JUDGMENT
S.B. Sinha, J.
1. This criminal appeal arises out of a judgment of conviction and sentence dated 26th March, 1987 passed by Shri D.N. Pathak Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 286 of 198&’ whereby and whereunder the said learned court found the appellant guilty of offences under Sections 302 and 324 of Indian Penal Code and sentenced him to undergo imprisonment for life under Section 302 of Indian Penal Code, and rigorous imprisonment for a period of three years under Section 24 thereof The learned trial court, however, directed both the sentences will run concurrently.
2. The prosecution case, in brief, is that on 26.3.1984 at about 10 a.m. the informant Bhuli Loharin, wife of Baldeo Lohar along with her minor sons namely, Birsa and Nanhku, aged about 7 and 5 years respectively, were collecting mahua. At that point of time, the appellant came there and began knocking the door of Tri bhuwan Naik whereafter both the aforementioned sons of the informant went to that place. After some time the informant heard the cries of the boys which made her to rush to the place and on her arrival there, she found that the appellant had caused sharp cutting injuries to both of them with a Baithi. The appellant had also chased the informant but she caught the Baithi which was in the hand of the appellant resulting in sufference of injuries in her hand. Thereafter the appellant filed away. The informant found that Sirsa had already died and Nanhku was brought to her house in an injured condition. Soon thereafter, the villagers collected there to whom she told all about the occurrence. Later on, the other son of the informant ‘Nankhu’ also died.
3. In respect of the aforementioned occurrence the informant lodged FIR on the same day, i.e. on 26.3.1984 at about 8.30 p.m. The said FIR was marked before the trial court as Ext. 4. The postmortem examination of the aforementioned deceased persons were held on 27.3.1984.
4. In support of the prosecution case, seven witnesses were examined. P. W. 1 is Tangni Devi, wife of Sukhdeo Naik who stated that the appellant came to her house and kicked her door and due to fear she want inside her house and shut the door.
Later on upon hearing the noise of P. W. 2, she came out of her house. The informant (P. W. 2) asked for water from her, one of her children Birsa had died and whereupon she found that Nankhu, the other child was lying seriously injured. Both the sons of the informant were taken from there and thereafter Nankhu also died. According to her, she came to learn from the informant that both the boys had been killed by the appellant.
5. P. W. 2 Bhuli Loharin is the informant. As noticed hereinbefore she is also one of the victims and for causing injury to her, the appellant was charged under Section 324 of Indian Penal Code.
She stated in her deposition that both her sons were playing near the place of occurrence and when the appellant went to the khalihan and house of Tribhuwan Naik both her sons followed him, though she remained busy in her work.
6. Thereafter she heard the cries of her sons whereupon she rushed to the spot, and found that the appellant had caused Baithi blows to both of them and they had received serious injuries as a result thereof.
7. According to her, Birsa had already died. Thereafter the appellant also chased her with that ‘Baithi’. She caught the ‘Baithi’ and tried to snatch the same from the hands of the appellant and in that process, she suffered injuries on her left hand. However, she was able to snatch the ‘Baithi’ from the hand of the appellant. She gave water to Nankhu and thereafter he also died.
8. The villagers, who assembled there, were informed about the occurrence. Thereafer the police came to the place of occurrence and she gave her statement. She was also examined by the doctor.
9. P. W. 3 is the Doctor who conducted the postmortem examination and he found the following injuries on the person of Nankhu who was aged about 5 years:
(1) One incised wound 10″ x 1/2″ X 1″ on left side of neck, upper portion of face and on opening the wound the skin muscles, blood vessels, bone and brain membrance and the brain matter was found coming out.
(2) One incised wound 5″ x 1″ X 1/2″.in the left side of back of head and on opening the skin, muscles and bones were found cut.
(3) Three incised wound each 4″ x 3/4″ x 1/2″ on the left side of temporal region cutting bones muscles and blood vessels.
(4) Multiple incised wounds each 11/2″ x 1/2″ X skin deep on back of left shoulder joint.
(5) One incised wound 2″ x 1/2″ X skin deep on front of right lower are just below right elbow joint.
(4) One incised wound 4″ x 1″ X 2″ on the back and left side of neck on opening the skin muscles, blood vessels were found cut.
P. W. 3 has also conducted the postmortem examination of Birsa Lohar aged about 7 years on the same day and same time and found the following injuries:
(i) One incised wound 5″ x 1″ X 2″ on the back on head’ left side and on opening the skin the muscles bone and brain membrances were found cut and brain matter was found coming cut.
(ii) Two incised wounds each 5″ x 1″ X 2″ on the left side of neck just behind the left ear and on opening the skin, blood vessels and muscles were found cut.
(iii) One incised wound 4″ x 2″ x 3″ on right side of neck at the root and on opening the skin blood vessels and other important organs were found cut.
(iv) Two incised wounds each 1″ x 1/2″ X skin deep on back of left shoulder. According to doctor all the injuries on the body of both the deceased were antemortem in nature and they might have been caused by some sharp cutting weapons each as Baithi and the age of the injuries was within 20 to 30 hours. The death must have occurred instantaneously.
The postmortem reports were marked as Exts. 1 and 1/1.
10. P. W. 4 Damodar Manjhi and P. W. 5 Gulab Chand Manjhi are witnesses of the seizure of aforementioned ‘Baithi’ P. W. 4 was the Mukhia of the village. P. W. 5 also stated that Birsa was missing from the school and upon enquiry he came know about his death.
11. P. W. 7 Sukhdeo Lohar is Assistant Sub-Inspector of Police. He has merely proved FIR in the instant case.
12. P. Ws. 1 and 2 who are material witnesses were not cross-examined by the defence with regard to the occurrence at all. The said witnesses were merely given a suggestion that at the time of commission of the offence the appellant was mentally unsound.
13. Learned trial court has relied upon the testimony of P. W. 2 when she denied the suggestion that at the time of occurrence the appellant was not mentally unsound. The learned trial court further held that as the appellant did not adduce any evidence whatsoever in support of his defence, within the meaning of Section 84 of Indian Penal Code, and he, having not been able to discharge the onus of proof, was found guilty of the offence and as noticed herein before, was sentenced both under Sections 302 and 324 of Indian Penal Code.
14. Mr. R.K. Prasad, learned Counsel appearing on behalf of the appellant did not challenge the finding of the learned trial court with regard to the guilt of the appellant. He, however, submitted that in view of the fact that at the relevant time the appellant was of unsound mind, he should be acquitted in view of the provisions of Section 84 of the Indian Penal Code.
15. According to the learned counsel, the fact that the appellant, at the relevant time, was of unsound mind has been proved by P.W. 1 and P.W. 2 as well as P.Ws. 4 and 5.
Learned Counsel in this connection has drawn our attention to the statement of P.W. 2 in her Fardbeyan wherein the appellant has been described as ‘Pagla Digambar Manjhi’.
16. Learned Counsel further drew our attention to the statement of P. Ws. 4 and 5, wherein they admitted that the appellant both prior to and after the occurrence was mentally unsound. On the basis of the aforementioned statements of the Witnesses, the learned Counsel submitted that although no independent evidence has been adduced by the appellant he has been able to’ discharge the onus of proof of insanity on the basis of aforementioned evidence adduced on behalf of the prosecution itself.
17. Mr. R.K. Mahate, learned Additional P.P. appearing on behalf of the State, on the other hand, heavily relied upon1 the statements made by P. W. 2 whereby she denied in her deposition that the appellant at the relevant time was mentally unsound.
18. Mr. Mahato further submitted that the appellant has not been able to discharge the onus of proof to prove the’ exception as enumerated in Section 84 of Indian Penal Code inasmuch as he did not lead any evidence whatsoever in that regard.
Learned Counsel also submitted that in any event the very fact that from the evidence of P.W. 1, it would appear that when she was kicked by the appellant, upon protest having been made she was told by the appellant that she would be killed also. According to learned counsel this is a circumstance to show that the appellant had knowledge as to what is right or1 what is wrong.
Learned Counsel further pointed but that even after P. W. 2 reached the spot an attempt was also made by the appellant to kill her.
19. In view of the rival contentions, as noticed hereinbefore, the only question which arises for consideration in this appeal is as to ‘ whether the appellant at the time of commission of the alleged offence by reason of his unsoundness of mind, was incapable of knowing the nature of the act of that what he is doing is cither wrong or contrary to law.
20. Chapter IV of Indian Penal Code provides for general exceptions. Section 84 of Indian Penal Code which occurs in the aforementioned chapter reads as follows:
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.
21. In terms of the provisions of Section 6 of Indian Penal Code, “throughout this Code every definition of an offence, every penal provisions, and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the chapter entitled “general exceptions”, though those exceptions are not reported in such definition, penal provision, or illustration.”
22. There cannot be any doubt that in view of the provisions contained in Sections 102, 103 and 105 of Indian Evidence Act, the burden of proof rests upon the accused to prove that his case comes within one of the other provisions of Chapter IV of the Indian Penal Code.
23. In the instant case admittedly the accused has not adduced any evidence whatsoever with regard to his mental condition.
24. In law, the initial onus is upon the prosecution to prove the guilt of the accused. However, when an accused pleads general exceptions, as noticed hereinbefore, the burden of proof will be upon him. However, it is not necessary that in order to discharge the onus, he must adduce evidence from his own side. The accused, thus, is entitled to show that he comes within the purview of the general exceptions provided in Chapter IV of the Indian Penal Code relying on the basis of the evidence itself and/or the circumstances which have been brought on record showing the conduct of the accused prior thereto or after commission of the crime.
25. In the case of K.M. Nanawati v. State of Maharashtra , the Supreme Court, while considering the exception of Section 300 of Indian Penal Code, held as follows:
It has no bearing on the construction of Section 105 of the Indian Evidence Act. The decisions of this Court in State of Madras v. A. Vidyanatha Iyer 1958 SCR 580 : which deals with Section 4 of the Prevention of Corruption Act 1947 and C.S.D. Swamy v. The State , which considers the scope of Section 5(3) of the said Act, are examples of a statute throwing the burden of proving and even of establishing some of the ingredients of the offence on the accused, and in Court held that notwithstanding the general burden of on the prosecution to prove the offence, the burden of proving the absence of the ingredients of the offence under certain circumstances was on the accused. Further citations are unnecessary as, in our view, the terms of Section 105 of the Evidence Act are clear and unambiguous.
In that decision it has further been held that preponderance of probability will also serve the purpose.
26. In the case of Bhikari v. State of Uttar Pradesh , the Supreme Court while considering a defence under Section 84 of the Evidence Act, while explaining its earlier decision in, Dahyabhai Chhagnbhai v. State of Gujrat laid down the law in the following terms:
Section 84 of the Penal Code, one of the provisions in Chapter IV of the Penal Code which deals with “General Exceptions provides as follows:
Act of a person of unsound mind.–Nothing is an offences 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 be is doing what is neither wrong or contrary to law.
Under Section 105 of the Indian Evidence Act, 1872, the burden of proving the existence of circumstances bringing the case within any of the exception specified in the Penal Code lies upon the accused person. It further provides that in such a case the Court shall presume the absence of such circumstances. Illustration (a) to that provision runs as follows:
“A accused of murder, alleged that by reason of unsoundness of mind, he did not know the nature of the Act.
The burden of proof is on A.
Learned counsel, however, relies upon a decision of this Court in Dahyabhai Chhaganbhai Thakur v. State of Gujarat , and contends that it is for the prosecution to establish the necessary mems rea of the accused, and that even though the accused may not have taken the plea of insanity or led any evidence to show that was insane when he committed an offence of which intention is an ingredient the prosecution must satisfy the Court that the accused had the requisite intention. There is no doubt that the burden of proving an offence is always on the prosecution and that it never shifts. It would, therefore, be correct to say that intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the State of mind of a person can ordinarily only be inferred from circumstances Thus, if a person deliberately strikes another with a deadly weapon, which according to the common experience of mankind is likely to cause an injury and sometimes even a fatal injury depending upon the quality of the weapon and the part of the body on which it is struck, it would be reasonable to infer that what the accused did was accompanied by the intention to cause a kind of injury which in fact resulted from the act. In such a case the prosecution must be deemed to have discharged the burden which rested upon it to establish an essential ingredient of the office, namely the intention of the accused inflicting a blow with a deadly weapon. Section 84 of the Indian Penal Code cannot doubt be invoked by a person for nullifying the evidence adduced by the prosecution by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Now it is not for the prosecution to establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the actor of knowing that what he was doing was either wrong or contrary to law. Every one is presumed to know the natural consequences of his act. Similarly every one is also presumed to know the law. These are not facts which the prosecution has to establish. It is for this reason that Section 105 of the Evidence Act places upon the accused person the burden of proving of the exception upon which he relies.
27. This aspect of the matter has again been considered by the Supreme Court in the case of Sheralli Wali Mohammad v. State of Maharashtra in the following terms:
To establish that the acts done are not offences under Section 84 of the Indian Penal Code, it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. The question to be asked is, is there evidence to show that, at the time of the commission of the offence, he was labouring under any such incapacity? On this question, the state of his mind before and after the commission of the offence is relevant. The general burden of proof that an accused person is in a sound state of mind is upon the prosecution. In Dahyabhai Chhaganbhai Thakar v. State of Gujarat , Subba Rao, J. as he then was, speaking for the Court said:
(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea ; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial (2). There is a rebuttable presumption that the accused was not in same when he committed crime, in the sense laid down by Section 84 of the Indian Penal Code ; the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party of civil proceeding (3) Even if the accused was not able to establish conclusively that he was insane at the time be committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.
28. In the case of Ratan Lai v. State of Madhya Pradesh , the Supreme Court held that the burden of proof can be discharged by the accused from the circumstances which preceded, attending and following the crime. In the fact of that case also, the Supreme Court held that the appellant thereof to be a man of unsound mind, inter alia, on the basis of his behaviour on the day of occurrence, failure of the police to lead evidence as to his condition when the appellant was in custody etc.
29. This Court in the case of Kamla Singh v. State AIR 1955 Fat 209, relied upon a well known decision in Woolmington v. Director of Public Prosecution 1935 AC 462 and quoted the observations of the Law Lords which is in the following terms:
Throughout the Web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case on the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisons is part of the common law of England and no attempt to whittle it down cannot be entertained, when dealing with a murder case the Crown must prove (a) death as the result of voluntary act of the accused, and (b) malice of the accused. It may prove malice expressly or by implication.
For malice may be implied where death occurred as the result of a voluntary act of the accused which is (1) intentional, and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was on intentional or provoked, the prisoner is entitled to be acquitted. It is not the law of England to say, as was said in the summing up in the present case, if the crown satisfy you that this woman died at the prisoner’s hand then he has to show that there are circumstances to be found in the evidence which has been given from the witness box in this case which alleviate the crime so that it is only manslaughter or which excuse the homicide altogether by showing it if was a pure accident.
Woolmington’s case has been followed by the English Courts in a number of decisions.
30. Similarly in the case of Sarju Marandi and Anr. v. State of Bihar 1977 Cr.LJ 1785, a Division Bench of this Court held ‘a presumption under Section 105 of the Evidence Act is rebuttable one. It has further been held that the defence is not to prove affirmatively beyond reasonable doubt that the persons was of unsound mind and that by reason of unsoundness of mind was incapable of knowing the nature of the act.” The Division Bench further held that “the defence has only to demolish the presumption laid down against the accused under Section 105 of the Evidence Act, and not to prove beyond reasonable doubt, the opposite of that presumption.”
31. In the case of Chan Kau alias Chan Kai v. Reginan (1955) Vol. 1 All England LR 266 at p, 267, the Privy Council following the Woolmington’s case (supra) held as follows:
Before dealing with these two separate aspects of the case, their Lordships think it desirable to state and this was agreed by counsel for the Crown that in cases where the evidence discloses a possible defence of self-defence the onus remains throughout on the prosecution to establish that the accused is guilty of the crime of murder and the onus is never on the accused to establish this defence any more than it is for him to establish provocation or any other defence apart from that of insanity. Since the decisions of the house of Lord in Woolmington v. Public Prosecutions Director (1) and Mancini v. Public Prosecutions Director (2), it is clear that the rule with regard to the onus of proof in cases of murder and ‘manslaughter is general application and permits of no exception, save only in the case of insanity, which is not strictly a defence. It has been expressly so decided in the case of self defence in Scotland and Canada of H.M. Advocate v. Doherty (3) and latour v. Regem (4). It is unfortunate that in Archbold’s Criminal Pleading Evidence and practice 33rd Edn. at p. 942, para 1649, a passage is quoted from the summing up in the case of K.V. Smith (5), where, dealing with self-defence, these words occur 8 C & P at p. 162).
Before a person can avail himself of that defence, he must satisfy the Jury that that was necessary….
This actual passage was quoted by the trial Judge in the course of his summing up in the present case. It clearly needs modification in the light of modern decisions.
32. In the case of R. v. Loball (1957) All Eng. LR 734 at p. 734 the Court of criminal appeal laid down the law with regard to burden of proof in the following terms:
In the recent case of Chan Kau alias Chan Kai (1955) 1 All 266, this was stated in the terms by Lord Tucker, who referred (ibid at p. 267 to R. v. Smith (1) and said that the passage from the summing up quoted in Archbold clearly needed some modification in the light of modern decisions. It must, however, be understood that maintaining the rule that the onus always remains on the prosecution does not mean that the Crown must give evidence in chief to rebut a suggestion of self-defence before that issue is raised, or indeed, need give any evidence on the subject at all. If an issue relating to self-defence is to be left to the Jury there must be some evidence from which a jury would be entitled to end that issue in favour of the accused, and ordinarily, no doubt, such evidence would be given by the defence. But there is a difference between leading evidence which would enable a Jury to find an issue in favour of a defendant and in putting the onus on him. The truth is that the Jury must come to a verdict on the whole of the evidence that has been laid before them. If, on a consideration of all the evidence, the Jury are left in doubt whether the killing or wounding may not have been in self-defence the proper verdict would be not guilty, A convenient way of directing the Jury is to tell them that the burden of establishing guilt is on the prosecution but that they must also consider the evidence for the defence which may have one of three results ; it may convince them of the innocence of the accused, or it may cause them to doubt in which case the defendant is entitled to acquittal, or it may, and sometimes does, strengthen case for the prosecution.
33. The nest question which arises for consideration is as to what is the nature and extent of burden of proof upon the accused, it is now well-settled that the burden of proof upon an accused is not as high as that of the prosecution and the same may be compared with burden of proof in a civil litigation.
34. In R. v. Dumber (1976) Vol. 1 All ER 737, Lord Goddard, CJ. held “the burden of proof on the accused of the defence of diminished responsibility was not as heavy as the burden of proof on the prosecution and was the burden of showing a preponderance of probability in summing up a Judge should direct the Jury on the difference in the burden of proof and, as that had not been done a verdict of manslaughter would be entered.”
35. The same view has been taken by the Supreme Court in the case of Oyami Ayatu v. State of Madhya Pradesh , Reference in this connection may also be taken in the case reported in 1987 Cal. Weekly Notes 556.
36. It is also well-settled that as the prosecuti on is to prove the guilt of the accused beyond all shadow of doubt and is further required to prove ingredients of the offence, the fact that the burden of proof of insanity is upon the accused, but if on the material on record a doubt arises as to whether the accused has committed the murder in state of insanity, he being not in a position to know as to whether the act which he has committed is right or wrong, he is entitled to benefit of doubt. Reference in this connection will be made to the case of Patreswar Basumatary v. State of Assam 1989 Cr.LJ 196, where in the Gauhati High Court was considering a case in which the accused and the deceased has been sleeping together and the accused throttled the deceased without any criminal intention and motive ; and on that basis it was held that the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt.
37. In the case of Uchhab Sahco v. The State, 1989 Cr. LJ 16 the Orissa High Court stated the law thus:
From an analysis of the evidence as discussed above, it would appear that not only prior to the occurrence as also sometime after it but also on the day of occurrence the apellant had shown symptom of insanity. Even if it has been very strenuously urged by the learned Additional Government Advocate that the appellant has not established his plea of insanity at the time of commission of the crime, yet the evidence, on record is sufficient to lead us to a doubt that the appellant might have been under a spell of madness when he shot an arrow at his father and that his explanation that he committed such act being not in control of his discerning faculties due to insanity may possibly and probably be true. In that view to the matter we would hold that the appellant is entitled to the benefit of Section 84, IPC and would acquit him of the charge.
38. The Orissa High Court in the case Gour Cohandra v. The State 1989 Cr.LJ 1667, laid down the law the following terms:
From the principles laid down and the observations made in the decided cases referred to above, the position is clear that while considering the plea of insanity under Section 84 of the Penal Code all the circumstances preceding attending and succeeding the criminal act has to be taken into consideration. It will be futile and well nigh impossible to lay down the circumstances which will be sufficient to establish the plea of insanity. It would depend on the facts and circumstances of each case. A set of circumstances in the facts of a case may be sufficient to establish the plea while the same set of circumstances in another case of different set of facts may not be sufficient for the purpose.
39. In another recent decision of Punjab and Haryana High Court in the case of A.C. Bhagat v. U.T. Chandigarh 1989 Cr.LJ 214 states the law thus:
No doubt it is true that generally in such a case it may not be possible to prove the unsoundness of mind at the exact time of commission of the offence, but to assess this factum of unsoundness of mind the court is well entitled to consider the relevant facts and circumstances immediately preceding as well as subsequent to the commission of the offence. The antecedent and subsequent conduct of the man thus not only becomes relevant but gains importance to judge his state of mind at the time oi the act was committed.
40. As to what is insanity has been discussed in by a Division Bench of the Kerala High Court in the case of Kuttappan v. State of Kerala (1986) Vol. 1 Crimes page 155, wherein the learned Judges quoted from Clinical psychiatry my Mayer Gross Slater and Roth as also in Comprehensive Text Book of psychiatry by Freedom Kaplan in the following terms:
At page 237 of Clinical Psychiatry by Mayer Gross Slater and Roth, it has been observed:
The symptoms interfere with the patient’s thinking emotions conation and motor behaviour and with each in a characteristic way.
At page 263 it is observed:
Bheulor found the splitting within the thanking itself, though the loosening in the association of ideas was the primary and fundamental disturbance. Through the loosened links in the chain of associations instinctual desires and unconscious gain the upper hand and can entirely rule his life and behaviour. The result is the disruption or distortion of his personality. He is at the mercy of his emotions and withdraws from reality whenever it is opposed to the whim of his complexes.
At page 265, it has been observed:
The lowered mental activity may prevent the making of a clear distinction between what is real and what is imaginary, so that the schiacphrenic indulges in delusional ways of thinking and behaving. Other authors have used as a comparison the half-waking state of the normal person going to sleep. A person in this state may have similar difficulties in thinking clearly and in distinguishing between reality and imagination.
At page 269, it has been observed as follows:
Blunting of emotion and other primary emptional disturbances are partly or wholly responsible for callous and apparently motiveless crimes of violence which sometimes are the first sign of a beginning schizopherenia. They include homicide suicide, sexual attacks or self mutiliation. The lack of feeling removes civilies restraining but a delusional misinterpretation a hallucinatory command may also contribute to anti social act.
In Comprehensive Text Book of Psychiatry by Freedman Kaplan at pages 625 and 626 it is observed:
The one feature common to all manifests of schizopherenic thought discorder is that the schizophrenic patient thinks and reasons on his own antistic terms, according to his own intricate private rules of logic. The schisophrenic may be highly intelligent, certainly not confused, and very considerate in his deductions. But his thought processes are strange and do not lead to conclusions based on reality of universal logic….
Another characteristic symptom of schizophrenic is the abrupt blocking of the stream of thought or times of all psychic activity, in some aspects resembling epilagtic (temporal lobs) phenomenal. The patient’s thoughts seem to stop suddenly and without warning. He ceases to speak in the wriddle of a sentence. After such a blocking episodo, which may last seconds or minutes, he is perpared, and has difficulties in co-ordinating his behaviour….
At page 639, it is observed:
…It is exceeding difficult to prevent most schizophrenic homicides, since there is usually no clear warning. Most of them as come as a horrible surprise.
41. Yet recently, the Andhra Pradesh High Court m the case of Elkari Shankari v. State of Andhra Pradesh 1990 Cr.LJ 97 held that where the accused, father, killed his son by inflicting stab wounds and danced, shouting that he had killed his son, the circumstances were enough to prove that the man was unsound mind.
42. Having seen the law on the point, let us consider the evidence on record for the purpose of coming to the conclusion as to whether in the instant case the appellant has been able to bring home the provision of Section 84 of Indian Penal Code from the circumstances of the case not.
43. In the instant FIR the informant Bhuli Loharin described the appellant as a Pagla Digamber Manjhi.
44. It is true, as has been observed by the learned Court below, that in her evidence she denied the suggestion as given to her on behalf of the defence that at the time of commission of the offence, he was not mad, but the &aid statement cannot be believed in view of the fact that in the FIR itself she described the appellant as a mad person.
45. In my opinion, the FIR carries a great weight in showing the circumstances from which the knowledge of the informant can be deciphered to the effect that the appellant had been suffering from insanity.
46. P.W. 1 in her evidence categorically stated that the appellant came to her residence and kicked her without any rhyme or reason and on her protest he threatened to kill her.
In cross-examination also she categorically admitted that the appellant was mad even preceding the occurrence. She repeated that even before the date of occurrence that he was insane.
47. Similarly P. W. 4 Damodar Manjhi in his cross-examination categorically admitted that prior to the occurrence, the appellant had been seen running hither and thither and he was in the some state of mind even at the time of occurrence. Ihe said witness who is the Mukhiya of the village Gram Panchayat opined that from the conduct of the appellant it was evident that he was an insane person.
P. W. 5 Gulab Chandra Manjhi also in his Examine-in-Chief stated that P.W. 2 informed him that his children had been killed by the appellant who was a mad man.
48. It appears from the order sheet of the learned court below that when the appellant was produced before him on 10.5.1984, he was stated to be suffering from insanity.
49. As noticed in the judgment of the learned trial court that during the course of trial, the appellant was sent to the Mental Hospital, Kanke Ranchi on 21.7.1984 wherefrom he fled away on 20.9.1984.
50. Apart from the aforesaid oral evidence, it is evident that the prosecution had not alleged any motive on the part of the appellant for the commission of the murder of the aforementioned two innocent children. Every the weapon which was urged for commission of the murder was absolutely on unusual one.
51. For the purpose of proving non compos mentis on the part of the accused persons, absence of motive and unusal behaviour on his part and/or absence of mens rea although by themselves are not material, the same coupled with the circumstances immediately preceding to and after the occurrence may lead to an inference that at the time of commission of the offence the appellant was suffering from insanity and thus was not in a position to know as to the acts which he had committed was illegal.
52. In my opinion, considering the evidence which have been brought on record by the prosecution itself coupled with the circumstantial evidence brought on record lead to an inference on the insanity of the appellant and on the basis of the aforesaid presumptive evidence it has to be held that the appellant is entitled to the general exceptions as contained in Section 48 of Indian Penal Code.
53. It is, therefore, held that despite the fact that the appellant has murdered Birsa Lohar and Nankhu Lohar and caused injuries to the informant Bhuli Loharin he is entitled to the benefit of Section 84 of Indian Penal Code.
54. In view of the provisions contained in Section 315 of the Code of Criminal Procedure, the appellant is required to be detained in safe custody. Sub-section (2) of Section 335 of the Code of Criminal Procedure states that the order of detention shall be in accordance with the rules framed by the State Government under the Indian Lunacy Act, 1912.
However, before us, the learned Counsel for the parties could not state as to whether any rule has been framed by the State Government under the Indian Lunacy Act or not.
55. Section 3(4) of Indian Lunacy Act defines that “criminal lunatic” mean any person for whose detention in, or removal to an assylum, jailor other place of safe custody an order has been made in accordance with the provisions of Section 466 or Section 471 of the Code of Criminal Procedure, 1898 or of Section 30 of the Prisoners Act, 1900 or of Section 103A of the Indian Army Act, 1911.
56. In this view of the matter, there is no doubt that the appellant comes within the purview of the definition of ‘Criminal lunatic’ within the meaning of the provisions of the Code of Criminal Procedure, 1973.
57. Section 24 of the Lunacy Act provides that an order under the aforementioned provisions directing the reception of the criminal lunatics into any assylum which is prescribed for the reception of cirminal lunatics shall be sufficient authority for the reception and detention of any person named therein in such assylum or in any other assylum to which he may be lawfully transferred.
58. Section 27 of the Mental Health Act, 1867 which had a corresponding provision in the New Act contained similar provisions.
59. In the result, this appeal is allowed. The judgment of conviction and sentence passed against the appellant is set aside and in terms of the aforementioned provision, it is directed that the appellant shall be detained in Ranchi Mansik Shala, Kanke, till such time as he is cured of his mental ailment and is found in sound condition by the Superintendent of the aforementioned Mental Hospital and is fit to be discharged from it.
60. Let a copy of this judgment alongwith a report be sent to the State Government about the direction given by this Court in terms of Sub-section (1) of Section 335 of the Code of Criminal Procedure.
Narinder Singh Rao, J.
61. I agree.