JUDGMENT : A.M. Bujor Barua, J. 1. Heard Mr. D. Nath, learned Amicus Curiae for the appellant and Mr. M. Phukan, learned Additional Public Prosecutor for the State Authorities. 2. As per the service report dated 18.08.2018, the informant/respondent No.2, Kinu Sautal had been duly served, but none appears. 3. An Ejahar dated 15.12.2006, was lodged by one, Kinu Sautal before the Officer-in-Charge of Samaguri Police Station, inter-alia, stating that his mentally deranged younger brother, Lakhan Sautal went out of his house after taking dinner on the previous night, but he did not return thereafter. Next day, people saw some blood stained cloth and one amputated finger and an old blanket of his brother lying there and thereafter people saw a dead body in the nearby pond. 4. Kinu Sautal, P.W-1, who is the informant, in his deposition stated that his brother had a quarrel with the accused Solu Gour on the previous night and their houses are adjacent to each other. The witness stated that although both of them quarrelled, but he does not know as to over what issue they had quarrelled. After the quarrel, his younger brother disappeared from the house. When he returned from his work, his wife told him that his brother had disappeared, but the witness had not undertaken any search for his brother during the night. In the morning, a person named Tapan came to his house and told him that someone had thrown his brother into a well. Upon reaching the place, he found that his brother was lying dead in a well located in the house of Bipin Bhuyan, which again was in front of the Indira Gandhi School. Upon recognizing the dead person to be his brother, P.W-1 went to the house of the gaoburah named Jadav Das, who accompanied him to the police station for lodging of an ejahar. In cross, the witness stated to a suggestion that it is not a fact that he had written in the Ejahar that his brother had a mental problem, but at the same time, the witness in cross also stated that his brother had some mental problem and had undergone various treatments for the purpose, although he could not continue with the treatment due to paucity of money. At the same time, P.W-1 also stated in cross that the deceased used to live separately by earning his own livelihood and he had married earlier, but his wife had left him because of his mental problem. P.W-2, Maru Shantal in his deposition stated that his house is about 4 KM away from the house of the deceased and when he heard about the death of his brother, he came to the spot and found that the dead body was lying in a well. 5. None of the prosecution witnesses being P.W-3, P.W-4, P.W-5, P.W-6 and P.W-7 had seen the occurrence and all of them have reached the place of occurrence after it took place. P.W-5, Jadav Das, who is the gaonburah, in his deposition had stated that the weapons used in the offence, including the stones for the catapult used by the deceased were seized as per exhibit-2 and exhibit 2-(1) was his signature, but again in cross, P.W-5 stated that when he had put his signature on exhibit-2, something was already written there and he did not know as to how and from where the police had seized the items. The evidence of P.W-5 as regards the seizure assumes important from the point of view that the discovery of the weapons were on the basis of a disclosure by the accused himself, upon which the weapons were seized in the presence of the witnesses stated therein, where P.W-5 was one of the witnesses. Although, P.Ws.6 and 7 are shown as witnesses in the exhibit-2 seizure list, but in their depositions the witnesses had not stated anything about the seizure. 6. P.W-8, Dr. Keshavananda Goswami, who conducted the post-mortem examination, in his deposition had stated that the following injuries were found on the body of the deceased. In the opinion of P.W-8, the death was caused due to shock and hemorrhage because of the injuries sustained, which were as follows: “1. Transverse incised wound left forearm with fracture of the underlying left medium bone. 2. Transverse incised wound dorsal aspect of the left hand 4” x 2” x 2” with fracture of left metacarpal bone of left index middle finger. 3. Traumatic amputation of terminal phalanx of left thumb. 4. Three transverse incised wound left arm lateral aspect 1” x 1” x 1”, 1 ½” x 1” x 1” x” 1” x 1” x 1”. 5. 3. Traumatic amputation of terminal phalanx of left thumb. 4. Three transverse incised wound left arm lateral aspect 1” x 1” x 1”, 1 ½” x 1” x 1” x” 1” x 1” x 1”. 5. Transverse incised wound on right leg posterior aspect size 4” x 4” x 3” with division of underlying muscles and fracture of both bone. Carnium and Skull 1. Obligue incised wound on occipital temporal region. Size 5” x 2” x 1”. 2. Oblique incised wound left temporal region, size 3” x 2” x 2”. 3. Oblique incised wound left occipital region size 4” x 1” x 1”. There was subdural clotted blood present in the brain. 4. All the visura of thorax, abdomen, liver, kidneys organ of generation etc are congested. Ante mortem blood clot was present in the wounds. In my opinion cause of death is shock and hemorrhage due to injury sustained.” 7. P.W-9, Dipak Bora, who was the Investigating Officer, in his deposition stated that he came to know from the reliable sources that on the day prior to the incident i.e. 14.12.2006, while the accused Solu Gaur was taking his meal, the deceased had pelted stones upon him by means of a catapult. On that basis, he had taken the accused in custody and on interrogation, a confession was made that he had committed the offence. He deposed that the accused disclosed before him in the presence of the gaonburah, Jadav Das and other witnesses, namely, Kinu Sautal and Dukhu Sautal that he had concealed the dao, with which he had killed the deceased, on the top of the roof of his house and thereafter the Investigating Officer took the accused and the other witnesses to his house and recovered the dao. The disclosure statement of the accused was exhibited as exhibit-5 and the seizure of the dao was made vide exhibit-2. 8. In course of the investigation, a confessional statement of the accused was also recorded under Section 164 read with Section 281 of the Code of Criminal Procedure. The confessional statement of the accused under Section 164 of the Code of Criminal Procedure (‘Cr.P.C’ in short) was as under: “My name is Sulu Gour. I have wife and three sons. Lakhan Sautal was my neighbor. He was a bit deranged. He had been harassing my family and me for the last five years. The confessional statement of the accused under Section 164 of the Code of Criminal Procedure (‘Cr.P.C’ in short) was as under: “My name is Sulu Gour. I have wife and three sons. Lakhan Sautal was my neighbor. He was a bit deranged. He had been harassing my family and me for the last five years. Day in and day out, he assaulted us, catapulted stones at us and hurled abuses on us. I was irritated by his behavior. At around 7 p.m. last Thursday while I was taking meal, he catapulted stones at us and a stone hit my wife. Leaving my meal aside, I then came out taking my catapult. He then ran away from there and entered the house of Gangaram.Thereafter, I returned home. Reaching home, I took meal and decided that I would break his hands and legs that day. I had already told his family members and the Gaonburah (village headman) about him but they told me to do whatever I would like to do. I then went in search of him, armed with a dao in my waist and a lathi and a catapult in my hands and found him sitting on a wooden bench near the L.P. School. I then catapulted stones on his heads. As he fell down, I dealt him three blows with the lathi. As the lathi broke, I took out the dao and dealt random cut blows on his hands and legs with that dao. I do not remember how many cut blows I dealt. Leaving him there, I went home. He shouted, “Water ! Water !” I have shown police the dao and the catapult. I did not assault him with an intention to kill. I assaulted him with an intention to break his hands and legs. I have come to know that he died.” 9. The entire prosecution case that it is the accused appellant alone who had inflicted the injuries on the deceased leading to his death are based upon the confessional statement under Sections 164/281 of the Cr.P.C, which is annexed as exhibit-6 and the disclosure statement, which is annexed as exhibit-5. In his confessional statement, the accused appellant had stated that the deceased was in a habit of hitting him with stones by means of a catapult. In his confessional statement, the accused appellant had stated that the deceased was in a habit of hitting him with stones by means of a catapult. The accused had already made a complain of the said act of the deceased before his family members as well as the gaonburah and upon it being brought to their notice, the family members as well as the gaonburah told him that he can do whatever he like. In the circumstance, the accused went in search of the deceased armed with a dao in his waist and a lathi and a catapult in his hand and he found that the deceased was sitting on a wooden bench near the L.P School. The accused appellant then catapulted some stones on the head of the deceased and when he fell down, he gave him three blows with the lathi. As the lathi broke, he took out the dao and dealt some random cut blows on his arms and legs, but the accused appellant does not remember as to how many blows he had dealt. Leaving the deceased there, the accused appellant went back home and the deceased kept shouting “water! water!”. 10. It is taken note of that the incident referred by the accused appellant in his confessional statement took place at around 7.00 PM in the evening when the deceased was sitting on a wooden bench near the L.P School. On the other hand, as per the prosecution witnesses, the deceased was found in a well in the morning of the following day. Another aspect that is taken note of is that as per the confessional statement the accused appellant had inflicted the dao blows on the legs and arms of the deceased and there is no mention of any injury being caused on his head, except for the deceased being hit on the head by the catapult. But again when we look at the injury report of the deceased, as deposed by P.W-8, Dr. Keshavananda Goswami, the deceased had suffered five incised injuries wound on his arms and legs and three incised wounds on the occipital and temporal region. 11. The law regarding a conviction on the basis of a confessional statement, as provided by the Hon’ble Supreme Court is as follows: a. In the case of Aloke Nath Dutta & Ors. Vs. Keshavananda Goswami, the deceased had suffered five incised injuries wound on his arms and legs and three incised wounds on the occipital and temporal region. 11. The law regarding a conviction on the basis of a confessional statement, as provided by the Hon’ble Supreme Court is as follows: a. In the case of Aloke Nath Dutta & Ors. Vs. the State of West Bengal, reported in 2007 (12) SCC 230 , in paragraph Nos. 87, 89 and 90, it has been held as follows: “87…. .Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof. 90. In Muthuswami v. State of Madras [ AIR 1954 SC 4 ], this Court opined: “8.The only reason the High Court gave for accepting the confession is because the learned Judges considered there was intrinsic material to indicate its genuineness. But the only feature the learned Judges specify is that it contains a wealth of detail which could not have been invented. But the point overlooked is that none of this detail has been tested. The confession is a long and rambling one which could have been invented by an agile mind or pieced together after tutoring. What would have been difficult is to have set out a true set of facts in that manner. But unless the main features of the story are shown to be true, it is, in our opinion, unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth…..” b. In the case of Mohtesham Mohd. Ismail Vs. SPL. Director, Enforcement Directorate & Anr., reported in 2007 (8) SCC 254 , in Paragraph-20, it has been held as follows: “2 0 … . Ismail Vs. SPL. Director, Enforcement Directorate & Anr., reported in 2007 (8) SCC 254 , in Paragraph-20, it has been held as follows: “2 0 … . .We may, however, notice that recently in Francis Stanly@Stalin V. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram [ 2006 (13) SCALE 386 ], this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well settled that the court must seek corroboration of the purported confession from independent sources. …” c. In the case of Palvinder Kaur Vs. the State of Punjab, reported in AIR 1952 SC 94 SC 354, in Paragraph Nos-16 & 17, it has been held as follows: “16…..A confession must either admit in terms the offence or at any rate substantially all the facts that constitute the offence….” 17…..the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible….” 12. From the above propositions of law as regards a confessional statement, it can be inferred that a confessional statement can be acted upon for the purpose of conviction, but it has to be corroborated by other evidences, its correctness and reliability be assessed and a view thereof be formed that the possibility of the confession being extracted by applying pressure can be ruled out and that the whole of the confessional statement has to be taken into consideration and it cannot be acted upon by accepting the inculpatory part while rejecting the exculpatory part. 13. In the instant case, Mr. D. Nath, learned Amicus Curiae for the appellant raises a contention that while recording the confessional statement, the appellant was sent to judicial custody for a period of little under 24 hours and thereafter was given some time to reflect by requiring him to remain confined in the office chamber of the learned Magistrate. In doing so, the authorities have given only about one and half hours, i.e. from 12.30 PM to 2.00 PM of 21.12.2006 for reflection, which according to the learned counsel is grossly inadequate. In doing so, the authorities have given only about one and half hours, i.e. from 12.30 PM to 2.00 PM of 21.12.2006 for reflection, which according to the learned counsel is grossly inadequate. It is a further contention of the learned counsel that having sent the accused appellant to judicial custody, he was under confinement of the police authorities itself and therefore the period spent in the judicial custody cannot be considered to be a time for reflection. 14. In the case of Aher Raja Khima Vs. the State of Saurashtra, reported in AIR 1956 SC 217 , the Hon’ble Supreme Court had taken note of the period for which an accused may be sent for judicial custody for reflection and in doing so had not taken a view that the said period would have to be construed to have been spent in the confinement of the police authorities. The requirement of law is that during the period for reflection, the accused person should not come in contact with the authorities entrusted with the investigation as there may be a possibility of influencing the accused for the purpose of the confession. When the accused is required to be in judicial custody for the purpose of reflection before giving the confessional statement, in the event of there being no material that the authorities involved in the investigation came in contact with the accused during the period of judicial custody, it cannot be construed that he was under the influence of the police and therefore the period required to be spent in judicial custody be not considered to be a period for reflection. 15. In the instant case, there is no material on record to indicate that during the period for which the accused appellant was required to spent in judicial custody prior to the confessional statement being taken, he was subjected to being influenced by the police authorities involved in the investigation. Accordingly, we are of the view that the entire period from 2.00 PM of 20.12.2006 upto 12.30 PM of 21.12.2006, during which the accused appellant was in judicial custody, can be included in the period of reflection given to the appellant. Accordingly, we are of the view that the entire period from 2.00 PM of 20.12.2006 upto 12.30 PM of 21.12.2006, during which the accused appellant was in judicial custody, can be included in the period of reflection given to the appellant. The period from 12.00 of 20.12.2006 upto 12.30 of 21.12.2006, and thereafter from 12.30 PM of 21.12.2006 upto about 2.00 PM of 21.12.2006, when the confessional statement was actually taken, can be considered to be an adequate time being given for the purpose of reflection. 16. We have taken note of that the other procedural requirements of taking a confessional statement had been satisfied and no infirmity as such is noticed. 17. As noticed, the conviction on the basis of a confessional statement can be made when such confessional statement is corroborated by other evidences. When we look into the confessional statement of the accused appellant, we can take note that the confession to the extent that he had inflicted certain blows with a dao on the legs and arms of the deceased had been corroborated by the medical evidence of P.W-8 Doctor who deposed that 5(five) incised wound injuries were found on the legs and arms of the deceased. Furthermore, in the confessional statement the deceased having stated that he had also used a dao in inflicting the injuries on the deceased and further that a catapult was also used, is being corroborated by the disclosure statement under Section 27 of the Evidence Act, which had led to the discovery of the weapons used in the offence, resulting in the exhibit-2, seizure list. 18. Apart from the above, as neither there are any eye witnesses to the occurrence, nor there are any circumstantial witnesses, no further corroboration to the confessional statement of the accused appellant could be noticed. 19. A reading of the confessional statement does not indicate any inconsistency or discrepancy therein so as to cast any doubt on its veracity and correctness. 20. Another circumstance that is revealed from the evidence of the prosecution witnesses P.W-1 Kinu Sautal, P.W-3 Tapan Mitra in cross, is that the deceased was a person suffering from mental illness and the said evidence remains uncontroverted and not confronted by the defence. 20. Another circumstance that is revealed from the evidence of the prosecution witnesses P.W-1 Kinu Sautal, P.W-3 Tapan Mitra in cross, is that the deceased was a person suffering from mental illness and the said evidence remains uncontroverted and not confronted by the defence. The accused appellant in his confessional statement stated the circumstance under which he had inflicted the injuries on the deceased and by stating so seeks to make out a case of there being a provocation by the deceased which led the accused to inflict the injuries. The circumstances so stated was that the deceased used to indulge in harassing and provoking the appellant by his behavior and also to physically harm him and his wife by hitting them with stones by means of a catapult. When such act of the deceased was brought to the notice of his family members, as well as the gaonburah, instead of any remedial measure being taken the accused appellant was advised to act in any manner which he may like. 21. As held by the Hon’ble Supreme Court, as indicated earlier, a confessional statement has to be taken as a whole and the inculpatory part of it cannot be separated from the exculpatory part. If we take the confessional statement of the accused appellant as a whole, the circumstances stated therein which led to the accused appellant to behave in the manner in which he had behaved, would also have to be taken into a consideration. From such point of view, it can be a case where there may have been a provocation from the deceased which resulted in the accused appellant being provoked resulting in the injuries being inflicted. 22. But again we also have taken note of the aspect that the deceased was a person suffering from mental illness. If the deceased was suffering from mental illness, a question would arise as to whether he was in control of himself when the act attributed to him of provoking the accused appellant was done. 23. The law in respect of an act done by a person suffering from mental illness is clearly spelt out where even a criminal act done by a person suffering from mental illness is to be looked from a different perspective. 23. The law in respect of an act done by a person suffering from mental illness is clearly spelt out where even a criminal act done by a person suffering from mental illness is to be looked from a different perspective. Of course, the concept of mental illness is of a wide range where again it can be argued that a person suffering from mental illness of a level lower than a particular given level may not actually lose his ability to judge or understand as to what he is doing. 24. In the instant case, nothing is available on record to indicate as to the level of the mental illness that the deceased may have been suffering. But evidences are available that the immediate family of the deceased had abandoned him and even his wife had left him, which itself is an indication that the level of the mental illness may not be insignificant so as to arrive at a definite conclusion that the deceased was not in a state where he could judge and understand his action. 25. Section 84 of the Indian Penal Code provides as follow: “84. Act of a person of unsound mind. –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”. 26. In Paragraph-23 of its pronouncement in Elavarasan Vs. State, reported in 2011 (7) SCC 110 , the Hon’ble Supreme Court held as follows: “There is no gainsaying that intention or the state of mind of a person is ordinarily inferred from the circumstances of the case. This implies that, if a person deliberately assaults another and causes an injury to him then depending upon the weapon used and the part of the body on which it is struck, it would be reasonable to assume that the accused had the intention to cause the kind of injury which he inflicted. Having said that, Section 84 can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of either wrong or contrary to law. Having said that, Section 84 can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of either wrong or contrary to law. But what is important is that the burden of bringing his/her case under Section 84 IPC lies squarely upon the person claiming the benefit of that provision.” 27. Again in paragraph-7 of its pronouncement in Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, reported in AIR 1964 SC 1563 , the Hon’ble Supreme Court held as follows: “7…..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….” 28. On a conjoint reading of the provisions of Para-7 in Dahyabhai Chhaganbhai Thakkar (supra) and Para-23 of Elavarasan (Supra), we can understand that a person if he is of unsound mind and by the reason of the unsoundness of his mind is incapable of knowing that the nature of the act he is doing is either wrong or contrary to law, he can avail the benefit of section 84 of the Indian Penal Code and the act done by him would not be an offence. But at the same time, the burden of proof that he is of unsound mind would be upon him and if from the evidence placed before the Court by the accused or by the prosecution it can be inferred that he is of unsound mind, such evidence may also be the basis to arrive at the conclusion that the person concerned is of unsound mind. 29. By applying the said proposition of law in the instant case, the evidence led by the prosecution shows that the deceased was suffering from mental illness and therefore he can be construed to be a man of unsound mind who is incapable of knowing that the act he is doing is either wrong or contrary to law. 29. By applying the said proposition of law in the instant case, the evidence led by the prosecution shows that the deceased was suffering from mental illness and therefore he can be construed to be a man of unsound mind who is incapable of knowing that the act he is doing is either wrong or contrary to law. If the deceased was incapable of knowing that the act he had done was wrong or contrary to law, it cannot be said that if by such act the accused appellant got provoked and he can take the plea of being provoked for the purpose of mitigating his act of committing an assault on the deceased. 30. In view of the mental illness of the deceased, we are of the view that it would be unsafe to accept the contention that there was an element of provocation by the deceased which led to the accused appellant inflicting the injuries upon him, or that such provocation be made the basis for a mitigating circumstance in favour of the accused appellant. Accordingly, we are of the view that the accused is not entitled to the benefit of the plea of provocation by the deceased for mitigating the act of having committed the assault on the deceased. 31. But again even without going for any mitigating circumstance, when we take a look at his confessional statement as a whole, we find that the extent to which the accused appellant had confessed was that he had inflicted some blows with a lathi and subsequently with a dao on the legs and arms of the deceased and that the said incident took place around 7.00 PM in the evening on the given day in the wooden bench near the L.P. School. 32. But on the other hand, the body of the deceased was found in a well on a different location on the morning next and certain incised injuries were also found on his head as per the medical evidence. As the conviction of the accused appellant is on the basis of his confessional statement, where he had confessed to the extent that he had inflicted the incised injuries on the legs and arms of the deceased, it would be unsafe to attribute the other incised injuries found on the head of the deceased upon the accused appellant on the basis of the confessional statement. We take note of that there is no further evidence available on record that the accused appellant had also inflicted the incised injuries on the head of the deceased. 33. A further relevant circumstance is that the deceased was not found dead in and around the wooden bench near the L.P School where the accused appellant confessed to have assaulted the deceased. On the other hand, the deceased appellant was found dead in a well located at another place, which leads to a situation that the death of the deceased took place at a different place and also at a different time and that too after the accused appellant had left the place of occurrence where he had assaulted the deceased. 34. Accordingly, we hold the accused appellant guilty of having inflicted the incised injuries on the deceased on his legs and arms, which also led to severance of one of his thumbs, resulting in grievous injuries being caused by a dangerous weapon. 35. Having so held, we convict the accused appellant under Section 326 of the Indian Penal Code. We have been informed that the accused appellant had undergone imprisonment for a period of seven years eight months and twenty seven days as on the date of the judgment. Accordingly, the accused appellant is sentenced to the period of imprisonment already undergone which is seven years eight months and twenty seven days and the period of imprisonment so undergone is set off. 36. The judgment and order dated 16.09.2014, passed by the learned Additional Sessions Judge, Nagaon in Sessions Case No. 45(N)/2007 stands modified accordingly. 37. The appeal is partly allowed, as indicated above. 38. Before parting with the record, we appreciate the valuable service rendered by Mr. D. Nath, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/-as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of his judgment and order. Send back the LCR.