Gauhati High Court
Page No.# 1/22 vs The State Of Assam on 2 May, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/22
GAHC010135392022
2025:GAU-AS:5422-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/73/2022
DHRUBAJYOTI BORAH
S/O. LT. MINTU BORAH, VILL. DAPARBATIA, SAUDAR CHUBURI, P.S.
TEZPUR, DIST. SONITPUR, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER
Advocate for the Appellant : Ms. B. Sarma, Amicus Curiae.
Advocate for the respondents : Ms. B. Bhuyan, Senior Counsel &
Addl. PP, Assam.
Date of hearing : 23.04.2025 & 24.04.2025
Date of Judgment : 02.05.2025
Page No.# 2/22
Judgment & Order
(S.K. Medhi, J.)
The instant appeal has been preferred from jail under Section 302/201 IPC
(corresponding to Sections 103/238 BNS) against the judgment and order dated
09.05.2022 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case
No. 210/2018; sentencing the appellant to undergo RI for life and fine of Rs.5,000/-
i/d SI for 06 months under Section 302 IPC (corresponding to Section 103 BNS). RI
for 3 years and fine of Rs.500/- i/d SI for 2 months.
2. The criminal law was set into motion by lodging of an Ejahar on 25.06.2018
by one Jiban Borah, who was examined as PW 1. He had alleged that his sister
was killed on the previous night by the appellant who is her son. Based on the
aforesaid Ejahar, the FIR was registered leading to Tezpur PS case number
1326/2018 under Sections 302/201 of the IPC (corresponding to Sections
103/238 BNS) and the investigation had begun in which the police had arrested
the appellant, the murder weapon was seized, statements of the witnesses were
recorded, the beheaded body as well as the severed head were recovered and
sent for post-mortem after inquest was done and after completion of all the
other formalities, the charge sheet was laid. The charges were accordingly
framed against the appellant under Sections 302/201 of the IPC (corresponding
to Sections 103/238 BNS) and on its denial, the trial had begun in which the
prosecution had adduced evidence through 10 nos. of prosecution witnesses.
The defence had also adduced one witness.
3. PW 1 is the informant who had deposed that PW 3 who is a neighbour of
Page No.# 3/22
the appellant’s house had informed regarding a quarrel of the deceased and the
appellant on the previous evening and at about 4.30 am, he had seen the
appellant throwing garbage in the well and he had also not seen the deceased
going out for morning walk which she usually did. On receipt of such
information, the informant had come to the residence of the appellant with his
wife and the Gaonburah was also informed who had called for the police.
Thereafter, on arrival of the police, the accused, who was inside the house by
bolting his door had come out with a khukri and had said that with the said
khukri, he had killed his mother and threw the dead body in the well. The police
had accordingly recovered the beheaded body of the deceased and
subsequently the severed head from a nearby pit.
4. The FIR was proved as Ext.-1 and he is also a witness to the seizure of the
kukri and the seizure list was proved as Ext.- 2 and the khukri as material Ext.-1.
He is also a witness to the Inquest Report where he had put his signature. PW 1
was cross-examined in which he had stated of noticing blood stain near the
door but not inside the house. He had also stated of not remembering whether
the police had seized any blood stained cloths from the house of the appellant.
Questions were put to him regarding certain land dispute with the PW 3 which
the PW 1 had refuted. It has however come on record that the PW 1 did not
have any visiting or talking terms with the deceased since the last about 7
years.
5. PW 2 is the wife of PW 1 who had deposed that on 25.06.2018 at about
6:00 am, PW 3 had come to their house and informed of hearing the quarrel on
the previous evening and of not noticing the deceased going for morning walk
in that morning. He had also informed about putting branches and garbage in
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the well by the appellant. In the cross-examination, PW 2 had however
mentioned about certain mental disorder of the appellant.
6. PW 3 is a crucial witness who had first given the information regarding the
occurrence to the PW 1. He had stated that on the previous evening at about
8:00 pm, he had gone to invite for “Nam” (a religious function) wherein he had
heard a quarrel. He had also deposed that on hearing a cry of the deceased, he
had asked from his campus what had happened and she informed about some
dissatisfaction regarding preparation of dal (lentil) by the appellant. He had also
asked her to come to his home if the appellant was quarrelling with her but she
had refused to come. In the morning, he had seen the appellant throwing some
garbage in their well and he had accordingly informed PW 1 regarding the
scene, whereafter the people had gathered and the appellant had admitted
before them of cutting his mother with a khukri and throwing the dead body in
the well. The police had accordingly come to the place of occurrence and
recovered the dead body as well as the severed head. The said PW 3 had also
recorded his statement before the Magistrate under Section 164 of the Cr.PC
(corresponding to Section 183 of BNSS) and the same was proved as Ext. 4. PW
3 was subjected to cross examination in which the aspect of a land dispute and
he being interested to buy the land of the appellant was also put to him which
was however denied.
7. PW 4 is the nephew of the informant and cousin of the appellant. He had
deposed that he was informed by PW 1 regarding the incident and on reaching
the house of the appellant, the appellant had admitted of his involvement in
killing of his mother. He had also witnessed the seizure of the khukri and was a
seizure witness. Though in his cross-examination, he had stated of giving a
Page No.# 5/22
statement under Section 164 of the Cr.PC, (corresponding to Section 183 of
BNSS) the records do not support such statement.
8. PW 6 is the VDP Secretary, who had deposed that he was informed about
the incident and had accordingly come to the place of occurrence. He had
deposed that the appellant had given the information while he was in the police
station regarding the place where the head of the deceased was put and
accordingly PW 6 had come to the place of occurrence and brought out the
head from the pit near the latrine on the backside of the house of the appellant.
In his cross-examination, he had clarified that his residence was at a distance of
about 200 meters from the residence of the appellant.
9. PW 7 is the Doctor, who had conducted the post-mortem. He had deposed
of noticing 6 nos. of injuries on the severed head and 3 nos. of injuries on the
body. The following opinion was given regarding the death:
“Death was instantaneous resulting from the injuries sustained over the neck. All the
injuries were ante mortem and caused by sharp cutting weapon except the Injury No.
3 which was caused by blunt force impact and homicidal in nature.”
10. PW 8 is the Investigating Officer, who had investigated the case. He had
deposed that a GD Entry was recorded on 25.06.2018 being GD Entry 472 and
the same was proved as Ext. 7. He had also deposed regarding the steps taken
by him.
11. PW 9 is the Bench Assistant of the learned Court of the JMFC, Tezpur, who
had deposed of recording the statement of PW 3 under Section 164 of the Cr.PC
(corresponding to Section 183 of BNSS).
12. PW 10 is the Attached Circle Officer, who had conducted the inquest of the
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body and also of the severed head. Both the Inquest Reports were proved by
him as Exts. 3 and 10 respectively. After conclusion of the prosecution
witnesses, the incriminating materials were put to the appellant in his
examination under Section 313 of the Cr.PC (corresponding to Section 351 of
BNSS) wherein he had opted to give defence witness and accordingly one
doctor from Mental Hospital, Tezpur was examined as DW 1. The said doctor as
DW 1 had deposed that the appellant was having mental ailment and was
treated as an indoor patient from 30.05.2012 to 23.06.2012 and the treatment
had continued thereafter from time to time as outdoor patient. He had also
produced and proved the medical documents which he had brought from the
hospital.
13. It is pertinent to note that in his response under Section 313 of the Cr.PC,
the appellant against Q. No. 6 had given an explanation that on the previous
evening his mother had gone out of the house and did not return and as
indicated above, against Q.No. 37, he had opted to give defence witness.
14. Based on the aforesaid evidence and the materials on record, the learned
Trial Court has passed the impugned judgment and order which is the subject
matter of challenge in the present appeal.
15. We have heard Ms. B. Sarma, learned Amicus Curiae, learned counsel for
the appellant. We have also heard Ms. B. Bhuyan, learned Senior Counsel and
Addl. PP, Assam for the State respondent.
16. Ms. Sarma, the learned Amicus Curiae has submitted that admittedly the
present is not a case where there is direct evidence in the form of eyewitness
and the same hinges upon circumstantial evidence. She has highlighted that in a
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case of this nature, it is incumbent upon the prosecution to establish an
unbroken chain of circumstances leading to only one conclusion of guilt of the
appellant and none else and in this case, the chain which is tried to be
established by the prosecution is neither complete nor it leads to the only
conclusion of complicity of the appellant in causing the death of his mother. The
learned Amicus has formulated her arguments by submitting the following
points:
i. The conviction is arrived without there being materials to
lead to a conclusion which is beyond all reasonable doubt.
ii. The prosecution is based on circumstantial evidence and
PW 3, though narrated of an incident on the previous night has been
contradicted by the IO in this regard.
iii. There is clear evidence from PW 6 that there was good
relationship between the appellant and the deceased and therefore,
the aspect of killing of the deceased by the appellant would not
arise.
iv. There were many neighbours which fact would also be
reflected by the Sketch Map and they were not examined and the
same would lead to an inference that the investigation was not done
properly.
v. PW 3 had admitted of going to the house of the PW 1 to
inform about the incident who did not even have any visiting or
talking terms with the deceased and therefore, it is highly
Page No.# 8/22improbable of such an eventuality.
vi. Regarding the seizure, the learned Amicus has submitted
that except the khukri, nothing else was seized and even the
wearing clothes were not seized.
vii. Even the seized khukri was not sent for any examination
under the FSL.
viii. There were no blood stains found inside the house and
there is only one evidence of availability of blood stain on the
veranda.
ix. There being clear denial by the appellant in his
examination under Section 313 (corresponding to Section 351
BNSS), the conclusion arrived of his complicity is not in accordance
with law.
x. The appellant was himself injured by the public and was
sent for treatment and therefore, the confession, if any made by him
is inadmissible in evidence both under Sections 24 and 25 of the
Indian Evidence Act (corresponding to Sections 22 & 23 of BSA).
xi. The Sketch Map which has been proved as Ext. 8 would
clearly show that there were boundary walls in the campus of the
residence of the appellant except the front side and therefore, it was
wholly improbable on the part of PW 3 to witness any quarrel in the
Page No.# 9/22
previous evening or the aspect of throwing garbage early in the
morning in the well by the appellant. She has highlighted that PW 3
has himself admitted that there were boundary walls of 5 feet and
10 feet which supports her contention.
xii. PW 8, the IO in his cross-examination had also supported
the aforesaid contention that there were no grills above the
boundary wall which would mean that the walls were made of
concrete.
17. The learned Amicus has also submitted that as per the defence witness,
the appellant was having mental disorder and therefore, the benefit of Section
84 of the IPC (corresponding to Section 22 of BNS) would also be available to
him. She has highlighted that DW 1 has also proved the medical records as per
which, the appellant was not only kept as an indoor patient in the year 2012,
even thereafter, he had come for treatment from time to time as an outdoor
patient. She has submitted that the appellant was suffering from legal insanity
which would come within the ambit of Section 84 (corresponding to Section 22
of BNS) of the IPC and should get the benefit. She has however admitted that in
his examination under Section 313 of the Cr.PC (corresponding to Section 351 of
BNSS) against Q. No. 2, the appellant had stated that he had called the police
by dialing 100 and this aspect also seems to be corroborated by the evidence on
record of registering a GD Entry 472 at 8:20 am on that date of receiving such a
phone call.
18. The learned Amicus accordingly submits that the appellant should get the
benefit of doubt and the impugned judgment is liable to be interfered with and
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the appellant be set at liberty.
19. Per contra, the learned APP has submitted that though the present case is
based on circumstantial evidence, there is no manner of doubt that evidence
based on circumstance can be sufficient to come to a conclusion of conviction
and the only requirement is that such circumstances are to be complete,
unbroken and lead to only one conclusion of guilt of the accused which are
there in the present case. She has submitted that the evidence of PW 3 is very
crucial and the said evidence is also corroborated by the initial statement made
by the PW 3 in his examination under Section 164 of the Cr.PC (corresponding
to Section 183 of BNSS).
20. By drawing the attention of this Court to the said statement which has
also been proved as Ext. 4, the learned Amicus has submitted that PW 3 had
stated that he saw the deceased crying in the previous evening while he was
coming home by the road and the deceased was on the veranda. On the next
day, early in the morning at about 4:00 am when he had gone for morning walk,
he saw the appellant throwing garbage in the well. It is significant to note that
though the learned Amicus had stressed that the residence of the appellant was
in a campus bounded by wall, the Sketch Map itself would show that the front
side was not having any boundary wall. In fact, the said aspect is also
corroborated by the evidence of PW 3 that there were walls on two sides of 5
feet and 10 feet.
21. Be that as it may, it appears that PW 3 had deposed of witnessing the
deceased crying by sitting on the veranda while he was coming by the road and
therefore it indicates that such witnessing was done from the road. Similarly, the
aspect of witnessing the appellant throwing/dumping garbage in the well was
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seen while he had gone for morning walk and that obviously has to be done by
the front of the campus where there is a road and the front side is admittedly
open.
22. The learned APP has also drawn the attention of this Court to the Post
Mortem Report (Ext. 5) as per which the death was between 12 to 24 hours
which matches with the time when the offence was committed. She has also
highlighted that the Post Mortem Report deals with the aspect of presence of
rigor mortis and in this connection she has relied upon the case of Basu
Prasad v. State of Bihar reported in (2006) 13 SCC 65.
23. The learned counsel has also highlighted that admittedly there were only
two persons in the house and the incident wherein the mother was beheaded by
a sharp weapon and the body was dumped in a well and the severed head in a
pit was required to be explained by the appellant, who was the only person in
the house at the campus and therefore Section 106 of the Evidence Act
(corresponding to Section 109 of BSA) would come into play and the appellant
had failed to discharge his burden under the aforesaid Section. In this regard,
the learned APP has relied upon the case of Trimukh Maroti Kirkan Vs State
of Maharashtra reported in (2006) 10 SCC 681 and the following
observations have been pressed into service:
“12. In the case in hand there is no eyewitness of the occurrence and the case of the
prosecution rests on circumstantial evidence. The normal principle in a case based on
circumstantial evidence is that the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established; that those circumstances
should be of a definite tendency unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should form a chain so complete that there
is no escape from the conclusion that within all human probability the crime was
Page No.# 12/22committed by the accused and they should be incapable of explanation on any
hypothesis other than that of the guilt of the accused and inconsistent with their
innocence.
14. If an offence takes place inside the privacy of a house and in such circumstances
where the assallants have all the opportunity to plan and commit the offence at the
time and in circumstances of their choice, it will be extremely difficult for the
prosecution to lead evidence to establish the guilt of the accused if the strict principle
of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge
does not preside over a criminal trial merely to see that no innocent man is punished.
A judge also presides to see that a guilty man does not escape. Both are public duties.
(See Stirland v. Director of Public Prosecutions quoted with approval by Arijit Pasayat,
J. in State of Punjab v. Karnail Singh.) The law does not enjoin a duty on the
prosecution to lead evidence of such character which is almost impossible to be led or
at any rate extremely difficult to be led. The duty on the prosecution is to lead such
evidence which it is capable of leading, having regard to the facts and circumstances
of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which
says that when any fact is especially within the knowledge of any person, the burden
of proving that fact is upon him. Illustration (b) appended to this section throws some
light on the content and scope of this provision and it reads:
“(b) A is charged with travelling on a railway without ticket. The burden
of proving that he had a ticket is on him.”
15. Where an offence like murder is committed in secrecy inside a house, the initial
burden to establish the case would undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it to establish the charge cannot be of the
same degree as is required in other cases of circumstantial evidence. The burden
would be of a comparatively lighter character. In view of Section 106 of the Evidence
Act there will be a corresponding burden on the inmates of the house to give a cogent
explanation as to how the crime was committed. The inmates of the house cannot get
away by simply keeping quiet and offering no explanation on the supposed premise
that the burden to establish its case lies entirely upon the prosecution and there is no
Page No.# 13/22
duty at all on an accused to offer any explanation.
18. The question of burden of proof where some facts are within the personal
knowledge of the accused was examined in State of W.B. v. Mir Mohd. Omar. In this
case the assailants forcibly dragged the deceased, Mahesh from the house where he
was taking shelter on account of the fear of the accused and took him away at about
2.30 in the night. Next day in the morning his mangled body was found lying in the
hospital. The trial court convicted the accused under Section 364 read with Section 34
IPC and sentenced them to 10 years’ RI. The accused preferred an appeal against
their conviction before the High Court and the State also filed an appeal challenging
the acquittal of the accused for murder charge. The accused had not given any
explanation as to what happened to Mahesh after he was abducted by them. The
learned Sessions Judge after referring to the law on circumstantial evidence had
observed that there was a missing link in the chain of evidence after the deceased was
last seen together with the accused persons and the discovery of the dead body in the
hospital and had concluded that the prosecution had failed to establish the charge of
murder against the accused persons beyond any reasonable doubt. This Court took
note of the provisions of Section 106 of the Evidence Act and laid down the following
principle in paras 31 to 34 of the reports:
“31. The pristine rule that the burden of proof is on the prosecution to
prove the guilt of the accused should not be taken as a fossilised doctrine
as though it admits no process of intelligent reasoning. The doctrine of
presumption is not alien to the above rule, nor would it impair the temper
of the rule. On the other hand, if the traditional rule relating to burden of
proof on the prosecution is allowed to be wrapped in pedantic coverage,
the offenders in serious offences would be the major beneficiaries and
the society would be the casualty.
32. In this case, when the prosecution succeeded in establishing the
afore-narrated circumstances, the court has to presume the existence of
certain facts. Presumption is a course recognised by the law for the court
to rely on in conditions such as this.
Page No.# 14/22
33. Presumption of fact is an inference as to the existence of one fact
from the existence of some other facts, unless the truth of such inference
is disproved. Presumption of fact is a rule in law of evidence that a fact
otherwise doubtful may be inferred from certain other proved facts.
When inferring the existence of a fact from other set of proved facts, the
court exercises a process of reasoning and reaches a logical conclusion
as the most probable position. The above principle has gained legislative
recognition in India when Section 114 is incorporated in the Evidence
Act. It empowers the court to presume the existence of any fact which it
thinks likely to have happened. In that process the court shall have
regard to the common course of natural events, human conduct, etc. in
relation to the facts of the case.
34. When it is proved to the satisfaction of the Court that Mahesh was
abducted by the accused and they took him out of that area, the accused
alone knew what happened to him until he was with them. If he was
found murdered within a short time after the abduction the permitted
reasoning process would enable the Court to draw the presumption that
the accused have murdered him. Such inference can be disrupted if the
accused would tell the Court what else happened to Mahesh at least until
he was in their custody.”
24. The learned APP accordingly submits that the impugned judgment and
order has been passed by considering all the relevant facts into consideration
and accordingly the same is to be sustained and the appeal be dismissed.
25. The rival submissions have been duly considered and the materials placed
on records have also been carefully examined.
26. There is no dispute that the present conviction is based on circumstantial
Page No.# 15/22
evidence which have been sought to be established by the prosecution in the
trial. As noted above, 10 nos. of prosecution witnesses were examined out of
which 3 were official witnesses. The depositions made by the witnesses have
been discussed above and the crucial witness is PW 3. PW 3 had stated about a
previous evening’s quarrel which he had heard while coming from a “Nam”. He
had also deposed of noticing the deceased crying on the verandah of their
house and had also offered her to come to his house which she had refused. We
are of the opinion that such gesture by an adjacent neighbour to an aged lady is
not uncommon, mostly in the rural areas of Assam. PW 3 has also deposed of
witnessing the appellant throwing some garbage in the well when he had gone
out for his morning walk and also the fact that he had felt the absence of the
deceased in her morning walk. He had accordingly informed the matter to PW 1
who is the brother of the deceased and thereafter the events unfolded.
27. The truthfulness of the aforesaid deposition is sought to be assailed by the
learned Amicus Curiae by submitting that the campus of the house of the
appellant was bounded by brick walls of 5 feet and 10 feet and therefore it was
not possible for the PW 3 to witness the aspect of the deceased crying on the
verandah and the appellant throwing some garbage in the well early in the
morning. The aforesaid objection, however does not appear to be sustainable
inasmuch as, the deposition as well as the Sketch Map (Ext. 8) would show that
the boundaries were not there on the front side of the house of the appellant
and the PW 3 had deposed of witnessing the said events from the road which is
in front of the house.
28. It was argued by the learned Amicus that there was cordial relationship
between the appellant and the deceased whereas the PW 1 did not have talking
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terms with the deceased and yet PW 3 had gone to inform the PW 1. As regards
cordial relationship, there are materials to the contrary even, as the appellant
was seen to be quarreling and ill treating the deceased. In fact, PW 6 who had
deposed about the good relationship had also indicated of commission of
nuisance by the appellant with his mother. For ready reference the relevant part
of the statement made by the PW 6 is extracted herein below:
“…the relation of the accused with his mother is good but sometimes he used to
commit nuisance with his mother”
Further, since PW 1 was the own brother of the deceased which is not in
dispute, giving the information to him appears to be normal.
29. As regards the seizure, though it is correct that wearing apparels were not
seized, the khukri in question was seized which is most crucial. The recovery of
the khukri was from inside the house where the appellant was found alone and
the decapitated body of the deceased was found on the back side of the
campus inside a well with garbage dumped over the same. Therefore, the
aspect of not sending the khukri for FSL examination would not be fatal to the
case of the prosecution. Further, the medical evidence as adduced by PW 7, who
is the Doctor, more particularly the nature of injuries would corroborate with the
weapon in question.
30. In this connection, it would be beneficial to refer to a recent case of the
Hon’ble Supreme Court reported in (2024) 4 SCC 208 [Ram Singh Vs State
of UP], wherein it has been reiterated that mere non examination of a ballistic
expert would not be fatal to the prosecution case. In the said case, there was
use of firearm for commission of the offence and the following observations
Page No.# 17/22
were made:
“29. Thus, what can be deduced from the above is that by itself non-recovery of the
weapon of crime would not be fatal to the prosecution case. When there is such non-
recovery, there would be no question of linking the empty cartridges and pellets seized
during investigation with the weapon allegedly used in the crime. Obtaining of ballistic
report and examination of the ballistic expert is again not an inflexible rule. It is not
that in each and every case where the death of the victim is due to gunshot injury that
opinion of the ballistic expert should be obtained and the expert be examined. When
there is direct eye witness account which is found to be credible, omission to obtain
ballistic report and non-examination of ballistic expert may not be fatal to the
prosecution case but if the evidence tendered including that of eyewitnesses do not
inspire confidence or suffer from glaring inconsistencies coupled with omission to
examine material witnesses, the omission to seek ballistic opinion and examination of
the ballistic expert may be fatal to the prosecution case.”
31. In an earlier case namely, State of Punjab Vs Hakam Singh reported in
(2005) 7 SCC 408, a similar proposition was laid down by the Hon’ble
Supreme Court.
32. It has been submitted that the appellant in his examination under Section
313 Cr.PC (corresponding to Section 351 of BNSS), while denying the
truthfulness of the deposition of the PWs had also tried to give an explanation
that on the previous evening, his mother had gone out from the house and did
not return. We are however of the view that since the same was taken as a
defence, the appellant ought to have adduced evidence in that regard. We are
also of the view that even if evidence is not adduced by the defence, the
foundation for such defence needs to be laid either in the cross-examination of
the PWs or from other materials proved in the trial which has not been done in
the instant case. Therefore, the said defence does not warrant any merit.
Page No.# 18/22
33. We are however in agreement with the learned Amicus Curiae for the
appellant that the extra judicial confession said to have been made by the
appellant would not be relevant or admissible in evidence as such confession
appears to have been done before the police and accordingly the same would
be hit by Section 25 of the Indian Evidence Act (corresponding to Section 23 of
BSA). The IO has also deposed that the appellant was injured by the public
upon his apprehension and therefore the aspect of Section 24 of the Evidence
Act (corresponding to Section 22 of BSA) would also come in.
34. Though in the trial, a defence witness was produced to establish the
aspect of mental unsoundness of the appellant, the evidence adduced would
however show that long before the incident in the year 2012, the appellant was
treated as an indoor patient in the Tezpur Hospital for the period 30.05.2012 to
23.06.2012. Though there are materials to show that thereafter he was treated
as an outdoor patient, the last date of consultation was 20.10.2016 whereas the
incident is of June, 2018.
35. Section 84 of the Indian Penal Code comes under Chapter- IV dealing with
“General Exceptions” and reads as follows:-
“84. Act of a person of unsound mind.–
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.”
36. The aforesaid provision which deals with the defense of insanity lays down
that an act is not an offense if committed by a person who, due to unsoundness
of mind, is incapable of knowing the nature of the act, or that it is either wrong
or contrary to law. The crucial time is that of the commission of the offence and
Page No.# 19/22
the requirement is of legal insanity. Since the aforesaid provision acts as an
exception, it is the duty of the Courts to carefully scrutinize such a plea of
defence as otherwise the same would be grossly misused leading to miscarriage
of justice. To discharge the burden which is cast upon an accused taking a
defence under Section 84 of the IPC, (corresponding to Section 22 of BNS) one
has to look into the provisions of Section 105 of the Evidence Act, 1872
(corresponding to Section 108 of BSA) is extracted herein below:
“Section 105 – Burden of proving that case of accused comes within exceptions 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, (45 of 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.”
37. In the illustrations given under the aforesaid Section, there is a specific
illustration on the aspect of Section 84 which reads as follows:
“Illustrations 1. 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.”
38. In the case of Prem Singh vs. State (NCT of Delhi) reported in (2023)
3 SCC 372, the aforesaid aspect of discharge of burden by an accused under
Section 105 of the Evidence Act has been elaborately explained. It has been laid
down that though the initial burden in a criminal case would always be on the
prosecution to prove beyond all reasonable doubt, once the said burden is
discharged, the onus would shift on the accused and the said burden can be
rebutted by defence evidence. For ready reference, the relevant portion is
extracted herein below:
Page No.# 20/22
“65. It remains trite that the burden of proving the existence of circumstances so as to
bring the case within the purview of Section 84 IPC lies on the accused in terms of
Section 105 of the Evidence Act; and where the accused is charged of murder, the
burden to prove that as a result of unsoundness of mind, the accused was incapable of
knowing the consequences of his acts is on the defence, as duly exemplified by
illustration (a) to the said Section 105 of the Evidence Act. As noticed, the mandate of
law is that the Court shall presume absence of the circumstances so as to take the
case within any of the General Exceptions in the Indian Penal Code, 1860.”
39. In the aforesaid case of Prem Singh (supra), the observation made in the
case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat reported in
AIR 1964 SC 1563 has been reiterated which reads as follows:
“7. The doctrine of burden of proof in the context of the plea of insanity may be stated
in the following propositions:
(1) The prosecution must prove beyond reasonable doubt that the accused had
committed the offence with the requisite mens rea, and the burden of proving
that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when
he committed the crime, in the sense laid down by Section 84 of the Indian
Penal Code: the accused may rebut it by placing before the court all the
relevant evidence oral, documentary or circumstantial, but the burden of proof
upon him is no higher than that rests upon a party to civil proceedings.
(3) Even if the accused was not able to establish conclusively that he was
insane at the time he committed the offence, the evidence placed before the
court by the accused or by the prosecution may raise a reasonable doubt in the
mind of the court as regards one or more of the ingredients of the offence,
including mens rea of the accused and in that case the court would be entitled
to acquit the accused on the ground that the general burden of proof resting on
Page No.# 21/22the prosecution was not discharged.”
40. The learned Amicus Curiae has however very fairly submitted that though
the aforesaid plea of defence was unsuccessfully taken, there are materials on
record which would suggest that the appellant was not unaware of the
consequence and implication of his act. She has drawn the attention of this
Court to the aspect that the IO in his evidence had deposed of receiving a
phone call at 8:20 a.m. that one person was detained which was accordingly
registered as GDE 472. She has also referred to the response of the appellant to
Q. No. 2 in his examination under Section 313 of the Cr.PC that he had called
the police by dialing 100.
41. We are also of the opinion that the plea of insanity as a General Defence
to only come when the facts are otherwise established of the complicity of the
accused in question. However, in the instant case, apart from the allegation of
beheading his mother by a Khukri, there is further allegation of trying to hide
the decapitated body and the severed head in two separate places which would
establish that the appellant was aware of the implication of his act which was
wrong and contrary to law.
42. On the aspect of a plea of insanity, the Hon’ble Supreme Court, in the
recent case of Prakash Nayi alias Sen Vs. State of Goa reported in (2023)
5 SCC 673 has laid down certain important aspects which are reproduced here:
“3. …Section 84 IPC recognises only an act which could not be termed as an offence.
It starts with the words “nothing is an offence”. The said words are a clear indication
of the intendment behind this laudable provision. Such an act shall emanate from an
unsound mind. Therefore, the existence of an unsound mind is a sine qua non to the
applicability of the provision. A mere unsound mind per se would not suffice, and it
Page No.# 22/22should be to the extent of not knowing the nature of the act. Such a person is
incapable of knowing the nature of the said act. Similarly, he does not stand to reason
as to whether an act committed is either wrong or contrary to law. Needless to state,
the element of incapacity emerging from an unsound mind shall be present at the time
of commission.
4. The provision speaks about the act of a person of unsound mind. It is a very broad
provision relatable to the incapacity, as aforesaid. The test is from the point of view of
a prudent man. Therefore, a mere medical insanity cannot be said to mean
unsoundness of mind. There may be a case where a person suffering from medical
insanity would have committed an act, however, the test is one of legal insanity to
attract the mandate of Section 84 IPC. There must be an inability of a person in
knowing the nature of the act or to understand it to be either wrong or contrary to the
law.”
43. In conspectus of the aforesaid discussion and the materials on record, we
are of the view that the conclusion arrived at vide the judgment and order dated
09.05.2022 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case
No. 210/2018 do not warrant any interference.
44. The appeal is accordingly dismissed.
45. Send back the TCR.
JUDGE JUDGE Comparing Assistant
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