highly of his diction and language and he had wanted to pay his respects to him. In the correspondence referred to (Ex. D and D. l), so far as it conveys any sense at all, he complains of domestic troubles and that his wife had been hypnotizing him, also he wants to be recognized as a great poet and to be permitted to go to College. On the day before the occurrence as the evidence of the Post Master and Station Master shows he had wired to his uncle for Es. 3,000 and was agitated because no reply had come; he wanted also a passport to go to England. On Mr. Davies' table were found five note books of the accused containing unintelligible poetry and the inference is that the appellant wanted recognition of his poetic powers and some facilities for going to College in England. There is evidence showing that at times the appellant acted violently when opposed e.g. when witness Hosani (D. W. 18) pressed the appellant to take medicine the latter gave him a kick on the chest and knocked him down. Again Amir Hossen (D.W. 24) says the appellant used at times to get furious with people who tried to remonstrate with him and when urged to take food would beat those who approached him. We can only conjecture what took place at the interview with Mr. Davies. It was just after Mr. Davies had concluded the interview by saying 'good morning' that the appellant stabbed him. There is no evidence as to motive but on the one hand it seems possible that the appellant was exasperated by not getting what he wanted or again it may be that the apparently morbid condition of his brain had produced a grave craving for relief by some such passionate action.
36. Whatever may be the explanation of his cruel and apparently unprovoked attack there are circumstances which seem to indicate that the appellant realized at the time what he was doing and that he was doing wrong. When Kala Mian went to seize him the appellant threatened to stab him. Again Kader Bux (P.W. 4) says the appellant struggled to escape when seized and this seems to be corroborated by the fact that he received slight injuries which the doctor says might have been caused by a struggle. When questioned few hours later by the Magistrate and told that any statement he made would be used in evidence he said that, if his statements were to be used against him, he would not make a statement. His purchase of the knife of this unusual description and bringing it with him probably indicates premeditation and, in any case, since he must have opened it (and its hinge is quite stiff) before stabbing Mr. Davies there was at least some deliberation. Finally his statements show that he remembers clearly the circumstances in which he stabbed Mr. Davies and, altogether, the facts are clearly incompatible with the theory that he did not know the nature of the act. The Civil Surgeon who had the appellant under observation from 4th May up to the time of his trial gave his opinion that he was of unsound mind during that period. He added however:
As far as I can judge his cognitive faculties are all right. His knowing and perceiving are correct, but his power of conceiving must be to some extent 'biased' if his delusions are genuine... there is that in his behaviour and in his physical condition which suggest that his nervous system is unbalanced.
37. As to his mental condition subsequent to the occurrence we have also the appellant's post card (Ex. 6) written in the jail two days after the occurrence. Apart from bad English this does not necessarily indicate an unsound mind and a post card(Ex. 5) written two days later is quite sensible and shows that, whatever delusions he suffered from, he quite realized his position. The same applies to another post card (Ex. 3) written a fortnight later.
38. Taking all the circumstances leading up to and connected with the occurrence into account, there can, to my mind, be no doubt that the appellant has failed to show, at the time he fatally stabbed Mr. Davies, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act or that he was doing what was wrong or contrary to law. He cannot therefore claim exemption from criminal liability Under Section 84, I.P.C. The weapon employed, an unusually large and heavy clasp knife, pointed like a dagger, the force used, which was sufficient to cut through a rib, the accuracy with which the blow penetrated the heart and the second blow all show that the appellant must have deliberately intended to kill Mr. Davies; he has therefore been rightly convicted of murder. There remains the question of sentence. On the evidence there can be no doubt that the learned Judge is correct in his opinion that the appellant was of unsound mind at the time of committing the offence. The six jurors who were of opinion that he was not of unsound mind must have thought that he was feigning insanity, but the apparent absence of motive and many other circumstances indicate that this cannot have been the case. The learned Judge seems to have thought that he was bound by this finding of the jury to pass a capital sentence. This is not so, and though the appellant is guilty of an atrocious and dastardly murder, in view of the evidence as to his; mental condition at the time, and particularly the evidence of the Civil Surgeon. I think that this is, a case in which a. sentence of transportation for life will meet the ends of justice.
39. The appeal is dismissed except that the sentence of death on the appellant is commuted to a sentence of transportation for life.