SIDDHESWARI BORA Vs. STATE OF ASSAM,

JUDGEMENT

(1.) 'Is mercy killing an offence in India' ? is the merciful question which has fallen for determination in this way side case a jail appeal from a convict under Section 302, I.P.C. The facts are telling and stand almost uncontroverted. The victim was a 3 year old female child of accused Siddheswari. On 26.3.1974 at about 9 A.M. when mother of the accused (P.W. 2) was in the cowshed, Pilpili (P.W. 3) and Sumitra (P.W. 4) the two other daughters of the accused, came running to her grand ma and informed that the Niles -wari, the child had been killed in their cowshed by their mother with a dao by hacking her on the neck. On Dharmeswar son of P.W. 2 corning from market, he was sent to inform Janiram (P.W. 1), father of the accused. who lodged ejahar at about 1 P.M. of the date of occurrence implicating the accused in the crime.

(2.) THE fact of the death of Nileswari at the hand of the appellant has been testified by none else than her nearest and closed relations noted above. The same cannot therefore be doubted. Autopsy Surgeon (P.W. 6) had found five incised injuries on the person of the deceased, one of which was on the neck and other on the occipital region of the head, which is just over the back -side of the neck. As P.Ws. 3 and 4 were quite young (aged about 9 years and 7 years at the relevant time), hacking on back of the head, could have well been taken as on neck. The evidence about killing is thus conclusive and clinching.

(3.) THE only point which is urged by Sri Sarma who has appeared as amicus curiae is that Siddheswari had caused the offence due to mental derangement. Something about this had been stated by P.W. 4 whose evidence in cross -examination was : "My mother is a diseased one. She suffers from mental derangement at times". Our attention has also been invited by Sri Sarma to the evidence of P.Ws. 1 and 2 in this regard. P.W. 1 had stated that Siddheswari was suffering from illness for about 2 years prior to the occurrence. P.W. 2 has testified that their daughter was ailing. Illness as such is no excuse or exception, though mental derangement would be if the same can be taken care of by Section 84 of the Penal Code. To get the protection under that Section, it is however necessary that the person concerned by reason of unsoundness was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. This requirement under our law is in substance the same as that laid down by the Judges in their answer to the questions put to them by the House of Lords in McNaughten's case. There is nothing be fore us to satisfy if mental derangement of Siddheswari was of the nature contemplated by Section 84. The case therefore does not come within the general notion of insanity.