JUDGMENT Aftab H. Saikia, J. 1. Heard Mrs. M. Bazarbaruah, learned amicus curies appearing for the Appellant from jail and also heard Mr. K.C. Mahanta, learned P.P. Assam. 2. The Appellant from jail has challenged his conviction under Section 302, IPC and sentence to undergo Rigorous Imprisonment for life ('R.I.') with a fine of Rs. 2,000 in default, R.I., for 2 months so handed-down by the learned Sessions Judge, Barpeta by his judgment and order dated 4.6.2007 in Sessions Case No. 32/2007. 3. The prosecution case in brief is that PW-1 Smt. Makhyada Talukdar, lodged an FIR on 11.10.2004 with the Sarthebari P.S. alleging that at about 5.30 P.M. (yesterday), i.e. on 16.10.2004 as soon she entered her house after marketing at Balapara Bazar, her accused son the Appellant, started beating her husband Upen Talukdar ('the deceased') who was sleeping on bed, with bamboo latch. Although her daughter Smt. Jamini Talukdar, PW-2 offered resistance to the Appellant, he did not pay any heed to that and went on beating her husband who was also father of the Appellant, then her daughter and she herself came out raising an alarm and by that time some of the neighbours came there and though they could separate the Appellant from the deceased, the deceased died there. 4. It is also mentioned in the FIR lodged by PW-1, the mother of the Appellant, that the Appellant was suffering from mental disturbance since many days back and he used to be, at her daughter and that her too. 5. On the basis of the allegation, the police registered a case under Section 302, IPC and investigation ensued. 6. On completion of the investigation, the police submitted charge sheet against the accused-appellant under Section 302, IPC. 7. The learned Sessions Judge, Barpeta, having closely appreciated the testimony of all the 6 prosecution witnesses including the PW-3, Dr. Suresh Chandra Sarma, who conducted the autopsy on the dead body of the deceased and also upon hearing the learned Counsel for the parties, found the Appellant guilty of the offence of committing murder of his father-deceased and accordingly, convicted and sentenced him as indicated above. 8. Although, it appears that PW-1 and PW-2 were the eye witnesses as reflected in the FIR, both of them declared hostile at the time of deposition of their evidence. 9. PW-3, Dr. 8. Although, it appears that PW-1 and PW-2 were the eye witnesses as reflected in the FIR, both of them declared hostile at the time of deposition of their evidence. 9. PW-3, Dr. Suresh Chandra Sarma, found the following injuries on the dead body of the deceased: 1. There is a punctured wound on neck just below the pain of left ear. 2. A punctured injury at occipital region of scalp causing fracture of occipital bone and injury of brain. Membrane of the brain are blood stained and brain matters are also found blood stained. The Doctor in his opinion stated that the cause of death was due to haemorrhage and shock due to injury sustained inside the head. In cross-examination, Doctor deposed that the cause of such punctured injuries, the weapon should be a pointed one. 10. From the deposition of PW-6, Ranjan Doley, who was the Investigating Officer ('the I.O.') in his evidence in cross categorically stated that he did not seize the bamboo lathi. It was stated by him that it was not the fact that Mukhyada PW-1 and Jamini PW-2 did not report him that the Appellant assaulted his father with the lathi. 11. Since it appears from the evidence of the prosecution witnesses that the Appellant used bamboo latch for assaulting his father, from the medical evidence, it reveals that the 2 injuries so inflicted as noted above, were punctured injuries and such injuries might be by a pointed weapon. It also transpires from the FIR itself, lodged by PW-1, that her son suffering from mental disturbance for many days. Even PW-5, Dhaniram Ray, Goanburah in the locality, in his evidence corroborated such ailment of the Appellant by deposing in the cross-examination that at the time of occurrence, the Appellant was mentally unbalanced and he did not call any person. 12. In the backdrop of the above evidence of the prosecution witnesses including medical evidence, Mrs. Buzarbaruah, learned amicus curiae has submitted that since the Appellant was found to be a person of mentally sick, he should get the, protection of the provision of Section 84 of the IPC which reads as under: 84. 12. In the backdrop of the above evidence of the prosecution witnesses including medical evidence, Mrs. Buzarbaruah, learned amicus curiae has submitted that since the Appellant was found to be a person of mentally sick, he should get the, protection of the provision of Section 84 of the IPC which reads as under: 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. 13. In support of her submission regards the insanity, Mrs. Buzarbaruah has relied upon the following judicial pronouncements: 1. Dayabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 . 2. Kancha Munda v. State of Assam 2008 (4) GLR 801. 14. In Dayabhai Chhaganbhai Thakkar's case (supra) the Supreme Court in paragraph 9 of the judgment observed as under: 9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime. 15. In Kancha Munda's case in paragraphs 15 and 16, this Court held as under: 15. Further Mr. Gogoi, learned Additional P.P., citing the case of Ananjan Das v. State of Assam 2007 Cri. LJ 802, 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 P.P. 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. In this case, it is submitted by the learned Additional P.P. 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 the 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 made 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 which he was in the state of mental disorder. 16. It is true that in criminal jurisprudence, the burden always lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. It is basic principle that an accused is presumed to be innocent. Hence, this general burden never shifts and always rests on the prosecution. However, Section 84, IPC provides an exception to such general doctrine. As already quoted above, it provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind is incapable of knowing the nature of his act or what that he is doing is either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act which provides that when a person accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or any law defining the offence, is upon him, and the court shall presume the absence of such circumstances, the burden of proving the existence of circumstances bringing the case within the same exception lies on the accused, and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4, thereof which provides that whenever it is directed by this Act that the court shall presume a fact, it shall regard such facts as proved unless and until it is disproved, the court shall regard the absence of such circumstances as proved unless, after, considering the matters before it, it believes that, the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral or documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man" the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of the judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden, that rests on the accused to make out his defence insanity [See Dayabhai Thakkar's case (supra) Para 5]. 17. In the backdrop of the above established legal proposition, the Supreme Court in Dayabhai Thakkar's case (supra) formulated three propositions pertaining to application of the, doctrine of burden of proof in the context of the plea of insanity in paragraph 7 which may be quoted as under: 7.... 17. In the backdrop of the above established legal proposition, the Supreme Court in Dayabhai Thakkar's case (supra) formulated three propositions pertaining to application of the, doctrine of burden of proof in the context of the plea of insanity in paragraph 7 which may be quoted as under: 7.... (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 the prosecution was not discharged. 18. In the instant case, if we apply the above proposition, it would go to indicate that from the oral testimony of PW-1, mother of the Appellant as well as PW-5, Goanburah, the independent witness, it may be gathered that both of them corroborated in their version in telling that the Appellant was mentally unbalanced and he was earlier treated at Tezpur and Guwahati. At the same time, we do not find any convincing materials on the prosecution side to rebut such statement as regards the mental ailment of the accused/Appellant. At the same time, we do not find any convincing materials on the prosecution side to rebut such statement as regards the mental ailment of the accused/Appellant. It is also seen herein that the prosecution could not prove its case beyond reasonable doubt that the Appellant had committed the offence with requisite mens rea and the evidence placed before this Court on behalf of the prosecution, therefore, raises a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence including the mens rea of the accused. In such circumstances, we are of the opinion that this Court would be entitled to acquit the accused/Appellant on the ground that the general burden of proof resting the prosecution was not discharged. 19. The facts and circumstances of the case so projected in the case and also exhibited in the FIR itself so lodged by PW-1, would indicate that the Appellant was suffering from mental disturbance since long time including at the time of commission of the offence. 20. It also transpires that in their evidence though PW-1 and PW-2 declared hostile, they clearly stated that the Appellant was mad at the time occurrence and earlier also they treated him at Tezpur and Guwahati for his mental illness for three months. Even PW-5 Dhaniram Rai, being an independent witness, a Goanburah of the locality, testified in cross-examination that at the time of occurrence the Appellant was mentally imbalanced. 21. Having regard to the above propositions of law laid down in the above cited case and also given facts and circumstances of the case in its entirety, we find enough force in the submission of Mrs. Buzarbaruah, the learned amicus curiae that the Appellant was a person of mentally sick and he is entitled to get protection of Section 84, IPC. 22. In view of the above, the conviction under Section 302, IPC and his sentence to undergo R I. for life stands quashed and set aside. 23. The impugned judgment and order is hereby interfered with. 24. The Appellant be set at liberty forthwith, if he is not required to any other case. 25. 22. In view of the above, the conviction under Section 302, IPC and his sentence to undergo R I. for life stands quashed and set aside. 23. The impugned judgment and order is hereby interfered with. 24. The Appellant be set at liberty forthwith, if he is not required to any other case. 25. Be it clearly mentioned herein that, if the jail authority at the time of rebase of the Appellant is satisfied that the Appellant is mentally imbalanced, the Appellant may be sent to Lokopriya Gopinath Bordoloi Regional Institute of Mental Health at Tezpur, in the Districted Sonitpur. 26. Send down the LCR forthwith. 27. Before parting with the judgment, we would like to put on record our appreciation to Mrs. M. Buzarbaruah, learned amicus curiae for her valuable assistance rendered to arrive at a conclusion abovementioned. Accordingly, we order that she is entitled to get her professional fee which is quantified at Rs. 5,000. Appeal allowed