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2013 DIGILAW 67 (GAU)

Gudulu Orang v. State of Assam

2013-02-01

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. The challenge in this appeal is to the judgment and order dated 10.4.2007 rendered by the learned Addl. Sessions Judge, FTC, Biswanath Chariali in Sessions Case No. 242/05 whereby the appellant was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/-, in default rigorous imprisonment for three months. The appellant who is serving sentence aforesaid has preferred this appeal through jail authority. We have heard Mr. P.N. Choudhury, learned counsel as Amicus Curiae for the appellant and Mr. Dhanesh Das, learned Addl. Public Prosecutor, Assam for the State Respondent. 2. Prosecution has a very short story. On 7.1.2005 at about 7 pm appellant killed his sister-in-law (wife of the elder brother) by giving blows on her head and other parts with a sharp axe. A written Ejahar was lodged on 8.11.05 by one Handu Orang, which was received at 6.30 pm and registered as Biswanath Chariali P.S. Case No. 09/05 under Section 302 IPC. In the said Ejahar it was mentioned that the appellant has been suffering from mental disorder. The I.O. investigated the case, examined witnesses and after completing the other formalities submitted charge-sheet against the appellant. The case being committed to the court of Sessions, the learned trial court framed charge against the appellant under Section 302 IPC which was explained and read over to him. The appellant having pleaded innocent stood the trial. In order to bring the aforesaid charge home, the prosecution examined in all 9 witnesses and on conclusion of prosecution evidence examined the appellant under Section 313 Cr.P.C. placing before him all the incriminating evidence tendered by the witnesses. He denied the allegations and on being asked declined to adduce any evidence in his defence. The appellant simply pleaded innocence and denied of the charge. 3. Mr. Choudhury, learned Amicus Curiae, submits that the appellant was suffering from mental disorder at the time of commission of the offence and as such he is entitled to the benefit provided under Section 84 of the IPC. In the FIR itself the prosecution projected a case of mental disorder of the accused, and therefore, it is not incumbent upon the appellant to prove his state of mental disorderness in his defence. In the FIR itself the prosecution projected a case of mental disorder of the accused, and therefore, it is not incumbent upon the appellant to prove his state of mental disorderness in his defence. Secondly he submits that the learned trial court overlooked the conduct of the accused, who, on being found at the place of occurrence made no attempt to escape and remained quiet without talking to anybody which was a sign of abnormal conduct attributable to mental disorder and attracts the provision under Section 84 IPC. The learned trial court also failed to appreciate the evidence of PW 6 and 7, who deposed that the accused was in a fit of lunacy. So also the evidence of PW-5 who stated that the accused had been out of his mind at the time of committing the crime. On the face of the aforesaid evidence on record, as argued by learned Amicus Curiae, the learned trial court should have believed that the appellant was suffering from mental disorder or lunacy and he committed the offence in such mental state and he is not liable to be convicted and sentenced as per provision under Section 84 of the IPC. Thirdly, it is submitted that the learned trial court erroneously and without any basis came to the conclusion that accused was not suffering from psychiatric or psychological disorder as there was no history of insanity and proof to that effect and such finding/conclusion has gone against the law laid down in Siddhapal Kamala Yadav Vs. State of Maharashtra reported in AIR 2009 SC 97 wherein it was held that a fair trial would require that if there is available proof before the judge that the accused is suffering from psychiatric or psychological disorder i.e. there was a history of insanity, it would be the duty of the court to require the investigator to subject the accused to a medical examination and place the evidence before the court. In the instant case the same was not done during trial and that being so the impugned judgment is vitiated and must be set aside in terms of the aforesaid law. In the instant case the same was not done during trial and that being so the impugned judgment is vitiated and must be set aside in terms of the aforesaid law. The trial court, according to the learned amicus curiae, failed to apply the provisions under Section 329 and 330 of the Cr.P.C. to determine the mental health of the appellant and it simply glossed over the fact in paragraph 18 of the judgment that "in the present case the burden of the accused to prove the plea of insanity and should have adduced some evidence about the kind of his unsoundness of mind. It is the established position of law that behaviour of the accused before commissioning of the crime and after commissioning of the offence are relevant and should be taken into consideration in deciding the crucial point whether at the material time the accused was found to be labouring under such defect of reason as not to know the nature of the act he was doing or that even if he know it he did not know it was either wrong or contrary to law". The learned Amicus Curiae further argued that there was nothing on record to hold that the appellant was sane at the time of occurrence as well as during trial and the learned trial court ought to have had an evaluation done and thereafter proceeded with the trial on having a conclusive report qua the mental health of the accused to establish whether he was able to understand the seriousness and consequences of his act and able to make his defence. In all propriety, the trial ought to have been deferred with a direction that the appellant's mental health should be monitored continuously and if so required till his condition is improved considerably and found fit to stand the trial. Lastly, it was submitted that the learned public prosecutor in charge of the case in the trial court failed to move or advise the court below about the necessity of taking account of the mental health of the appellant and in making prayer to get the mental health of the appellant tested before commencement of the trial for effective and judicious trial and the same having not been done the entire proceeding was vitiated and the impugned judgment and order convicting the appellant is liable to be quashed and set aside. 4. 4. On the role and duties of the public prosecutor during trial Mr. Choudhury, cited the cases of: (1) Hitendra Vishnu Thakur & Ors. Vs. State of Maharashtra & Ors., reported in (1994) 4 SCC 602 (2) Shiv Kumar Vs. Hukam Chand & Anr., reported in (1999) 7 SCC 417 and (3) Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi); AIR 2010 SC 2352 . 5. On the question of lunacy, unsoundness of mind etc, the learned Amicus Curiae cited the following authorities: (1) Sarfu Khan Vs. State of Jharkhand, reported in (2004) 13 SCC 460 ; (2) Bapu @ Gujraj Singh Vs. State of Rajasthan, reported in (2007) 8 SCC 66 ; (3) Siddhapal Kamala Yadav Vs. State of Maharashtra, reported in (2009) 1 SCC 124 ; (4) Surendera Mishra Vs. State of Jharkhand (2011) 11 SCC 495 ; (5) State of Rajasthan Vs. Shera Ram @ Vishnu Dutta, reported in (2012) 1 SCC 602 ; (6) Bangla Bagti Vs. State of Assam, reported in 2012 (1) GLT 193 : (2012) 1 GLR 115; (7) Hamid @ Kaliya & Anr. Vs. State of Rajasthan, reported in RLW 2007 (2) Raj 1150; (8) Ravi Kumar Vs. State of Rajasthan, reported in RLW 2008 (1) Raj 647; (9) Dhani Ram Vs. State of Himachal Pradesh, reported in 1982 Crl. L.J 1546 and (10) Shama Tudu Vs. State, reported in 1986 1 OLR 536. 6. Countering the aforesaid submissions of the learned counsel for the appellant, Mr. Das, learned Additional Public Prosecutor, Assam, firmly submits that the appellant had, at no point of time, taken the plea of mental disorderness or lunacy, and therefore, the learned trial court, on the basis of evidence available on record, which have established the charge of murder, rightly convicted and sentenced him and the impugned judgment and order warrant no interference in appeal. He also submits that there was no default or lapse on the part of the Public Prosecutor in conducting the case before the trial court vitiating the entire proceeding as well as the impugned judgment and order inasmuch as the appellant at the time of framing the charge never took the plea that he was suffering from mental disorder/lunacy or any mental disease at the relevant point of time claiming benefit under Section 84 of the IPC so as to move the learned trial court for medical examination/test to ascertain his mental health. 7. We propose to review and appreciate the evidence on record before examining the above submissions of the learned counsel for the parties. 8. The FIR (Ext. 1) was scribed by one Mani Ram Ronghang, who was examined as PW-1. He deposed that he wrote the FIR as stated by the informant and read over the same whereupon the informant put his thumb impression. The police visited the place of occurrence on the very day the Ejahar was lodged. He accompanied the police and he was present at the time of recovery and seizure of mud stained axe/weapon from the house of the accused. The police obtained his signature, Ext. 2(1). He saw the dead body of the deceased which was lying inside the house with injuries on her head and hands. The police examined the dead body in his presence and prepared the inquest report (Ext. 2) and he put his signature Ext. 3(1) on it. In cross examination he stated that he was told by the informant Handu Orang that the accused had been suffering from mental disorder. The accused was found at home and he did not run away. Most of the villagers knew that the accused had been mentally retarded. The police interrogated the accused in his presence but he did not speak a single word in response to the questions put by the police. He even did not do anything when he was arrested by police. He did not try to escape. He clarified that the seized axe (material Ext. 1) was lying on the veranda. He also clarified that the deceased used to live in the same house along with the accused. 9. Shri Jiten Orang, a child of 7 years and son of the deceased was examined as P.W. 2. He did not try to escape. He clarified that the seized axe (material Ext. 1) was lying on the veranda. He also clarified that the deceased used to live in the same house along with the accused. 9. Shri Jiten Orang, a child of 7 years and son of the deceased was examined as P.W. 2. He categorically stated that his paternal uncle Gudulu Orang (appellant) hacked his mother with an axe resulting into her death on the date of occurrence at around 6 pm while he was at home with his mother sitting near the fire place. In cross-examination, he stated that he was reading in class KA and the accused used to live in the same house with them. He also stated that accused Gudulu Orang was a mad man. There is a foot note of the Presiding Judge which reads as "on interrogation I find that the witness has capacity to understand, ability of reception but lack of rational judgment. He can understand the questions put to him and answer the questions. He can feel the value of oath". 10. PW-3, Bishnu Orang, is a child of 4 years and son of the deceased. This witness could identify the accused in the dock as his uncle and stated that the said uncle Gudulu cut his mother with an axe. His mother died; he saw the act of cutting. In the foot note, the learned Presiding Judge recorded "on interrogation, I find that the witness has capacity to understand but the ability of perception is less. Witness has no capacity of rational judgment. He can understand the questions put to him to some extent but he cannot answer properly". 11. P.W. 4, Sri Pani Ram Teron, is the Government Gaonbura of Shamukjuli lot. He deposed that on receipt of the information about the occurrence he came to the house of the accused person and saw Kato Orang lying dead inside her house with cut mark on her head. He was told by informant Handu Orang that on the previous evening the accused asked Kato Orang to give him rice and when she did not give rice the accused killed her by cutting with an axe. In his presence the police held inquest and prepared a report. He put his signature, Ext. 3(2), on the inquest report (Ext. 3). He also put his signature Ext. In his presence the police held inquest and prepared a report. He put his signature, Ext. 3(2), on the inquest report (Ext. 3). He also put his signature Ext. 2(2), on the seizure list by which an axe was seized from the place of occurrence. He stated that deceased was the wife of accused person's elder brother who died several years ago. Deceased Kato Orang and accused used to live in the same complex albeit separately. He knew that "at the time of the accident the accused had been out of his mind". 12. A co-villager named Markuj Bengra was examined as PW-5. As per his deposition he came to the house of the deceased where he found her deadbody lying inside the house. He saw cut mark on her head and arms. The police examined the dead body in his presence and prepared the inquest report on which he put his signature Ext. 3(3). The police also seized an axe, material Ext. 1, from the place of occurrence and obtained his signature, Ext. 2(3), on the seizure list. In cross examination he also stated that: The accd had been out of his mind at the time of committing the incident. He did not try to run away at the sight of the police. 13. PW-6, Shri Kanak Orang, is also a co-villager and a cultivator by profession. He deposed in the same way as did by PW-5. He was also present at the time of holding inquest over the dead body and he put his signature, Ext. 3(4), on the inquest report. In cross examination he also stated that: At the time of the incident the accused was in a fit of lunacy. 14. PW-7, Shri Mohan Orang, is also a co-villager and a daily wage earner by profession. As per his evidence he visited the place of occurrence and found Kato Orang lying dead with cut injuries on her head, arms and cheeks. He was told by Kato's children that the accused had cut their mother. In cross examination he also stated "At the time of incident, the accd was in a fit of lunacy. Having committed the incident he did not run away. Out of fear, I did not ask the accused anything. Nor did I see others asking him anything. My house is about 100 cubits away from that of the deceased." 15. PW 8, Dr. Having committed the incident he did not run away. Out of fear, I did not ask the accused anything. Nor did I see others asking him anything. My house is about 100 cubits away from that of the deceased." 15. PW 8, Dr. Jugen Ch. Bey, was the medical officer who conducted the post mortem examination on the dead body of the deceased. According to him, on examination, he found the following injuries: 1. Lacerated injury on the parietal-temporal region of the head left side, obliquely 4" x 3/4" X bone deep. Exposing the brains matters. 2. Cut injuries on the left side of the cheek transversely 2" X 1" bone deep. Cutting the ascending rams of mandible, clotted blood present. 3. 3 nos of cut injury on the arms 2" x " x muscle deep 1" x " x bone deep and 1" x " x bone deep. 4. 3 nos of cut injury 2" x 1" x muscles deep. On the right side of the chest. Cranium and Special Canal:- Scalp - Lacerated injury as described. Skull - fricative of partial and temporal bone on the left side. 3 1/2" is................. Vertebra - Healthy Membrane lacerated and blood clot present. Brain injury and blood clot present. Spinal Cord - Congested. Thorax - cut injury as described and cut injury of third ribs on right sides. Heart - Both chambers are empty. Other organs health: Abdomen: Stomach - Empty. Mouth pharynx clotted blood present. In his opinion all the injuries were ante mortem caused by blunt weapon (for injury No. 1) and sharp weapon in injury No. 2 to 4. He proved the post mortem report (Ext. 4) and his signature Ext. 4(1) injuries on the dead body. He commented that mortis develops after 1 to 2 hours of death. 16. The IO, Sri Bipin Kr. Bhuyan, was examined as PW-9. As per his deposition he went to the place of occurrence and found the dead body of the deceased lying. He prepared an inquest report. He proved the inquest report and his signature on it marked as Ext. 3 and Ext. 3(5) respectively. He examined some witnesses and sent the dead body for post mortem examination, prepared a sketch map of the place of occurrence. He proved the sketch map Ext. 5 and his signature as Ext. 5(1). He prepared an inquest report. He proved the inquest report and his signature on it marked as Ext. 3 and Ext. 3(5) respectively. He examined some witnesses and sent the dead body for post mortem examination, prepared a sketch map of the place of occurrence. He proved the sketch map Ext. 5 and his signature as Ext. 5(1). He found the accused being detained by villagers at the place of occurrence whose hands were tied with rope. He arrested the accused and seized an axe stained with mud and earth from the place of occurrence near the dead body. He proved the seized weapon as material Ext. 1 and the seizure list Ext. 2 and his signature Ext. 2(4). After collection of the post mortem report and completing the investigation he submitted the charge-sheet (Ext. 1) against the appellant. In cross examination he stated that the FIR was received on 8.1.05 and the accused was arrested on 10.1.05 and produced before the Magistrate. The sketch map and the seizure list were prepared on 9.1.05. He visited the place of occurrence on 9.1.05 at 8 am. He clarified that he took up the case for investigation at 7 pm on 8.1.05. He also clarified that although there was a mention in the FIR that accused was suffering from mental disorder, he "made no prayer to the court for treatment of the accused about his mental disorder". He denied the suggestion that he did not take proper step to ascertain whether the accused was mentally ill or not and on that ground his investigation was not proper and the charge sheet submitted by him was not as per law. 17. The prosecution has been able to examine at least two eye witnesses; PW 2 and 3, although they are children of 7 and 4 years of age respectively. If the evidence of these two child eye witnesses could be accepted, the charge against appellant would stand proved. In this context we are to refer to the principle of law in regard to testimony and credibility of child witness. The law laid down in various cases is that testimony of the child witness should be evaluated carefully as the child witness, by reason of his tender age, is a pliable witness who can be tutored easily either by threat, coercion or inducement. The law laid down in various cases is that testimony of the child witness should be evaluated carefully as the child witness, by reason of his tender age, is a pliable witness who can be tutored easily either by threat, coercion or inducement. The law also puts emphasis on adequate corroboration of the evidence of child witness by other evidence on record in the background and context of a given case. This law has been reaffirmed in the recent case of K. Venkateshwarlu Vs. State of Andhra Pradesh, reported in (2002) 8 SCC 73 followed by decision in another case in Alagupandi @ Algupandian Vs. State of Tamil Nadu, reported in (2012) 10 SCC 451 , wherein it is held, amongst others, that a child witness can be a competent witness provided statement of such witness is reliable and truthful but while assessing the evidence of child witness court must carefully observe his demeanour to eliminate likelihood of tutoring. It may also be referred to the law as laid down in Suryanarayana Vs. State of Karnataka, reported in (2001) 9 SCC 129 wherein it is enunciated that if the child withstands the cross-examination and if the testimony inspires confidence so as to rule out possibility of tutoring, it can be relied upon, as the sole basis for convicting the accused despite discrepancies in the testimony, if not in material particulars. In the Suryanarayana's case (supra), a girl of four years at the time of occurrence and six years at the time of making deposition before the court, was the sole eye witness to an incident where accused inflicted fatal knife blows on the deceased. She, being a child of only 4 years, was not given oath, but was cross-examined by the defence counsel. She could withstand the cross-examination and so, in the said case, her evidence was accepted and the accused was convicted solely on the basis of her evidence. It was also held therein that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis of discarding the testimony. 18. It was also held therein that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis of discarding the testimony. 18. PW 2, in the present case, was aged about 7 years at the time of deposition on 9.6.2006 and about 6 years on the date of occurrence 7.11.05 while PW 3 was a child of 4 years only at the time of deposition and 3 years at the time of date of occurrence. The defence counsel cross-examined PW 2 not in an elaborate manner to get an answer from him that the appellant was a mad man. No suggestion was put to him that he was tutored or influenced by any person and he made false deposition. PW 3, the younger brother of PW 2, was not cross-examined and he did not state anything about the mental health/condition of the appellant but he, very clearly, stated that his paternal uncle Gudulu (appellant) cut his mother with an axe and she died. More clearly he stated that he saw the act of 'cutting'. In the same manner PW 2 also clearly stated that his own maternal uncle Gudulu Orang, appellant, hacked his mother by an axe as a result of which she died. The evidence of both the eye witnesses corroborates each other. We see no discrepancy in material particulars, in the deposition of these two child witnesses. They may be very young in age but as stated by them, they were present at the time of occurrence and they have seen the act of assault by the axe on their mother which was very gruesome. The scene of such gruesome murder remained firmly imprinted in the young minds of these minor witnesses. They had seen the killing of their mother in their own eyes and such scene could not be forgotten by the children in a span of 1 years or so. On the death of their mother they became orphans; their father since expired already, turning them helpless and making them to pass their days through great hardship and mental trauma which is, obviously, one of the reasons why they could not forget the scene of ghastly killing. On the death of their mother they became orphans; their father since expired already, turning them helpless and making them to pass their days through great hardship and mental trauma which is, obviously, one of the reasons why they could not forget the scene of ghastly killing. Under such circumstances, court cannot jump to conclude that the child witnesses (PW 2 and 3) could not remember anything about the killing of their mother by the time they made deposition after one year of the incident. We do not find any reason to disbelieve the evidence of these two child witnesses. However, if the plea of the defence is to be believed that the appellant was present and he did not flee the place of occurrence, there is every reason to believe that there was no other person along with the two child witnesses at the time of occurrence. It is discernible from the stand of the defence that the appellant did not deny his presence at the place of occurrence. He has not stated anything how his sister-in-law (deceased) happened to be killed. If he was so present, he should be able to tell the court who was the perpetrator and under what circumstances the deceased was killed. His silence rather speaks in volumes. Under such circumstances, we are bound to accept that the witnesses saw the incident in their own eyes and they saw the appellant hacking their mother by an axe. Question of not being able to identify the appellant cannot be raised because he is the maternal uncle of the child witnesses; and in fact, that plea was not taken by the defence. The learned trial court rightly accepted these two children as eye witnesses and committed no error in believing their evidence and thus convicting the appellant on the basis of their evidence. 19. It is pertinent to note that the informant, Shri Handu Orang, was cited as a witness in the charge-sheet but he was examined as a witness. The informant was not an eye witness to the alleged occurrence. He got the FIR scribed by PW-1 and filed the same on 8.11.05. The fact of filing the said FIR on the alleged occurrence has been proved by PW-1 as well as PW-9. In our considered view non examination of the informant would not affect the prosecution case in any manner. He got the FIR scribed by PW-1 and filed the same on 8.11.05. The fact of filing the said FIR on the alleged occurrence has been proved by PW-1 as well as PW-9. In our considered view non examination of the informant would not affect the prosecution case in any manner. However the first informant was an important witness who could testify and give evidence in regard to mental disorderness the accused was suffering from and the crime he committed while he was suffering from such disease. 20. Now we propose to examine the role of the Public Prosecutor and his lapse and dereliction from duties and responsibilities he allegedly committed while conducting the prosecution case before the trial court. 21. The learned Amicus Curiae has relied upon a number of cases in this regard as mentioned earlier. The first case, Hitendra Vishnu Thakur (supra) has a little bearing with the question involved in the present case inasmuch as it was a case where granting of bail under the TADA Act after giving due notice to the Public Prosecutor and providing opportunity of being heard was emphasised. The second case, Shiv Kumar (supra), in our considered view, has a great deal of bearing with the facts and point of law involved in the present case. It was a case where the accused, on being charge-sheeted under Section 304B IPC, on his own, engaged a private counsel to appear for him in the Sessions Court during trial. In that context it has been held that prosecution case cannot be conducted in the Sessions Court by any one other than the Public Prosecutor inasmuch as the role of a private counsel is limited to act under the direction of the Public Prosecutor and such private counsel can submit written argument after closure of the evidence with prior permission of the court. In the said case the Apex Court observed as follows: From the scheme of the Code the legislative intention is manifestly clear that prosecution in a session's court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a session's court. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a session's court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor. 22. In the instant case the appellant, as stated earlier never took the plea of mental unsoundness/lunacy and he never sought to engage a private counsel to defend him. He has never claimed the benefit he was legitimately entitled under Section 84 of the IPC and there was no occasion for the Public Prosecutor concerned to oppose on that count. It was incumbent upon the appellant to adduce his own evidence by examining at least one or two witnesses in support of his case of lunacy or mental disorder within the meaning of section 84 IPC. In our considered view, in the case at hand, there is nothing like lapse or dereliction from duties and responsibilities on the part of the Public Prosecutor concerned in conducting the case. 23. The third case, Sidhartha Vashisht (supra) followed and reiterated the law settled in Hitendra Vishnu Thakur (supra) and Shiv Kumar (supra). In our considered view, in the case at hand, there is nothing like lapse or dereliction from duties and responsibilities on the part of the Public Prosecutor concerned in conducting the case. 23. The third case, Sidhartha Vashisht (supra) followed and reiterated the law settled in Hitendra Vishnu Thakur (supra) and Shiv Kumar (supra). It is an admitted position of law by now that a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished; rather ensuring fair play in the proceedings and placing all of relevant facts before the court for determination of the truth and ensuring justice for all the parties including the victim, and those duties do not allow the prosecutor to be lax in any of his duties as against the accused. 24. The aforesaid law is to be applied to given cases involving similar facts and circumstances. From the submissions of the learned counsel for the appellant it appears that the Public Prosecutor has been made blamable as he did not apprise the trial court the appellant's "mental disorder" and did not move the trial court for medical examination or treatment in the interest of fair trial, judicious disposal and meeting the ends of justice by bringing the truth to the fore. Before doing so, a look at the legal procedure would be necessary. In fact, under the law, the investigator, during investigation of the case, if it has been brought to his notice or discovered/found that the accused has a history of mental disorderness or unsoundness of mind, should take necessary steps to get the accused medically examined and place the evidence before the court during trial and if such steps are not taken, it would amount to a serious infirmity in the prosecution case and in that case, the benefit of doubt has to be given to the accused. The relevant law in this regard has been laid in Bapu's case (supra). A quote from relevant portion of para 8, may be enough for appreciate on; Para 8...................The onus of proving unsoundness of mind is on the accused. The relevant law in this regard has been laid in Bapu's case (supra). A quote from relevant portion of para 8, may be enough for appreciate on; Para 8...................The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct and other relevant factors. Every person is presumed to know the mental consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. 25. But, in our considered view, it would not be proper to make the Public Prosecutor solely blamable inasmuch as the defence also failed to discharge its duty in approaching the court to pass necessary orders for medical examination/test of the appellant to ascertain the mental health condition of the appellant and to proceed with the trial. What is to be noted in the present case is that the prosecution itself mentioned about mental disorder of the appellant in the FIR and offered a golden opportunity to the appellant to take a protective shelter under Section 84 of the IPC. The appellant himself was supposed to explore the chance of defence by tendering evidence in support of the professed mental disorder. It was an easy task for the appellant to convince the court that he was suffering from mental disorder by way of adducing evidence to that effect corroborating the evidence of some prosecution witnesses; in which case, the standard of proof would be only preponderance of probabilities and not beyond reasonable doubt. The defence has missed to avail the chance of proving the case of mental disorder to derive the benefit under Section 84 IPC and under such circumstances it is not justified to hold that the Public Prosecutor concerned failed to discharge his duties and responsibilities resulting into failure and/or denial of justice to the appellant. The defence has missed to avail the chance of proving the case of mental disorder to derive the benefit under Section 84 IPC and under such circumstances it is not justified to hold that the Public Prosecutor concerned failed to discharge his duties and responsibilities resulting into failure and/or denial of justice to the appellant. The crucial point involved in this case is as to whether the appellant was suffering from mental disorder or was of unsound mind and incapable of knowing the nature of act or what he was doing was either wrong or contrary to law. In other words whether the appellant, as mentioned in the FIR was suffering from mental disorder to treat his action not an offence within the exceptions provided under Section 84 IPC. For a ready reference Section 84 is reproduced below: 84. Act of a person unsound mind - Nothing is an offence which is done by a person who at the time of doing it, by a 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. At the cost of repetition it is to be noted that the prosecution itself professed a case of mental disorderness in favour of the appellant whereas the appellant failed to take the advantage of proving his innocence simply by way of adducing supportive evidence to what some prosecution witnesses have already stated about unsoundness of mind or mental disorder of the appellant. 26. In Siddhapal's case (supra) the accused allegedly murdered his co-prisoner, who was found hanging from the cot with leg locked to the bed with fetters and iron stand used for hanging saline bottle lying by his side. But, as per evidence of doctors attending him, there was no obvious psychiatric illness evident. Besides, there was an evidence to the effect that the accused appellant was calm and quiet and was neither angry nor shouting in the evening prior to the occurrence indicating that he was normal. Yet the trial court as well as the High Court in appeal held that section 84 IPC was not applicable to the said case. The Apex Court, in the said case, held that the trial court and the High Court rightly held section 84 IPC to be inapplicable while convicting the accused appellant under Section 302 IPC. 27. Yet the trial court as well as the High Court in appeal held that section 84 IPC was not applicable to the said case. The Apex Court, in the said case, held that the trial court and the High Court rightly held section 84 IPC to be inapplicable while convicting the accused appellant under Section 302 IPC. 27. Sarfu Khan's case (supra) relates to release of a lunatic pending investigation or trial under Section 330 of the Cr.P.C. and as such it has no relevance to the point involved in the present case. In Bapu's case (supra) a plea was taken during trial that the accused was of unsound mind and, therefore, entitled to protection under Section 84 IPC but the same was rejected by the trial court. The High Court concerned in appeal also found the said plea unacceptable although some of the witnesses stated about the fact of accused being suffering from unsoundness of mind. The Apex court also held that it was not a case where the exception under Section 84 IPC could be applied to; rather enquired as to whether at the time of commission of offence the accused was incapable to understand the nature of the act committed by him or suffered from insanity so a to extend the protection under Section 84 IPC. In the aforesaid judgment the Apex court, after making elaborate discussion on the provisions under Section 84 IPC, held that there is no definition of "unsoundness of mind" in the IPC. However, the courts have treated this expression as equivalent to insanity but the term insanity has no precise definition. It is also held that every person who is mentally diseased, is not if so facto exempted from criminal responsibility. There is a distinction between legal insanity and medical insanity and the court is to be concerned with legal insanity rather than medical insanity. The burden of proof lies on the accused to prove his insanity, which arises by virtue of section 105 of the Evidence Act, 1972. However, it is held that the standard of proof is not so onerous as cast upon the prosecution to prove that accused committed the act with which he is charged. The burden of proof lies on the accused to prove his insanity, which arises by virtue of section 105 of the Evidence Act, 1972. However, it is held that the standard of proof is not so onerous as cast upon the prosecution to prove that accused committed the act with which he is charged. In paragraph-11 of the said judgment it is held as under: The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind that can form a ground of exemption from criminal responsibility.. We have to consider the present case in the light of the aforesaid settled law. This we propose to do at the later stage. 28. In Surendra Mishra's case (supra) the accused, who was an owner of a medical Hall, all of a sudden came with a country made pistol and fired at the point blank range at the deceased and ran away from the place of occurrence and threw the country made pistol in the well in order to conceal himself from the crime and when he was charge-sheeted, took the plea of unsoundness of mind to avail the benefit of general exceptions provided under Section 84 IPC. The trial court as well as the High Court in appeal, having found the accused not suffering from any mental trouble/disease, rejected his plea. In the said case to prove his mental disorder, the accused adduced evidence by way of producing medical prescriptions from doctors. The trial court as well as the High Court in appeal, having found the accused not suffering from any mental trouble/disease, rejected his plea. In the said case to prove his mental disorder, the accused adduced evidence by way of producing medical prescriptions from doctors. Even then the plea of mental disorder was not accepted because of the proved conduct of the accused that after he shot dead the deceased threatened his driver with dire consequences, ran away from the place of occurrence and threw the country made pistol in the well in order to conceal himself from the crime. The other reason for not accepting the plea is that the accused was running a medical shop and came to the place of occurrence and shot dead the deceased. It was observed that if the appellant was a person of unsound mind it would not have been possible for him to run a medical shop. It was, therefore, held that accused has to prove legal insanity and not medical insanity and it has to be proved beyond all reasonable doubt. The fact that the accused ran away and threw the crime weapon in the well and concealed himself from the crime, proved that the accused, though suffered from certain mental instability, knew that whatever he had done was wrong and illegal and on a balance of preponderance of probabilities court cannot infer that the accused did not know the nature of his act at the time of commission of the offence. 29. In Shera Ram's case (supra) the accused hurled a stone on the head of pujari who was in the temple, as a result of which he died instantaneously. The accused also damaged the idol and other properties of the temple unprovoked in presence of villager witnesses. The accused was charged under Section 302 /295 and 449 IPC but he denied the same and stood the trial. At the time of recording his statement under Section 313 Cr.P.C. the accused pleaded that his mental condition, right from the year 1992-93, was not good and occasionally suffered from fits of insanity and had been undergoing treatment for the same. He stated that he was receiving treatment in the jail also and, thereby, he was entitled to defence of insanity under Section 84 IPC. He stated that he was receiving treatment in the jail also and, thereby, he was entitled to defence of insanity under Section 84 IPC. The appellant, in support of his plea of insanity, examined two witnesses but the trial court rejected the said plea. In appeal, however, the High Court accepted the plea of insanity and acquitted the accused. Against the said acquittal the State of Rajasthan preferred an appeal before the Hon'ble Supreme Court. The plea of insanity was accepted taking into consideration the evidence of attending doctors and the documentary evidence namely, prescriptions issued by the said doctors on the basis of which it was found that the accused was suffering from continuous mental sickness. In the result the Apex Court set aside the conviction of the accused under Section 302 read with Section 149 IPC and the sentence for imprisonment of life, and instead, convicted them under Section 304 Pt-II read with Section 149 IPC and sentenced each of the accused to undergo rigorous imprisonment for 5 years. As regards the point of law it was held in the said case that burden of proof lies on the prosecution and it has to prove the charge beyond reasonable doubt. So also the presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by it, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then the court can interfere even with the judgment of acquittal. 30. In Bangla Bagti's case (supra) the accused killed the deceased and admitted the allegation brought against him in his statement under Section 313 Cr.P.C. and accordingly he was convicted on the basis of circumstantial evidence and the admission made by him. But there is an evidence of prosecution witness to the effect that the accused person was suffering from mental disorder. But there is an evidence of prosecution witness to the effect that the accused person was suffering from mental disorder. In appeal, a Division Bench of this Court, held that while dealing with person of unsound mind, the trial court is required to try the fact of such unsoundness of mind or mental disorder or incapacity before the accused is examined under Section 313 Cr.P.C. to ascertain as to whether the accused is mentally fit to properly understand the legal implications of the incriminating evidence and material brought against him and the question put to him. It was also held that the trial Judge is cast with the duty to come to definite finding on the basis of the medical evidence regarding mental health of the accused taking resort to the provisions of Section 329 Cr.P.C. and in case the trial Judge failed to ascertain the same, in that case answer given by the accused cannot be accepted as on admission and it is not safe to hold that the accused had made the admission voluntarily fully knowing the legal consequence of such admission. There is no dispute on the aforesaid premises of law but what we have noticed in the present case is that the appellant although pleaded innocence took no plea of mental disorderness, insanity/unsoundness/incapacity. Even at the stage of recording statement under Section 313 Cr.P.C., he did not take the plea of insanity or mental disorder or incapacity or he committed the alleged crime while he was suffering from the said disease. We have gone through the questions put by the trial Judge to the appellant putting forth the incriminating evidence and materials found against him and the reply he had given. The manner in which he responded to the questions does not at all indicate that there was any difficulty for him to understand the purport and implications of the questions put by the learned trial Judge. Going by the answer he had given, we have no manner of doubt that he answered the questions after clearly understanding the same inasmuch as his answers were very clear and emphatic. Even then he did not ask for any exemption under Section 84 of the IPC. Going by the answer he had given, we have no manner of doubt that he answered the questions after clearly understanding the same inasmuch as his answers were very clear and emphatic. Even then he did not ask for any exemption under Section 84 of the IPC. What we could also observe is that, during trial the appellant, in no manner, put his plea of mental disorder or unsoundness of mind and, therefore, no occasion arose so as to take appropriate step by the Public Prosecutor or to pass an order by the trial Judge to get the appellant medically examined/tested for finding the mental health or state of the appellant. The appellant although had the chance to take the plea of mental disorder or insanity on the face of the statements made in the FIR itself, was not desirous to bring himself to the fold of exemption provided under Section 84 IPC. The facts and circumstances and also the approach of the appellant in the case of Bangla Bati (supra) and the ones in the present appeal are quite distinguishable and as such the law laid down in the former case would not be applicable to the latter case. 31. The law on unsoundness of mind and exemption from criminal liability as provided under Section 84 IPC has been discussed in great deal in Shrikant Anandrao Bhosale Vs. State of Maharashtra, reported in (2002) 7 SCC 748 . In that case the accused/appellant was a police constable. He married the deceased in 1987. He killed his wife while they were living in the police quarter along with their daughter. On the morning of 24.4.94 there was a quarrel between the accused and his wife. While the wife was washing clothes in the bath room the appellant hit her with grinding stone on her head. The accused appellant was immediately taken by the police through the quarter guard and his wife was taken to hospital where she died. After usual investigation the appellant was charged for offence of murder of his wife. The accused took the plea that he was suffering from insanity at the time of alleged killing of his wife and he was entitled to benefit of general exception contained in Section 84 IPC. After usual investigation the appellant was charged for offence of murder of his wife. The accused took the plea that he was suffering from insanity at the time of alleged killing of his wife and he was entitled to benefit of general exception contained in Section 84 IPC. The prosecution on the other hand contended that the appellant killed his wife not because of insanity but on account of extreme anger which is different from insanity. The learned Sessions Court, disbelieving the case of insanity, convicted the accused appellant under Section 302 IPC which was affirmed by the High Court in appeal. On further appeal, the Hon'ble Supreme Court set aside the order of conviction and sentence and set the accused at liberty. 32. The law regarding insanity/unsoundness of mind has been discussed elaborately in the recent judgment of the Apex Court in Surendra Mishra (supra). The law laid down therein, as stated earlier, as would be applicable to the present case, may be underlined hereunder:- i)The accused has to prove legal insanity and not the medical insanity. ii) Every person who is suffering from mental disease, is not ipso facto exempted from criminal liability. iii) The onus of proving insanity or unsoundness of mind which is one of the exceptions mentioned in Chapter IV of the CrPC, lies on the accused on preponderance of probabilities. To discharge the onus, the accused must prove his conduct prior to offence, at the time or immediately after the offence, with reference to his medical condition. Whether the accused knew that what he was doing was wrong or it was contrary to law is of great importance and may attract culpability despite mental unsoundness having been established. iv) The accused has to prove legal insanity beyond all reasonable doubt. 33. What is found undisputed in the present case is that the informant in the FIR itself disclosed that the appellant was suffering from mental disorder and he committed the offence. He was a close relation of the appellant but he was not brought to the witness box for adducing evidence. However, his statement in the FIR was supported by at least three independent prosecution witnesses who belong to same village. There was no medical or documentary proof to support the case that the appellant was suffering from mental disorder. He was a close relation of the appellant but he was not brought to the witness box for adducing evidence. However, his statement in the FIR was supported by at least three independent prosecution witnesses who belong to same village. There was no medical or documentary proof to support the case that the appellant was suffering from mental disorder. The appellant also did not examine any witness to support the case of insanity in his defence. Since there is no medical evidence, it can not be said that the appellant was suffering from medical insanity. The court, is therefore, not required to discuss about the appellant's medical insanity; more so because of the legal position that the medical insanity has no relevance to a criminal proceeding of this nature. The insanity of appellant was not proved medically either. If the insanity is not proved medically, it is required to be proved in respect of a person by adducing evidence to the effect that he was, just before or at the time of committing offence, was suffering from insanity or mental disorder. Such evidence can be tendered by person/persons close to the accused or who know him since before by way of adducing oral evidence before the court. The appellant in the present case never intended to do so during trial. What is legally required is that when the accused has failed to prove his medical insanity, he has to prove his case of insanity by adducing legal evidence which can be called legal insanity. The task of the appellant in the instant case was made easy in view of the fact that the prosecution itself propagated mental disorder for him by mentioning his mental disorder in the FIR and it was supported by PW 5, 6 and 7. A question may arise whether the case of mental disorder or insanity of the appellant stood proved by the evidence of PW 5, 6 and 7 who are independent witnesses being unrelated to the appellant. 34. Admittedly the appellant adduced no medical or documentary evidence to prove his case of insanity. A question may arise whether the case of mental disorder or insanity of the appellant stood proved by the evidence of PW 5, 6 and 7 who are independent witnesses being unrelated to the appellant. 34. Admittedly the appellant adduced no medical or documentary evidence to prove his case of insanity. PW 5, 6 and 7, no doubt, stated that the appellant was "out of mind" or "in a fit of lunacy" at the time of committing the offence but they have not stated that his mental health was so just prior to commission of the offence and his such mental health continued so for sometime after commission of the offence. The said PW 5, 6 and 7 did not state anything as to the conduct of the appellant and his conduct at the time or immediately afterwards which are important for the purpose of ascertaining mental condition of a person claiming benefit under Section 84 IPC. The account of mental health/condition of the accused shortly prior to the offence, at the time or immediately after the commission of offence, are relevant because of the law that every person is presumed to be sane to the extent because he knows the natural consequence of his act and the burden of proof, in the face of Section 105 of the Evidence Act, is on the accused; however the standard of proof, is merely preponderance of probabilities. The law as established in Surendra Mishra (supra) is that "even if the accused establishes unsoundness of mind", Section 84 IPC will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. On the face of the said law we are afraid that on the strength of the evidence of PW 5, 6 and 7, the appellant has been able to establish a case of mental disorder/insanity or unsoundness of mind and thereby he could be exempted from criminal liability. We are constraint to say that the appellant's case of legal insanity on unsoundness of mind, beyond a case of medical insanity, has been established. 35. We are constraint to say that the appellant's case of legal insanity on unsoundness of mind, beyond a case of medical insanity, has been established. 35. In order to prove a case of mental disorder or unsoundness of mind/insanity the defence seriously relied on the conduct of the appellant immediately after he committed the offence. It has been harped upon that the appellant made no attempt to flee away and he remained at the place of occurrence calm and quiet and that was an abnormal behaviour of the accused to treat him as a man of mental disorder and unsoundness of mind. Whether the appellant's behaviour in not disappearing from the scene and remaining present calmly is itself a sufficient proof of his insanity or mental disorder, is to be considered on the touchstone of law enunciated in various cases including Surendra Mishra (supra) wherein it is held that in order to ascertain medical insanity it is imperative to take into consideration the circumstances and the behaviour preceding, attending and following the crime. There is nothing on record how the appellant was behaving just before the commission of offence or whether there was any abnormal activities in the past. Nothing has been placed on record by the defence that in the past and just before the commission of murder, the appellant was behaving abnormally. Without placing any evidence of abnormal behaviour in the past and just prior to the incident, the defence hastily demanded to treat the appellant as a man of mental disorder/unsoundness of mind simply because he did not flee away and remained at the place of occurrence. Legally speaking this is not enough to exempt the appellant from the criminality. Bearing in mind the law that every person who is suffering from mental disease is not ipso facto exempted from criminal liability and also that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless contrary is proved. Moreover, the clear law is that mere ipse dixit of the accused is not enough for availing of the benefit of exceptions under Chapter IV of the CrPC. Moreover, the clear law is that mere ipse dixit of the accused is not enough for availing of the benefit of exceptions under Chapter IV of the CrPC. In our view the defence has made a casual approach for availing of the aforesaid benefit inasmuch as it is relying on post behaviour of the appellant who made no attempt to leave the place of occurrence and remained quiet which can be said to be a mere ipse dixit of the accused. 36. The striking evidence on record is that the appellant asked meal from the deceased, but she refused him the meal and, then, in the fit of anger, the appellant dealt blows by means of axe on the person of the deceased. Just prior to the fatal assault, there is no evidence that the appellant behaved abnormally to attribute his conduct to abnormal mental health or mental disorder and or that he assaulted the deceased in the fit of insanity. The appellant got provoked or infuriated, when the deceased refused to serve him meal. He, therefore, committed the offence in the fit of extreme anger and not in the fit of mental disorder or insanity. A man is presumed to be in his sense even in the fit of anger and he knew the consequences of dealing blows by an axe on the victim unlike a person, who does an act in the fit of insanity or unsoundness of mind. Merely because the appellant did not leave the place of occurrence and he did not talk to any body, it can not be accepted that he was insane and committed the offence, while he was in the fit of insanity. In our considered view, it would be a dangerous proposition if every accused, who after commission of offence, remains at the place of occurrence without trying to flee away and claim is exempted from liability. 37. We are satisfied that the appellant was not in the fit of insanity or mental disorder or unsoundness of mind just before or at the time of striking the blow by a sharp axe causing grievous injuries, we conclude that the appellant struck the blows in the fit of anger on having been refused rice by his deceased sister-in-law. The law does not make an offence, if committed in the fit of anger, as an act falling under Section 84 IPC. The law does not make an offence, if committed in the fit of anger, as an act falling under Section 84 IPC. We, therefore, uphold the conviction and sentence awarded by the learned trial court by the judgment and order under appeal. The appeal fails and stands dismissed. 38. We acknowledge the legal assistance rendered by Mr. P.N. Choudhury, learned counsel, as Amicus Curiae, and direct the State Legal Services Authority to pay him an amount of Rs. 5,000/- as his legal fee. Return the LCRs forthwith. Appeal dismissed