- (1.) THIS is an appeal by Gulab against bis conviction by the Sessions Judge of Jhalawar under sec. 302 of the Indian Penal Code.
(2.) THE prosecution case briefly was that on the evening of the 5th of May, 1949 the appellant cut the throat of his wife inside his house with an. axe. After doing this he came outside and did not try to run away. THE appellant's brother raised an alarm to the effect that the appellant had killed his wife. This brought a number of people to the door of the appellant's house. THEy put some questions to the appellant but he did not reply to them and sat with his head bent down. Later the police arrived and the appellant was taken in custody. The appellant admitted both in the Magistrate's Court and in the Sessions Court that he had killed his wife with an axe. His defence how-ever was that he was not in his proper senses and something had gone wrong with him when he committed this murder. In view of the consistent ad-mission of the appellant that he killed his wife with an axe, it is unnecessary to consider the evidence for the prosecution in detail. It is enough to say that the medical evidence shows that the carotid artery had been cut by some sharp instrument and that was the cause of the woman's death. It has been urged by the learned counsel of the appellant that his case is covered by sec. 84 of the Indian Penal Code, which 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. " The evidence of the prosecution as well as the defence witnesses in this connection has been that for about two months before the date of the murder the appellant had begun to behave some what strangely. This strange behaviour consisted in his remaining silent and in his going away at times from his house whether in the day or night. Some times he used to come back himself after two or three days and at other times fellow villagers had to go and search for him and bring him back. The witnesses have also further said that prior to this the appellant was perfectly alright and a respectable man. The evidence also is that his wife was of good character and the relations between the two had always been good. The witnesses further agree that the appellant did not sustain any mental shock or suffer from any disease before he started behaving in the strange manner mentioned above. Further, it appears that the appellant was never violent. Besides the evidence of these witnesses there is also the evidence of three Doctors, who examined the appellant at various stages. The first Doctor to examine him was one Walaitilal. This Doctor apparently examined him within a few days of the murder, and the statement which he made on the 8th of June 1949 was to the effect that the appellant understood everything relating to himself but did not reply to questions relating to other matters. This Doctor was further of opinion that this mental state might be due to the shock caused after the commission of the offence. In his statement in the Sessions Court on the 3rd February 1950 the Doctor tried to help the appellant and said that in his opinion the appellant gave replies like an insane person and bis mind did not function properly. When, however, confronted by his own earlier statement he admitted that what he was stating on the 3rd of February 1950 was incorrect. It seems that the appellant was under the observation of another Doctor Ahsanullah Khan from the 17th of June to the 23rd of June 1949. He found that the appellant was properly attending to his daily duties, namely, sleeping, eating and drinking etc. He also found that the appellant had an accurate power of perception, recognition of persons, memory and understanding even about past incidents. He further found that the appellant was able to understand the consequences of his acts. The only thing that he noticed was that the appellant used to remain silent and would not talk unless he was questioned. Eventually, the Doctor gave the opinion that though the appellant looked like an idiot he was not mad and that he had intelligence befitting his position in life. The third Doctor who examined the appellant is Dr. Bhatia. He kept the appellant under observation for about two months. He then found that although the appellant ate, drank, and slept like an ordinary normal person he used to be in a depressed state in mind and to remain quiet. The appellant could do everything for himself and correctly replied like a normal person to questions put to him, though he was a little slow in giving replies. The appellant also appeared to have proper cognitive faculty and proper power of perception and memory. The Doctor felt that the mental depression that the appellant had might be due to the commission of murder. There were no symptoms of dementia present and there was only some weakness of memory due to depression. We have set out in some detail the statements of the various witnesses, both for the prosecution and the defence, and the observations of the medical witnesses in connection with the mental powers of the appellant. The statement of the lay witnesses does not, in our opinion, establish, considering the symptoms which they have described, that the appellant became of unsound mind some months before the incident. Their evidence only shows that some change had come over the appellant some time before this murder; but the change noticed by them does not appear to us to be of such a nature as to lead us to the conclusion that the appellant was either of unsound mini or that the unsoundness was of such a nature as to make the appellant incapable of knowing the nature of his acts or that he was unable to realise that whatever he was doing was either wrong or contrary to law. The evidence of these lay witnesses, as a matter of fact, only shows that the appellant remained in a quiet mood for some time before the murder and does not, in our opinion, establish that kind of unsoundness of mind, which is required under sec. 84. If to this evidence we add the evidence of the three medical witnesses who examined the appellant, two of them within a short time of the murder and one at a later stage, we cannot but come to the conclusion that the appellant was not of unsound mind at the time of the incident and that it cannot be said that he was incapable of knowing the nature of his acts or that he was doing what was either wrong or contrary to law. In this connection we may refer to the case Narain Said vs. Emperor (A. I. R. 1947 Pat. 222) in which sec. 84 was considered. We agree with respect with the observations made in that case. Sec. 84 requires that two matters should be proved by an accused person who wants to take advantage of it. He has first to show that he was at the time the act was committed of unsound mind. This is a matter of inference from his acts at; or before the time of the incident, arid from such other evidence relating to his mental history or to the mental history of his relations as might be available. If this is established then comes the second matter which is further to be established, viz. , that the unsoundness of mind is of the kind that is required under sec. 84 I. P. C. It is not enough that the accused should prove that he was of unsound mind at the time of the incident. He has also to prove that the unsoundness was of such a nature that he was incapable of knowing the nature of his act or that he was doing what was either wrong or contrary to law. A person may be unsound in mind in some respect and may still know very well the nature of his act like murder and also that doing of such an act was wrong. The evidence of the lay witnesses in this case, as we have already said, does not really show anything more than this that the appellant used to keep silent and depressed for some months before the murder. There is nothing to show that he had lost the faculty of distinguishing between right and wrong or of not knowing what he was doing. It is true that there is no apparent motive for this murder and the appellant did not try to run away or conceal his crime. But these factors alone are not sufficient to lead to the inference that the appellant must be of unsound mind of the nature described in sec. 84, if the evidence as to that, both of ordinary persons and medical men, is otherwise. It is remarkable that in this case the appellant remembers very well what he did to his wife on that evening. It is also remarkable that he knows that if he hits a person on the neck with an axe he is likely to kill him. It cannot, therefore, be said that he did not know the nature of the act when he killed his wife. Further, there is nothing to show in this case that distinction between right and wrong had been obliterated from his mind. The evidence of Dr. Bhatia shows that he is practically a normal man though he keeps depressed. Dr. Bhatia is also of opinion that the appellant has proper cognitive faculty and has proper power of perception and memory. We have, therefore, no hesitation in coming to the conclusion that sec. 84 of the Indian Penal Code does not apply to the case of the appellant and that he was not of unsound mind when he committed this offence or at any rate he was not incapable by reason of unsoundness of mind of knowing the nature of his act or that he was doing what was either wrong or contrary to law. The trial court has already taken into account the depressed state of mind of the appellant and the apparent want of motive for the murder in awarding the lesser sentence. There is no reason in this case for any further mitigation of the sentence. The appeal is hereby dismissed. . ;