M. P. THAKKAR, S. N. PATEL, J. ( 1 ) THE question before the Court in this appeal directed against the judgment and order passed by the learned Additional Sessions Judge Surat on April 29 1970 in Sessions Case No. 30 of 1970 is whether the appellant has been rightly convicted for an offence punishable under sec. 302 of the Indian Penal Code on the charge of having committed murder by intentionally causing the death of his elder brother Hura Krishna on November 14 1969 at about 4 p. m. ( 2 ) ). The appellant had inter alia pleaded the defence of insanity and claimed the benefit of sec. 84 of the Indian Penal Code. The learned Additional Sessions Judge came to the conclusion that the appellant had failed to discharge the burden of proving the exception embodied in sec. 84 of the Indian Penal Code by showing that he was insane at the material time. The learned Judge in this view of the matter rejected the plea. Having accepted the prosecution evidence mainly consisting of three eye witnesses the learned Judge came to the conclusion that the prosecution had established that the appellant was guilty of the offence of murder with which he was charged and convicted him under sec. 302 of the Indian Penal Code. The learned Judge sentenced him to suffer rigorous imprisonment for life. The convict Barku Krishna who will in the course of this judgment be referred to as the accused has thereupon approached this Court by way of the present appeal. ( 3 ) THE learned counsel for the appellant accused has made the following four submissions in support of the appeal:- (1) That the trial is vitiated by reason of the fact that the procedure prescribed by sec. 464 of the Code of Criminal Procedure Code has not been followed. (2) That the evidence of the prosecution witnesses is unreliable and that the finding recorded by the learned Additional Sessions Judge is unsustainable. (3) That the accused was insane at the material time and was entitled to the protection of sec. 84 of the Indian Penal Code. (4) That in the alternative the offence would fall under Part II of sec. 304 and not under sec. 302 of the Indian Penal Code. ( 4 ) UNDER sub-sec. (2) of sec. (3) That the accused was insane at the material time and was entitled to the protection of sec. 84 of the Indian Penal Code. (4) That in the alternative the offence would fall under Part II of sec. 304 and not under sec. 302 of the Indian Penal Code. ( 4 ) UNDER sub-sec. (2) of sec. 464 the Magistrate has to form the opinion on this question and if he is of the opinion that the accused is of unsound mind and consequently incapable of making his defence the inquiry cannot be proceeded with and has to be postponed. Similarly under sec. 465 if during the course of the trial it appears to the Court that the accused is of unsound mind and consequently incapable of making his defence the Court shall try the fact of such unsoundness and incapacity and if satisfied of the fact the Judge shall record a finding to that effect and shall postpone further proceedings. The obvious object of the Legislature in enacting these provisions is to secure that the inquiry or the trial does not proceed during the period the accused is of unsound mind. The accused has a right to select a counsel of his choice to defend himself. So also it is his right (and it is a precious right) to give instructions to his counsel for his defence and to take up a proper defence. If the accused at the material time of the inquiry or the trial is of unsound mind he would not be able to exercise his right to select his counsel and to impart necessary instructions for conducting his defence to his best advantage and in the most satisfactory manner. If the inquiry or the trial is proceeded with in his absence how can the accused impart the necessary instructions for cross examination and how can the accused render any explanation with regard to the circumstances appearing against him in the course of his examination under sec. 342 of the Code of Criminal Procedure ? He has a right to offer an explanation and to show that the circumstances appearing against him are not incompatible with his innocence in view of the explanation offered by him. 342 of the Code of Criminal Procedure ? He has a right to offer an explanation and to show that the circumstances appearing against him are not incompatible with his innocence in view of the explanation offered by him. That is the reason why the inquiry or the trial as the case may be has to be postponed till the accused is shown to be of a sound mind and capable of making his defence. Now the necessity for postponing the inquiry on the part of the Magistrate or holding the inquiry on the part of the Sessions Judge would arise only if it appears to the Magistrate or to the Sessions Judge as the case may be that the accused is of unsound mind and is incapable of making his defence. If such does not appear to him to be the case it is not necessary to postpone the inquiry or record a finding on the question as to whether or not the accused is of unsound mind. In I. V. Shivaswamy v. State of Mysore Criminal Appeal No. 57 of 1968 decided on 18-1-1971 unreported Judgments Vol. III Part 5 page 194 it has been observed by the Supreme Court as under:-SEC. 465 Cr. P. C. requires that there should be an enquiry within the second limb of the section if it appears to the Sessions Judge that the accused was insane but if it does not appear to him so it is not necessary that he should conduct a regular enquiry under the second limb of the section. It is true that the word appears in sec 465 imports a lesser degree of probability than proof but this does not mean that whenever a counsel raises point before a Sessions Judge he has to straightaway hold an elaborate enquiry into the matter. If on examining the accused it does not appear to him that the accused is insane it is not necessary that he should go further and send for an examine medical witnesses and other relevant evidence. of course if he has any serious doubt in the matter the Sessions Judge should hold a proper enquiry. IN the present case the learned Magistrate holding the inquiry has recorded a definite finding that the accused appeared to be able to follow the proceedings and that he was not of unsound mind. of course if he has any serious doubt in the matter the Sessions Judge should hold a proper enquiry. IN the present case the learned Magistrate holding the inquiry has recorded a definite finding that the accused appeared to be able to follow the proceedings and that he was not of unsound mind. The learned Magistrate formed the opinion that he was capable of making his own defence. This finding has been recorded in the committal order itself. It was therefore not necessary for him to postpone the inquiry. So far as the Sessions Court was concerned no question was raised before the Court that the appellant was insane at the time of the trial. There is no material on record to show that the learned Sessions Judge had any reason to believe that the accused was of unsound mind. It is clear that it did not appear to the learned Sessions Judge that the accused was of unsound mind and was incapable of making his defence. The learned counsel defending the accused in the Sessions Court did not even suggest that at the time of the trial the accused was of unsound mind. In the circumstances it is futile to counted that the trial is vitiated by reason of violation of sec. 464 or sec. 465 of the Code of Criminal Procedure. ( 5 ) IT was argued in the alternative that the matter should be remanded to the trial Court for having the accused examined by a doctor and for obtaining his expert opinion on the question as to whether the accused was of unsound mind at the material time when the incident resulting in the death of deceased Hura occurred on 14-11-69. It was open to the accused to lead such medical evidence as he desired in support of his plea that he was insane at the time of the incident giving rise to his prosecution. No useful purpose will be served by having the accused examined now more than 16 months after the incident. His examination would have been of some use if he was placed under observation soon after the incident and his mental condition was tested by a competent Medical Officer. No useful purpose will be served by having the accused examined now more than 16 months after the incident. His examination would have been of some use if he was placed under observation soon after the incident and his mental condition was tested by a competent Medical Officer. The learned Judicial Magistrate First Class Vyara should have granted the request of the Sub Inspector of Police for sending the accused to a Medical Officer for being placed under observation and for obtaining opinion as regards his mental condition. The learned Magistrate should have realised the value of placing the accused who was suspected of unsoundness of mind under observation by a competent Medical Officer very soon after the incident. Though he was not bound to comply with the request in fairness to the accused he should have acceded to the request of the Sub-Inspector of Police. He should not have resorted to the sophisticated and hyper technical argument that it was not the function of the Court to collect evidence for the police. Out of a sense of fairness and in obedience to the demands of justice the learned Magistrate should have granted the request and should have sent the accused to a Medical Officer. But then his failure to do so will not render the trial void inasmuch as a clear finding has been recorded in the course of the inquiry that the accused was not of unsound mind and was indeed capable of making his own defence. And no such plea was even raised before the Sessions Court. Though therefore there is no violation of sec. 464 or sec. 465 we consider it a part of our duty to place on record our disapproval of the posture assumed by the learned Judicial Magistrate First Class Vyara with regard to the request made by the learned counsel that a fresh trial should be ordered and the accused should be placed under observation now when it was pointed out to him that no useful purpose will be served by calling for the opinion of the Medical Officer as regards the mental condition of the accused having regard to the fact that about 14 months had elapsed after the incident the learned counsel for the accused did not press the point any further. He realized that what was material was the mental condition of the accused at the material time in November 1969 and that no useful purpose will be served by having the accused examined at this distance of time for obtaining the opinion of the Medical Officer as regards the mental condition of the accused at the relevant time. The first submission is therefore devoid of merit. ( 6 ) THE learned counsel for the defence tried to persuade us that the learned Additional Sessions Judge had fallen in error in rejecting the pleas of insanity and in coming to the conclusion that the accused was not entitled to the benefit of sec. 84 of the Indian Penal Code. It was argued that there was sufficient material to show that the accused was insane at the material time and by reason of his unsoundness of mind was incapable of knowing the nature of the act or of knowing that what he was doing was wrong or contrary to law. It was submitted that the facts of the case clearly warranted the application of sec. 84 of the Indian Penal Code and that the accused was entitled to the protection thereof. Now the position of law is well settled that the burden of proving insanity or unsoundness of mind is on the accused who claims the benefit of this provision. This principle has been recognised by the Supreme Court in State of Madhya Pradesh v. Ahmadulla A. I. R. 1961 Supreme Court 998 and re echoed in Dahyabhai Chhaganbhai v. State of Gujarat A. I. R. 1964 Supreme Court 1563. The question then is whether the accused had discharged the burden of showing that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law by reason of his unsoundness of mind. Reliance is placed on the statements made by the prosecution witnesses which indicate that the accused was suffering from a mental disorder or mental imbalance from about 8 or 10 days before the date of the incident. The evidence of P. W. 3 Gulabsing shows that the accused was behaving in a queer way from about 7 or 8 days before the incident. He was speaking at random and it was not possible to understand what be was saying. The evidence of P. W. 3 Gulabsing shows that the accused was behaving in a queer way from about 7 or 8 days before the incident. He was speaking at random and it was not possible to understand what be was saying. It has been deposed to by P. W. 4 Jayant that when the accused was sitting beneath the Bordi tree his eyes were red It is testified by this witness that the had been informed by some boys that Barku had become mad and that upon hearing this report he had come down from his own village Navalpur to the village of the accused Borpada to inquire about the health of the accused. The evidence of P. W. 5 Mundia reveals that he had noticed that at times the accused did not have the sense of understanding. The evidence of P. W. 2 Kunversing shows that the accused used to indulge in throwing stones at children and that he used to run about and they used to call him mad. He proceeded to add that the accused had lapses of madness at intervals from before 8 or 10 days of the incident and used to throw stones at children. The witness also deposed that the accused was being treated by a Bhagat who had administered some herbs and tied a thread to cure him of the mental condition. The learned counsel for the accused has called our attention to the aforesaid evidence and to the for that the accused threw himself in Tapti river without any reason and went across to the other side of the river. It was argued that all these circumstances pointed at the conclusion that the accused was of unsound mind at the material time. The learned counsel for the appellant-accused also emphasized that according to the prosecution case itself the accused had administered blows on his brother without any motive or provocation. It was argued that all these circumstances pointed at the conclusion that the accused was of unsound mind at the material time. The learned counsel for the appellant-accused also emphasized that according to the prosecution case itself the accused had administered blows on his brother without any motive or provocation. ( 7 ) A Division Bench of this Court in Pratapgiri Shivgiri v. The State of Gujarat V G. L. R. 474 has re stated the law on this subject in the following terms:-THE principles which emerge from these authorities are as under :- (1) The test of legal insanity as distinct from medical insanity is that the nature and extent Or unsoundness of mind must reach such a stage where the cognitive faculty of the mind would be so materially affected as would make the offender incapable. of knowing the nature of the act or that he is doing what is wrong or contrary to law. (2) Further one must look outside the act itself for the evidence as to how much the accused know about it. Apart from the act there must be some clear and distinct proof of mental delusion or intellectual aberration existing previously or at the time of preparation of the crime. The Court is only concerned with the state of mind of the accused at the time of the act and the antecedent and subsequent conduct of the mall is relevant only to show that the state of the mind was at the time when the act was committed. (3) The burden is on the accused to establish affirmatively such defence and the same cannot he held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one i. e. so probable that a prudent man ought in the circumstances to have accepted it. IT is in the light of the aforesaid principles that the question will have to be approached. It must further be shown that the explanation is a true one i. e. so probable that a prudent man ought in the circumstances to have accepted it. IT is in the light of the aforesaid principles that the question will have to be approached. The accused will have to show that the test of legal insanity as contra distinguished from medical insanity is satisfied in the present case by reason of the fact that his unsoundness of mind was of such order that the cognitive faculty was materially affected and he was incapable of knowing the nature of the act committed by him or of knowing that the act committed by him was wrong or contrary to law and that the mere fact that he indulged in the act without any motive and behaved in the manner he did will not be sufficient. It will have to be shown from the previous and subsequent conduct that his mental derangement was of the order specified earlier namely of such magnitude that he was incapable of realizing the nature of the act committed by him or of realizing that what he was doing was wrong or contrary to law. In the present case there are circumstances which clearly go to show that the plea of insanity is ill founded. The following circumstances go to show that the mental disorder of the accused was not of such a magnitude that he was incapable of knowing the nature of the act or of knowing that the act was wrongful or illegal:- (1) The accused demanded a Dhoti from P. W. 7 Bhartiya upon reaching the northern bank of river Tapti. It will be recalled that he lost his Dhoti when he was swimming across the river. The fact that he demanded a Dhoti shows that he was conscious of the fact that it was improper to remain clad only in a loin cloth or Langoti without covering the lower portion with a Dhoti. (2) When his brother Hura asked him to return he acceded to the request on the ground that the word of his elder brother should be respected. This shows that he was conscious of the relationship and he was also conscious of his obligation towards Hura by reason of the fact that Hura was his elder brother. (2) When his brother Hura asked him to return he acceded to the request on the ground that the word of his elder brother should be respected. This shows that he was conscious of the relationship and he was also conscious of his obligation towards Hura by reason of the fact that Hura was his elder brother. (3) The evidence of P. W. 7 Bhartiya shows that he had demanded the are on Bhartiya and had assigned the reason that he wanted to cut some wood. (4) The fact that the accused flied from the scene of incident immediately after the assault is indicative of the state of mind of the accused and shows that he was aware of the consequences flowing therefrom. He realized that he had done something which was undesirable and risky and that he must flee therefrom. If this instinct of self preservation was still functioning and he was conscious of this aspect it indicates that his mental condition was not such that he was incapable of knowing the nature of his act or that his act was wrongful or illegal. THE cumulative effect of these circumstances is such that the plea of insanity at the material time is not capable of being sustained. It is no doubt true that the evidence shows that he was acting in a queer manner from about 7 or 8 days before the incident. The fact that he was roaming about (aimlessly ?) and that he was throwing stones at children does show that his mental condition was in disorder or that his mental faculties were unhinged. he same conclusion can be drawn from the circumstance that he was uttering words which were not intelligible. The fact that he jumped into river Tapti at about 1-00 p. m. without any reason and tried to cross over to the other side without any purpose also shows that his mental condition was not in order. That however is not sufficient. It is essential for the defence to show that his mental aberration was of the magnitude alluded to earlier. And having regard to the four circumstances mentioned a short while ago it is not possible to hold that he was suffering from insanity of the description which would attract the shield of sec. 84 of the Indian Penal Code. It is essential for the defence to show that his mental aberration was of the magnitude alluded to earlier. And having regard to the four circumstances mentioned a short while ago it is not possible to hold that he was suffering from insanity of the description which would attract the shield of sec. 84 of the Indian Penal Code. We concur with the opinion of the learned Additional Sessions Judge that the accused has failed to show that he was incapable of knowing the nature of the act committed by him or that he was incapable of knowing that what he was doing was either wrong or contrary to law on account of the unsoundness of mind. We have therefore no hesitation in repelling the argument of the learned counsel for the accused that the Additional Sessions Judge was in error in rejecting the plea of insanity. We hold that the conclusion reached by the learned Additional Sessions Judge viewed in the light of the facts established by the evidence is right and that the plea of insanity deserves to be rejected. ( 8 ) LASTLY it was contended by the counsel for the defence that in any view of the matter the offence would fall under part II of sec. 304 of the Indian Penal Code and not under sec. 302 of the Indian Penal Code. The question with which we are confronted is whether on the proved facts clause 3rd of sec. 300 of the Indian Penal Code would be attracted so as to bring the offence within the sweep of the definition of murder. 304 of the Indian Penal Code and not under sec. 302 of the Indian Penal Code. The question with which we are confronted is whether on the proved facts clause 3rd of sec. 300 of the Indian Penal Code would be attracted so as to bring the offence within the sweep of the definition of murder. Sec. 300 of the Indian Penal Code may for the sake of convenience be quoted :-300 Except in the cases hereinafter excepted culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or ( 9 ) IF it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or ( 10 ) IF it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or ( 11 ) IF the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. THE prosecution has contended and the learned Additional Sessions Judge has accepted that the injury inflicted on deceased Hura was caused with the intention of causing bodily injury sufficient in the ordinary course of nature to cause death. In other words clause 3rdly of sec. 300 is attracted. The injuries on Hura were inflicted intentionally contends the prosecution and that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death The learned Additional Sessions Judge has accepted the proposition canvassed by the prosecution The learned counsel for the accused has however argued that this view is unsustainable having regard to the facts and circumstances of the present case. Be it realized that it has been laid down by the Supreme Court that to fall under the second part of 3rdly of sec. 300 it must be shown that the very injury which was inflicted was the injury which was intended. Be it realized that it has been laid down by the Supreme Court that to fall under the second part of 3rdly of sec. 300 it must be shown that the very injury which was inflicted was the injury which was intended. Once this is established if the medical evidence shows that the injury which was actually caused was sufficient in the ordinary course of nature to cause death the of offence would he one of murder falling under clause 3rdly of sec. 300. On a review of the law laid down by the Supreme Court a Division Bench of this High Court in State of Gujarat v. Ramanlal Chimanlal Khatri X G. L. R. 611 has accepted this to be the true position of law. A similar opinion on a review of the decisions of the Supreme Court has been expressed by another Division Bench of this High Court in Parmar Bhikhabhai Dhulabhai v. State of Gujarat XI G. L. R. 82 Says the Division Bench speaking through N. G. Shelat J. :-IN this view of the matter it is clear that clause Thirdly requires not only merely an intention to cause some bodily injury but his intention must further be established to cause that particular or specific injury which turned out to be fatal or sufficient to cause his death in ordinary course of nature. We have already said above that the injury was only one that he did not specifically intend to cause injury so as to cut his aortic vain and that no part of vital region such as bear or lung was injured. Thus one test is satisfied but not the other essential one of intending to cause specific injury i. e. on a specific part of that region of the deceased. The offence therefore cannot all under that clause of sec. 300 or the Indian Penal Code. In our opinion therefore he can only be said to have intended to cause some injury on his chest which was likely to cause his death and not necessarily the fatal injury as it so turned out. He can therefore be liable for an offence of culpable homicide not amounting to murder punishable under part II of sec. 304 of the Indian Penal Code. The conviction shall therefore be altered from sec. 302 to one under sec. 304 part II of the Indian Penal Code. He can therefore be liable for an offence of culpable homicide not amounting to murder punishable under part II of sec. 304 of the Indian Penal Code. The conviction shall therefore be altered from sec. 302 to one under sec. 304 part II of the Indian Penal Code. SHETH J. speaking for the Court in Ramanlal Chimanlals Case (Supra) has observed as under :-THE crux of that decision is that the offender had an intention to cause a particular injury that has been caused if it is proved and if it is further proved that the injury caused is sufficient in the ordinary course of nature to cause death the offence committed would be an offence of murder punishable under sec. 302 of the Indian Penal Code as this clause (3) could be attracted. RELIANCE has been placed on Virsa Singh v. State of Punjab A. I. R. 1958 Supreme Court 465 as the source of authority for this proposition. In Virsa Singhs Case it may be recalled it has been observed by the Supreme Court that to attract the applicability of clause thirdly it must be proved that there was an intention to inflict that particular bodily injury that is to say that it was not accidental or unintentional or that some other kind of injury was intended. ( 12 ) IN the light of these principles the problem may now be tackled The question that clamours for an answer is whether the accused intended to cause the death of Hura or to inflict the injuries which in fact were inflicted on the person of deceased Hura. P. W 8 Dr. Abhyankar has described the injuries found on the person of deceased Hura in the following terms :- (1) Incised wound on frontal region of head oblique about 3 x 1/2 x bone deep. (2) Incised wound on left side of head about 1 1/2 x 1/2 x bone deep. (3) Contused lacerated wound behind left ear horizontal about 3 x 1/2 x 1/2. (4) Incised wound on left side neck horizontal 1 1/2 x 1/2 x muscle deep. (5) Incised wound on left forearm outer side about 5 x 1 x muscle deep. NOW having regard to the circumstances of the case it is not possible to suggest that the accused intended to cause the death of Hura. (4) Incised wound on left side neck horizontal 1 1/2 x 1/2 x muscle deep. (5) Incised wound on left forearm outer side about 5 x 1 x muscle deep. NOW having regard to the circumstances of the case it is not possible to suggest that the accused intended to cause the death of Hura. There was no motive there was no provocation there was no occasion or reason for mounting a fatal assault on Hura. The learned counsel for the State is unable to contend that the intention of the accused was to cause the death of Hura. The argument of the counsel for the State is that the intention was to cause the very injuries which were found on the body of Hura and inasmuch as the medical evidence shows that these injuries were sufficient in the ordinary course of nature to cause death clause 3rdly of sec. 300 would be attracted and the offence would be one of murder. The argument of learned counsel for the appellant accused on the other hand is that having regard to the facts and circumstances of the case including the mental condition of the accused at the material time it cannot be posited beyond reasonable doubt that the accused intended to cause the very injuries which were sustained by Hura in the course of the incident. The validity of the rival contentions may now be examined in the light of the principles extracted earlier and in the background of the facts and circumstances of the present case. ( 13 ) WE have a moment ago employed the expression facts and circumstances of the present case. At this juncture therefore it is necessary to bring into sharp and clear focus the relevant facts and circumstances which we have in sight. The evidence shows that there was a history of mental disorder and mental imbalance from 7 days immediately preceding the occurrence. The accused was aimlessly roaming about was throwing stones and was uttering words which were unintelligible and on the date of the incident the accused went to the length of jumping in river Tapti without any occasion or purpose. It was in this frame of mind that the accused was sitting beneath the Bordi tree. His brother Hura and his companions approached him with the end in view to persuade him to return home. It was in this frame of mind that the accused was sitting beneath the Bordi tree. His brother Hura and his companions approached him with the end in view to persuade him to return home. Initially when P. W. 3 Gulabsing suggested to him to return the accused re-acted in a queer manner by warning him to keep at a distance and not to approach him. When however he was persuaded by is brother he gave up resistance and responded to the request. It is not in dispute that there was no motive on the part of the accused to assault his brother Hura. Nor had Hura or any of his companions provided him any provocation or excuse for re acting violently. Even so the accused all of a sudden indulged in administering blows with his are and caused the injuries on the deceased. Two of these injuries came to be inflicted on a vital part of his anatomy namely the head. The question then is whether the accused intended to cause the injuries on the head if the answer is in the affirmative the prosecution must succeed. If it cannot be held beyond reasonable doubt that such was his intention the view canvassed by the learned counsel for the defence must be upheld and it must be held that clause 3rdly of sec. 300 is not attracted and that culpable homicide does not amount to murder in the present case. The question is a very narrow one namely that of judging the intention of the accused. It is however a question which is beset with numerous difficulties. In order to be able to assert that the accused intended to cause the said injuries on the head it must be possible for us to hold that he desired to bring about that result. Now the intention or desire of an individual cannot be deciphered or decoded by applying any particular test. The intention or desire being a matter relating to the mental condition of the individual concerned it is a matter of inference on the part of the Court. In other words the Court attributes a particular intention or a desire to the individual concerned having regard to the act committed by him and the circumstances surrounding the commission of the act. In other words the Court attributes a particular intention or a desire to the individual concerned having regard to the act committed by him and the circumstances surrounding the commission of the act. The process of reasoning is based on ones experience as regards the behaviour of individuals and as regards their re actions. One of the methods of divining the intention or desire is to resort to what one might call the process of transference of identity. In other words the person who is required to divine the intention poses to himself the question as to what would have been the intention or desire of himself if he himself had committed the said act under similar circumstances. By such hypothetical subjective substitution of the personality the Judge attempts to decipher the intention of the offender. The second approach make is to ask oneself the question what a hypothetical average normal individual would have intended in committing the act by recourse to a process of backward reasoning in the background of the act committed by the individual. The intention of the person committing the act is found out by taking into account and taking in reckoning all the attendant circumstances on the hypothesis that the act in question is the act of an average normal or ordinary individual. This is the usual mode of ascertaining the intention of a person committing a particular act. There is however a factor of considerable importance which can change the delicate equation. So far in making the assessment and divining the intention of the person committing the act what has gone into the assessment of situation and into the reckoning is the premise that the person whose intention is being ascertained in the context of the act committed by him is an ordinary average normal person. When however such an act is committed by a person who is not fully sane though whose mental condition would not fall under the category of insane in the eye of law as to fulfill the essential ingredients of sec. 84 the matter would stand on a somewhat different footing. One of the premises which was taken into reckoning would have now to he recast to meet the situation created by the factor of differentiation in regard to the mental condition of the person who has committed the act. 84 the matter would stand on a somewhat different footing. One of the premises which was taken into reckoning would have now to he recast to meet the situation created by the factor of differentiation in regard to the mental condition of the person who has committed the act. To put it differently the question to pose is whether one would attribute the same intention to a person who is hovering between sanity and insanity as one would attribute to oneself or to a hypothetical normal man. It is not to be understood that we are laying emphasis on the intellectual equipment of the person concerned. It is not as if the factor regarding the difference in intelligence quotient of the different individuals would make any difference. What is sought to be emphasized is that when the mental condition of a person is such as can be described as looming somewhere in the middle of the region between sanity and insanity particularly when the person concerned cannot be said to be a sane person would it be right to attribute the same intention to such a person in regard to the act committed by him as one would attribute to oneself or to an average normal individual ? To do so would be to completely overlook a material factor which has gone into the reckoning. It would be unrealistic to a great extent to do so. Logically it would be difficult to feel sure about the inference drawn or the conclusion reached if this factor is totally ignored or overlooked. We are not inclined to treat this factor as being a factor of no relevance or no consequence. Of course we do not propose to attach undue or over much importance to this factor. We however propose to maintain a fine balance between the two extreme approaches. And if we do so in the light of the established facts as they emerge from the lips of the prosecution witnesses themselves it is difficult to attribute the intention to cause two particular injuries which came to be inflicted on the head of deceased Hura. We however propose to maintain a fine balance between the two extreme approaches. And if we do so in the light of the established facts as they emerge from the lips of the prosecution witnesses themselves it is difficult to attribute the intention to cause two particular injuries which came to be inflicted on the head of deceased Hura. Usually what is taken into account in ascertaining the intention of the offender is (1) the anatomy selected by the assailant to inflict the injury (2) the weapon selected by the assailant to inflict the injury (3) the number of blows administered to the victim (4) the motive which operated on the mind of the individual concerned (5) the circumstances in which the assault came to be made and (6) the occasion for doing so. If it shown that a vital part of the anatomy was specially selected by the assailant it may point at the intention of the assailant either to kill the man or to inflict an injury sufficient in the ordinary course of nature to case death. If a particular type of dangerous weapon is selected with some purpose it may also give a clue to the working of the mind of the assailant. If the assailant continues administering blows till the victim receives injuries sufficient to jeopardize his life it may be possible to hold that he had an intention to kill or to inflict a particular injury which was sufficient in the ordinary course of nature to cause death. Similarly the motive which operated on the mind of the assailant and the circumstances in which the assault came to be made also would play an important role in adjudging the intention of the offender. For instance if a man lies in wait for the victim to pass in the darkness of night and mounts an assault his intention can be easily detected and most sinister intention may be attributed to him. If on the other hand there is no motive and suddenly some injury is inflicted without any premeditation a less sinister intention may be attributed to the assailant. None of these tests leads to a conclusion beyond reasonable doubt in the present case that the intention of the accused was to inflict injuries on the head of the victim with a purpose. None of these tests leads to a conclusion beyond reasonable doubt in the present case that the intention of the accused was to inflict injuries on the head of the victim with a purpose. Having regard to the mental condition of the accused and the surrounding circumstances which have been pin pointed a short while ago it is not possible to hold beyond reasonable doubt that it was on account of selection that the injuries came to be inflicted on the head. It was not deliberate purpose or selection which made the accused inflict the injury on the head. In our opinion whilst the accused was suffering from a mental disorder and his mental faculties were eclipsed and as he was in an easily irritable condition all of a sudden he was seized with the idea of resorting to violence. In his brother who had come to persuade him to return he found a victim at hand. He just flung out his are to give vent to his anger and to give an outlet to his desire for violent expression. All this happened in a flash without any pre meditation or thought. If that is so it is clear that the head was not selected with a purpose or with deliberation. It just so happened that the victim came to be hit on the head. In other words it is not proved by the prosecution that the accused intended to hit the deceased on the head. All that is proved is that the accused wanted to give expression to his desire to act violently and he flung out the are which by chance came to lend on the head of the victim. So also the selection of the weapon does not lead us to the conclusion desired by the prosecution beyond reasonable doubt. Axe is a weapon which is commonly carried by Adivasis and the accused on seeing it with P. W. 7 Bhartiya borrowed it from him. Therefore there it nothing sinister in the circumstance regarding the weapon either which would justify us in attributing the most sinister intention to the accused. Without indulging in repetition we may say that the argument which we have articulated at some length with regard to the part of the anatomy on which the blow was inflicted will apply with equal force in regard to the number of blows inflicted. Without indulging in repetition we may say that the argument which we have articulated at some length with regard to the part of the anatomy on which the blow was inflicted will apply with equal force in regard to the number of blows inflicted. When we say that he did not realize the magnitude of what he was doing we should not be understood as saying that the accused did not know the nature of his act or did not know that it was a wrong and culpable act. These two are vastly different propositions. With regard to the factor as regards knowing the nature of the act and knowing that it is culpable we have already dealt with this dimension of the matter at the relevant stage and we have already recorded a finding adverse to the accused. That however does not preclude us from holding that the accused cannot be attributed with the intention to cause the particular injuries on the head from the aforesaid stand point. ( 14 ) TURNING now to the last test relating to the motive and the attendant circumstances it makes our task easier. Admittedly there was no motive for mounting the assault on deceased Hura who was the elder brother of the accused. Nor was there any occasion for doing so in the sense that there was no quarrel or altercation or provocation. Why then the accused mounted the assault in open day light in the presence and seeing of the four companions of Hura ? The answer to this question will not justify us in holding that the accused was insane within the description of sec. 84 of the Indian Penal Code It can however be usefully taken into account in assessing the circumstances and taking an over all view to ascertain the intention of the accused. We have no doubt in our mind that the accused had no intention either to kill his brother Hura or to inflict the particular injuries on his head or neck which came to be inflicted in the course of the incident. It appears to us that the accused was seized with an uncontrollable irrational impulse to express himself through the medium of violence and he just happened to hit the deceased on his head and neck. It appears to us that the accused was seized with an uncontrollable irrational impulse to express himself through the medium of violence and he just happened to hit the deceased on his head and neck. We are unable to hold beyond reasonable doubt that the particular injuries on the head and neck came to be inflicted with an intention to inflict the injuries on that particular part of the anatomy. Under the circumstances we are unable to accede to the argument of the learned counsel for the State that the offence would fall under sec. 302 of the Indian Penal Code. In our opinion the offence would amount to culpable homicide not amounting to murder which would fall within the second part of sec. 304 of the Indian Penal Code. It will fall under the second part because we must attribute the knowledge though we cannot attribute the intention to cause the injuries which came to be inflicted. Accordingly we come to the conclusion that offence committed by the accused falls under part II of sec. 304 of the Indian Penal Code. The order of conviction and sentence under sec. 302 must therefore be set aside and in its place the order of conviction under part II of sec. 304 must be substituted. We therefore convict the accused under part II of sec. 304 of the Indian Penal Code. We sentence him to suffer rigorous imprisonment for five years. ( 15 ) THE appeal is partly allowed. The order of conviction and sentence passed against the appellant accused under sec. 302 of the Indian Penal Code is set aside. The appellant is convicted under sec. 304 part II of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years. Order accordingly. .