Debabrata Mookerjee, J.
1. This appeal by the State Government is directed against an order of the Sessions Judge of Cooch Behar by which the respondent Durga Chama Barman was acquitted under Section 302 of the Indian Penal Code and ordered to be detained in accordance with the provision of Section 471 of the Code of Criminal Procedure.
2. The case for the prosecution briefly stated was that on the night of the 7th of October, 1958 when the respondent'- wife Kanchau Bala was sleeping with her children the respondent rushed in and out the throats of two of his infant daughters. The wife at once raised a by when neighbours appeared and forced open the door of the hut. The respondent was found standing with a bloodstained knife in hand; his clothes also had become bloodstained and the two daughters were seen lying dead with their throats cut. The respondent admitted his guilt and was at once secured and tied to a post, An information was given to the authorities and the police arrived and took the accused into custody. On the next day the respondent made a confession which was recorded by a Magistrate.
3. The investigation resulted in a charge sheet. After a preliminary enquiry the respondent was committed to take his trial before the court of session on two charges relating to the two deaths.
4. The respondent pleaded not guilty and his defence was that he had been falsely implicated, He made a long statement under Section 342 of the Code of Criminal Procedure in which he said that he had a quarrel that night with several persons who attacked him in his house at about 4 in the morning, these men forced open the door of the room with a view to killing him; luckily he escaped and concealed himself in a bamboo clump from where he -heard the cries of his wife that his children were being killed. He then ran back homo only to find that they had killed one of his daughters. Some of these men were still standing at the door and they apprehended him. He averred that he had never admitted his crime, denied having been found with a knife and suggested that his wife had passed under the influence of his enemies. He added that he did not recollect what he had stated in his confessional statement before the Magistrate and explained that he came to have stains of blood on his clothing when he took the murdered child in his lap.
5. The prosecution called evidence to prove that the respondent had murdered both the children; the wife deposed against the respondent and said that he snatched away one of the children from her breast and cut her in spite of her entreaties. She stated that she had never seen any sign of insanity in her husband at any time since her marriage.
6. The evidence furnished by the wife was direct evidence of murder. The neighbours who came up to the place proved that the respondent had been found standing inside the room with a bloodstained knife and the children lying dead whom he admitted to have killed. The doctor who held the post-mortem examination deposed that the two children had suffered death by violent means.
7. The learned Judge considered the evidence and came to the conclusion that the respondent had killed his daughters .but acquitted him on the view that he had been able to discharge the onus that lay on him of proving that at the time he killed them, he was of unsound mind and consequently incapable of knowing what he did was either wrong or contrary to law.
The learned Judge relied upon certain circumstances in aid of this conclusion. He thought that this was a case of motiveless malignity, that the respondent had made no attempt at concealment and even bragged before the witnesses that he had killed his daughters and did not have any hesitation to eat as much as half a seer of pounded rice shortly after he had killed them.
8. In view of the order which we propose to make we do not wish to express any opinion on the validity or adequacy of the reasons given by the learned Judge for holding that the respondent had been able to discharge the onus that lay upon him to prove that at the time of doing the acts charged he was incapable of knowing their nature or that he was doing what was either wrong or contrary law.
9. It seems to us that the learned Judge had before the trial concluded, reasons to think that the respondent was of unsound mind and) consequently incapable of making his defence. He observed that during the trial, he had found the respondent hanging his head down and taking no interest whatever in the proceedings. He did so when the witnesses gave evidence against him; that is also how he behaved even when his own wife deposed against him. If the Judge felt persuaded at that stage that the respondent was not capable of following the proceedings, it became at once the duty of the learned Judge to act in accordance with the provision of Section 465 of the Code of Criminal Procedure, That section says that if a person appears to the court at his trial to be of unsound mind and consequently incapable of making his defence, the court concerned is required to try in the first instance the fact of such unsoundness and incapacity. If as a result of, the enquiry the court is satisfied that the accused is so incapable, then all further proceedings are required to be postponed. It does not appear to us that the learned Judge ever realised that as soon as it appeared to him that the respondent was incapable by reason of unsoundness of mind to make his defence, it became his duty to act at once under Section 465 and try the issue of such incapacity.
10. While we take a retrospect it may perhaps be said that in view of the detailed statement made by the accused under Section 342 of the Code of Criminal Procedure, it is not likely that the respondent was incapable of making his defence at the trial. But the provision which we have just read, seems to us to be imperative and wo think that once it appeared to the Judge that the respondent was incapable of making his defence, it became his duty to follow the procedure prescribed in Section 465.
11. It is not always realised that there is a distinction, having a widely differing effect, between incapacity at the time of doing the act charged and incapacity at the time of trial. While both are induced by unsoundness of mind, the former is substantive which excuses the offence under Section 84 of the Indian Penal Code; the latter affects procedure and merely postpones the trial under Section 465 of the Code of Criminal Procedure. Proved incapacity at the time of doing the act gives a clean bill for all time; but incapacity to make a defence may disappear on a future date when the trial must be resumed. A. person incapable of making his defence cannot be tried. Incapacity continuing from the time of doing the act, as much as incapacity supervening thereafter and persisting at the time of trial, will only result in postponement of the proceedings. But if there is no present incapacity, the trial takes place at which the plea of incapacity at the time of doing the act charged becomes a relevant plea, the proof of which lies on the defence under Section 105 of the Evidence Act, whatever the standard of that proof may be.
12. We think, therefore, that the conclusion of the learned Judge cannot be upheld on the ground that the trial was conducted in. disobethence of the mandatory provisions of Section 465 of the Code of Criminal Procedure.
13. We accordingly allow the appeal, sot aside the order of the learned Judge and direct him to proceed in accordance with law.
14. In the event of it appearing to the Judge at the new trial that the respondent is still incapable of making his defence, steps should be taken to get him examined as to his mental condition by the Chief Medical Officer of the district who should be summoned to give evidence on the initial issue of incapacity to make a defence, and if necessary, on the issue of incapacity at the time of committing the acts charged.
D.N. Das Gupta, J.
15. I agree.