M.L. Malik, J.

Rambharose and his wife Mst. Kiron were tried before the Additional Sessions Judge, Jagdalpur, for the murder of their son Pappu aged 5 years. Rambharose has been convicted under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life. Mst. Kiron has been acquitted. Rambharose has come up in appeal against his conviction and it is registered as Criminal Appeal No. 647 of 1968. The State has appealed against the acquittal of Mst. Kiron and it is registered as Criminal Appeal No. 703 of 1968. This judgment shall govern the disposal of both the appeals.

Appellant Rambharose was, at the time of the commission of the alleged offence i.e. on 10-9-1967, Sub-Divisional Officer, P. W. D. (Tribal) at Dantewada. He was a Gazetted Officer in the State service. He was posted at Dantewada in September, 1967. He occupied a Government bungalow and his family consisted of his wife Kiron and three minor children, the eldest being a son aged 11 years, the second, a daughter aged 8 years and Pappu aged 5 years. Sukaluram (P. W. 1) was his orderly peon and lived in the servants quarter closeby. He generally cooked for the family.

The evidence discloses the following story. On 7-9-1967, Mst. Kiron asked Sukaluram (P. W. 1) to bring from the market 10 meters of cloth. He was told that the cloth was required in connection with Pooja on the Teeja day. He brought the cloth from the market and gave it to Kiron. He also brought 7 Kgm. of milk from Chandrashekhars house for the Parsad. The Pooja room was got cleaned. The old Tatta which covered the roof as an inner ceiling, was removed and the room was got white-washed. The windows of the Pooja room had wooden panels. They could be closed from inside to secure privacy. Yet wooden rafters were nailed from outside and curtains were nailed from within.

On the night of the 7th September, 1967, Sukaluram heard the shouts of Rambharose. The shouts were somewhat unusual. He heard him shouting "Ohe-Ohe". He was then at his quarter.

On the 8th September, 1967, Rambharose went to his office. He wax looking normal.

On the 9th evening, Rambharose slapped his son Naresh who ran out of the bungalow. His sister also was frightened and she ran after him. Rambharose struck his wife Kiron with a lock on the head. What enraged him thus is not known. That evening Sukaluram had not gone to the bungalow and no food was cooked. At about 1 A.M. in the night, Rambharose called Sukaluram and asked him to cook for the them. He was feeling hungry. Sukaluram began cooking at that odd hour of the night. After the food was ready, while he was leaving the bunglow, he saw Rambharose outside the room, absolutely naked, beating his head against the wall and beating his chest with his fist. Rambharose accosted him saying that he was pinacky and he should, therefore, sleep at the bungalow. Sukaluram declined to sleep there. He said that he had his small son left in the servants quarter who could not be left alone. Rambharose then asked him to bring his son along and both of them should sleep at the bungalow. Sukaluram replied that the boy would be afraid to sleep there since he was raving and shouting. Rambharose then said that he was a Ghost and would eat him away. Sukaluram left the bungalow saying that he would come after half an hour along with Mannuram Choukidar. Sukaluram never returned. He took his son away and they both slept at Mohansinghs (P. W. 10) house. While leaving the servants quarter, he had warned Mannuram Choukidar also not to go to Rambharoses bunglow. While he was leaving the bungalow at that hour of the night, he saw Rambharose breaking the glasses of the door and eating human excreta. Rambharose had offered excreta to Sukalu to eat which he refused.

In the same strain is the story given by Kashi Prasad (P. W. 11) who was then a senior clerk in the office of Rambharose. On 8-9-1967, Rambharose told him that he was earlier working in some project. He belonged to Rajas-than where his forefathers were ordinary labourers. He came across a Sidha-Baba and his blessing proved fruitful. He had once failed in the examination but when Sidha-Baba helped him out. He pissed in the Supplementary examination. Sidha-Baba, he said, beats him and he held out his hands to show marks of injury. Then Rambharose recited some verses of Ramayan. Soon after he began shouting "Aun-Aun". He took off his shirt. A few minutes after, the lantern which was lying on his table was thrown down. The glass broke and it was dark in the office. Kalishanker and Nayar Overseer stood up to go and Rambharose shouted at them saying that whosoever walked out would become a leper. The witness says that Rambharoses conduct was abnormal. They were both alarmed and anxious. They went to the Police Station but could not find a responsible officer. The constable who was present, was told by them to keep a watch on the activities of Rambharose. The same evening, Kunjilal Postman was called to chant the evil spirit away which had possessed Rambharose.

Chandrashekhar (P. W. 13) who had earlier served Rambharose as a Time Keeper, was his good friend. On 6-9-1967, Rambharose called him. When he went inside the room, he saw Rambharose naked. Rambharose picked up a blanket and wrapped himself up. He came out weeping. He said, he was not well. He was seen shouting and weeping, and restlessly walking about. Rambharose shouted "Alakh Niranjan" and accosted Chandrashekhar that he was not Sub-Divisional Officer but Sidha-Baba and if he did not believe him, he might look at him once again. So saying, he removed the blanket and stood stark-naked.

Mundhar (P. W. 9) is a carpenter who lived close to Rambharoses house. He says that he was occasionally hearing the shouts of Rambharose of "Alakh Niranjan" on the 8th and 9th September. He also heard breaking of glasses. The noise came from inside Rambharoses house. On the 9th evening at about 8-30 p. m. he had seen Rambharose stark naked running towards the Block office. Kunjilal Postman was called to drive away the evil spirits Rambharose was possessed of.

Another very responsible witness who deserves mention is Shri S.R. Gupta, Sub-Divisional Officer (Executive) (P. W. 12). He was approached by the local officers on the evening of the 9th September, 1967 with anxiety. They said that Rambharose was behaving like a mad man and that something should be done about him. Shri Gupta directed Shri Jain to go to Rambharoses house and find out if all was well. Shri Jain went to Rambharoses house and found the door closed. He shouted for Rambharose, who answered from inside the house that he was talking with Sidha-Baba and would not come. On a day previous, Rambharose had thrown the cup of tea offered to him by Shri Verma Sub-Divisional Officer (Forest). He soon after, caught Vermas feet and cursed him that his daughter would die very soon. He cursed the Tahsildar also that he should expect to die within six months.

Dr. Dhansingh (P. W. 3) was reported on the 9th September, 1967 by Kashi Prasad that Rambharose was behaving abnormally. He, therefore, went to Rambharoses bungalow. He met Shri Verma Sub-Divisional Officer (Forest) and Shri Garg, Ranger, at his door. Shri Garg shouted for Rambharose to come out. He was then in the lavatory. Rambharose peeped out of the window of the lavatory and said that they should all go away, everything was alright. He was then told that shri Verma was with them and he replied that he would shortly coma out. He did come out but the doctor could not examine him since he had prohibited everyone to touch him. Rambharose, however, did not look normal. He was occasionally shouting at them, and cursed Shri Sharma Overseer that he would be a leper in 15 days. He accompanied them to Vermas bungalow. He met Tahsildar there and cursed him that he would die within six months if he did not decide cases honestly. Then he cried "Alakh Niranjan" and dropped the cup of tea from his hand and wept. He became normal for a while but soon after spoke to the Ranger that he would not be blessed with a son unless he worshipped him (i. e. Rambharose).

AND this is what happened on the 10th September Mundhar (P. W.9) was busy making a cot. It was between 2 and 3 P.M. that he heard Pappus voice "Baba-Baba" thrice. His voice was no longer heard thereafter. Rambharoses house was closed from all sides except a door and a window at the back. The voice of Pappu had come from within the house. Soon he heard Rambharose and Kiron weeping loudly. He also heard Rambharose saying to Kiron that Pappu did not belong to them; he was not theirs and had gone away; they were both sinners. He was heard asking Kiron to respeat these words and she was repeating them every word, after he uttered them. Soon thereafter the two children of Rambharose came running out of the back door. Mundhar made anxious enquiries about Pappu who was a playmate of his son. He was told that Pappu was dead and Rambharose was bringing him back to life.

Mundhar called Chandrashar (P.W. 13) and narrated what he had heard. While they were talking, Ghose Babu came there. He rushed to inform Shri Gupta, Sub-Divisional Officer (Executive) who in turn requisitioned the Sub-Inspector Madhavi (P. W. 14). They all collected in front of Rambharoses bungalow. Rambharose could be seen from the kitchen window. Shri Gupta beckoned at him and Rambharose said to him Madhavi says that the two children of Rambharose who had sneaked out of the bungalow, were standing near Mundhar and Chandrashekhar. Enquiries from them revealed that Pappu was killed and they were driven out. The Sub-Divisional Officer Shri Gupta then commanded them to force their entry in and they all entered through the kitchen. Rambharose was sitting on the flower with legs stretched and Kiron was massaging them. Pooja-room was locked from without. The lock was broken open. The room was dark. The windows had the curtain nailed from inside and the rafters nailed from outside. They were removed. In the Pooja-room lay the dead body of Pappu on a deer-skin which was placed on a wooden platform. The Parsad was lying near him, so was an iron safe kept open. In a plate there were Parathas with currency notes of Rs. 101 placed on them. It appeared that Havan was performed. An elaborate worship seemed to have been done. The dead body of Pappu had charcoal powder or some black powder rubbed on the chest.

Rambharose and Kiron were taken in police custody. They had to be dragged out of the room. Rambharose was not talking sense and when asked where Pappu was, so that some food may be given to him, replied that he would meet them after Wednesday. This was the talk Madhavi had with Rambharose before the lock of the Pooja-room was broken open.

Kashi Prasad (P. W. 11), Shri Gupta Sub-Divisional Officer (P. W. 12) and Madhavi (P. W, 14) corroborate each other on material particulars as to how they had forced their entry into the bungalow, how the lock of the Pooja-room was broken open to find the dead body of Pappu lying on a deer-skin and the articles of elaborate worship which seemed to have been recently performed. Before the entry was made, Rambharose was seen sitting at ease on the floor with legs stretched and Kiron massaging them and when questioned about Pappu, his answer was that it was not a Government job he was doing, it was his private business and Pappu would be available to them after Wednesday.

The dead body of Pappu was sent for post mortem examination and the doctors opinion was that the boy had died of asphyxia due to throttling. The doctor found injuries of abrasions and scratches round the neck, as many as thirteen, and he says that they could possibly be due to the boy resisting and shifing positions.

We have no doubt whatsoever that Pappu died a homicidal death and none else but Rambharose had throttled him. Elaborate preparations for Pooja were being made. 10 meters of cloth and seven kilograms of milk were purchased. Kiron was seen busy preparing Parsad. The Pooja room was got cleaned. Rambharoses shouts of "Alakh-Niranjan" were being repeatedly heard. And Mundhar (P. W. 9) also heard Pappus voice "Baba-Baba" thrice before he was done to death. Soon followed the mothers wailing and Rambharose was heard consoling her by saying that they were sinners and the boy did not belong to them but belonged to him. Kiron was repeating the words after her husband, that they were sinners and the boy did not belong to them.

With this evidence on record, the conclusion is irrestible that Rambharose had killed the boy by throttling him. The suggestion that the boy might have died a natural death or might have been killed by someone who sneaked away, is a hopelessly incredible proposition. The boy in that case would not be found locked in a Pooja room, nor would the parents behave in the fashion they did. Possibility of a stranger coming in to murder the boy when Pooja was going on is completely ruled out.

The question that might be considered at this stage is whether Mst. Kiron was a willing party to the killing of the child ; whether she was induced by the husband to believe that human sacrifice at the bidding of or to propitiate the Sidha-Baba, would bring them wealth and prosperity or supernatural power and that the child would come back to life after three days; whether on account of this belief, she gave her consent to the killing of the boy and that she assisted Rambharose in the offer of the human sacrifice The learned Additional Sessions Judge holds in para. 18 of his judgment, and for cogent reasons, that Mst. Kiron was not an active participant in the crime, she was probably helpless when the boy was being throttled, and she might have come to know of her husbands designs at the eleventh hour when, who knows, despite her resistance, the cruel act was completed.

We agree with this finding of the learned Additional Sessions Judge. It appears that Mst. Kiron could not help the situation. It could possibly be a case of helpless resignation or passive giving in the face of fait accompli. Or was it that she was out of the Pooja room when the act was committed and when she entered in, found the boy already dead lying on the deer-skin Mundhar (P. W. 9) heard Pappus voice "Baba-Baba". Had Kiron been present, would the child not have cried for the mother Another pertinent circumstance is the wailing of Kiron and Rambharose uttering the words of consolation and asking her to repeat the words after him. Had Kiron participated in the crime, she would have quietly sobbed. She would not have lamented loudly. The circumstances, therefore, induce us to hold that Kiron had neither consented to the killing of the child nor was she an active participant. At any rate, benefit of doubt should be given to her.

What needs serious consideration in this appeal is the defence of insanity raised on behalf of the appellant; whether at the time he throttled the boy, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. "In order to see whether the accused was insane at the commission of the offence, the state of his mind before and after the commission of the offence is relevant. The law presumes every person of age of discretion to be sane unless the contrary is proved."

Their Lordships of the Supreme Court have laid down in Dahyabhal v. State of Gujarat : AIR 1964 SC 1563 the following three propositions on the doctrine of burden of proof in the context of the plea of insanity : (i) 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, (ii) There is a rebuttable presumption that the accused was not insane, when he committed the crime in the sense laid down by section 54 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 to civil proceedings, (iii) Even if the accused was not able to establish conclusively that he was insane at the time he 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 and 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.

About the antecedent conduct of the accused, we have stated the evidence above. He was behaving abnormally sometimes as if possessed by some Sidh-Baba, was under a delusion that he was being beaten by him or he was talking to him, or that he himself was a Sidh-Baba who had acquired some supernatural powers. He would in his frenzy curse people and believe that his prophecies would came out true. He was sometimes irritable and destructive. He was at times moody and would weep without reason. He was once seen running about naked. He was also seen eating human excreta.

He was for all and sundry afflicted by some mental disorder though only at certain periods and vicissitudes, having intervals of reason. His friends were anxious to see that something is done for him; either his relatives come up to look after him or the doctor cures him of his ailment.

As regards the state of his mind after the commission of the crime, we have the statement of two doctors, Dr. Sen and Dr. Mandal besides the jailors report. Rambharose was sent to judicial lockup on 13-9-1967. The Jailor writes, "Rambharose had to be physically lifted by four constables and was placed between the gates. He was very voilent and being a strong young man, required help of several persons to take him to the cells. His mental condition was abnormal and ways voilent." This was the condition at 10.45 A.M. At 7.25 P.M., he was quiet, did not reply to questions and sat naked. On September 14th, he was seen murmuring at random, did not answer questions and wrapped his naked body with a blanket. In the evening, he was again abnormal, threw away his underwear and stood naked. On the 15th September, he was talking at random and whosoever went near him to talk or persuade, he would spit on him. He tore off his underwear and stood naked.

We need not refer day to day history of his mental conditions. It grew worse sometimes and the report of the doctor may be seen of 3rd and the 6th October. On the 1st October he passed urine and stool on the floor, painted the wall with his stool, tore away the blanket, threw his Chaddi and became naked. On the 3rd October, he was violently excited, tried to assault others, pressed his neck with his hands, passed stool on the blanket and shouted. On the 6th October, 1967, he painted his stool over his body and also ate it.

Dr. Sen says that his observations indicated that Rambharose was suffering from mental derangement with lucid intervals. It was not a case of feigned insanity. He was not pretending to be insane.

Having read the evidence, we are left in no manner of doubt that at the time the offence was committed, Rambharose was labouring under some insane delusion and possibly the delusion was that he was a Sidh-Baba, possessed of super-natural powers and that no harm would be done to the child even if sacrificed at the Altar since the child would come back to life after 3 days; that this sacrifice was going to bring immense wealth and prosperity in addition.

The question to ask is whether such a morbid delusion as this which had carried him away beyond the power of his own control, should exempt him from the criminal liabilities. M Naghten Rules which form the basis of Law of insanity under section 84 of the Indian Penal Code, gives the answer thus:

Question Ho. IV:--If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused

Answer:--The answer must, of course, depend on the nature of the delusion; bat making the same assumption as we did before, namely, that be labours under suck partial delusions only, and is not in other respects insane we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of this delusion, be supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune and he killed him in revenge of such supposed injury, be would be liable to punishment.

The oft quoted illustrations to explain the law are these: A person strikes another and in consequence of an insane delusion thinks he is breaking a jar. Here be does not know the nature of the act. Or he may kill a child under an insane delusion that he is saving him from sin and sending him to Heaven. Here he is incapable of knowing by reason of insanity that be is doing what is morally wrong; or he may under insane delusion believe as innocent man Whom he kills to be a man that was going to take his life; in which case, by reason of his insane delusion, he is incapable of knowing that he is doing what is contrary to law of the land.

To add to these illustrations, one is found mentioned by Sir James Stephen of an idiot who cut off the head of a man whom he found sleeping because as he explained it would be much fun to watch him looking about his head when he awoke. It was probable that the idiot was quite aware that the man was entitled to possession of his head, and expected that if he was detected he would be well cuffed by the man and very probably taken up by the police. It is quite certain that he had no idea that his fun would be lost, because the man would never awake.

In the present case as well, under the insane delusion Rambharose was incapable of appreciating the nature of his act that the child once throttled would not come back to life. The delusion had affected his cognitive faculties to an extent that he believed in the existence of some state of things, which if it existed, would justify or excuse his act. And that state of things was the resurrection after three days. He would not have throttled the boy if he was not deluded into believing that the child would come back to life. The argument, therefore, is that punish Sidh Baba who had possessed Rambharose; it was not Rambharose who had committed the crime. His odd behaviour, seeming detachment from the world of reality, the presence of delusions (falsebeliefs) and hallucination (perception of non-existent external stimuli) indicated a disease of mind and under the influence of paroxysms of that disease, he could be assaultive, destructive and commit crimes with reckless abandon. The indecent exposure was also one of symptoms of the same disease (which is commonly known as schizophrenia).

The present case as we see, is covered by the M Naghten Rules themselves. Rambharose was having an obsession and he gave way to it without knowing the guilt of his act and without knowing whether it was right or wrong. To put it differently, insanity had manifested in the tack of knowledge or incapacity to have knowledge of the nature and quality of the act or its character as a wrong act.

The learned Additional Sessions Judge felt that despite the symptoms of disorder Rambharose exhibited, he yet had the capacity to know that he was doing something wrong or forbidden by law. He bad secured complete privacy by nailing the curtains and rafters on the windows. He had kept the room locked after the boy was sacrificed, he had performed elaborate worship and the arrangements that were made spoke for his predetermined design; he expected that he would thereby acquire supernatural powers or worldly fortune.

In a case of this type, the criticism of the medical men to M Naghten Rules seriously troubles the mind. The discussion of the Royal Commission on Capital punishment 1949-53 puts the criticism as under:

Briefly, they have contended that the M Naghten test is based on an entirely obsolete and misleading conception of the nature of insanity, since insanity does not only, or primarily, affect the cognitive or intellectual faculties, but affects the whole personality of the patient, including both the will and the emotions. An insane person may therefore often know the nature and quality of his act and that it is wrong and forbidden by law, but yet commit it as a result of the mental disease. He may, for example, be overwhelmed by a sudden irresistible impulse; or he may regard his motives as standing higher than the sanction of the law; or it may be that in the distorted world in which he lives, normal considerations have little meaning or little value. Most medical men would take the view that in the violent acts of an insane man his insanity has been, as a general rule, an essential and predominant cause, and that therefore he should not be judged by the same standards as normal man.

The criticism of the medical men seems valid in its own place but it cannot be incorporated in the law contained in section 84 of the Indian Penal Code. Nonetheless, if it could be reasonably said that the mental disorders had affected the whole personality of Rambharose and though outwardly he seemed to exhibit conduct which indicated that he knew that he was doing something wrong, yet in a true sense, he neither knew the nature of the act nor its quality. His case falls under the exonerating scope of section 84 of the Indian Penal Code.

Something may be said about the burden of proof which the law places on the accused to substantiate his plea of insanity. It is too much to expect from a person who acted under a delusion to tell us what he felt and how he behaved at the time he committed the crime. If he were only to recollect that, he would cease to be insane. It is not as much the accused who takes the plea of insanity but his friends or his counsel who take such a defence. The question, therefore, is always for the jury or for the Court to say whether the accused was labouring under some form of mental delusion or insanity when he committed the crime. To refuse the right to a guardian or friend of the accused to raise a defence for him, would be to assume his sanity, which in fact, is the question in issue.

The Supreme Court, therefore, lays down, in Dahyabhai v. State of Gujarat that the matter has to be decided on preponderance of probabilities from the evidence and circumstances placed on record, and as soon as the presumption of sanity is rebutted, the Court has to look to the prosecution evidence whether it could satisfactorily discharge the evidence of proving, beyond reasonable doubt, the requisite mens rea for the offence.

R.C. Nigam in his book "Law of crimes in India" writes that the accused in his plea of insanity suffers from two fold disadvantages, namely, (1) that though insane, he is an accused person; (2) that being insane he cannot make use of his faculties and resources to discharge this burden to his advantage. The author says that G. Williams has rightly observed:

The present rule (regarding burden of proof) as stated in the books originated in a confusion between the introduction of evidence and burden of proof proper. In the United States the tendency is distinctly to plate the burden of proof in the true sense upon the prosecution; and this is the rule adopted in the Model Penal Code. This, top, is the rule on the Continent.

We may quote Wharton towards progressive thinking on the subject:

Under the old practice if the accused was convicted be was punished as if he were a perfect moral agent; and if he was acquitted, he was suffered to run at large, though the acquittal was on the ground of a monomania, which would impel him to commit the same act the very nest day. Under the present practice, both these alternatives may be avoided by insuring the sequestration of the accused from the society until a proper finding of sanity is made......Dangers are much diminished, as such acquittal no longer involves the setting at large a dangerous lunatic with the growing force of human interest in the insane, the Court has gradually to assume lenient attitude. A change may likely come in the burden of proof. Where idiocy or semi-idiocy is proved, prosecution might be required to establish affirmatively a capacity on the part of the accused to distinguish right from wrong; or where the evidence be equally balanced as to sanity and insanity, the Court might be asked to presume that sanity did not prevail and the accused was entitled to a reasonable benefit of doubt.

Russell on Crime (Vol. I) refers to R. v. Kemp and draws attention to a further pecularity so far as it appears from the reports; it was the prosecution and not the defence which raised the issue of prisoners insanity, arguing that the case fell within the M Naghten Rules and, therefore, the special verdict was applicable; whereas the defence argued that this was not a case of insanity within the Rules and the Special Verdict did not apply..... The Court returned the verdict "Guilty but insane". It is submitted that the dictum let fall by Lord Denning "The old notion that only the defence can raise a defence of insanity is now gone."

In the present case, the prosecution had been very fair. The evidence on the antecedent and subsequent conduct of the accused was fully given and it was left to the Court to decide whether the case was covered by the exception provided in section 84 of the Indian Penal Code. As discussed above, we are clearly of the opinion that the appellant Rambharose was of unsound mind, acting under some type of delusion, and was incapable of knowing the nature of the act or that he was doing something wrong or contrary to law. We accept the appeal, set aside Rambharoscs conviction and sentence under section 302 of the Indian Penal Code and acquit him of the offence. He shall be dealt with under section 471 of the Code of Criminal Procedure. He shall be detained in safe custody by the jail authorities.

A report be submitted to the State Government for action under the provisions of sections 474 and 475 of the Code of Criminal Procedure.

The State appeal against the acquittal of Mst. Kiron is hereby dismissed.

SINGH J.

My learned brother Malik, J. has admirably discussed the evidence and I need not repeat the same. I agree with his finding that Rambharose killed his son Pappu aged five by throttling labouring under some delusion possibly that he was a Sidha Baba possessed of super-natural powers, and that the child would come to life after three days bringing in addition wealth and prosperity. The conduct of- Rambharose before and after the incident which is proved by the prosecution itself, leaves no manner of doubt that because of some disease of the mind his cognitive faculties were greatly impaired. Strange it may seem but sane people thought that Rambharose was possessed by a ghost and the only treatment that he received was a sitting with a post-man who was believed to have developed occult powers sufficiently strong to overpower the ghost. It is unfortunate that though other officers and subordinates in Rambharoscs office had come to know of his condition, no serious effort was made to arrange medical treatment, otherwise the tragedy may have been averted.

The main point to be decided in the case is whether Rambharose can get the benefit of the exception enacted in section 84 of the Penal Code which reads: "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, as pointed out by my learned brother, is based on the answers given by the Judges in M Naghtens case (1843) All ER Rep. 229 to the questions put to them by the House of Lords. Therein the learned Judges said that "to establish a defence on the ground of insanity it must be clearly proved that, at the time of the committing of 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 he was doing what was wrong;" (p. 233). The word "wrong" occurring here has given rise to sharp difference of opinion. In England the earlier cases proceeded on the basis that wrong" meant moral wrong, but in R. v. Windle (1952) 1 All ER 1 the Court of Criminal Appeal ruled that "wrong" meant contrary to law and that if the defence is that the accused did not know that he was doing what was wrong, it is not sufficient to prove that he believed that what he was doing was morally right. The High Court of Australia in Stapleton v. The Queen (1952) 86 CLR 358 dissented from Windies case and it was held that in applying the second branch of the legal test of insanity in criminal cases as formulated in M Naghtens case the question is whether the accused knew that his act was morally wrong i. e. wrong according to the ordinary principles of reasonable men and not whether he knew it was wrong as being contrary to law. So the position now is that if a case like Hadfield 27 State Trials 1281 were to arise again, the acc would be convicted in England but be would be acquitted in Australia, Had field was tried in 1800 for shooting at George III and acquitted on the ground of insanity. The delusion with which he was afflicted was that the world was coming to an end and that he was commissioned by God to save mankind by the sacrifice of himself. Labouring under this delusion he shot at the King in order to be hanged. So Hadfield had the knowledge that what he was doing was contrary to law but he believed that what he was doing was morally right. The framers of the Penal Code appear to have appreciated the dual meaning of the word "wrong" and, therefore, section 84 uses the words "either wrong or contrary to law". The word "wrong" in the section must mean morally wrong, otherwise it will be redundant and serve no useful purpose. Indeed, this is how the section has been read in two decisions of the Supreme Court viz. Jailal v. Delhi Administration : AIR 1969 SC 15 , p. 16 and S.W. Mohammad v. State of Maharashtra : AIR 1972 SC 2443 , 2445. Section 84, therefore, gives in this respect a wider protection to the accused as compared to English law. A defence of insanity under this section will succeed if the accused establishes that by reason of unsoundness of mind he was incapable of knowing: (1) the nature of the act, or (2) that he was doing what was morally wrong, or (3) that he was doing what was contrary to law. The section was similarly construed by a Division Bench of the Calcutta High Court in Ashiruddin Ahmed v. The King AIR 1949 Cal. 182 .

The first question that arises is whether Rambharose was incapable of knowing the nature of his act when he throttled the child. By "nature of the act" in this context is meant the physical nature of the act or the normal effects of the act. "A man is properly said to be ignorant of the nature of his act, when he is ignorant of the properties and operation of the external agencies which he brings into play;" Mayne, quoted in Baswantrao Bajirao v. Emperor : AIR 1949 Nag. 66, p. 71. The evidence of Mundhar (P. W. 9) discloses that immediately after the child died the accused was heard telling his wife Kiron that Pappu (the child) did not belong to them. The witness also heard the accused weeping. When Kashi Prasad (P. W. 11) and others entered the house, the accused told them that Pappu will come back after Wednesday. The conduct of the accused, therefore, discloses that he did know that his act of throttling the Child will cause his death. This is not a case of the type where a person while killing a human being feels that he is squeezing an orange or breaking a twig. In my opinion, Rambharose was not incapable of knowing the nature of his act and the benefit of the first limb of section 84 cannot be given to him.

The next question is whether Rambharose was incapable of knowing that he was doing what was either morally wrong or contrary to law. In this connection it is relevant to notice that the accused believed to have acquired supernatural powers and he also believed that the dead child will come to life after three days. I have already mentioned that the accused told to those who entered his house soon after the incident that the child would be available by Wednesday. Further, he was seen by these witnesses sitting at ease without worry of any kind and his wife was engaged in massaging his legs. This conduct of the accused coupled with his actions before the incident makes it highly probable that because of the disordered condition of the mind he was incapable of knowing that his act was either morally wrong or contrary to law. The test in such cases is whether the accused through a disease or defect or disorder of the mind could not think rationally of the reasons which to ordinary people make the particular act right or wrong. This was the test which was applied by Dixon, J. in R. v. Porter (1933) 55 C. 189, 190 and approved in Stapletons case (supra). Applying this test, I am satisfied that Rambharose has made good both the defences under the second limb of section 84 and he must be acquitted.

For these reasons, I agree that appeal of Rambharose be allowed as proposed by my learned brother. I also agree with him that the appeal of the State against Kiron be dismissed.