RAM LABHAYA J: Kartik Chandra Dey, applt, aged 24, of mouza Pitnipara, Police Station, Nalbari, has been convicted by the learned Ses J., Lower Assam Districts under S. 302, L P. C., for having murdered his maternal aunt on 9-6-1948 and sentenced to death. The proceedings have been submitted to this Ct, for confirmation of the death sentence. The accused has appealed from his conviction & sentence. This order will dispose of the refer­ence & the appeal. (2) There can be no manner of doubt that the accused killed Mt. Parulbala, his maternal aunt, near the tank of the village at about 9 a.m. Mt. Sarubala, P. W. 9, mother of the accused, deposed that the accused refused to take tea on the morning of the occurrence & asked her to cook meal for him. He went out saying that he would return a little later. He did return shortly after. She asked Mt. Parul­bala to call Kartik for his meal but both did not turn up. A short while later, she heard shouts of 'Horibol, Joykali' from the side of the tank, which would be about 10 cubits oft, from her kitchen. She peeped through the walls of her kitchen & saw the accused brandishing his sword, Ex. 1, also described as dao, & also noticed a person lying on the bank of the tank. She also heard people shouting that Kartik has committed murder. He was shout­ing 'Jai Hind, Jai Kali'. She went to the tank & saw the dead body of Mt. Parulbala. Her abdomen had been ripped open. She had other injuries also. (3) P. W. 2, Hazarika, who also lived in the compound of Kabi Barua where the house of the accused was situate, was returning from his field. He saw the accused dragging Mt. Parulbala from the house towards the tank. On arriving near the tank, the accused shouted 'Joy Kali' & struck her with the dao that he had. She fell down & was hit again. She then rolled down into the water of the tank. The accused went on striking her with the dao, dragged her out of the water & after splitting open to the abdomen took out entrails & wrapped them round his left hand. He then left the place brandishing his dao. At that time P. Ws. 7 & 8, Uttam & Mani were com­ing from the southern direction. The accused went on striking her with the dao, dragged her out of the water & after splitting open to the abdomen took out entrails & wrapped them round his left hand. He then left the place brandishing his dao. At that time P. Ws. 7 & 8, Uttam & Mani were com­ing from the southern direction. They were asked not to approach the accused, as he had Just murdered his maternal aunt. They both saw the accused going from Kabi Barua's 'chotal' & getting on the road. He had even then the dao, Ex. 1, in his hand & had en­trails wrapped round his left hand. He was still shouting 'Joy Hind' & brandishing the dao. Nagaru Sheikh, P. W. 4, was ploughing in his field towards the north of the Kabi Barua's compound. He heard someone shouting TVIaha Kali, Maha Kali' & looking back witnessed the accused striking a woman with something like a lathi or a dao. P. W. 5, Mohan Rajbanshi, was also in his field. He also saw the accused striking the deceased with a dao. P. W. 3, Kabi Chandra Barua, was going towards his house. He saw the accused coming to the road from his 'chotal'. He had his dao in his hand & entrails wrapped round the other hand. Devendra Chandra Dey, P. W. 1, was going to Nalbari Bazar. He heard some noise from the direction of his house. He also saw people running in that direction. He returned to his house when he saw the accused going towards the south with a sword in his right hand & en­trails covering his left hand. He then saw Uttam & Mani & others & was informed that the accused had murdered his maternal aunt, Parulbala. He accompanied by Hazarika, P. W. 2, took a short cut to the thana at Nalbari & made the P. I. R. When his report was being recorded, the accused also arrived. He still had his dao in one hand & entrails on the other hand. He was taken into custody. (4) The medical evidence shows that there were no less than 8 incised wounds on the per­son of the deceased. The 'post mortem' exa­mination revealed that some portion of intes­tine had been torn & was missing. This corres­ponded with the portion of intestine sent sepa­rately by the police. He was taken into custody. (4) The medical evidence shows that there were no less than 8 incised wounds on the per­son of the deceased. The 'post mortem' exa­mination revealed that some portion of intes­tine had been torn & was missing. This corres­ponded with the portion of intestine sent sepa­rately by the police. (5) It is established beyond doubt that Mt Parulbala died as a result of the dao injuries inflicted on her by the accused on the morn­ing of the day of occurrence. The witnesses are all disinterested. The mother of the ac­cused also supports the version. The accused surrendered himself at the Police Station. He had the weapon of offence in his land. He also produced the entrails, a piece of circumstantial evidence pointing unmistakably to the conclu­sion that he was responsible for the diabolical murder of the deceased. When questioned by the Committing Mag about his defence, he stated that he was not guilty. At the trial, he repeated his plea of not guilty & added that he had nothing in his memory so far as the subject-matter of the charge was concerned. In other words, his plea was that he was tem­porarily insane, & at the time of the occurrence did not know what he was doing. In his grounds of appeal, he has raised the plea of im­pulsive insanity. The main question in the case, therefore, is whether no offence has been committed by reason of the fact that the ac­cused at the time of committing the murder was by reason of unsoundness of mind incapable of knowing the nature of the act or that he was doing what was wrong or contrary to law. (6) The accused, his mother & Mt. Parulbala came to live in village Pitnipara in Magh or Falgoon some three months before the occur­rence. They were living in the compound ol Kabi Barua. Two daughters of Mt. Parulbala & a nephew of the accused also lived with them. They all had shifted from Mymensingh a district in Pakistan. According to Mt. Saru­bala, P. W. 9, the accused took to hawking in his new abode, but he stopped doing so about a week before the occurrence. He also would not take bath & meals. One day he pushed her out of the house & left her on the road. They all had shifted from Mymensingh a district in Pakistan. According to Mt. Saru­bala, P. W. 9, the accused took to hawking in his new abode, but he stopped doing so about a week before the occurrence. He also would not take bath & meals. One day he pushed her out of the house & left her on the road. On the day of occurrence he refused to take tea in the morning & asked her to cook his meal. A short while after, he slaughtered his maternal aunt on the bank of the tank close to the house. She could not account for the mur­der but added that about 10 or 12 days before the occurrence the accused had complained against the character of Mt. Parulbala & asked her to keep her under control. She also deposed that the accused had quarrels with her as well as Mt. Parulbala before the occurrence. In cross-examination she improved her statement by stating that on the day the accused quarrelled with her, he was out of his senses & he had become insane. He had such fits even in his native place & when such fits were on, he would avoid taking food for a couple of days or so. She also stated that he was taking quinine twice a day as -he had suffered from Malaria for quite a long time. (7) P. W. 10, nephew of the accused, has stated that the accused used to have violent quarrels with his mother at occasions. Devendra Chandra Dey, P. W. 1, also stated that ac­cused used to have quarrels with some one in his house. Kabi Barua, P. W. 3, also deposed to quarrels inside the house of the accused. He could give no reason for these quarrels. Ac­cording to him, the accused did grag his mother once in a quarrel. Hazarika, P. W. 2, Nagura Sheikh, P. W. 4, Mani Ram, P. W. 8, stated that the accused was not insane & was not known to be suffering from any serious illness or derangement of the mind. The evidence bearing on the plea of insanity has all been reproduced above. On this evidence it has been argued that the case is covered by S. 84, I. P. C. The learned counsel for the applt has argued that the prosecution witnesses have not been able to disclose any motive for the murder. The evidence bearing on the plea of insanity has all been reproduced above. On this evidence it has been argued that the case is covered by S. 84, I. P. C. The learned counsel for the applt has argued that the prosecution witnesses have not been able to disclose any motive for the murder. The crime was attended with unusual ferocity; it was committed in broad day light. Prom these facts he argues an inference that the accused was at the moment incapable of comprehend­ing the consequences of his act was justifiable. (8) We think this argument should not pre­vail. The burden of proving the plea of insanity is on the accused. He has to establish that by reason of the unsoundness of mind he was incapable of knowing the nature of the act & could not realise that what he was doing was wrong or contrary to law. A disease or derange­ment of the mind, which materially impairs or leads to the temporary suspension of the cogni­tive faculty at the time of the offence can alone form the basis of exemption if the nature & the extent of the unsoundness of mind reaches a stage when it is not possible for the person concerned to distinguish between right & wrong. As laid down by the learned Judges in the famous 'M' Naghton's case', (1843-4 St Tr (NS) 847) to establish a plea of "insanity it must clearly be proved that at the time of committing the act the party ac­cused was labouring under such a defect of reason from disease of the mind as not to know the nature & quality of the act he was doing or as not to know that what he was doing was wrong." This enunciation of the law of England is the basis of S. 84, I. P. C. & is embodied in it. (9) The learned counsel for the applt has urged that the accused had intervals of reason but that at times he was afflicted by mental disorder which deprived him of his reason & the faculty to distinguish between right & wrong. He refers to the statement of P. W. 9, the mother of the accused, who deposed that while in service in the army the accused suffer­ed from Malaria & to get rid of it he used to take quinine twice a day. He refers to the statement of P. W. 9, the mother of the accused, who deposed that while in service in the army the accused suffer­ed from Malaria & to get rid of it he used to take quinine twice a day. The suggestion was that the Malaria was of a malignant type need­ing constant & excessive use of quinine for its prevention. This produced an irritability of temperament. It was further deposed by the Witness that the accused quarrelled with her as also with his maternal aunt. In such quarrels, it is said, he betrayed a tendency to violence even. The mother would naturally be partial to the son. Her version as regards the mental condition of the accused before the occurrence receives no support from any other quarter. Even Tharipada, P., W. 10, a nephew of the accused, has not been able to go so far. All that he says is that the accused used to quarrel sometime with his mother but with nobody else. Mt. Sarubala, the mother herself did not state before the committing Mag that the accused suffered from any mental disorder. Before him she deposed that she was unable to say why the accused killed Parulbala though he had com­plained to her 2 or 3 days before the occur­rence that Parulbala was not of a good moral character. Her statement at the trial that the acc,used suffered from malignant Malaria & the constant use of quinine had produced a mental disorder which led at times to a suspension of cognitive faculties cannot in these circumstances command credence. The accused lived in the village for about three months. Nobody noticed anything unusual or abnormal about him. He was not regarded as quarrelsome or violent. All that the neighbours have been able to say is that inside the house of the accused there used to be quarrels. This however, would be consis­tent with the accused not being 'non compos mentis'. Besides as held in 'Tola Ram v. Empe­ror', 8 Lah 684: (AIR (14) 1927 Lah 674: W CrLJ 598), the condition of the accused an­tecedent & subsequent to the commission of the crime is relevant only in so far as it might assist the Ct in coming to a conclusion as to the mental capacity at the time when the accused struck the fatal blow. It is not 'per se' enough to establish that the case is covered by S. 84, I. P. C. (10) As regards the mental condition of the accused at the time of the commission of the offence, the circumstances under which the crime was committed constitute the only evi­dence. The accused was seen dragging the de­ceased towards the tank at a short distance from the house. According to the mother, P. W. 9, the accused believed that Mt Parul­bala was not of good moral character. She was about 25 years of age & has been des­cribed as good-looking by prosecution witness­es. She had come to the village with the accused though her husband was in Calcutta. He did not come with her & never visited the village till the date of the occurrence. Even after­wards he does not appear to have taken any interest in the affair. The accused came to the village where he resided as a refugee. His mother deposed that he took to hawking in his new abode. But there is no corroboration for this part of her statement also, from inde­pendent testimony. This statement was also made for the first time at the trial. The family had no apparent source of income. In these circumstances a young & a good-looking woman may not have been able to maintain her chastity or reputation. The suspicion or belief about her immorality may possibly have been well grounded but even if it was not, it could certainly serve as a motive for the crime. The conduct of the accused at the time he slaughtered the deceased & immediately after­wards indicates that the accused thought he had nothing to conceal. The perpetration was in broad day light. The persons round about witnessed it. His taking out a portion of the Intestine, shouts of 'Joy Hind' & 'Joy Kali' & the brandishing of the sword are unusual acts. They horrified those who were present in the neighbourhood. They tried to keep out of the way of the accused. These acts, however, be­speak a mind that exulted in its achievement & felt triumphant. It had no remorse. The Victim of the tragedy, in the view of the accused, richly deserved the dire punishment in­flicted on her on account of her real or fancied immorality. They tried to keep out of the way of the accused. These acts, however, be­speak a mind that exulted in its achievement & felt triumphant. It had no remorse. The Victim of the tragedy, in the view of the accused, richly deserved the dire punishment in­flicted on her on account of her real or fancied immorality. The learned counsel for the accused has suggested that he acted under the influ­ence of the idea that he was washing a stigma from the fair name of the family. The con­duct of the accused would be consistent with this belief. But all this shows that the mind of the accused was neither unhinged nor de­ranged. He was in full possession of his cog­nitive faculties. He went straight to the Police Station & surrendered himself with the weapon at the offence the best, though horrible evi­dence of his guilt. The Police Station was about 3 miles away. His surrender there leaves no room for doubt that he was conscious that he had transgressed the law though he may have believed that what he did was justified according to his own moral code. It seems fairly clear that the accused killed the deceased not in paroxysm of insanity but in order to punish her for her immorality & to wash off the disgrace which he thought she had brought to the family. The taw presumes every person at the age of discretion to be sane unless the contrary is proved; & even if a lunatic has lucid Intervals the law presumes the offence of such person to have been committed in a lucid in­terval, until it has been proved that it was committed during a state of derangement. It would be most dangerous to admit a defence of Insanity upon arguments merely derived from the character of the crime. The mere fact that It was attended with uncommon ferocity could alone not suffice for the inference that the ac­cused had a deranged mind. It would be most dangerous to admit a defence of Insanity upon arguments merely derived from the character of the crime. The mere fact that It was attended with uncommon ferocity could alone not suffice for the inference that the ac­cused had a deranged mind. As observed in 'Reg v. Stokes', (1818) 3 C & K 185 at p. 189: (175 ER 514) "It would be a most dangerous doctrine to lay down, that because a man committed a desperate offence, with the chance of instant death, or the certainty of future punishment before him, he was therefore insane - as if the perpetration of crimes was to be excused by their very atrocity." (11) The manner in which the crime was com­mitted cannot, therefore, be utilised for the in­ference that the accused was incapable of knowing the nature of the act at the time he com­mitted the offence. (12) There is nothing in the facts of this case to show that the accused suffered from Impulsive insanity. The previous history about the mental condition of the accused does not even remotely suggest that the accused used to Buffer from irresistible impulses to resort to violence. Quarrels have been mentioned but even the mother of accused has not been able to refer to more than one occasion when she was pushed out of her house. This circumstance even If believed to be true is wholly in­adequate to show that accused was a case of Impulsive Insanity. He had never been violent to anyone in the village in word or in deed during the three months of his stay in the Village. His learned counsel has also urged that the murder was without any motive. In advanc­ing this argument he ignores the statement of the mother of the accused. The possibility of the mother having introduced the circum­stance about the belief of the accused as to the immorality of the deceased with a view to re­ducing the gravity of the offence is remote & is excluded by reliable evidence showing that the accused used to have quarrels with the de­ceased before the occurrence. Again the mere fact that the prosecution is unable to prove motive beyond any reasonable doubt is no reason for holding that there was no motive for it. Nor is the absence of motive any rea­son for holding that the plea of insanity has been established. Again the mere fact that the prosecution is unable to prove motive beyond any reasonable doubt is no reason for holding that there was no motive for it. Nor is the absence of motive any rea­son for holding that the plea of insanity has been established. (13) For the reasons given above, we have-no hesitation in holding that the plea of in­sanity raised on behalf of the accused has not been made out & the accused was rightly con­victed under S. 302, I. P. C. for the murder of his maternal aunt. (14) There remains the question of sentence. His learned counsel argues that the circum­stances of this case justify the lesser penalty. He points out that either there was no motive for the offence or it was the immorality of the-woman that provoked the accused to this foul deed. He was 24 years of age & therefore im­pulsive & easily inflammable. We do not think there is anything in the case which can be urged in extenuation of the guilt of accused. Mere tender age is not a sufficient reason for awarding lesser penalty in a case where the murder is extremely brutal & ruthless. We have come to the conclusion that the crime, in this case, was not without any motive. There was no sudden provocation. The accused had been complaining about the immorality of the deceased. His act, therefore was premeditated & deliberate. This is also indicated by his sur­render at the Police Station immediately after the occurrence. The sentence of death passed on him, in these circumstances, was appro­priate & we see no justification for commuting: it. (15) The appeal is dismissed and the sentence: of death is confirmed. (16) THADANI C. J: I agreed. V.S.B. Death sentence confirmed