JUDGMENT GIRISH CHANDRA GUPTA, J. 1. - THIS appeal is directed against a judgment and order dated 30th May, 1998 passed by the learned Additional District and Sessions Judge, 3rd Court, Surf, in Sessions Trial No.3 of December, 1997 arising out of Sessions Case No.26 of 1987 (Rampurhat P. S. Case No. 11 dated 30th March, 1985) convicting the appellant Anawarul Haque Siddique of the offences punishable under sections 302 and 201 of the Indian Penal Code and sentencing him to imprisonment for life as also to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for further two months. No separate sentences for the offence punishable under section 201 was passed. 2. THE facts and circumstances briefly stated are that on 15th March, 1985, Saharabanu, aged about 17 years, was given in marriage to the appellant Anawarul. She was killed in the night between 29th and 30th March, 1985. The conviction is based primarily on confession both judicial and extra-judicial coupled with evidence of P.W.9 Dr. G. P.Kusri who found on 30th March, 1985 injuries on the person of the appellant which according to the appellant himself were inflicted by his wife while she was being throttled by him. Extra-judicial confession was also made in the presence of the members of the parties of complainant and the neighbours of the appellant besides the investigating officer. Some of the members of the party of the complainant as also the neighbours turned hostile during the trial. The learned trial Judge found the following circumstances to have been proved by the prosecution. Extra-judicial confession was also made in the presence of the members of the parties of complainant and the neighbours of the appellant besides the investigating officer. Some of the members of the party of the complainant as also the neighbours turned hostile during the trial. The learned trial Judge found the following circumstances to have been proved by the prosecution. "In the connection the following circumstances are against the interest of the accused, namely, (a) Unnatural death of the wife within 15 days of her marriage with the accused and that too in the house of the accused, (b) Judicial and extra-judicial confession of the accused, (c) statement of the accused while remaining in police custody leading to discovery of incriminating articles (d) no explanation as to how the accused sustained nail injuries over his person, (e) THE P.M. report which indicates that the death was homicidal and ante-mortem in nature and caused by throttling, (f) Minimum delay in lodging FIR thereby excluding chance of implication (g) Initial attempt of the accused to exonerate himself from the liability of the murder of his wife and his subsequent confession thereby implicating himself in the commission of the murder of his wife by throttling, (h) THE noting of black mark and swelling injuries over the forehead of the deceased by her father the P.W. 1 (i) Though the accused got ample opportunity to explain the incriminating situation against him but his non- availing of those chances, (j) THE accused never retracted the confession." Mr. Mitra, learned Advocate appearing with Mr. Mukherjee in support of the appeal, took us through the evidence and advanced principally two submissions: a) that the appellant at the material point of time was an insane person and therefore he is entitled to exemption under section 84 of the Indian Penal Code. b) the documentary evidence adduced in this case goes to establish that there are shortcomings giving scope for suspicion as to the bona fide of the investigating officer which he failed to explain while he was in the box. 3. MR. Goswami, learned Public Prosecutor, disputed both the submissions advanced by the learned advocates appearing for the appellants. 4. INSOFAR as the first submission of Mr. Mitra is concerned he drew our attention to the evidence of P.W. 1, the de facto complainant himself. 3. MR. Goswami, learned Public Prosecutor, disputed both the submissions advanced by the learned advocates appearing for the appellants. 4. INSOFAR as the first submission of Mr. Mitra is concerned he drew our attention to the evidence of P.W. 1, the de facto complainant himself. In his cross-examination he deposed as follows: "Now I can understand that the accused married my daughter after that he was insane." P.W.4 Ataul Haque, maternal uncle of the deceased, in his cross- examination deposed as follows: "Initially troubles started when we raised the dispute as to why the accused married my bhagni after suppressing the fact that he was insane." 5. IN it only on the basis of these two sentences coming from two several witnesses that the first submission of Mr. Mitra is based. It may be pointed out that the P.W.4 although a near relation of the deceased, turned hostile during the trial. He did not support the statements made by him during his examination under section 161 of the Criminal Procedure Code. 6. NOW the question is whether exemption can be given to the appellant on the basis of the scanty evidence brought to our notice by Mr. Mitra, Mr. Goswami learned Public Prosecutor, submitted that there two sentences do not and cannot attract the exception engrafted in the section 84 IPC. He added that burden of proving that the appellant was an insane person within the meaning of section 84 IPC was on the defence under section 105 of the Indian Evidence Act which the defence has not discharged and therefore there is no scope to claim this exemption. Mr. Mitra replied that the defence was not obliged to prove a fact which was admitted by the witnesses of the prosecution itself. He in support of his submission relied on section 58 of the Indian Evidence Act. In order to resolve the controversy we have to ascertain the law on the subject. This question was considered in a century old judgment of this Court in the case of Queen Empress v. Kader, reported in ILR 21 Calcutta 604 wherein after considering the Indian and English authorities on the subject the following view was expressed. "Are the circumstances then sufficient to exempt the accused from responsibility for the crime? This question was considered in a century old judgment of this Court in the case of Queen Empress v. Kader, reported in ILR 21 Calcutta 604 wherein after considering the Indian and English authorities on the subject the following view was expressed. "Are the circumstances then sufficient to exempt the accused from responsibility for the crime? The act done by him, unless he is shown to be exempted from criminal responsibility, is evidently murder, and it lies upon the accused under section 105 of the Evidence Act to show that he is exempted from criminal responsibility by reason of unsoundness of mind. It must also be borne in mind that it is not every from of unsoundness of mind that would exempt one from criminal responsibility. The Law on the subject is that laid down in section 84 of the Indian Penal Code which enacts that "nothing is an offence which it 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". This provisions of our law, which is in substance the same as that laid down in the answers of the Judge to the questions put to them by the House of Lords in Mc Naghten's case shows that it is only unsoundness of mind which materially impairs the cognitive facilities of the mind that can form a ground of exemption from criminal responsibility, the nature and the extent of the unsoundness of mind required being such as would make the offender incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law. Instances of unsoundness of mind of this description would be such as these: A person strikes another, and in consequences of an insane delusion thinks be is breaking a jar. Here he does not know the nature of the act. Or he may kill a child under an insane delusion that he is saring him from sin and sending him to heaven. Here he is incapable of knowing by reason of insanity that he is doing what is morally wrong. Here he does not know the nature of the act. Or he may kill a child under an insane delusion that he is saring him from sin and sending him to heaven. Here he is incapable of knowing by reason of insanity that he is doing what is morally wrong. Or he may under insane delusion believe an innocent whom he kills to be a man that was going to take his life; in which case, by reason of his insane delusion, he is incapable of knowing that he is doing what is contrary to the law of the land. We learn, however, from medical and legal authorities who have considered the subject of responsibility in mental disease (see Mandsley's Responsibility in Mental disease. Ch. Ill, Bucknil and Tuke's Psychological Medicine, p.269, and Stephen's History of the Criminal Law of England Vol. II, Ch. XIX) that insanity affects not only the cognitive facilities of the mind which guide our actions, but also our emotions which prompt our actions, and the will by which our actions are performed. It may be that our law, like the law of England, limits non-liability only to those cases in which insanity affects the cognitive faculties; because it is thought that those are the cases to which the exemption rightly applies, and the cases, in which insanity affects only the emotions and the will, subjecting the offender to impulses, whilst it leaves the cognitive facilities unimpaired, have been left outside the exemption, because it has been thought that the object of the criminal law is to make people control their insane as well as their sane impulses, or to use the words of Lord Justice Bramwell in Reg v. Humphreys (1) (see Taylor's Mannual of Medical Jurisprudence, 10th Edition P.745) "to guard against mischievous propensities and homicidal impulses." Whether this is the proper view to take of the matter, or whether the exemption ought to be extended as well as to the cases in which insanity affects the emotions and will as to those in which it affects the cognitive faculties, is a question which it is not for us here to consider. There are no doubt eminent authorities who are in favour of extending the exemption to those cases, but our duty is to administer the law as we find it. There are no doubt eminent authorities who are in favour of extending the exemption to those cases, but our duty is to administer the law as we find it. It might be said of our law as it has been said of the Law of England by Sir J. Stephen (see his History of the Criminal Law of England, Vol. II, Ch. XIX, P. 167) that even as it stands, the law extends the exemption as well to cases where insanity affects the offender's will and emotions as to those where it affects his cognitive faculties, because where the will and emotions are affected by the offender being subjected to insane impulses, it is difficult to say that his cognitive faculties are not affected. In extreme cases that may be true; but we are not prepared to accept the view as generally correct that a person is entitled to exemption from criminal liability under the law in cases in which it is only shown that he is subject to insane impulses, notwithstanding that it may appear clear that his cognitive faculties, so far as we can judge from his acts and words, are left unimpaired. To take such a view as this would be to go against the plain language of section 84 of the Indian Penal Code, and the received interpretation of that section. See the cases of Queen Empress v. Lakshman Dagdu (10, Queen-Emperor v. Venkatasami (2) and Queen-Empress v. Ragai Mia (3)." 7. IT would thus appear that a person subject to insane impulses cannot claim exemption under section 84 IPC unless it can be established that the cognitive faculties of the accused have been impaired so that he does not know what he is doing nor does he know what he is doing is illegal or is wrong. In the present case before us except for the aforesaid two sentences emanating from two of the witnesses of the prosecution no other or further evidence is available. The two sentences relied upon by Mr. Mitra and quoted above by us do not, in our view, amount to any evidence at all. These two sentences are really inferences which they drew. IT is, in fact, their opinion which they have expressed. The facts on the basis of which this opinion was formed by the P.Ws. 1 and 4 have not been disclosed. Mitra and quoted above by us do not, in our view, amount to any evidence at all. These two sentences are really inferences which they drew. IT is, in fact, their opinion which they have expressed. The facts on the basis of which this opinion was formed by the P.Ws. 1 and 4 have not been disclosed. Formation of an opinion is in the domain of the Court. If a witness from the witness box tells the Court about his opinion the same would have no value whatsoever except in the cases covered by sections 45-51 of the Evidence Act. There can be no doubt that the evidence of the P.Ws. 1 and 4 cannot come within the purview of sections 45-51 of the Evidence Act. These sections contemplate the evidence of an expert primarily. Opinion is not admissible in evidence unless it be one of those which are permitted to be given in evidence under any one of the above mentioned sections. There is no evidence before us to show that the cognitive faculties of the appellant were impaired. On the contrary we have evidence before us to show: (a) that the appellant tried to exonerate himself by inventing a story that in the night at about 1 a.m. dacoits had entered his room who killed his wife, tied him up with the window and had decamped with the valuables including the jewellery. As a matter of fact he removed the valuable and kept them hidden in the bed of an adjacent tank. Based on his statement subsequently the bag containing jewellery and other valuables was recovered from the bed of the tank. P. W. 1 in that regard in the written complaint stated as follows: "Being asked by me, Anarul Hoque told that on last night at about 1.00 a.m. when she went out of the room being pressed with nature's call, then 4 (four) miscreants entered into their bedroom forcibly and murdered my daughter. P. W. 1 in that regard in the written complaint stated as follows: "Being asked by me, Anarul Hoque told that on last night at about 1.00 a.m. when she went out of the room being pressed with nature's call, then 4 (four) miscreants entered into their bedroom forcibly and murdered my daughter. He also told that the said miscreants tied him with a napkin along with the rod of the window and they snatched away all the articles i.e. two coloured printed sarees, one container of snow, one alta, one khopa and many other things, which were kept in a suitcase of about 22" in size and they also snatched away all the ornaments such as two golden rings (sita dul), one golden ring fixed with a stone, one golden 'nakchabi' one pair of "Pala" covered with gold, which were received by way of dowry and my daughter wore." 8. THE de facto complainant the P.W.1 during his evidence deposed as follows: "On our query he disclosed that in the night (torn............) miscreants after tying him up with a napkin killed my daughter. The accused in order to save himself told a lie to us but subsequently on further interrogation he confessed his guilt and admitted to have killed my daughter. At that time Mobin and Ataur Haque was present. Prior to our reaching there, police came. I gave a 22" inches foam suitcase, two sarees, some cosmetics to my daughter at the time of her marriage along with golden ornaments namely two ear rings, two bangles made of pala, two rings and one 'nose ring'. On being interrogated by the police as regards those articles and ornaments the accused disclosed that he had hidden all those ornaments, cosmetics, etc. on the bed of "Sakerabib Tank" Asami led us to the spot himself and with the help of spade dug up those articles. Myself, Atawol Haque, Mobin, police personnels and some villagers present there at that time. The accused also admitted that initially with the help of that spade he concealed those articles at the spot. The accused took the spade from the small room meant of livestock. First of all the accused dug up the foam suitcase and handed over it to the police. It was the same suitcase which I gave to my daughter at the time of her marriage. The accused took the spade from the small room meant of livestock. First of all the accused dug up the foam suitcase and handed over it to the police. It was the same suitcase which I gave to my daughter at the time of her marriage. In another spot at a distance of 15/16 cubits from the first one the accused dug up the ornaments from underneath the earth kept inside a polythene bag. From inside the polythene bag all the ornaments etc. as deposed by me were recovered and found. The accused also confessed he himself had placed and concealed those articles underneath the bed of tank." P.W.8 the I.O. deposed in that regard as follows: "On interrogation of the accused it could be learnt that the accused murdered his wife i.e. The deceased and kept concealed her ornaments and other articles on the bed of a nearby tank. The accused confessed his guilt in presence of witness. And also stated that he had kept concealed the articles on the southern side bed of Sakera Bibi tank. The accused also showed the spade with the help of which he dug up the bed of the tank and concealed the articles. Subsequently the accused led us i.e. myself and other witnesses to the spot i.e. Sakera Bibi tank where he had kept concealed the articles. There at the spot the accused himself dug up the earth and recovered the ornaments he had kept concealed there. The accused recovered the ornaments kept inside a polythene bag." There is no significant cross-examination with regard to this aspect of the matter disposed to by these two witness. (b) The confessional statement, recorded by the Judicial Magistrate (P.W.5), goes to show that it is in a question-answer form which has been marked exbt. 8. In answer to the question of the Judicial Magistrate as to why was the accused making the confession he replied that out of repentance he was doing so. The confessional statement In the question-answer form goes to show that the accused was quiet capable of understanding the question and answered them like a normal person. (cj P.W.9 Dr. Kusri examined the accused on 30th March, 1985. His report is exbt. The confessional statement In the question-answer form goes to show that the accused was quiet capable of understanding the question and answered them like a normal person. (cj P.W.9 Dr. Kusri examined the accused on 30th March, 1985. His report is exbt. 9 which contains the following information furnished to him by the patient, (the accused): "Patient states that the got injuries at his body by his wife Saharabanu @ Khushi on 29.3.85 at about 12 mid-night when he pressed her neck with hand by scratching." 9. THE injuries found by the P.W. 9 appear to have been opined to have been caused by the finger nails. Therefore the injury found on the body of the accused corroborated his confession. P.W.9 in Court proved the contents of the exbt. 9. 10. RECORDS reveal that the appellant was released on bail by an order dated 26th August, 1985. After the case was committed an application on 9th April, 1987 was made by the younger brother of the appellant under sections 329 and 330 of the Code of Criminal Procedure. By an order dated 25th April, 1987 the learned Sessions Judge took the appellant in custody and sent him to Mental Observation Ward, Bhowanipore, for obtaining opinion of a Psychiatrist as to whether he was mentally fit to stand trial. On 15th May, 1989 the accused was produced from the jail custody to the learned Sessions Judge with a medical certificate stating that the accused was fit to stand trial and thereafter the date for fixation of charge was fixed. However, the accused continued to remain in custody. RECORDS further reveal that even thereafter a complaint was made that the accused was unable to follow what was going on and in the process the trial was delayed. On 29th May, 1990 another certificate was produced stating that the accused was fit to stand trial. Again the complaint as regards his mental incapacity was repeated. He was referred to a doctor. This is how the trial continued to be dragged on until the same was finally taken up on 3rd December, 1997. (d) The answers given by the accused during his examination under section 313 including his submission on the point of sentence go to show that he behaved like a normal person. He was referred to a doctor. This is how the trial continued to be dragged on until the same was finally taken up on 3rd December, 1997. (d) The answers given by the accused during his examination under section 313 including his submission on the point of sentence go to show that he behaved like a normal person. It is therefore difficult to hold that the appellant was of unsound mind or that he did not know what he was doing or that he did not know that what he was doing was wrong or contrary to law. The evidence on the contrary goes to suggest that he was fully aware that he was committing a crime. Immediately after putting the poor woman to death the appellant contrived a plot to exonerate himself of the consequences and executed the same by secreting the valuables and by representing to the people that his wife had been killed by the dacoits who decamped with the valuables. We are therefore of the opinion that the first submission of Mr. Mitra is without any merit and is therefore rejected. Section 58 of the Evidence Act does not assist the appellant in this case nor does the same have any application to the type of evidence relied upon by Mr. Mitra for reasons already discussed. The second submission of Mr. Mitra challenging the bona fide of the investigating officer has not impressed us either. The main thrust of his argument is based on the fact that the inquest report appearing to have been prepared at 12.30 noon of 30th March, 1985 contains a reference to the things recovered based on the statements made by the accused between 14.15 hrs. and 15.15. hrs. He submitted that all these records namely the inquest report exbt. 1 and the seizure lists exbts. 3, 4, 5, 6 and 7 have been subsequently prepared. We are unable to accept this submission. The original inquest report goes to show that there are 5 paragraphs. In the first two paragraphs, the investigating officer has noted what he observed as regards the conditions of the dead body, the place where the dead body was lying, topography of that place, position of the furniture etc. There is some gap after the second paragraph. It is quite probable that the inquest was started at 12.30 noon on 30th March, 1985. There is some gap after the second paragraph. It is quite probable that the inquest was started at 12.30 noon on 30th March, 1985. After concluding the explanatory investigation he in all likelihood took up the attributory investigation. During such investigation he naturally interrogated the accuses when he made statements on the basis of which various items including jewellery were found from the secret places shown by the accused himself. These were seized and the seizure lists being exbts. 3, 4, 5, 6 and 7 were prepared. It is also proable that the third paragraph onwards in the inquest report devoted entirely top the result of the investigation made by him was recorded after the seizure lists were made and there is nothing wrong in it. The I.O. (P.W.8), it is true, in his cross- examination deposed that " I have got no explanation as regards my mentioning the seizure of articles etc. in the inquest report". This does not go to show that the investigation was conducted by the I.O. otherwise than in good faith. He may have thought that after concluding the inquest he should have taken up the other acts of investigation but the way he appears to have conducted the investigation, we are unable to say, was wrong or that he was actuated with any malice. The second point of Mr. Mitra is thus rejected. 11. NO other or further point was advanced. We are satisfied that the judgment and the order passed by the learned trial Court cannot be interfered with. We however, cannot but record that the investigation agency had the clue to make further investigation as regards the following information furnished by the de facto complainant in his written complaint. "I came to the village-Sashpur and also came to know that before this my son-in-law got married with the two daughters of Syed Abdul Hoque of village-Chatra Gobardhan, under Kandi P.S., in the district-Murshidabad, in two separate occasions one after another. And after getting such marriage, within a very few days, both the daughters died in a very doubtful situations." 12. THE investigating agency did not pick up the clue. Naturally no evidence was adduced with regard thereto. This is a real omission on the part of the investigating agency which must have contributed to burying two other crimes which went unpunished. In the result the appeal fails and is dismissed. THE investigating agency did not pick up the clue. Naturally no evidence was adduced with regard thereto. This is a real omission on the part of the investigating agency which must have contributed to burying two other crimes which went unpunished. In the result the appeal fails and is dismissed. The appellant who is now in jail is directed to serve out the sentence imposed by the learned trial Court. However considering that the appellant is in custody commencing from 24th April 1987 besides the period which elapsed between 31st March, 1985 and 26th August, 1985 he shall be at liberty to apply under section 433 of the Cr PC for communication of his sentence. In the event he does that the State shall consider his representation in accordance with law. 13. THE criminal section of this Court is directed to send a copy of this judgment to the Superintendent of the Correctional Home where the appellant is now under detention for information and necessary action. 14. THE criminal section of this Court is further directed to send a copy of this judgment to the Director General of Police, West Bengal. Lower Court Records with a copy of this judgment be sent down to the learned trial Court immediately for information and necessary action. Urgent xerox certified copy of this judgment, be delivered to the learned advocates for the parties, if applied for, upon compliance of all undertaking. Appeal dismissed