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2025 DIGILAW 1005 (GAU)

Obit Biku S/o Late Tada Biku v. State of A. P.

2025-06-11

KALYAN RAI SURANA, MRIDUL KUMAR KALITA

body2025
JUDGMENT : MRIDUL KUMAR KALITA, J. 1. Heard Mr. L. Perme, the learned counsel for the appellant. Also heard Ms. L. Hage, the learned Additional Public Prosecutor, as well as Mr. J. Gao, the learned counsel for the respondent No. 7. 2. This appeal under Section 374 (1) of the Code of Criminal Procedure, 1973, has been filed by the appellant, Obit Biku, on behalf of the convict, Tayum Biku, who has been convicted by the Court of the learned Sessions Judge, East Siang: Siang: Upper Siang and Lower Siang Districts at Pasighat, in Pasighat Sessions Case No. 286/2013. 3. By the impugned judgment, Shri Tayum Biku, has been convicted under Section 302/326/447 of the Indian Penal Code, 1860. Under Section 302 of the Indian Penal Code, he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- (Rupees Five Thousand) and in default of payment of fine to undergo further imprisonment for 1(one) year. Under Section 326 of the Indian Penal Code, he has been sentenced to undergo rigorous imprisonment for 6(six) years and to pay a fine of Rs. 3000/- (Rupees Three Thousand) and in default of payment of fine to undergo further simple imprisonment for three months and under Section 447, he has been sentenced to undergo 3(three) months of simple imprisonment. All the sentences are directed to run concurrently. 4. At the outset, we want to make an observation that though this appeal has been filed by Obit Biku, on behalf of convict Tayum Biku, there is no provision in the Code of Criminal Procedure, 1973, where, a relative can file an appeal on behalf of a convict. Under the scheme of the Code of Criminal Procedure, 1973, only a convict can file an appeal against conviction. However, where a convict is detained in jail, then under the provision of Section 383 of the Code of Criminal Procedure, 1973, he can file his appeal by presenting his petition of appeal to the Officer-In-Charge of the jail, who shall forward the said petition to the Appellate Court. However, where a convict is detained in jail, then under the provision of Section 383 of the Code of Criminal Procedure, 1973, he can file his appeal by presenting his petition of appeal to the Officer-In-Charge of the jail, who shall forward the said petition to the Appellate Court. As the practice of filing of appeal through relatives has not been recognized in the Code of Criminal Procedure, 1973, and as this came to the notice of the Court only at the time of dictating the judgment, we intend to treat the instant appeal as being filed by the convict himself, i.e., Mr. Tayum Biku, and for all purposes, he shall be treated as the appellant in this appeal. 5. The facts relevant for consideration of the instant appeal, in brief, are that in the morning of 08.09.2006, at about 6.30 AM, a telephonic information was received at the Yingkiong Police Station from one D. Tali, E.A.C., Yingkiong, wherein it was informed that one unidentified person was cutting anybody whoever came in his way and many persons had been injured due to such act of the said person (appellant). 6. On receipt of the said information, the police rushed to the spot and found as many as seven persons were badly injured due to the assault by the appellant. It was also found that out of the injured persons, one Laxmi Sonar succumbed to her injuries on the spot. 7. Later on, a written FIR was lodged by one K. Dugong, Inspector of Police before the Officer-In-Charge of Yingkiong, Police Station and accordingly, Yingkiong, Police Station Case No 57/2006 was registered under Section 302/307/326 of the Indian Penal Code, 1860, and the investigation was initiated. 8. During investigation, the Investigating Officer visited the place of occurrence, prepared rough sketch map of the place of occurrence and recorded the statement of witnesses and the victims. All the victims were forwarded to the District Hospital, Yingkiong, for treatment and for medical examination. The injury reports of all the victims were collected. The dead body of the deceased Laxmi Sonar was subjected to inquest and the same was forwarded to district hospital, Yingkiong, for conducting post-mortem examination. Accordingly, post-mortem examination was done on 08.09.2006 and on completion of the same, the dead body was handed over to the relatives of the deceased for performing the last rites. 9. The dead body of the deceased Laxmi Sonar was subjected to inquest and the same was forwarded to district hospital, Yingkiong, for conducting post-mortem examination. Accordingly, post-mortem examination was done on 08.09.2006 and on completion of the same, the dead body was handed over to the relatives of the deceased for performing the last rites. 9. The accused (appellant) was arrested by police on 08.09.2006 at about 7.30 hours from the rented house of Shri Kumar Nalo at the backside of the State Transport Station, Yingkiong. At the time of his arrest, two Dao (machete), which were used for commission of offence were recovered from his possession. During the investigation, the confessional statement of the appellant, Tayum Biku was recorded under Section 164 of the Code of Criminal Procedure, 1973. 10. After completion of the investigation, charge sheet was laid against the appellant Shri Tayum Biku under Section 302/307/326/447/448 of the Indian Penal Code, 1860. As the offences involved were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court, Yingkiong. The appellant faced the trial remaining in judicial custody. After consideration of the materials available on record and after hearing the learned counsel for both the sides, charges under Section 302/307/326/447/448 of the Indian Penal Code, 1860, were framed against the present appellant. When the said charges were read over and explained to him, he pleaded not guilty to the same and claimed to be tried. 11. It is pertinent to mention herein that after establishment of the Sessions Court at Tezu, the said Sessions case was transferred to Tezu and thereafter, after establishment of the Court at Pasighat, it was again transferred to Pasighat and re-registered as Pasighat Sessions Case No. 286/2013. 12. To bring home the charges against the appellant, the prosecution side examined as many as 16(sixteen) prosecution witnesses out of total 37(thirty-seven) witnesses listed in the charge sheet. The remaining witnesses could not be examined by the prosecution side, as their attendance could not be procured in spite of best of the efforts. 13. After completion of the evidence of the prosecution side, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which, he pleaded his innocence and denied the truthfulness of the testimony of prosecution witnesses. He also pleaded that he was ignorant about what had happened during the incident. 13. After completion of the evidence of the prosecution side, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which, he pleaded his innocence and denied the truthfulness of the testimony of prosecution witnesses. He also pleaded that he was ignorant about what had happened during the incident. He also adduced the evidence of 4(four) defence witnesses, in support of his defence. 14. The Trial Court formulated following points for determination during the trial: - i. Whether the accused killed the deceased, if he did so, whether he is guilty of murder? ii. Whether the accused had assaulted and caused grievous injuries to six numbers of victims; if he did so, whether the prosecution side proved that it was an attempt to murder? iii. Whether the accused committed criminal trespass with an intention to commit criminal offence? iv. Whether the accused at the time of commission of offence was of unsound mind, and if so, whether he is entitled to be acquitted on the ground of unsoundness of mind? 15. Ultimately, on completion of the trial, by the Judgment and Order, which has been impugned in this instant appeal, the appellant was convicted and sentenced in the manner as described in paragraph No. 3 of this judgment hereinbefore. 16. Before considering the rival submissions of the learned counsel for both the sides, let us go through the evidence of the prosecution witnesses as well as defence witnesses, which is available in the Trial Court records, which was requisitioned in connection with this case. 17. The PW-1, Tetem Yipir, has deposed that on 08.09.2006, he was at his home and in the morning one Ketan came to his house who was nervous and frightened. He told PW-1 that he was attacked with Dao by someone on his hand. His right hand was bleeding and he stayed in his residence for a few minutes. He was not cross-examined by the defence side. 18. The PW-2, Alum Peyang, has deposed that he is the father of Ms. Obi Peyang and Neri Peyang. He has deposed that on the day of incident, he was inside his house and his daughters were at the veranda. He was not cross-examined by the defence side. 18. The PW-2, Alum Peyang, has deposed that he is the father of Ms. Obi Peyang and Neri Peyang. He has deposed that on the day of incident, he was inside his house and his daughters were at the veranda. After hearing the shouting and cry of his daughters, he came out and found that the appellant had attacked his daughter Obi Peyang on her neck and Neri Peyang on her hand with a dao and thereafter, he ran away from there.PW-2 has further deposed that his daughters were immediately taken to Dibrugarh Medical. 19. During cross-examination, the PW-2 has deposed that he did not see the act of attacking with a dao. He saw the accused “appellant” was standing near his children when he came out. He deposed that he saw the appellant attacking his second daughter. During re-examination, he has deposed that he saw the act of cutting Ms. Neri Peyang through the door and the appellant was holding a dao and he was wearing a green colour Adi coat. 20. PW-3, Smti Osi Peyang has deposed that on 08.09.2006, she was in the bedroom of their house and she heard the shout of both the daughters and when she came out, she saw the appellant with two daos. She also deposed that she saw her daughters were bleeding, one was cut on the neck and the other was on the hand. Thereafter, the appellant fled away from there. She has also deposed that both the daos were stained with blood. She also deposed that there was no previous enmity with the appellant and they used to have a cordial relationship with the appellant who also used to visit their house. During cross-examination, PW-3 has deposed that she did not see the act of attacking with Dao. 21. The PW-4, Obi Peyang has deposed that she was attacked with a dao on her neck by the appellant. She has also deposed that on the date of incident, she was sitting outside her house when the appellant attacked her with a dao. She also deposed that she knew the appellant before the date of incident. During cross-examination, she has deposed that she knows the appellant before the incident as his house is located near her house, and it was he, who had cut on her neck. 22. She also deposed that she knew the appellant before the date of incident. During cross-examination, she has deposed that she knows the appellant before the incident as his house is located near her house, and it was he, who had cut on her neck. 22. It appears from record that Shri Alum Peyang, who was earlier examined as PW-2 on 11.05.2009 was again examined as PW-5 on the 04.06.2010. While deposing as PW-5, he has stated that on 8 September, 2006 his both daughters were playing in the veranda and he was sitting inside his house. He heard the shout of both his daughters crying for help at about 6:30 hours. When he peeped through the door, he saw the appellant running away after cutting his daughter and he become unconscious on seeing the injury. He has further deposed that police came to the place and his statement was recorded. He has also stated Obi Peyang was cut on her neck and Neri Peyang was attacked at the left hand with a dao by the appellant. During his cross-examination he has deposed that he knows the appellant as he is his neighbour. He has deposed that he told the police that he saw the appellant running away through a whole of the door and he did not witness the actual assault of his daughters with a dao by the appellant. 23. PW-6, Mr. Nakul Gop has deposed that on 08.09.2006, he was standing nearby the door of his house, at that time, a person came from the road side and tried to enter in his government quarter. However, before he reached the door, he locked the door from inside and the person was pushing the door and tried to enter, but could not open it. PW-6 has also deposed that during the process his little finger and ring finger of left hand were cut. However, he could not identify the accused person. Later on, he took treatment at the hospital and police recorded his statement. 24. PW-7, Keten Lipir has deposed that on 08.09.2006 at about 5:30 AM, the appellant attacked him with a dao, and when the PW-7 raised his hand in his defence, the accused inflicted injuries on his left hand. He has also deposed that Shri Alum Peyang witnessed the incident. 24. PW-7, Keten Lipir has deposed that on 08.09.2006 at about 5:30 AM, the appellant attacked him with a dao, and when the PW-7 raised his hand in his defence, the accused inflicted injuries on his left hand. He has also deposed that Shri Alum Peyang witnessed the incident. PW-7 has further deposed that after hurting him, the appellant cut another person, and one of them died on the spot. He has also deposed that the accused attacked him without any provocation; and after hitting him, the accused had also assaulted cut 6 (six) more persons out of which one victim died instantly on the spot. During cross- examination, PW-7 has deposed that the accused was mentally alright when he attacked him. 25. The PW-8, Miss Neri Peyang, (victim No.4) deposed that she does not know anything about the case and her father had brought her to the Court. 26. The PW- 9, Shri Kiran Subba, has deposed that accused Tayum Biku was his neighbour. He deposed that in the year 2006, when he was at Yingkiong with building contractor Ketan Lipik PW-7, the accused Tayum Biku once, may be jokingly, had told to him that he has become very fat, and if he (accused) cut him, lot of fats would come out. But, later on the accused clarified to him that it was a joke. 27. The PW-10, Miss Banu Gammeng, has deposed that in the morning of the date of the incident, at about 05.30 AM, when she was going alone for collecting cow dung for their garden, suddenly a person came from back side and caused her injury by Dao. The person hit her four times with dao - one on her neck, twice on her upper right arms and one on her back palm. Later on, she was taken to Yingkiong hospital and referred to Dibrugarh for treatment. Later on, she heard that on the same day, some other persons were also caused injuries by the same person with dao. 28. The PW-11, Shri Tek Bahadur Thapa, has deposed that he was still on his bed in the morning of 08.09.2006, when he heard some noises, he got up and went out and saw seven persons had already received dao cut injuries including Miss Banu Gammong, (PW-10). 29. 28. The PW-11, Shri Tek Bahadur Thapa, has deposed that he was still on his bed in the morning of 08.09.2006, when he heard some noises, he got up and went out and saw seven persons had already received dao cut injuries including Miss Banu Gammong, (PW-10). 29. The PW-12, Shri Netro Chetry, has deposed that in the morning of the incident he was informed by his Auto driver Deepak Tamang in Hindi "Admi dao se Katne wala aya he" (the person who choped a person with dao has come), and warned him that the man might also come to his house for cutting his family. The driver was carrying one injured Nokul Gop in his Auto for Hospital. He also saw many other injured persons in hospital. 30. The PW-13, Dr. A. Sitek, has deposed that he was working as Medical Officer in the District Hospital. On 08.09.2006 he had conducted post mortem Examination over the dead body of the deceased Laxmi Sonar. His findings are as follows: (1) There were chopped wound on nape of the neck severing cervical spine through and through at the label of C3-C4. Severed major neck vessels. Severed trachea through and through just leaving the skin front of neck. (2) Chopped wound on back of left thigh just above the popliteal fossa cutting through the deep muscles of thigh measuring 3 X 5 cm sparing femur. Examination of Cranium and spinal cannel: Scalp and skull intact, Vertebra, C3 and 4 severed through and through. Brain-intact. Spinal cord-severed through and through at the level of C3 and 4. Trachea- Severed through and through, carotid artery and jugular vein- severed. Abdomen: Walls-intact; oesophagus severed through and through; stomach intestine all intact. Liver, spleen, kidney-intact. The PW-13 opined that the above injuries can be caused by heavy and sharp weapon and stated that the deceased was brought dead. The cause of death was due to hemorrhage from severed carotid artery and jugular vein and severed spinal cord. In cross-examination, this witness stated that in the PM Report (P.Ext-10) he has mentioned that the injury was caused by heavy and sharp weapons. 31. The cause of death was due to hemorrhage from severed carotid artery and jugular vein and severed spinal cord. In cross-examination, this witness stated that in the PM Report (P.Ext-10) he has mentioned that the injury was caused by heavy and sharp weapons. 31. The PW-14, Smti Yasri Saro, has deposed that in the morning of the day of the incident, when she came back from toilet, she found Miss Banu Gammeng who at that time was staying with her was caused injury by the accused on the back of her neck. Later on, the victim was taken to hospital. 32. The PW-15, Dr. A. Miyu, has deposed that he examined the victim No.1. Ketam Lipir (PW-7) on 08.09.2006 and prepared report P.Ext-2. His rd findings on injured are: incised wound-11 cm long extending from 3 inter-digital cleft up to the wrist zone, flexor tendons of index and middle finger severed vessels (both arteries and veins) were also severed. Medium nerve severed. Part of injury was on palmer aspect of left hand. The nature of injury was grievous. The injury was caused by a sharp weapon. The patient was then referred to Dibrugarh for tendon repair and blood transfusion. 33. The PW-15, Dr. A. Miyu, was examined to identify the signature of Dr. Magong Pangkam as Dr. Pangkam was pursuing his higher education at RIMS, Imphal due which he is unable to appear court. He stated that on 08/09/2006, he examined one victim and Dr. Pangkam had examined 5 victims in this case, they are victim No.2, Miss Banu Gammeng (P.Ext-3), victim No. 3 Miss Obi Peyang (P.Ext-4), victim No.4 Miss Neri Peyang (P.Ext- 5) and victim No.5, Miss Onu Tali, aged about 4 years (P.Ext-6). He identified the signature of Dr. Pangkam in P. Ext-3 in the injury report of Miss Banu Gammeng; P.Ext-4 in the injury report of Miss Obi Peyang, P. Ext-5 in the injury report of Miss Neri Peyang, P.Ext-6 in the injury report of Miss Onu Tali. The nature of injuries caused to the above victims are all grievous, and the injuries were caused by sharp cutting weapon. This witness also identified the signature of the Dr. Pangkam in the medical examination report of the accused Tayum Biku P. Ext-7. 34. The nature of injuries caused to the above victims are all grievous, and the injuries were caused by sharp cutting weapon. This witness also identified the signature of the Dr. Pangkam in the medical examination report of the accused Tayum Biku P. Ext-7. 34. As per the injury reports-victim No.1, Ketan Lipir (PW-1) received rd following injuries: 11 cm long incised wound extending from 3 inter digital cleft up to the wrist. Flexor tendons of index and middle finger severed with severed vessel (both arteries and veins) median perve severed on Palmar aspect of left hand, the nature of injuries are grievances caused by Sharp weapon (Dao), Victim No. 1 was referred to Dibrugarh for tendon repair and blood transfusion. 35. The Victim No.2 Banu Gammeng (PW-10) received the following injures: Incised wound of muscle, dept on the left lateral aspect of neck: Incised wound of bone depth on (Rt) deltoid: Incised wound on dorsol aspect of (Rt) hand damaging the extensor tendon: Horizontal cut of muscle depth of 12.5 Cm in length; Transverse cut of bond depth of 12.5 CM in length on Neck and over the deltoid (Arm) (Rt) The nature of wound was grievous cause by sharp cutting weapon. The patient was referred to Dibrugarh for better management and treatment. 36. The Victim No.3 Miss Obi Peyang (PW-4) received the following injuries: Incised wound of bone, depth over the postero/lateral aspect of Rt. Neck injury of 15 CM in length. The nature of injuries is grievous caused by sharp cutting weapon. The patient was referred to Dibrugarh for treatment by specialist. 37. The Victim No.4 Miss Neri Peyang (PW-8) received the following injuries: Incised cut wound of through bone at the level of radius & ulna head of left side; incised cut of wound bone- over occipital area of head through bone shape semicircular 3 inch in length. The nature of injuries is grievous caused by sharp cutting weapon. The victim was referred to Dibrugarh for further examination and management. 38. The Victim No.5 Onu Tali received the following injuries: Deep Incised cut wound of left postero- lateral aspect of neck of muscle depth; lacerated wound of left hand of through muscle and bone; 12.5 cm of incised cut injury of muscle depth through muscle and bone lacerated on neck and hand. The nature of injuries is grievous, caused by sharp cutting weapon. The nature of injuries is grievous, caused by sharp cutting weapon. Victim was referred to Dibrugarh for better management and treatment. 39. During cross-examination, the PW-15 has deposed that the patient examined by him (victim No.1) was personally known to him and he had sustained grievous injuries. He has also deposed that had the patient been left unattended he might have died within half-an-hour. He has also deposed that he was not present at the time of examination of the victims by Dr Pangkam. 40. The PW-16 Inspector K. Duggong is the Investigating Officer who investigated the case. He has deposed that, on receipt of a telephonic information from one Shri D. Tali, E.A.C., Yingkiong about the incident, he made a GD entry No. 145 on 08.09.2006 at 6.00 Hrs. The information was to the effect that one unidentified person was cutting people at Parsing Colony, Yingkiong whoever came on his way or found on road due to which many people have been injured. Accordingly, he along with available police party rushed to the spot and found as many as 6 persons being assaulted by the accused with Dao and one girl namely, Laxmi Sonar was found dead on the spot. The names of the injured victims are: (1) Miss Obi Peyang, (2) Miss Neri Peyang, (3) Shri Ketan Lipir, (4) Miss Onu Tali, (5) Shri Noku Gop and (6) Miss Bano Gammeng. All victims received a grievous injury and the condition of injured, Miss Obi Peyang, Miss Oni Peyang, Miss Onu Tali and Shri Ketan Lipir were in critical stage. All the injured victims were immediately shifted to the District Hospital, Yingkiong for treatment. 41. The PW-16 has also deposed that the accused person was immediately arrested from Airfield area and identified as Shri Tayum Biku. 2 (two) Nos. of daos were seized from his possession (M. Ext-1 & M-Ext-2). An inquest was conducted over the dead body of the deceased Laxmi Sonar (P-Ext-12). After inquest he had forwarded the body for Post Mortem Examination report (P. Ext-10). He has also deposed that after completion of investigation, he has submitted charge sheet against the accused for offence under Section 302/307/326/447/448 of IPC. An inquest was conducted over the dead body of the deceased Laxmi Sonar (P-Ext-12). After inquest he had forwarded the body for Post Mortem Examination report (P. Ext-10). He has also deposed that after completion of investigation, he has submitted charge sheet against the accused for offence under Section 302/307/326/447/448 of IPC. The PW-16 has exhibited the FIR, P.Ext-1, handing and taking over of dead body P. Ext-3, and P. Ext-4, handing over of the dead body to next to kin P.Ext-5, rough sketch map of crime scene prepared by him P.Ext-16. 42. The rest of the prosecution witnesses, whose names were enlisted in the charge sheet, could not be examined as their attendance could not be procured despite of all efforts made and for the reasons mentioned in the order sheet, they were dropped. 43. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 giving him an opportunity to explain the circumstances appearing in the evidence against him and his statement was recorded. The appellant pleaded his innocence and stated that he does not know as to what had happened during the incident. He has stated that at the time of incident he was mentally disturbed and he does not know about cutting other people. 44. Although the appellant has stated that he will not adduce defence evidence, however, but later on, on his prayer, he was allowed to produce defence witnesses. Accordingly, four defence witnesses were examined by the appellant. Now, let us go through the evidence of defence witnesses. 45. The DW-1, Shri Biku Kumar, has deposed that he is the clan brother th of accused. He deposed that on 5 September 2006, the wife of accused through telephonic call told him that the accused had developed some th disease, he even did not recognize his family members. On the 8 of September 2006, in the evening, he was informed that the accused has attacked some persons, for which the present case has been registered against him. He stated that during the year 2001 or 2002, the accused was suffering from acute malaria disease, and during that time he was having some mental problem, for which he was taken to Naharlagun, General hospital for treatment. However, this witness has not produced any records in support of his statement. 46. The DW-2, Smti Ishi Tali, is the sister-in-law of the accused. However, this witness has not produced any records in support of his statement. 46. The DW-2, Smti Ishi Tali, is the sister-in-law of the accused. She stated that before the present incident the accused was taken to hospital at Tezpur for treatment by his brothers. She further stated that on the day of incident in the evening time, accused had attacked many persons, one of them expired. She has also deposed that the appellant had also tried to attack his own children, but the children hide themselves with their mother and escaped from attack. 47. The DW-3, Dr. Ajit Kumar Biswas, deposed that as per the record available with him, the accused visited his clinic on 12.07.2014 with a history of fearfulness, suspiciousness, disturbed sleep on and off for more than 10 years; and, his said condition got worse by February 2010. On examination of the patient, he found shallow effect (less expression), delusion of persecution, delusion of reference, auditory hallucination. He has deposed that all these findings together led him to conclude that the patient was having Paranoid Schizophrenia. Accordingly, he prescribed some medicine to the accused patient. 48. During his cross-examination, the DW-3 has deposed that he cannot say whether the patient was suffering from Paranoid Schizophrenia before his examination or not. He further stated that, offence, if any, committed by a person can be a reason for suffering from this disease due to changes of mental condition of such person. 49. The DW-4 Shri Rotom Bida has deposed that he knows the accused since his childhood and seen him disturbing his family members and villagers on several occasion. He deposed that the mental condition of accused seems not stable/normal. While the accused was in their village, he has seen him roaming here and there like a mad dog. He was not normal in his behavior also. He has deposed that the father of the accused late Tara Biku was also having same mental sickness The accused who was also suffering from mental illness left their village one day without any information. He has further deposed that after some years, he heard that the accused was languishing in Yinkiong Jail in connection with some case. During cross-examination, he has denied the suggestion that he has deposed falsely before the Court. 50. Mr. He has further deposed that after some years, he heard that the accused was languishing in Yinkiong Jail in connection with some case. During cross-examination, he has denied the suggestion that he has deposed falsely before the Court. 50. Mr. L. Perme, the learned counsel for the appellant has submitted that the Trial Court had erred in convicting and sentencing the appellant by ignoring the plea of unsoundness of mind taken by the appellant during the trial. He submits that since the inception of the criminal case against the present appellant, there were materials on record, which indicated to the unsoundness of his mind at the time of commission of the alleged offence. 51. The learned counsel for the appellant has submitted that in his statement recorded under Section 161 of the Code of Criminal Procedure, 1973, the appellant has categorically stated before the Investigating Officer that his mind was not in normal situation at the time of alleged offence and he had a feeling that some people were planning to kill him. He felt that some spiritual powers have taken over him and he was not knowing that he has cut any person. He also stated that he did not know how he came out of his house and when and whom he had assaulted. 52. The learned counsel for the appellant has submitted that in his statement recorded under Section 164 of the Code of Criminal Procedure, 1973, also, he has categorically stated as to the incident of killing the deceased by him occurred due to fear psychosis in the state of unsoundness of mind and he was feeling sentimental and fearful every moment, as if some ‘Adi’ people are attacking him. He has also submitted that the appellant also stated in his statement recorded under Section 164 of the Code of Criminal Procedure, 1973 that he was sleepless and restless for more than a week and it was on 08.09.2016, he was told that he had killed a girl and injured many minor children with a sharp dao. However, he did not remember as to how it happened and when he killed them. The learned counsel for the appellant has submitted that the condition of the appellant at the time of his arrest indicates that he was suffering from mental ailment and unsoundness of mind when the alleged offence was committed. 53. However, he did not remember as to how it happened and when he killed them. The learned counsel for the appellant has submitted that the condition of the appellant at the time of his arrest indicates that he was suffering from mental ailment and unsoundness of mind when the alleged offence was committed. 53. The learned counsel for the appellant further submits that under such circumstances, it was the bounden duty of the Investigating Officer to subject the appellant to a medical examination as regards the soundness of his mind at the time of commission of alleged offences. However, the same was not done and the medical examination report of the doctor who examined the appellant after his arrest is a routine report without giving any indication in respect of his state of his mental condition when the alleged offence was committed. The learned counsel for the appellant has submitted that it creates a serious infirmity in the prosecution case and under such circumstances, the benefit of doubt must go to the appellant. 54. The learned counsel for the appellant has submitted that the prosecution side has miserably failed to adduce any evidence to show that there was mens rea on the part of the appellant while committing the alleged offence. 55. The learned counsel for the appellant has also submitted that the Trial Court had erred in denying the benefit of the defence of unsoundness of mind to the appellant, as provided under Section 84 of the Indian Penal Code, 1860 as it wrongly discarded the defence evidence adduced by the defence witnesses. He submits that the Trial Court had failed to appreciate that while taking the plea of unsoundness of mind to get the benefit under Section 84 of the Indian Penal Code, 1860, the burden of prove on the appellant was not higher than that of a party to civil proceeding, i.e., it is on the basis of preponderance of probability. 56. The learned counsel for the appellant has submitted that the Trial Court failed to take into consideration that all the four defence witnesses, namely, DW-1, DW-2, DW-3 and DW-4, in their depositions, have indicated that the appellant was suffering from unsoundness of mind at the time when the alleged offence was committed. 57. 56. The learned counsel for the appellant has submitted that the Trial Court failed to take into consideration that all the four defence witnesses, namely, DW-1, DW-2, DW-3 and DW-4, in their depositions, have indicated that the appellant was suffering from unsoundness of mind at the time when the alleged offence was committed. 57. He submits that the DW-3, who is a doctor by profession, has categorically deposed that when the said witness had examined the appellant on 12.07.2014, he had a history of fearfulness, suspiciousness and disturbed sleep on and off for more than ten years and on examination, he found the symptoms of delusion of persecution, delusion of reference, and auditory hallucination in the appellant. 58. The learned counsel for the appellant has submitted that the evidence of defence witnesses were sufficient to indicate that he was suffering from unsoundness of mind when the alleged offence was committed, however, the Trial Court wrongly discarded the defence evidence and convicted and sentenced the appellant ignoring the fact that the appellant was suffering from unsoundness of mind as he was not aware as to what he did in such state of unsoundness of mind. 59. He also submits that the Trial Court mechanically rejected the testimony of defence witnesses even though during cross-examination, the prosecution side had failed to dislodge their testimony. 60. The learned counsel for the appellant has submitted that apart from rejecting the plea of unsoundness of mind without any just cause, the Trial Court also ignored the fact that there was no eye witness, who had seen the appellant assaulting the deceased, Laxmi Sonar. 61. The learned counsel for the appellant has also submitted that though 37 numbers of prosecution witnesses were listed in the charge sheet, however, it examined only 16 numbers of prosecution witnesses and withheld the examination of other material witnesses during trial, which creates doubt regarding the veracity of the prosecution story. He has submitted that the prosecution side did not examine Shri Sanet Barman, who is stated to be an eyewitness regarding assault by the appellant on the deceased Laxmi Sonar. The learned counsel for the appellant, therefore, submits that under such circumstances, the appellant ought to have been given the benefit of doubt. 62. He has submitted that the prosecution side did not examine Shri Sanet Barman, who is stated to be an eyewitness regarding assault by the appellant on the deceased Laxmi Sonar. The learned counsel for the appellant, therefore, submits that under such circumstances, the appellant ought to have been given the benefit of doubt. 62. The learned counsel for the appellant further submits that apart from the infirmity of withholding the vital witnesses, the prosecution side also faltered in not sending the weapon of offence for serological test. He submits that in absence of such serological test, there is no evidence on record, to link the seized weapon with the offence which has was allegedly committed in the instant case, and in absence of such missing link, the chain of circumstantial evidence on the basis of which the appellant was convicted and sentenced under Section 302 of the Indian Penal Code, 1860 may not be regarded as complete and for such a lapse, he submits that benefit should go to the appellant. 63. The learned counsel for the appellant submits that when the prosecution case is based on circumstantial evidence then the circumstances from which the conclusion of guilt is to be drawn should be fully established and each fact must be proved individually, which the prosecution side has failed to do in the instant case. 64. He further submits that the chain of circumstances should exclude every possible hypothesis, except the one that indicates to the guilt of the accused, which according to him the prosecution side has failed to do in the instant case. 65. In support of his submissions, the learned counsel for the appellant has cited the following rulings: - i. Shrikant Anandrao Bhosale Vs. State of Maharashtra, (2002) 7 SCC 748 ii. Munna Pandey Vs. State of Bihar, 2023 (6) Supreme 360 iii. Achyut Mahili Vs. State of Assam, 2020 (2) GLT 103 iv. Muhi Gogoi Vs. State of Assam & Anr. 2020 (1) GLT 306 v. Sadhan Chowdhury Vs. State of Tripura, 2007 (3) GLT 280 vi. Bapu Alias Gujraj Singh Vs. State of Rajasthan, (2007) 8 SCC 66 vii. Ghana Gogoi Vs. State of Assam, 2013 (3) GLT 723 viii. Prakash Nayi @ Sen Vs. State of Goa, 2023 (5) SCC 673 ix. Lahap Taiju Vs. State of Arunachal Pradesh, 2022 0 Supreme (Gau) 1027 66. On the other hand, Ms. Bapu Alias Gujraj Singh Vs. State of Rajasthan, (2007) 8 SCC 66 vii. Ghana Gogoi Vs. State of Assam, 2013 (3) GLT 723 viii. Prakash Nayi @ Sen Vs. State of Goa, 2023 (5) SCC 673 ix. Lahap Taiju Vs. State of Arunachal Pradesh, 2022 0 Supreme (Gau) 1027 66. On the other hand, Ms. L. Hage, the learned Additional Public Prosecutor has submitted that the Trial Court has rightly convicted the appellant under Sections 302/326/447 of the Indian Penal Code, 1860 and has rightly sentenced him to undergo punishment imposed by the said Court. 67. She submits that the Trial Court has rightly discarded the testimony of defence witnesses as the doctor, who had deposed as DW-3 had only examined the appellant in the year 2014, whereas the offence alleged in this case had occurred in the year 2006. She further submits that the appellant has failed to adduce any evidence that he had ever consulted any government doctor in any government hospital of the Arunachal Pradesh regarding his alleged unsoundness of mind which makes the defence evidence relating to the unsoundness of mind unreliable. 68. The learned Additional Public Prosecutor has also submitted that the doctor, who examined the appellant after his arrest found him to be healthy and he was found capable of being kept in jail. She also submits that there is no evidence on record to show that the appellant during his detention in judicial custody had behaved in such a manner which would show that he was suffering from unsoundness of mind. 69. She also submits that though DW-2 had deposed that the appellant was taken to Tezpur, however, no medical documents has been exhibited to substantiate this evidence and therefore, the Trial Court was correct in discarding the testimony of said witness. 70. The learned Additional Public Prosecutor has also submitted that there are eye witnesses, who had seen the appellant inflicting the injuries on some of the victims, like PW-2 saw the appellant inflicting injuries on his daughters. ThePW-3 also saw the appellant fleeing away from their house after inflicting injuries on victim Nos. 3 and 4. She also submits that the injury reports of the injured victims corroborate the testimony of eye witnesses. ThePW-3 also saw the appellant fleeing away from their house after inflicting injuries on victim Nos. 3 and 4. She also submits that the injury reports of the injured victims corroborate the testimony of eye witnesses. she has also submitted that after commission of offence, the appellant concealed himself in the kitchen of one Shri Kumar Nalo, which indicates that he was aware that he committed some offence and therefore, he was hiding. However, she fairly submits that though the weapon of assault was sent for forensic examination, the Investigating Officer did not collect forensic examination report and did not exhibit the same during the trial. 71. The learned Additional Public Prosecutor has also submitted that the appellant intentionally committed the offence killing one innocent girl and injured six other persons, including the minor children and therefore, no leniency should be shown to the appellant and this Court should not interfere with the order of conviction and sentence imposed on the appellant by the impugned judgment and accordingly, she prays for dismissing the appeal. 72. It is pertinent to mention herein that Mr. J. Gao, the learned counsel for the respondent No. 7, who was one of the victims of the alleged incident has specifically submitted that he has no objection, if the appeal is allowed. 73. We have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record, including the records of the Trial Court. We have also gone through the rulings cited by the learned counsel for both the sides. 74. On careful perusal of the evidence on record, it appears that only two witnesses from the prosecution side, namely, Obi Peyang (PW-2) as well as Keten Lipir (PW-7) have specifically named the appellant as the person who attacked them. Only these 2(two) witnesses may be categorized as eye-witnesses, who had themselves witnessed the incident of the appellant assaulting them with dao. The other witnesses have either seen the appellant fleeing from the crime scene after committing the offence or have heard about it from some other person. 75. Other victims, who deposed as prosecution witnesses, namely, Mr. Only these 2(two) witnesses may be categorized as eye-witnesses, who had themselves witnessed the incident of the appellant assaulting them with dao. The other witnesses have either seen the appellant fleeing from the crime scene after committing the offence or have heard about it from some other person. 75. Other victims, who deposed as prosecution witnesses, namely, Mr. Nakul Gop (PW-6), Miss Neri Peyang (PW-8) and Miss Banu Gammeng (PW-10) have only deposed that they were assaulted by some person with dao, but neither did they named the appellant nor they identified the appellant in the dock in the courtroom during the trial. In fact, one of the victims, namely, Miss Neri Peyang (PW-8) has deposed that she does not know anything about the case. 76. Hence, we are of the considered opinion that the learned Trial Court erred, when it made the observation in paragraph Nos. 16 & 17 of the impugned judgment that all the victims namely victim Nos. 1, 2, 3, 4 and 6 have deposed that they sustained Dao cut injury inflicted by accused on the morning of 08.09.2006. In fact, as discussed hereinabove, only 2(two) prosecution witnesses namely, PW-4 and PW-7, who themselves sustained injuries, have specifically named the appellant of having committed the assault on them. Thus, apart from the testimony of those 2(two) eye- witnesses, (PW-4 and PW-7), the prosecution case is based mainly on circumstantial evidence. 77. As regards to the proof of a case based on circumstantial evidence is concerned, the Apex Court has laid down the guidelines in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, wherein it has observed as follows: - “ 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [ (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “ Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 78. If we carefully analyze the evidence, which is available on record, the following circumstances may be regarded as fully established in this case: - i. That on 08.09.2006, the police received a telephonic information from one D. Tali, E.A.C., Yingkiong, that one unidentified person was cutting whosoever came in his way at Parsing Colony, Yingkiong, due to which many persons were injured; ii. A General Diary Entry No. 145, dated 08.09.2006, at about 6 am, was made in the Yingkiong Police Station (though the said GD Entry has not been exhibited by the prosecution side); iii. The PW-2 Alum Peyang and PW-3 Smt. Osi Payeng had seen their two daughters in an injured condition who were bleeding from their injuries. They also saw the appellant, fleeing away from the spot; iv. The PW-2 Alum Peyang and PW-3 Smt. Osi Payeng had seen their two daughters in an injured condition who were bleeding from their injuries. They also saw the appellant, fleeing away from the spot; iv. The PW-1, Tetem Yipir, was informed by one Keten that someone had attacked him with a dao on his hand and the hand of Keten was bleeding; v. On the day of incident, i.e. 08.09.2006, when the PW-6, Mr. Nakul Gop, was standing near the door of his house, a person came from roadside and tried to enter his quarter and was pushing the door to enter it. Mr. Nakul Gop sustained injuries on the little finger and ring finger of his left hand. However, he could not identify the assailant; even during the trial he did not identify the appellant in the dock in the court room. vi. PW-7, Keten Lipir, was attacked by the appellant with a dao without any provocation; vii. PW-10, Miss Banu Gammeng, was also attacked by a person from backside with a dao. She was hit 4(four) times with dao on her neck, upper arms and her backside of palm. However, she did not name the appellant. Neither did she identify the appellant in the dock in the court room. viii. On the same day, Laxmi Sonar died after sustaining several injuries, caused by heavy and sharp weapon. On 08.09.2006 itself, the post-mortem examination of deceased Laxmi Sonar was conducted. However, the eye witness to the assault Mr. Sanet Barman was not examined as a prosecution witness. ix. On the day of incident, PW-15 (Dr. A. Miyu) examined 5(five) victims, namely, Miss Banu Gammeng, Ms. obi Peyang, Miss Neri Peyang, Onu Tali and Mr. Keten Lipir. All the injured persons sustained multiple injuries and the injuries were grievous in nature. x. The appellant, Tayum Biku, was arrested from the house of Shri Kumar Nalo at airfield area and 2(two) daos were seized from his possession. 79. There is another aspect which is important in this case, i.e., the weapon of offence was not exhibited during the trial by any of the independent witnesses, they did not identify the weapon of offence during the trial. It also appears that no serological test of the weapon of offence was exhibited in the trial. 79. There is another aspect which is important in this case, i.e., the weapon of offence was not exhibited during the trial by any of the independent witnesses, they did not identify the weapon of offence during the trial. It also appears that no serological test of the weapon of offence was exhibited in the trial. Hence, apart from the oral testimony of the witnesses that dao was used for assaulting the victims, the prosecution did not adduce any evidence to link the seized dao with the alleged offence. It failed to prove beyond reasonable doubt that the dao which was seized in this case was used for committing the offence alleged in this case. 80. On perusal of the testimony of the eye witnesses namely the PW-4 as well as the PW-7, and also taking in to consideration the circumstances as discussed in paragraph No. 77 hereinbefore, there is every likelihood that it is the appellant only, who might had also assaulted the other injured persons. There is every likelihood that he might have also assaulted the seventh victim namely, Laxmi Sonar, resulting into her death. However, as held by the Apex Court in the case of Shivaji Sahabrao Bobade Vs. the State of Maharashtra (supra), the circumstances from which the conclusion of guilt is to be drawn have to be fully established. Such circumstances “must or should be” and not merely “may be” fully established. So, there is not only a grammatical but a legal distinction between, “may be proved” and “must and should be proved” as held by the Apex Court in the aforesaid case. 81. It also appears that the weapon of assault, i.e., the dao which were exhibited as Material Exhibit-1 and Material Exhibit-2 by the Investigating Officer was not identified by any of the victims in the trial. Though, the Investigating Officer had seized the said dao from the possession of the present appellant when he was arrested, however, the Investigating Officer has himself not seen the appellant using those daos for assaulting the victims of this case. Further, there is no serological test report in respect of the dao or the blood found in the dao to connect the said dao with the offence which is alleged in this case. Further, there is no serological test report in respect of the dao or the blood found in the dao to connect the said dao with the offence which is alleged in this case. Apart from the Investigating Officer, no independent witness has exhibited or identified the dao which was alleged to be used by the appellant for the conviction of offence. 82. Further, though during the investigation, the Investigating Officer had examined witnesses, who had seen the appellant assaulting the deceased Laxmi Sonar. However, during trial, those witnesses were not produced by the prosecution side, thereby, falling short of fully establishing that it was the appellant who had assaulted Laxmi Sonar. 83. As already observed hereinbefore, we are of the view that though the evidence on record indicates that it might be the appellant only, who had assaulted the other injured persons and also assaulted the deceased Laxmi Sonar resulting in her death. However, there is a difference between “might be” and “must be”. The prosecution side had failed to obliterate this difference. What the prosecution side was required to do was to adduce evidence of such quality which would have indicated beyond doubt that it is only the appellant who had done the offence alleged in this case, which we are constrained to observe that prosecution has not been able to do. The prosecution side examined only 16(sixteen) witnesses out of total 37(thirty-seven) enlisted witnesses in the charge sheet, leaving even the vital eye-witnesses of the incident unexamined. Thus, though the evidence on record indicates that PW-4 and PW-7 were assaulted by the appellant and there is a strong probability that it was the appellant only, who had assaulted Laxmi Sonar resulting in her death. However, the evidence adduced during the trial falls short of fully establishing the fact that it was the appellant only, who assaulted Laxmi Sonar resulting in her death. 84. Now, let us consider the most important question raised in this appeal as to whether the appellant at the time of commission of offence was of unsound mind, so as to get the benefit of general exception from criminal liability as provided under Section 84 of the Indian Penal Code, 1860. 85. 84. Now, let us consider the most important question raised in this appeal as to whether the appellant at the time of commission of offence was of unsound mind, so as to get the benefit of general exception from criminal liability as provided under Section 84 of the Indian Penal Code, 1860. 85. Section 84 of the Indian Penal Code 1860 provides as follows: - 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. 86. There is no dispute regarding the legal proposition that in order to avail the advantage of an exception under Section 84 of the Indian Penal Code, 1860, the burden of proving that the case comes within the exception is of the accused himself. Same is provided for under Section 105 of the Indian Evidence Act, 1872. 87. In the instant case, there is no evidence that there was any enmity of the appellant with the persons who were injured or with the deceased in this case. There is apparently no reason for the appellant assaulting them. The prosecution side also could not bring any evidence to indicate that there might be any motive for such an assault by the appellant. 88. Under such circumstances when a person without any reasons assault anybody who comes in front of him with a dao, the possibility of him not having a sound mind when such an act was committed is highly probable. 89. It also appears that immediately after his arrest, when the statement of the accused was recorded under Section 161 as well as under Section 164 of the Code of Criminal Procedure, 1973, he gave indications regarding unsoundness of his mind at the time of commission of the alleged offence. 90. During his statement on oath recorded under Section 164 of the Code of Criminal Procedure, 1973 the appellant had stated as follows- “I came to my home at Yingkiongon 28.08.2006 from Janbo village after completion of contract work. On reaching to home, I felt myself uneasy as if I am suffering from a disease and I did not want to take meal and find all eatable things tasteless. On reaching to home, I felt myself uneasy as if I am suffering from a disease and I did not want to take meal and find all eatable things tasteless. My head was in pain and occasionally felt vomiting. It was surprised to me that I feel fear and sentimental emotion every moment as if some Adi people are attacking me. So, I did not dare to go outside from the house even for medical treatment. I was sleepless and restless for more than a week. Suddenly on 08.09.2016 (morning), it was told to me that I have killed a girl and injured many minor children with sharp Daos. But I did not remember it, how it was happened and when did I kill them I forgot everything. But when police captured me near helipad landing ground at Yingkiong, I found that a dao was hold (sic) at my hand. That much I am to say.” 91. If we carefully peruse the above statement of the appellant recorded under Section 164 of the Code of Criminal Procedure, 1973, it appears that he indicated in his statement that he was suffering from delusion of reference and was not aware as to what he had done. Delusion of persecution and delusion of reference are the symptoms of any person suffering from paranoid schizophrenia. However, even after recording of the above statement of the appellant under Section 161 and 164 of the Code of Criminal Procedure, 1973, there is no material on record to show that the Investigating Officer had taken any steps for medical examination of the appellant to ascertain his mental condition at the time of the commission of offence. 92. The only medical examination of the appellant was done immediately after his arrest on 08.09.2006, wherein a very brief medical report was submitted by the examining doctor, which is exhibited as Exhibit-7 (1) wherein, no specific finding regarding his mental condition has been reflected. The only finding of the examining doctor is that he found the appellant to be physically fit to be kept under police custody. Thus, the medical examination report of the appellant (Exhibit P-7), only indicates regarding the state of his physical fitness, without there being any indication regarding the condition of his mind at that point of time. 93. The only finding of the examining doctor is that he found the appellant to be physically fit to be kept under police custody. Thus, the medical examination report of the appellant (Exhibit P-7), only indicates regarding the state of his physical fitness, without there being any indication regarding the condition of his mind at that point of time. 93. After coming to know from the statement of the appellant recorded under Section 164 of the Code of Criminal Procedure, 1973 that there is a possibility of his having committed the alleged offence in an unsound condition of mind, it was the duty of the Investigating Officer to subject the appellant to a medical examination to ascertain the condition of his mind. Nothing like that was done in this case, which is a serious lapse in the prosecution case entitling the appellant the benefit of doubt in this case. 94. In this regard, the observations made by the Apex Court in the case of Bapu Alias Gujraj Singh Vs. State of Rajasthan , (2007) 8 SCC 66 are relevant and same is reproduced herein below: - “8. Under Section 84 IPC, a person is exonerated from liability for doing an act on the ground of unsoundness of mind if he, at the time of doing the act, is either incapable of knowing (a) the nature of the act, or (b) that he is doing what is either wrong or contrary to law. The accused is protected not only when, on account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law, although he might know the nature of the act itself. He is, however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to law, and also if he knew that what he was doing was contrary to law even though he did not know that it was wrong. The onus of proving unsoundness of mind is on the accused. 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 at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts.” 95. In the instant case, on perusal of the Exhibit-7, i.e. the medical examination report of the appellant dated 08.09.2006, i.e., the date on which the alleged incident had occurred, only shows that he was found physically fit to be kept under police custody. No whisper is there in the said medical report as to whether any examination was done to ascertain the state of his mind and as to what was the condition of his mind, as to whether he was of a sound mind or of unsound mind or was suffering from any mental condition. No whisper about these facts is there in the Exhibit- 7, therefore, Exhibit-7 cannot be regarded as a medical report as regards the mental condition of the appellant at the time of his arrest. 96. In view of the observation made by the Apex Court, in the case of Bapu Alias Gujraj Singh Vs. State of Rajasthan (supra), it was the duty of the Investigating Officer to subject the accused to a medical examination after he came to know about the condition of his mind from the statement of the appellant recorded under Section 161 as well as under Section 164 of the Code of Criminal Procedure, 1973. The lapse on the part of the Investigating Officer in not doing so creates a serious infirmity in the prosecution case and benefit of doubt, on that account has to be given to the appellant. 97. The lapse on the part of the Investigating Officer in not doing so creates a serious infirmity in the prosecution case and benefit of doubt, on that account has to be given to the appellant. 97. We are also of the considered opinion that the Trial Court erred in discarding the testimony of defence witnesses adduced by the defence side. The standard of proof which the defence witnesses are required to follow while proving the case of insanity of the appellant is not like that of a criminal case requiring proof beyond reasonable doubt, but it is to be discharged on the basis of the preponderance of probability and only a prima facie case has to be made out regarding the plea of insanity. 98. In this regard the observation made by the Apex Court in the case of Prakash Nayi Alias Sen Vs. State of Goa, (2023) 5 SCC 673 is relevant and the same is reproduced here in below:- “8. The burden of proof does lie on the accused to prove to the satisfaction of the court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the court and the prosecution to decipher the proof qua insanity by not treating it as adversarial. Though a person is presumed to be sane, once there are adequate materials available before the court, the presumption gets discharged.” 99. The Trial Court discarded the testimony of the DW-1 to the effect th that, on 5 September 2006, he was informed by the wife of the appellant over telephone that the appellant has developed some disease and was not recognizing his family members mainly because the wife of the appellant was not examined as a witness, though during cross examination the testimony of DW-1 remained uncontroverted. His testimony to the effect that in the year 2001 or 2002 when the appellant suffered from malaria disease, he developed some mental problem was also not believed though, the said testimony also could not be demolished by the prosecution side during cross-examination. 100. His testimony to the effect that in the year 2001 or 2002 when the appellant suffered from malaria disease, he developed some mental problem was also not believed though, the said testimony also could not be demolished by the prosecution side during cross-examination. 100. Similarly, the testimony of the DW-2, who is the sister-in-law of the appellant, to the effect that the appellant was earlier taken to Tezpur for treatment by his brother was not relied upon by the Trial Court, though it remained uncontroverted during her cross examination. Her testimony to the effect that on the date of incident, the appellant also tried to attack his own children, however they could be saved only when they escaped with their mother was also not relied upon though the said testimony remained uncontroverted during cross-examination. 101. In the case of the DW-3 also, who is a psychiatrist, his testimony was also not relied upon by the Trial Court mainly because of the fact that he examined the appellant in the year 2014. The findings of the DW-3 on examination of the appellant that he was found to be suffering from delusion of persecution and delusion of reference and auditory hallucination even in the year 2014 was also discarded. 102. We are, however, of the considered opinion that there is no valid ground for not believing the testimony of DW-3. In the year 2014, when the appellant was examined by the DW-3, he was found to be suffering from paranoid schizophrenia and the fact remains that at the time of alleged incident also, i.e. on 08.09.2006, the conduct of the appellant was not normal. Further, as we have already discussed herein before that though the appellant had indicated in his statement recorded under Section 161 as well as 164 of the Code of Criminal Procedure, 1973 regarding his unsoundness of mind, however, no medical examination to ascertain his mental condition was conducted. Under such circumstances, it was the duty of the Trial Court to decipher the proof qua the insanity by not treating it as adversarial, but as a responsibility to find out as to whether the appellant was in fact suffering from insanity and whether at the time of commission of the alleged offence, he did it without knowing as to what he was doing at that time. 103. 103. We are of the considered opinion that there are sufficient materials on record to come to the conclusion by applying the principle of the preponderance of probability that the appellant was suffering from unsoundness of mind indicating to the fact that due to the reason of unsoundness of mind, he was incapable of knowing the nature of the act of that what he was doing was wrong and contrary to law. 104. In view of the discussions made in the foregoing paragraphs, we are of the considered opinion that the appellant is entitled to get the benefit of doubt as well as the benefit conferred under Section 84 of the Indian Penal Code, 1860, which we give to him. 105. Accordingly, the impugned judgment and order of the Trial Court regarding conviction and sentence imposed on the appellant is hereby set aside. The appellant is acquitted of all the charges. His bail bond stands discharged. He shall be released forthwith if not required in connection with any other case. 106. Before parting with this case, we intend to observe that though, more than 10(ten) years have lapsed since the DW-3, who is a psychiatrist, had diagnosed the appellant as suffering from paranoid schizophrenia, however, considering the nature of mental ailment with which the appellant was diagnosed, we direct the Deputy Commissioner of Lower Subansiri District, Arunachal Pradesh, who acting as parens patriae shall take all necessary steps for getting the appellant medically examined and thereafter, if required, provide him proper mental health care and treatment from mental health services run or funded by the Government under the provisions of the Mental Healthcare Act, 2017. 107. With the above observations, this criminal appeal is disposed of. 108. Send back the Trial Court case records with a copy of this judgment to the Trial Court. 109. Also send a copy of this judgment to the Deputy Commissioner of Lower Subansiri District, Arunachal Pradesh.