JUDGMENT Radhakrishna Menon. J.- The accused in Sessions Case No.7 of 1984 Sessions Court, Alleppey has filed the appeal challenging the judgment by which he has been convicted for the offence punishable under section 302, Indian Penal Code and sentenced to undergo imprisonment for life. 2. The prosecution case briefly stated is this: The appellant accused at about 6 p.m. on 28-7-1983 intentionally or knowingly inflicted stab injuries on one Krishna Kurup which resulted in his death. The incident took place in the house of P.W.7, the maternal aunt of the accused. The accused was arrested from the place of the incident on the same day. The accused denied the charges, the plea being that of insanity at the crucial time. 3. The prosecution examined P.W.1. to P.W.15, and proved Exts.P.1 to P.13 and identified 6 M.Os. exts. D.1 to D.3 were marked on the defence side. 4. P.Ws. 2 to 5 and 7 are the eye witnesses. Of these eye witnesses. P.W.2 has been disbelieved by the Sessions Judge while P.W.7 turned hostile. The Sessions Judge therefore has discarded their evidence. The evidence tendered by P.Ws 3, 4 and 5 was accepted. 5. It is clear from the evidence of P.Ws 3, 4 and 5 that they have witnessed the stabbing. Their evidence stands corroborated by the evidence of the doctor, P.W.6 and the dying declaration proved by P.W.1 who gave the first information to the police. P.W.6 proved Ext.P2 post-mortem certificate which contains the description of as many as eight injuries; of which injury No. 6, which indisputably had penetrated into the chest involving the blood vessels, according to the doctor, is sufficient in the ordinary course of nature, to cause death. This injury, the doctor has deposed, could be caused by M.O.I. 6. On a scrutiny of the evidence aforesaid we are satisfied that the Sessions Judge has rightly held that the prosecution has proved beyond reasonable doubt that it was the appellant accused who inflicted the injuries which resulted in the death of Krishna Kurup. We therefore cannot interfere with the above finding. 7. The matter however does not step here. The “insanity defence”, to get himself extricated from the charge of murder of Krishna Kurup punishable underS.302, I.P.C. raised by the appellant requires to be considered. In proof of this plea the appellant has relied on the evidence of D.Ws. We therefore cannot interfere with the above finding. 7. The matter however does not step here. The “insanity defence”, to get himself extricated from the charge of murder of Krishna Kurup punishable underS.302, I.P.C. raised by the appellant requires to be considered. In proof of this plea the appellant has relied on the evidence of D.Ws. 1 and 2 and the documents Exts.D. 1 to D. 3. D.W. 1 is the Second Class Magistrate, Alleppey who had forwarded Ext.D.1 petition to the Superintendent of Sub-jail for his remarks. Ext.P.12 is the reply D.W. 1 got from the Jail Superintendent. On receipt of Ext.P.12, D.W. 1 dropped further proceedings and that it is so can be seen from the endorsement on Ext.P.12 namely “no further action seen necessary at this stage”. The endorsement is marked as Ext.P.12 (a). Exts. D.2 and D.3 would show that the appellant was an inpatient of the mental hospital during the period from 28-2-1983 till he was discharged on 8-4-1983. D.W.2 is the doctor who had treated the appellant for mental disease during the above mentioned period. In his evidence he has stated thus: “…..The accused might have been suffering from schizophrenia. On 6-3-1984 I had occasion to examine the accused as ordered by this court At that time also his ailment was diagonised as schizophrenia On 4-4-1984 I was examined before this court. Schizophrenia is the most dreaded form of mental disease. The clinical symptoms of this disease can be controlled nowadays by administration of modern treatment. If the patient is given treatment within six months of the onset of the first sympions, the disease can be Completely cured. So far as the accused is concerned a Complete cure is not possible since he had discontinued the treatment several times. Any sort of abnormal behaviour can be expected from the accused. But if the treatment is continued by him one can expect him to have some sort of social life. Ext.D.2 was issued by me on 13-8-1980…..” (emphasis supplied). 8. The Sessions Judge therefore has rightly considered the insanity defence; however, found that the appellant was not successful in establishing that he was entitled to the benefit ofS.84, I.P.C. This point accordingly was answered against the appellant. 9. Before we go into the merits of this plea we shall briefly state the law encompassing this form of defence. 8. The Sessions Judge therefore has rightly considered the insanity defence; however, found that the appellant was not successful in establishing that he was entitled to the benefit ofS.84, I.P.C. This point accordingly was answered against the appellant. 9. Before we go into the merits of this plea we shall briefly state the law encompassing this form of defence. A probe into the historical development of criminal law would make one convinced that no issue in the criminal law has been more vexing than that of the accountability or responsibility. Tomes have been written on this aspect of the criminal law. The more you read them, the more you get caught in a slough. The fundamental question however, is, what exculpating conditions should, if any, be recognised in criminal law. To put it differently, “Would it be sound as a matter of public policy to abolish the insanity defence”? The Michigan Court of Appeals considering this question, once made the following observation: “The question of whether sick people are to be treated for their illness or punished for it is a question which touches the very heart of judicial consciousness of a civilized system of jurisprudence…..It is essential to the dignity of the jurisprudence of this State that we do not punish mental disorder”. 10. Scanning through the literature on this matter it is interesting to note that every civilized system of jurisprudence whether it be of our country or any other State, has adopted the basic principle that in any serious crime established: (1) voluntary conduct (actus reus) and (2) intent (mens red). In the case of a person with mental ailment however, both these elements would be found wanting, therefore dissociation (being beside oneself) was used to excuse the murderer, the poet accordingly sang: “It Hamlet from himself he taken away It was not Hamlet did it”. 11. The thinking and rethinking to get at “the legal formula for exculpatory mental elements” have ultimately resulted in the world famous M’ Naughton's Rule being formulated. This Rule asks, whether the accused, at the time of the alleged criminal act was suffering from such a disease of the mind as to say that he was unable to know the nature and quality of the act he performed, or, if he did know, that he did not know that what he was doing was wrong or contrary to law. In other words, in order to apply this rule, the accused must be judged to be suffering from a disease of the mind so severe as to render him incapable of knowing a nature and quality of the act or of knowing that the act was wrong or contrary to law at the time when he is alleged to have committed the offence. As observed by this court in Rajan v. State of Kerala Rajan v. State of Kerala (1984) K.L.T. 367. “There can be no legal insanity unless the cognitive faculties of the mind are as a result of unsoundness of the mind aye the crucial time so materially impaired that he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law”. In such cases the accused is considered incapable of entertaining a criminal state of mind or intent (mens rea). The mental state of such persons should be distinguished from the mental state of Psychopathic personalities. These are persons who are “basically unsocialized and whose behaviour pattern brings them repeatedly into conflict with society……, who are incapable of significant loyalty to individuals, groups, or social values; who are grossly selfish, callous, irresponsible, impulsive, and unable to feel guilt or to learn from experience and punishment…..”. (American Psychiatric Assoc, Diagnostic and Statistical Manual of Mental Disorders (D.S.M.-II) 43 (1968). These persons therefore should not be enCompossed by the M’ Naughton's test. Considering this aspect an American court in United States v. Browner United States v. Browner (1972) 471 F.2d 96 (D.C.Cir.) observed: “Our recognition of an insanity defense for those who lack the essential, threshold free will……is not to be twisted, directly or indirectly, into a device for exculpation of those without an abnormal condition of the mind”. (See ‘Mental Health Law in New Jersey Theory and Practice by Anne C. Singer, page 221). 12. This principle has succinctly been stated thus by Bishop in his Criminal Law: “Since a criminal intent is an indispensable element in every crime, a person incapable of entertaining such intent to incur legal guilt”. 13. (See ‘Mental Health Law in New Jersey Theory and Practice by Anne C. Singer, page 221). 12. This principle has succinctly been stated thus by Bishop in his Criminal Law: “Since a criminal intent is an indispensable element in every crime, a person incapable of entertaining such intent to incur legal guilt”. 13. To sum up: for exculpation from the charge of murder, the person, who sets up insanity defence, must establish that at the time of the commission of the offence he was suffering from a disease of the mind so severe as to render him incapable of knowing the nature and quality of the act or of knowing that the act was wrong or contrary to law. It is this principle that is engrafted inS.84, I.P.C. “84. 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”. (See Jai Lal v. Delhi Administration Jai Lal v. Delhi Administration A.I.R. 1969 S.C.15: (1969) 1 S.C.R. 140 . 14. The Supreme Court in Jai Lal's has also held that: “…..the state of his mind before and after the crucial time is relevant. If a person 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 he cannot be guilty of any criminal intent. Such a person lacks the requisite mens rea and is entitled so an acquittal”. 15. Having understood the principle of law thus the further question arising for consideration here is this: Can the Appellant accused press the above principle into service and get himself exculpated from the charge of murder? A ticklish question. The answer depends upon the facts established. It has come out in evidence that the appellant has been suffering from schizophrenia and that from 13-8-1980 onwards he has been under the treatment of D.W. 2, D.W. 2 has also stated that “so far as the accused is concerned a Complete cure is not possible since he had discontinued the treatment several times”. It is clear from the evidence of D.W. 2 that on the appellant being examined after the occurrence on 6-3-1984, was found having this ailment namely schizophrenia, then also. It is clear from the evidence of D.W. 2 that on the appellant being examined after the occurrence on 6-3-1984, was found having this ailment namely schizophrenia, then also. He has opined that at the time of occurrence the accused might have been suffering from schizophrenia. On a thorough examination of the appellant the doctor D.W.2 has also opined that any son of abnormal behaviour can be expected from the accused. 16. This opinion of the doctor, notwithstanding, the Sessions Judge has rejected the insanity plea set up by the accused on the ground that there is nothing on record to show that he was suffering from chronic schizophrenia. An investigation into this aspect of the case has therefore become necessary. 17. Harold I Kaplan, M.D. & Benjamin J. Sadock, M.D. in their bopck ‘Comprehensive Text Book of Phyciatry/IV Volume I, fourth edition, page 679 has stated thus in regard to the behaviour of persons suffering from schizophrenia: “Schizophrenic patents are often particularly sensitive to situations that frighten them or to the hostility of others. They respond adversely to intense criticism, novelty, social stimulation, and the community's intolerance of nonconforming behaviour with a renewal of their symptoms…….one of the most serious problems a psychiatrist may have to face is the assessment of the possibility or even probability that a patient may murder someone……there is no specific treatment for schizophrenia in the sense of a cure, and as there is evidence there is no specific treatment for schizophrenia in the sense of a cure, and as there is evidence that different strategies can be helpful at different stages of the illness, an electric approach is stressed”. (emphasis supplied) The above views are highlighted by illustrations and a few of them are: “Another schizophrenic, whose condition had not yet been diagnosed, Complained to a general practitioner about various physical ailments. When the physician finally told him that he should not come anymore because there was nothing else he could do for him, the patient quietly left the office, but returned a few hours latter and killed the doctor.” Yet another illustration is this: “A 19 year old boy had been discharged from a mental hospital in what seemed to be a residual state of chronic schizophrenia of the undifferentiated type. He stabbed his father to death when the father, during a state of intoxication, told the patient that he was too much of a bother around the house and that he might as well return to the hospital.” We made reference to these passages with a view to highlight one aspect namely, that in the case of the schizophrenic patients one cannot be certain as to how they are confronted with situations. One cannot predict as to when they would develop homicidal tendencies. 18. Now turning to the facts of the case: there is no gain saying that the appellant is suffering from schizophrenia. D.W.2 the doctor who had examined him prior to and after the occurrence, has positively stated that the appellant is suffering from schizophrenia which is incurable; incurable because he has not been following the treatment prescribed by him. On examining the literature on this matter critically, one would be tempted to remark that once a schizophrenic always a schizophrenic. The conduct of the appellant after the stabbing, highlighted by the facts found, namely that he was unconcerned about the incident, standing there with the knife even in the presence of the police is telling. No person in his senses would remain like that So was his conduct prior to the incident also. He was found quarrelling (according to P.W.3) for no reason at all with the deceased with whom, he had no previous acquaintance. It was in the course of the quarrel he went inside the house, only to come back with a kitchen knife with which he stabbed the deceased. It is a mystery as to why he stabbed the deceased. The Sessions Judge however, has not bestowed his attention on these matters; instead, rejected the insanity plea, observing that the accused has not established that he was suffering from chronic schizophrenia. In the light of the evidence available on record this observation is unwarranted. The doctor, D.W. 2 has positively stated that the accused appellant is suffering from a type of schizophrenia incapable of being cured whether it is chronic one or otherwise. The evidence would further show that the appellant had developed homicidal tendencies. 19. In the light of the evidence available on record this observation is unwarranted. The doctor, D.W. 2 has positively stated that the accused appellant is suffering from a type of schizophrenia incapable of being cured whether it is chronic one or otherwise. The evidence would further show that the appellant had developed homicidal tendencies. 19. The crucial point that should therefore be investigated in cases like the one on hand is not whether the person concerned at the relevant time was a chronic schizophrenic, but on the other hand the enquiry must be whether he was a schizophrenic as understood by medical persons, a reference in this connection to the following opinion of Dr.Kaplan and Dr.Sadock is relevant: “….Unfortunately, it is exceedingly difficult to prevent most schizophrenic homicides because there is usually no clear warning. Most of the homicides come as a horrifying surprise.”(emphasis supplied) 20. We do not wish to burden this judgment with more citations. It is enough if we observe that the Sessions Judge has missed the point and this has resulted in miscarriage of justice. 21. The appellant has successfully established the ‘insanity defence’ set up by him. He therefore is entitled to acquittal by virtue ofS.84, I.P.C. 22. We therefore set aside the conviction and sentence and acquit the appellant. 23. The appellant however, cannot be set at liberty because he is suffering from schizophrenia with homicidal tendencies. He therefore requires to be detained in safe custody underS.335 of the Code of Criminal Procedure. Sub-s. (2) thereof provides that the order of detention shall be in accordance with the Rules framed by the State Government under the Indian Lunacy Act, 1912. We therefore direct the appellant to be detained in one of the mental hospitals in the State in accordance with the Rules if any, framed by the State Government. Nonetheless it is open to the State Government to release the appellant provided any of his relatives or friends undertakes to protect him. 24. The Criminal Appeal accordingly is allowed. B.S. ----- Appeal allowed.