JUDGMENT P.K. Musahary, J. 1. This appeal has been preferred from jail by the Appellant against the judgment and Order dated 22.02.2002 passed by the learned Addl. Sessions Judge, Sonitpur in Sessions Case No. 155/2000 convicting him under Section 302 IPC and sentencing him to RI for life and to pay a fine of Rs. 2000/- (Rupees two thousand) only in default of payment of fine further RI for another 6 (six) months. 2. "My father killed my mother by hacking with a dao inside the house"--the prosecution story runs with these words of allegations in the FIR. The informant, illiterate son of an illiterate father, a tea garden labourer, found his mother smeared with blood and lying dead on the bed inside the house and his father sitting near the dead body with a dao in his hand in the night of 27.07.2000, at around 1.30 A.M. and on enquiry made, claimed the responsibility of killing his wife. The crime being registered as Biswanath Chariali P.S. Case No. 82/2000 under Section 302 IPC, investigation was made. The Investigating Officer visited the place of occurrence, seized the dao allegedly used by the accused in committing the crime, held inquest over the dead body and then sent the dead body to Behali Primary Health Centre for autopsy. After completion of investigation the charge sheet was laid against the accused, the offence being triable exclusively by Court of Sessions, it was committed to the Court of Sessions Judge, Sonitpur by the SDJM, Biswanath Chariali for trial. The accused pleaded not guilty and claimed to stand trial. 3. The prosecution in order to prove its case, examined in all seven witnesses including the Investigating Officer, Medical Officer, the informant son and the daughter of the accused. In his statement under Section 313 Code of Criminal Procedure the accused denied the charges but declined to adduce evidence to his defence. 4. There is no eye witness to the occurrence except the account of scene described by PW 1, when he came, after the incident, home at around 1.30 A.M. in the night to drink water and found his mother lying on a bed with her neck cut and accused father sitting there and keeping the dao on the ground who told the PW 1 that he had cut his mother. PW 1 went to the house of Gaonburah in that very night and returned home in the morning with the Gaonburah. Reaching home he found his mother lying on the bed in the same state and also his father near the dead body of his mother. In cross examination. PW 1, stated that on the day of occurrence when he and his sister were taking meal his father was not present at home and after the meal at around 8.00 P.M. they went to sleep in others house. He himself went to sleep in the house of his friend, Kunu Saotal at a distance of half a mile and he came to his house for drinking water at around 1.00 o'clock at night. He found his father crying with his clothes stained with blood. He also found the dao stained with blood. PW 1, further deposed in his cross examination that his father was mad since long and sometime he used to leave home and go away. His accused father had no quarrel with his deceased mother. 5. PW 2, Binod Munda, is the nephew of the accused, who deposed that on receipt of the information he came to the place of occurrence and found his aunt lying on bed with her neck cut and the accused sitting near her. The accused produced the dao and told PW 2 that he had cut his aunt. In cross examination PW 2 stated that when police came, the accused confessed that he had killed his aunt. Further, PW 2 stated that the accused was a mental patient and since he had been suffering from mental disorder he had killed her. 6. PW 3, Mousuri Munda, daughter of the accused deposed that on the date of occurrence she went to others house for sleep and when she came home at around 7.00 A.M. she found her mother cut and lying on the bed. 7. PW 4, Lakshman Munda, a garden line chowkidar and seizure witness testified that on getting the information he came to the house of accused and found his wife lying dead on the ground and he was told by the accused that he cut his wife. By that time police arrived and they seized the dao which the accused kept hidden. PW 5. Lakshmi Munda, stated nothing significant except that the accused cut his wife. 8. By that time police arrived and they seized the dao which the accused kept hidden. PW 5. Lakshmi Munda, stated nothing significant except that the accused cut his wife. 8. The Investigating Officer, PW 6, deposed that on visit of place of occurrence he performed necessary formalities during investigation and interrogated the accused and seized the dao after having found it in the house of the accused. In cross examination he stated that the accused brought out the dao from inside the house and gave it to him but it was not mentioned so in the seizure list. The accused put his thumb impression on the seizure list but there was no endorsement on it. Moreover, it was stated that the seized dao was not sent to FSL. 9. The conviction and sentence have been ordered on the basis of extra judicial confession allegedly made by the accused before the PW 1, PW 2 and PW 3, who are none but his own son, nephew and daughter respectively. The learned trial Court relied on their evidence because they are not expected to "tell a lie in the Court to get the conviction of their father and uncle". The said extra judicial confessions are found by the learned trial Court to be voluntary and true inasmuch as they have satisfied the essential test for being accepted by the Court and there was no room to disbelieve them. Reliance has been put by the learned trial Court on the principles laid down in various cases by the Apex Court in this regard to the effect that extrajudicial confession should satisfy two tests--firstly, it must be voluntary and secondly, it must be true. There is no dispute on these settled principles of law in this regard. But the learned trial Court failed to appreciate the evidence of PW 1, son of the accused, who deposed in cross examination that the accused was "mad since long" and also the evidence of PW 2, in view of the accused, who stated in cross examination that "accused was a mental patient" and "since he had been suffering from mental disorder so he had killed aunt". 10. It is submitted by Ms. P. Bhattacharjee, learned Amicus Curiae, representing the accused/Appellant that the prosecution failed to prove the guilt against the accused/Appellant beyond reasonable doubt. 10. It is submitted by Ms. P. Bhattacharjee, learned Amicus Curiae, representing the accused/Appellant that the prosecution failed to prove the guilt against the accused/Appellant beyond reasonable doubt. She also submitted that the prosecution failed to adduce any ocular evidence although it was possible to do so since the occurrence took place inside the house. There is no explanation by the prosecution why the blood stained dao seized as crime weapon was not sent for FSL examination. Moreover, there are contradictory statements by some witnesses on the recovery of the said dao. As per evidence of PW 1, the accused kept the dao in the roof of the house while as per evidence of PW 3, it was kept nearby the accused. Again as per evidence of PW 4, the police seized the dao which the accused kept hidden and as per evidence of PW 2, the accused produced the dao which he kept in the roof of the house. Ms. Bhattacharjee also submitted that the so called extra judicial confession of the accused before the PW 1, PW 2, PW 3 and PW 4 had no evidentiary value inasmuch as it was made by the accused whose mental condition was in disorder as per evidence of PW 1 and PW 2 and the learned trial Court has committed illegality in convicting the accused under Section 302 IPC and sentencing him RI for life and to pay a fine of Rs. 2,000/- in default a payment of fine of further RI for six months. 11. The learned Additional PP, Assam, Mr. Gogoi, countering the submissions of the learned Amicus Curiae submitted that the extra judicial confession made by the accused before his son PW 1, nephew PW 2, daughter PW 3 and PW 4 has been found to be genuine and true and also corroborative. The omission on the part of the Investigating Officer to send the seized crime dao to the FSL for examination would not in any way, affect the prosecution case. Mr. Gogoi, learned Additional PP, in support of his submission has relied upon the following reported cases. 1. (2003) 12 SCC 188 Mundlapadi Krishnaiah v. State of Andhra Pradesh. 2. (2006) 12 SCC 538 Kulwindar Singh v. State of Punjab. 3. (2006) 1 SCC 714 Sivakumar v. State by Inspector of Police. 12. Mr. Gogoi, learned Additional PP, in support of his submission has relied upon the following reported cases. 1. (2003) 12 SCC 188 Mundlapadi Krishnaiah v. State of Andhra Pradesh. 2. (2006) 12 SCC 538 Kulwindar Singh v. State of Punjab. 3. (2006) 1 SCC 714 Sivakumar v. State by Inspector of Police. 12. In the case of Mundlapadi Krishnaiah (supra), the Hon'ble Supreme Court held that the conviction on the basis of extra judicial confession is permissible provided the said confession is found to be genuine and true and also corroborated by evidence. In the case of Kulwinder Singh (supra), the Apex Court held that the extra judicial confession made by the accused must be judged having regard to the entire factual matrix. The evidentiary value of an extra judicial confession must also be judged in the fact situation obtaining in each case and it must depend not only on the nature of the circumstances but also the time when the confession had been made and the credibility of the witness who testifies thereto. 13. In the case of Sivakumar (supra), the Apex Court held that the extra judicial confession may or may not be weak evidence and each case should be examined on its own facts and circumstances. 14. There is no dispute on these principles of law enunciated by the Apex Court in the above cases but the question is whether these principles can be applied to the present case. 15. Further, Mr. Gogoi, learned Additional PP. citing the case of Anjan Das v. State of Assam as reported in 2007 (3) GLT 161 : 2007 Cri. LJ 802 (Gau), the judgment and Order of a Division Bench of this Court, submitted that in a murder case in which the accused has taken the plea of insanity the burden of proof is also on the accused. In this case, it is submitted by the learned Additional PP that the accused/Appellant did not prove his insanity by adducing medical evidence or other documentary evidence. 16. In the present case we find from the evidence on record that the accused himself did not take the plea of insanity. He simply pleaded not guilty. It is rather from the prosecution side that led the case of insanity of the accused/Appellant by adducing the evidence of PW 1 and PW 2. 16. In the present case we find from the evidence on record that the accused himself did not take the plea of insanity. He simply pleaded not guilty. It is rather from the prosecution side that led the case of insanity of the accused/Appellant by adducing the evidence of PW 1 and PW 2. The prosecution has proved through the evidence of these PWs that the accused was mad since long and since he has been suffering from mental disorder he killed his wife. The accused did not adduce any evidence to disprove that he was not insane and thus it remained as proved that the accused was insane. Therefore, it has been proved on evidence by the prosecution itself that the accused committed the offence while he was in the state of mental disorder. 17. The prosecution itself having proved the case of insanity of the accused, the alleged extra judicial confession made by the accused lost its evidentiary value, it being found not voluntary and true. The principles and the laws laid down by the Apex Court in the above cited cases, if applied to this case, rather comes to the rescue of the accused/Appellant. 18. The prosecution, in our opinion, misdirected itself and misunderstood its own case and proved the case of insanity of the accused. The learned trial Court also failed to appreciate the evidence of PW 1 and PW 2 on record and convicted the accused on total misreading and misapplication of law laid down by the Hon'ble Supreme Court. 19. In a case where accused takes the plea of insanity in his defence, burden of proof lies on him and he is required to produce medical record to show that he was being treated for insanity. But when the prosecution itself proved the insanity of the accused by adducing evidence he cannot be called upon to adduce evidence that he was not insane. The learned trial Court, as observed earlier, relied upon the evidence of PW 1 and PW 2, being son and nephew of the accused, because they are not expected to tell a lie in the Court to get a conviction of their father and uncle. The learned trial Court has not given any reason why the evidence of PW 1 and PW 2 in regard to insanity of the accused cannot be believed or cannot be relied upon for acquittal. 20. The learned trial Court has not given any reason why the evidence of PW 1 and PW 2 in regard to insanity of the accused cannot be believed or cannot be relied upon for acquittal. 20. In our opinion, the learned trial Court has erred in law in convicting the accused/Appellant disregarding/discarding the prosecution's own proved case of insanity of the accused, who might have committed the offence while he was suffering from insanity or mental obsession which affected his mind to a great extent and in a way quite different from that of a normal person. This unnatural rather abnormal behaviour was seen, rather brought to evidence in case of the accused/Appellant, who was found sitting near the dead body of his wife with blood stained dao after killing his wife in the night. The learned trial Court also observed "had the accused been really innocent definitely after the death of his wife he would have started hue and cry or could go to the police station to lodge FIR but instead of doing so he was sitting near the dead body along with the weapon of assault". This according to learned trial Court is a strong circumstance against the accused for his conviction. We respectfully defer and hold that the aforesaid abnormal behaviour found in the accused is rather a strong circumstance to prove, apart from the prosecution's own oral evidence of PW 1 and PW 2, the insanity or mental disorder of the accused and thus ordering his acquittal. 21. It leads us to hold that accused committed murder in the state of insanity or mental disorder and he is not liable to be convicted under Section 302 IPC. We, therefore, set aside the impugned conviction and sentence dated 22.02.2002 passed by the Additional Sessions Judge, Sonitpur in Sessions Case No. 155/2000. The appeal stands allowed. The accused/Appellant is acquitted and set at liberty, forthwith, if not required in any other case. 22. It is stated at the bar that the accused/Appellant has been in jail for more than 7 (seven) years and he is not keeping well therein. The appeal stands allowed. The accused/Appellant is acquitted and set at liberty, forthwith, if not required in any other case. 22. It is stated at the bar that the accused/Appellant has been in jail for more than 7 (seven) years and he is not keeping well therein. We could not resist ourselves from observing that the long 7(seven) years jail custody has already met the purpose of punishment and the ends of justice in this case and even if the conviction order of the learned trial Court would have been upheld, we would have reduced the sentence to the one already served by the accused/Appellant. 23. Before we part with this appeal, we would like to record our appreciation of the assistance rendered by the learned Amicus Curiae. The Respondent State shall pay legal fee of Rs. 3,000/- to Ms. Bhattacharjee for appearing in this case for the Appellant. 24. Send down the record.