G.N. Prasad, J.

1. Etwa Oraon, who has preferred this appeal from Jail, has been convicted under Section 302, Indian Penal Code, and sentenced to undergo imprisonment for life. It is alleged that he committed the murders of Mango Oraon who was the wife, and Musammat Charia, who was the aunt, of Bandhu Oraon (P. W. 5). The occurrence took place in the afternoon of the 9th June, 1958, in an orchard known as Baghia Tongri orchard in village Ghalghra Pahan-toli situated at a distance of about ten miles from police station Sessai.

2. The prosecution case is that at about 4 p.m. on the date of the occurrence Mt. Charia was collecting wood under a mahua tree in Baghia Tongri at some distance from the main village. On the same occasion, Mango Oraon was proceeding to village Kocha with a basket with a view to sell sag. In the meantime, the appellant came to the orchard with a lathi in his possession and with that lathi he assaulted Mt. Charia who fell down. Mango Orain wanted to run away from the spot, but the appellant assaulted her also with his lathi with the result that she also fell down.

Birso Orain (P. W. 2), the daughter of Mango Orain, happened to be tending goat in the vicinity and she witnessed the occurrence. She raised an alarm whereupon certain villagers came. In the meantime, the appellant fled in the direction of village Puso after throwing away his lathi in a ditch. Mango was carried to a spot under a mange tree and water was given to her, but she died at the spot. Mt. Charia was taken to her house, but she also died some time after reaching her house.

In the evening, Gere Oraon (P. W. 1) returned to the village from some other village and learnt what had happened. He went to the choukidar and the choukidar came to the village. The choukidar was also informed about the occurrence. Gere Oraon (P. W. 1) proceeded to the police station in the company of the choukidar (P. W. 12) and he lodged the first information report at 6 a. m. in the morning of the 10th June, 1958.

3. The Assistant Sub Inspector (P. W. 16), who recorded the first information, report, exhibit 3, took up investigation. He reached the scene of the occurrence at 10-30 a. m. on the 19th June, 1958 and held inquests over the dead bodies of Mt. Cheria and Mango Oraon, both of which were forwarded to Gumla hospital for post mortem examination.

The Assistant Sub Inspector (P. W. 16) inspected the place of the occurrence and conducted other investigations until the 12th June, 1958. Thereafter further investigation was carried on by the Sub Inspector (P. W. 17), who, in due course, submitted charge-sheet against the appellant. The trial was held by the learned Additional Judicial Commissioner of Chotanagpur resulting in the conviction of the appellant as stated above.

4. The defence of the appellant was one cf insanity within the meaning of Sec. 84, Indian Penal Code. I have used the expression insanity in this judgment in the sense of unsoundness of mind.

5. The solitary witness to the occurrence in this case is Birso Orain (P. W. 2), the daughter of Mango. P. W. 2 has deposed that at the time of the occurrence she was tending goat. Her mother was going to village Kocha to sell Sag. Charia was picking wood at Baghia Tongri. The appellant came from the village and assaulted Charia with a lathi with the result that she fell down. Mango was flying, but the appellant assaulted her also and she too fell down. P. W. 2 has further deposed that she raised an alarm at which Charwa (P. W. 3), Chotua (P. W. 4), Some (P. W. 11) and one Burn came there.

The appellant threw his danta in a ditch and fled towards Puso. The further evidence of P. W. 2 is that Mango succumbed to her injuries under the mango tree where she was brought and given water. Charia was carried home in an injured condition. This evidence of P. W. 2 has been amply corroborated both with regard to the factum of the occurrence as also to the fact of the appellant being the assailant of Charia and Mango by overwhelming materials on the record.

6. The medical evidence shows that there were four lathi injuries on the dead body of Mango Oraon. Internal examination revealed that there were comminuted fracture of the left temporal, the prietal and a portion of the frontal bones, the broken ends of the bones lacerating the dura mater and brain substance underneath. There were haemorrhage and blood clots in the cavity of the scalp. The injuries were ante-mortem and grievous and appeared to have been caused by hard blunt substance such as lathi. On the dead body of Charia Orain also there were four injuries.

The occipital bone was fractured, the fracture extending to the base of the skull. Haemorrhage and blood clots were found over the dura mater and inside the skull cavity. The injuries of Charia Orain also were ante mortem and grievous and appeared to have been caused by a hard blunt substance such as lathi. The medical evidence, therefore, amply supports the evidence of BirsO Orain (P. W. 2) with respect to the factum of the murders of Charia and Mango as a result of assaults with lathi.

7. So far as the place of the occurrence is concerned the evidence of Birso (P. W. 2.) receives ample corroboration from the evidence of the Assistant Sub Inspector (P. W. 16). (His Lordship referred to the evidence and proceeded).

8. So far as the prosecution case about the appellant being the assailant of the two women, Mango and Charia, is concerned, there does not) appear to be any reasonable ground for entertaining any doubt against the testimony of Birso (P. W. 2). There is no suggestion whatsoever of any prior ill will between P. W. 2 and the appellant. In fact, P. W. 2 has clearly stated that the appellant had no enmity with her mother and that he had no enmity with Charia either. It seems to me clear, therefore, that P. W. 2 has not indulged in false accusation against the appellant. (His Lordship after referring to the testimony of certain witnesses proceeded).

9. The material question for determination, therefore, is whether the defence of insanity is available to the appellant in this case. It is necessary to refer to section 84 of the Indian Penal Code which is in these terms:-

"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."

This section has been the subject-matter of discussion in a number of decided cases and it is now well settled that in order to succeed in a plea of insanity, the accused has to establish firstly, that at the time of committing the offence he was of unsound mind, and, secondly, that the unsoundness of mind was of such a degree that he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. It is also, in my opinion, undisputed that the burden of proof in the matter rests upon the defence. The real question is what is the nature or the ex tent of the burden of proof which rests upon the defence in order to succeed in the plea of insanity.

10. The earliest decision of this Court to which our attention has been drawn is Emperor v. Gedka Goala : AIR 1937 Pat 363 [LQ/PatHC/1937/35] in which the chief material relied upon in support of the plea of insanity was the evidence of the Assistant Surgeon who had kept the accused under observation for sometime subsequent to the occurrence. The opinion of the Assistant Surgeon was as follows:-

"I cannot say what the state of the mind of the accused was before I kept him under observation. It is possible the accused committed the occurrence in a temporary fit of insanity. Such a fit may come all on a sudden and disappear after a short while".

It was held that a mere possibility that the accused may have been insane was insufficient to establish the kind of insanity referred to in Section 84, Indian Penal Code.

11. The next decision of this Court in point of time is Narain Sahi v. Emperor : AIR 1947 Pat 222 [LQ/PatHC/1946/73] . Therein it was observed:-

Whether or not an accused at the time he committed the act was of unsound mind is a matter of inference from his Previous and contemporaneous acts, statements and demeanour and from any other relevant evidence as to insanity in his ancestors or relations, as to particular illness affecting the mind and from any medical evidence that may be tendered. Mere eccentricity is not enough, there must be enough to show that at the material time the accused was suffering from some definite or recognisable form of mental disease."

In relation to the other question also, namely, as to whether the unsoundness of mind was of a degree and nature to satisfy one of the knowledge tests laid down by Section 84, Indian Penal Code it was observed that

"it is both just and necessary to apply to the evidence of their acts, demeanour and statements the same standards of logical inference as we ordinarily apply to those of sane persons."

Upon the particular facts of the two cases, the defence of insanity did not succeed in the two reported decisions noticed above.

12. There are two other decisions of this Court to which our attention has been drawn in both of which upon the facts of each case, the plea of insanity was upheld In Prabhu Ram v. The State 1953 BLJR 606, the materials which were relied upon in support of the plea of insanity were the previous history of the accused, the history of his family and his behaviour before and after the commission of the act; and their Lordships came to the conclusion that if all these factors were considered, then there was only one and one reasonable inference, namely, that the accused was not merely of unsound mind but that he did not know the nature of the act that he had committed, that is to say, he did not know that he had killed his wife and, as he said, he was searching for a woman whom he had killed.

The other decision of this Court is Kamla Singh v. The State, (S) : AIR 1955 Pat 209 [LQ/PatHC/1954/141] in which reference was made to Section 105, Evidence Act, and it was observed that if upon the materials on the record it could not be positively held that the prisoner at the material time was not of unsound mind and that he was capable of knowing the nature of the act alleged against him, then the onus which lay upon him under Section 105, Evidence Act, must be taken to have been discharged. In other words.

"the defence has not to Prove affirmatively beyond reasonable doubt that the prisoner was of unsound mind and that by reason of unsoundness of mind was incapable of knowing the nature of the act. What it has to prove is that the presumption under Section 105, Evidence Act, against the prisoner that he was then not of unsound mind and that he knew the nature of the act alleged against him is not sustainable on the evidence on the record".

In the latter part of their judgment, their Lordships referred to the Full Bench decision of the Allahabad High Court in Parbhoo v. Emperor : AIR 1941 All 402 [LQ/AllHC/1941/63] and then stated the law in the following form:-

"The prisoner is entitled to be acquitted, if, upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception), a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception".

The actual decision was reached upon the Particular facts of the case and it was held that the prisoner had not only rebutted the Presumption under Section 105, Evidence Act, but had also proved affirmatively that his case was covered by the exception laid down in section 84, Indian Penal Code.