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2003 DIGILAW 192 (GAU)

Biren Chawra v. State of Assam

2003-05-06

I.A.ANSARI, P.G.AGARWAL

body2003
P.G. AGARWAL, J.— Heard Mr. K.K. Gupta, learned Amicus Curiae for the appellant and Mr. Z. Kamar, learned P.P. 2. This appeal is directed against the judgment dated 25.08.98 passed by the Sessions Judge, Dibrugarh, in Sessions Case No. 14of 1998(G.R,CaseNo. 116of 1997) convicting the accused appellant u/s 302, IPC and sentenced him to imprisonment for life and to pay a fine of Rs.500/-. 3. The prosecution case in brief is that on 23.1.97 around 7 PM, the acccused appellant Biren Chawra called his own brother Bijon Chowra to his house and when Bijon Chowra arrived at his place, the accused appellant hacked him with a prunning knife, generally used in the tea garden for running of the tea bushes. The injured was immediately removed to Hospital where he was declared dead PW-5 is Dr. R. Chaliha who held the antopsy over the dead body and found the following injuries:- "2. Wounds (1) A stitched wound on the Position and middle of the right leg. 3. Bruise (2) An abrasion in the upper third Position, size of the left leg. and nature (3) A stitched wound on the lateral aspect of the left lower third of the left thigh. (4) A stitched wound over the anterior aspect of the left axilla (5) Three stitched wounds over the upper back measuring 20,17 anterior and 5 cm respectively. First one cutting the scapula on the right side, the second one as cut the third thorasic vertebra. (6) A stitched wound over the right occipital region 5 cm in length, cutting, both head & brain 4. Mark of (7) An incised wound over the posterior frontal and parietal region in the…cutting the base." In the opinion of the doctor, the death was due to shock and haemorrhage as a result of the injuries sustained caused by heavy sharp cutting weapon. 4. The incident of assault was witnessed by the wife of the accused Smti. Tagimala (PW-6) and the wife of the deceased Smti. Dura Chowra(PW-T). They have deposed that it was the accused who assaulted the deceased with the prunning knife. Besides the two eye witnesses, the accused has made extra judicial confession before Madhab Chawra(PW-8) and PW-9 Susil Goala handed over the weapon of assault to police. From the evidence on record we have no hesitation to hold that the deceased was killed by the accused appellant. 5. Besides the two eye witnesses, the accused has made extra judicial confession before Madhab Chawra(PW-8) and PW-9 Susil Goala handed over the weapon of assault to police. From the evidence on record we have no hesitation to hold that the deceased was killed by the accused appellant. 5. In this case, the accused had taken the plea of insanity. The plea was raised before the committal court and in the statement u/s 313 Cr.PC. In this connection, we may refer that the Hon'ble Supreme Court had the occasion to consider the provisions of Section 84, IPC in the case of Ratanlal- Vs-State of Madhya Pradesh, AIR 1971 SC 778 , Sher Alt Wdli Md.-Vs-Stateof Maharashtra, AIR 1972 SC 2443 , Oyami Ayatul-Vs-State of Madhya Pradesh AIR 1974 SC216. In the above decisions, the Apex Court has laid down the following guiding principles:- 1. The court shall presume absence of insanity. 2. Burden of proof of insanity is on the accused though it is not that heavy as that of the prosecution to prove an offence. 3. Every minor mental aberration is not insanity and unless the conguitive faculty of mind is destroyed as a result of un-soundness to such an extent as to render one incapable of knowing the nature of his act. 4. The accused must suffer from legal insanity and not merely medical insanity. 5. The crucial point on which the unsound-ness of mind has to be proved is the time when the crime is actually committed. 6. For supporting the plea of insanity, the law is well settled that the burden on the accused to establish his plea is not that heavy as that of the prosecution and the accused must succeed by showing the preponderance of probability. PW-6 and PW-7 have categorically stated that the accused used to become made occasionally and because of lunacy, he has lost his job. It is further stated that the accused was out of sense at the time of occurrence. Apparently PW-6 and PW-7 are natural witnesses to depose about the mental state of the deceased as they were present when the incident took place. The fact that the accused has lost his job because of lunacy is also relevant fact and PWs-6 and 7 were supported by PW-8, who is a neighbour of the accused. Apparently PW-6 and PW-7 are natural witnesses to depose about the mental state of the deceased as they were present when the incident took place. The fact that the accused has lost his job because of lunacy is also relevant fact and PWs-6 and 7 were supported by PW-8, who is a neighbour of the accused. PW-8 states that the accused used to lose his senses occasionally and at the time of incident the accused was found to be out of senses. 7. In this case, we find that the two brothers wre in good terms and PW-7 has categorically stated that her husband, the deceased, had not quarreled with the accused. Thus, there is no motive on the part of the accused for killing his own brother and we find that the death of the deceased at the hand of the accused was as a result of insanity. 8. The trial court on the other hand discarded the plea of insanity on the ground that the accused made an extra judicial confession and handed over the prunning knife to PWs-8 and 9. The post crime conduct of the accused does not rule out the plea of insanity. The trial court also relied on the subsequent report of the jail doctor at the time of trial that the accused is of sound mental health. Although there is no contemporary evidence in support of the plea, one can not lost sight of the fact that the accused appellant belongs to the category of tea garden labourer and having lost his job the accused remained untreated and naturally there is no medical evidenc on record. The trial court, however, collected report from the employer to find out as to why the service of the appellant was terminated. Considering the above fact, we accept the plea of insanity raised in this case and hold that the act of the accused appellant will not amount to murder in view of the protection available u/s 84 of IPC. 9. In the result, the accused appellant is acquitted and he is set at liberty forthwith and he shall be released from the jail custody, if not wanted in connection with any other case. 10. The appeal stands allowed. Send down the records.