G.K. Misra, J.
1. The appellant has been convicted under Section 302 I, P. G. and sentenced to imprisonment for life.
2. The prosecution case is that on 22-9-65 a child of 3 years was playing in the village street. The accused came out of his house brandishing an axe and gave a sudden blow with its sharp side on the neck of the child. The boy fell down and died instantaneously. With the blood stained axe the accused ran into the adjoining jungle. The villagers searched for him, but could not trace him out. On 23rd morning the accused returned to his house without the axe. The accused pleads insanity. The learned Sessions Judge held that the death was homicidal and the accused killed the deceased. He rejected the plea of insanity.
3. That the death of the child was homicidal and that the accused killed him with his axe are not challenged before us. P. Ws. 1, 2 and 3 are the eye-witnesses. They vividly describe as to how the accused came out with his axe and killed the child by giving a sudden stroke with its sharp side. The finding is based on unassailable evidence.
4. The only question for consideration is whether the plea of insanity is tenable. Section 84, I. P. C. runs thus :
'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 act or that he is doing what is either wrong or contrary to law.'
All the ingredients of Section 84 must be fulfilled before the plea of insanity succeeds. The ingredients which must be proved under the Section are-
(a) that the accused was insane,
(b) that he was insane at the time when he committed the act and not merely before or after the act, and
(c) that as a result of the unsoundness ofmind the accused was incapable of knowing the nature of the act or that he was;doing what was really wrong or contraryto law.
It was very aptly said in AIR 1960 Mad 316 In re Kandasami Mudali that,
'There is no rule that once insane always insane or that now sane, he must have been sane before.'
Any and every type of insanity recognised in medical science is not legal insanity. Every minor mental aberration is not insanity. There can be no legal insanity unless the cognitive faculty of mind is destroyed as a result of unsoundness of mind to such an extent as to render the accused incapable of knowing the nature of the act or that what he is doing is wrong or con-trary to law.
5. The burden of proof of insanity is on the accused. Section 105 of the Evidence Act with illustration (a) makes the position absolutely clear. The Section and illustration run thus :
'When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code 1860, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustration (a). -- A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A.'
It is clear from the section that the Court shall presume absence of insanity that means, the court shall presume that the accused was sane at the time he did the act. It is now well settled that the burden of proof on the accused is not as heavy as it is on the prosecution to prove an offence. The prosecution is to prove the guilt of the accused beyond reasonable doubt. The burden on the accused is analogous to that on the plaintiff or the defendant in a civil, proceeding. The burden on the accused is discharged if the court is satisfied that the version of the accused is reasonably probable or true though it might not have been proved beyond reasonable doubt. Mere possibilities cannot however be sufficient to discharge the onus.
6. It is not easy to lay down the tests as to how insanity within the ambit of Section 84, I. P. C. is to be established. The difficulty arises on account of the fact that proof of prior or subsequent insanity would not discharge the onus. Insanity at the time of the commission of the act is to be established. It is difficult to enter into the recesses of the accused's mind exactly at the time of the commission of the offence.
Mere ghastly character of the act or absence of motive is not enough to prove legal insanity for the simple reason that each of them is consistent with non-existence of insanity. Though no hard and fast rule can be laid down and the conclusion would vary according to the facts and circumstances of each case, certain broad tests based on objective standards are generally looked into by courts. Those are antecedent and subsequent conduct of the person accused of the offence. Such conduct is not per se enough, but is relevant only to show what the state of the mind of the accused was at the time of the commission of the act. See AIR 1958 Ker 80, Kerala State y. Madhavan.
Some indication of the precise state of the offender's mind at the time of the commission of the act is often furnished by the words of the offender used while commit-ing the act or immediately before or after the commission. See AIR 1927 Lab 674, Tola Ram v. Emperor.
Speaking generally the pattern of the crime, the circumstances under which it was committed, the manner and method of its execution and the behaviour of the offender before or after the commission of the crime furnish some of the important clues to ascertain whether the accused had no cognitive faculty to know the nature of the act or that what he was doing is either wrong or contrary to law.
7. On the aforesaid tests the facts of this case would be examined. P. W. 1's evidence is that the left palm of the accused was swollen for 4 to 5 days prior to the occurrence. The accused was talking incoherently and was also talking to himself. Otherwise he was attending to his work, taking his food and moving about properly. The accused is the cousin of P. W. 1. He noticed that the aforesaid condition developed only 3 to 4 days prior to the occurrence before which the accused was all right. P. W. 2 stated that the accused appeared to be out of his sense when he came out of his house brandishing the Tangi. P. W. 3's version is that for 3 or 4 davs prior to the occurrence he found the accused talking like a mad man and the accused was complaining of pain in his left hand and crying loudly.
P. W. 8 is the mother of the accused who is her only son. Her story is that her son was never mad or insane. Only from the previous Thursday the accused was confined to the house as he was having pain in his left hand and forearm which were swollen. On the date of occurrence she and her son were in their house.
Suddenly at about noon the accused behaved like a mad man and ran to the street with the Tangi (M. O. I.) From the Thursday before the date of occurrence the accused was not talking with anybody andwas not taking his food properly and could not sleep at night. On the day following the occurrence the accused came back from the jungle and stood in the village street without entering into his house. He did not talk to his mother. The Doctor (P. W. 4) examined the accused and noticed swelling on his left hand and forearm. The accused complained to him of acute pain. The Doctor also found multiple abrasions in front of the middle of the neck of the accused running transversely over an area of of 1' xl, 1/2'. The abrasions were simple in nature and were caused by some sharp cutting weapon within 48 hours of the examination which he did on 24-9-65 at 11.30 A. M.
According to the Doctor these multiple abrasions appeared to be self-inflicted and could be caused by the axe M. O. I. He examined the mental condition of the accused and found no abnormality in him. In cross-examination the Doctor answered that he had not specialised in mental disease. That does not however make him disqualified for examining the accused to test whether he found any abnormality in the accused. P. Ws. 6 and 7 noticed that immediately after the occurrence the accused ran towards the jungle.
8. From the aforesaid evidence the following features emerge-
(i) The accused was having severe pain on account of his left palm and forearm being swollen. He was not having proper sleep, but he was attending to his normal duties though sometimes he did not take food.
(ii) The mother's evidence established that the accused was not insane or mad, but showed certain mental aberrations about 4 to 5 days before the date of occurrence.
(iii) On the date of occurrence the accused suddenly came out with the axe and killed the deceased.
(iv) Apparently there was no motive for the murder,
(v) Immediately after the murder the accused ran away to the forest with the bloodstained axe.
(vi) He threw away the blood stained axe inside the jungle of which he subsequently gave recovery, and came back home next morning without the axe.
(vii) On his return he stood on the village Danda, did not enter into his house and did not talk to his mother.
The question is whether on the aforesaid features the burden of proof on the accused to establish insanity can be said to be reasonably true or probable. This burden can be said to be discharged only if a finding can be recorded on the basis of the aforesaid facts that the cognitive faculty of the accused was impaired to such a degree that he was incapable of knowing the nature of the act that he committed or that what hewas doing is either wrong or contrary to law.
9. Certain features establish that the accused was not deprived of his cognitive faculty. Immediately after the murder he ran towards the jungle to conceal himself. The fact that he threw away the axe in a place which could not be traced out without his assistance, is evidence of the fact of his being alive to his guilt. On his return next morning he stood in the village Danda, did not enter into his own house and did not talk to his mother. These give indication of his guilty consciousness.
The fact that he talked like a mad man a few days before the date of occurrence on account of the severe pain is no indication of his loss of cognitive faculty at the time of the commission of the act. There are therefore no decisive circumstances in favour of the accused that he lost his cognitive faculty to a degree prescribed in Section 34, I. P. C. excepting the absence of motive and the ghastly nature of the act. As has already been said, these factors by themselves do not militate against the theory of sanity which the law presumes the accused as having at the time of the commission of the act. The burden of proof ;on the accused as to insanity has not been [discharged.
10. The appeal fails and is dismissed.
Acharya, J.
11. I agree.