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2025 DIGILAW 385 (GAU)

Swapan Debnath v. State of Assam

2025-03-06

MITALI THAKURIA, SANJAY KUMAR MEDHI

body2025
JUDGMENT : S.K. Medhi, J. The instant appeal is preferred from jail against the judgment dated 10.12.2020 passed by the learned Sessions Judge, Udalguri in Sessions Case No. 38/16 (GR Case No. 1304/2015) u/s 302 IPC with R.I. for life and fine of Rs.2,000/- (Rupees Two Thousand). 2 . The criminal law was set into motion by lodging of an Ejahar on 16.12.2015 by the PW1. It was stated that on that day, at about 11.30 am, the deceased, who was the elder brother of the appellant-accused, on being informed that the accused person was engaged in noisy quarrel had gone to his residence to persuade and then the accused person had killed the deceased by stabbing him on the left side of the chest by a batali (carpenter chisel). The informant (PW1) is the son of the deceased. 3 . Based on the aforesaid information, the formal FIR was registered and investigation was done leading to laying of the charge sheet. The charges were accordingly framed and upon its denial, the trial had begun in which 10 nos. of prosecution witnesses were examined. 4 . PW1 is the informant who had stated that the deceased is his father and the accused is his paternal uncle and the occurrence had taken place in the year 2015. He had deposed that on the date of occurrence, the appellant had picked up a quarrel with his grandmother and the deceased, who was the father of the PW1 had asked the appellant why he was shouting and at that stage, the appellant had assaulted the father of the informant with a batali (an instrument used by carpenter for piercing wood). The deceased had accordingly died on the way to Kalaigaon Hospital. The Ejahar was proved as Ext.-1. In the cross- examination, the informant had stated that at the time of occurrence, one Sanu Das (PW7) was also present with the PW1 and the deceased. A suggestion was also given to him that the offence was committed by the accused when he was mentally ill and the said suggestion was negated. PW1 had however stated in his cross-examination that prior to the incident, the appellant was mentally ill and was treated at the L.G.B. Mental Research Centre, Tezpur. 5 . A suggestion was also given to him that the offence was committed by the accused when he was mentally ill and the said suggestion was negated. PW1 had however stated in his cross-examination that prior to the incident, the appellant was mentally ill and was treated at the L.G.B. Mental Research Centre, Tezpur. 5 . PW2 is the village Headman, who had deposed that on the fateful day, he was in the market and he saw the deceased being carried on a thela (hand pull cart). In his cross-examination, he had however stated that he heard that the appellant was suffering from mental illness. 6 . PW3 is a neighbour who had deposed that PW2 had informed him over phone that the accused had killed his brother. He had accordingly come to the house of the accused and saw the accused on the veranda whereafter, the police had come and interrogated him. PW3 is also a seizure witness and the Seizure List was proved as Ext. 2. In his cross- examination, PW3 had deposed that prior to the incident, the appellant was mentally ill and was admitted in the Tezpur Mental Hospital several times. 7 . PW4 is a cousin and the appellant is the son of his uncle. He deposed that at the relevant point of time, he was at his house and was about to proceed to Kalaigaon for work when he was informed by a cousin that the appellant had assaulted the deceased. Immediately thereafter, he proceeded to the nearby chowk where he met the village headman who had informed that the deceased had in the meantime expired. Thereafter, he came to the house of the accused by which time, the dead body of the deceased was already taken to the hospital and the accused was found in the house whom he had confined at his house so that he could not escape and after half an hour, the police had come to the place of occurrence and recovered the batali which was accordingly seized and the accused was taken into custody. PW4 is also a seizure witness as well as inquest witness which were respectively proved as Ext. 2 and Ext. 3. In his cross-examination, however, he had clarified that he was not an eyewitness. PW4 is also a seizure witness as well as inquest witness which were respectively proved as Ext. 2 and Ext. 3. In his cross-examination, however, he had clarified that he was not an eyewitness. He had also stated that the appellant and the deceased were brothers who had resided separately and before the incident, the appellant was mentally ill and underwent treatment in the Mental Hospital, Tezpur. 8. PW5 is a co-villager who had deposed of coming to know about the incident from other villagers. PW5 was however declared hostile and, with permission of the Court was cross-examined by the prosecution. PW5 had denied the statement made by him before the police. In the cross- examination made by the Defence, PW5 had however stated that he had heard that once the appellant was treated in the Mental Hospital, Tezpur. 9. PW6 is the Doctor who had conducted the post-mortem over the deceased. He had detected two sharp penetrating injuries on the left side of the chest and had given the following opinion. “Opinion: In my opinion, death is due to rupture of heart due to penetrating injury. Ext. 4 is my post-mortem report and Ext.4 (1) is my signature.” The post-mortem report was proved as Ext.- 4. 10. PW7 - Sanu Das had deposed that he was in the house of the appellant at that relevant point of time and heard him raising a hue and cry. Hearing the same, the deceased had come from his home situated nearby and at that moment, the appellant gave piercing blow with one batali on his chest as a result of which the deceased sustained serious injury on his chest. In order to escape from further assault, the deceased ran towards the road for his safety but due to the injury on his chest, he fell down on the road near his house and raised a cry. On hearing the cry, many neighbours, including the wife of PW7 had come to the place where he was lying on the ground and after providing immediate first aid had shifted him to the Kalaigaon Hospital for treatment and within a few hours, the deceased had succumbed to his injuries. He had deposed that at the time of the assault by the appellant on the deceased, the son of the deceased was also present. He had deposed that at the time of the assault by the appellant on the deceased, the son of the deceased was also present. He had identified the murder weapon which is a batali and was proved as Material Ext. 1. He was also a witness to the Seizure List which was proved as Ext. 2. In his cross-examination, he had stated that he is the brother-in-law of the appellant and that the appellant was an aggressive and violent person in nature and sometimes he used to behave in abnormal manner. He further stated that on the day of occurrence, the appellant had picked up quarrel with everyone. He also deposed that the deceased used to beat the appellant who was his younger brother and the appellant was scared of the deceased and that the appellant was taken to the Tezpur Mental Hospital whenever he suffered from mental imbalance. 11 . PW8 is the mother of the informant and the appellant was her brother-in- law. The deceased was her husband. She deposed that on that day, there was a quarrel when her deceased husband had gone to stop the quarrel and at that time, the appellant had suddenly assaulted her husband with a batali on the left side of the chest. When her son, Sanjib (PW1) had come to their house and informed about the incident, she rushed to the house of the appellant and saw her husband lying on the ground with cut injuries on his chest and he was unable to talk. First Aid was given to her husband and she could see the accused was standing there with a batali. The deceased was immediately shifted to the hospital where he was declared to be brought dead. The batali was seized by the police. In the cross-examination, she had stated that she saw the batali stained with blood. She had denied a suggestion pertaining to her statement made before the police under Section 161 of the Cr.P.C. that the deceased was taking a wooden stick and chasing the appellant to assault him. She had also denied that the appellant was suffering from mental ailment at the time of commission of the offence. 12 . PW9 is the I.O. who had deposed of being informed by PW2 (village headman) regarding the incident to the concerned Police Station and in that regard, GD Entry No. 357 dated 16.12.2015 was registered. She had also denied that the appellant was suffering from mental ailment at the time of commission of the offence. 12 . PW9 is the I.O. who had deposed of being informed by PW2 (village headman) regarding the incident to the concerned Police Station and in that regard, GD Entry No. 357 dated 16.12.2015 was registered. He had deposed of recording the statements of the witnesses, preparing of the sketch map and the Seizure List. He had also deposed that after completion of the investigation, the charge sheet was laid which was proved as Ext.-5. In his cross-examination, he had stated that PW8 had indeed made a statement under Section 161 of Cr.P.C. before him and that the batali was not sent for forensic examination. 13 . PW10 is the father of the appellant as well as the deceased and had deposed of coming to know about the assault. In his cross-examination, he had however deposed that the appellant was suffering from mental illness since before the incident and had also undergone treatment at the Mental Hospital, Tezpur. 14 . The materials which were part of the deposition as well as those proved in the trial were put to the appellant in his examination under Section 313 of the Cr.P.C. and after the response was made, the learned trial court, upon consideration of the same has passed the impugned judgment which is the subject matter of challenge in the present appeal. 15 . We have heard Shri B. Bhagawati, learned Amicus Curiae for the appellant. We have also heard Ms. B. Bhuyan, learned Senior Advocate and Addl. Public Prosecutor, Assam assisted by Ms. R. Das, learned counsel. 16 . Shri Bhagawati, the learned Amicus Curiae has submitted that though PW1 and PW7 had hinted that they were present at the place of occurrence, in the instant case there was actually no eye-witnesses. He has submitted that the entire evidence is circumstantial in nature and in absence of a continuity of the said circumstance, the guilt of the appellant could not have been said to be proved beyond all reasonable doubt. He has laid great emphasis on the aspect of the mental illness of the appellant and has drawn the attention of this Court to Section 84 of the IPC which deals with “Act of a person of unsound mind”. He has laid great emphasis on the aspect of the mental illness of the appellant and has drawn the attention of this Court to Section 84 of the IPC which deals with “Act of a person of unsound mind”. It is submitted that though the said aspect was also discussed in the impugned judgment, the conclusion arrived at by the learned trial court on the aforesaid aspect is not in accordance with law. It is submitted that the learned trial court had gone to the extent of observing that the aspect of mental illness was not stated by any of the witnesses in their examination under Section 161 of the Cr.P.C. He submits that such statements under Section 161 of the Cr.P.C. were totally irrelevant as those would not have any evidentiary value in a Court of law. 17 . As regards the observation made by the learned trial court that no plea was taken by the appellant regarding Section 84 of the IPC and no application was filed, the learned Amicus has submitted that there is no requirement in law to file any such application and if it appears from the materials on record that such a defence would be available, the duty is cast upon the learned trial court to examine the said aspect. He has also criticized the part of the judgment which had recorded that only at the time of argument, a belated reference was made to the depositions of PW-1, 2, 3, 4 and 7 on the issue. He has submitted that it was only at the stage of argument that such an issue could be raised and therefore, it was the duty of the learned trial court to examine the said aspect. He has also expressed reservation on the observations made by the learned trial court that in the chief examination, there was no statement made by the witnesses with regard to the mental unsoundness. He has submitted that the aforesaid witnesses namely, PW-1, 2, 3, 4 and 7, in their cross-examination had clearly stated about the mental illness of the appellant and it would be wholly unreasonable to discard the statements made in the cross-examination. 18 . He has submitted that the aforesaid witnesses namely, PW-1, 2, 3, 4 and 7, in their cross-examination had clearly stated about the mental illness of the appellant and it would be wholly unreasonable to discard the statements made in the cross-examination. 18 . He has additionally urged that the appellant would also be entitled to get a due consideration to bring the offence within the Exception 4 of Section 300 of the IPC as it appears from the records that the deceased had chased the appellant in an aggressive manner with a lathi and therefore, there was a sudden fight preceding the said incident. 19 . He has also criticized the part of the judgment involving Section 327 and 329 of the Cr.P.C. and has submitted that those provisions of law are not applicable in the instant case as those relate to sending a person, who is found to be suffering from unsoundness of mind for treatment at the stage of trial. The learned Amicus accordingly submits that the impugned judgment is liable to be set aside and the appellant be set at liberty. 20 . Per contra, Ms. Bhuyan, the learned Addl. Public Prosecutor, Assam, at the outset has submitted that there is no error in the impugned judgment. She has submitted that the plea sought to be raised by taking into assistance the provisions of Section 84 of the IPC would not be available. She has submitted that the burden to take such a defense is entirely upon an accused and such burden has not been discharged. She has submitted that under Section 105 of the Indian Evidence Act, in case an accused wants to take the benefit of the General Exceptions under Chapter-IV of the Indian Penal Code , the entire burden is upon him. In this regard, she has cited the case of Prem Singh vs. State (NCT of Delhi) reported in (2023) 3 SCC 372 wherein the aspect of the burden of an accused under Section 105 of the Evidence Act has been discussed. In the said case, it has been laid down that after the prosecution has discharged its initial burden of proving its case, the same is a rebuttable one which is to be rebutted by the accused in accordance with law. 21 . In the said case, it has been laid down that after the prosecution has discharged its initial burden of proving its case, the same is a rebuttable one which is to be rebutted by the accused in accordance with law. 21 . By citing the case of Virsa Singh vs. State of Punjab reported in 1958 SCR 1495 , the learned Addl. Public Prosecutor has submitted that regarding the application of Section 300 of the IPC , an objective examination can be done. She has submitted that the injuries caused on the deceased were on the vital parts of his body, namely, rupture of the heart by a chisel. 22 . The learned Addl. Public Prosecutor has accordingly submitted that there is no error in the impugned judgment and accordingly the present appeal is liable to be dismissed. 23 . The rival submissions have been duly considered and the materials placed before this Court, including the LCRs have been carefully examined. 24 . The case in hand involves the death of the deceased by injuries caused in his vital part, namely, the chest by a chisel. The injuries were caused by a chisel (batali) which had ruptured the heart. 25 . As indicated above, there are 10 nos. of prosecution witnesses and PW1, the informant had stated that he was present at the place of occurrence. He had stated that on the fateful day, there was a noisy quarrel in the house of the deceased which was adjacent and his father who was the elder brother of the deceased had gone to pacify him and at that moment, the appellant had caused the injuries to the deceased by the chisel which were fatal in nature. PW1 had categorically stated regarding the presence of PW7 also. The version of PW1 is duly corroborated by PW7 who had stated that he was in the house of the appellant at that point of time. The involvement of the appellant in the commission of the offence is evident from the materials on record and the thrust of the argument advanced by the learned Amicus Curiae is more on the aspect of mental illness said to be suffered by the appellant. 26 . On the issue of unsoundness of mind, we have carefully scrutinized the evidence of the relevant witnesses. PW-1, 2, 3, 4 and 7 had deposed regarding the mental ailment of the appellant. 26 . On the issue of unsoundness of mind, we have carefully scrutinized the evidence of the relevant witnesses. PW-1, 2, 3, 4 and 7 had deposed regarding the mental ailment of the appellant. However, to examine the said aspect, it is necessary to consider the relevant provisions as provided in Section 84 of the IPC and the interpretation given regarding the construction of the aforesaid provision which is as follows: “ 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.” 27 . While the learned Amicus may be correct in contending that the approach of the learned Trial Court was not correct in making the observations in the impugned judgment that the aspect of mental illness was not stated in the chief examination and therefore cannot be taken into consideration and the depositions as a whole is required to be taken into consideration, the aspect of discharging the burden which is cast upon an accused taking a defence under Section 84 of the IPC cannot be overlooked. Under Section 105 of the Evidence Act, the aspect of discharge of burden in case an appellant takes any of the plea under General Exception under Chapter-VI of the IPC has been laid down. For ready reference, Section 105 of the Indian Evidence Act, 1872 is extracted herein below. “ Section 105 – Burden of proving that case of accused comes within exceptions When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code , (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” In the illustrations given under the aforesaid Section, there is a specific illustration on the aspect of Section 84 which reads as follows: “ Illustrations 1. A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.” 28 . In the case of Prem Singh (supra), the aforesaid aspect of discharge of burden by an accused under Section 105 of the Evidence Act has been elaborately explained. It has been laid down that though the initial burden in a criminal case would always be on the prosecution to prove beyond all reasonable doubt, once the said burden is discharged, the onus would shift on the accused and the said burden can be rebutted by defence evidence. For ready reference, the relevant portion is extracted herein below: “65. It remains trite that the burden of proving the existence of circumstances so as to bring the case within the purview of Section 84 IPC lies on the accused in terms of Section 105 of the Evidence Act; and where the accused is charged of murder, the burden to prove that as a result of unsoundness of mind, the accused was incapable of knowing the consequences of his acts is on the defence, as duly exemplified by illustration (a) to the said Section 105 of the Evidence Act. As noticed, the mandate of law is that the Court shall presume absence of the circumstances so as to take the case within any of the General Exceptions in the Indian Penal Code , 1860.” 29 . In the aforesaid case of Prem Singh (supra), the observation made in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat reported in AIR 1964 SC 1563 has been reiterated which reads as follows: 7. The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code : the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.' 30 . The learned Amicus Curiae has laid great emphasis on the fact that no defence evidence would be required to bring in the aspect of taking a plea of mental insanity under Section 84 of the IPC if the foundational facts are there. In the instant case, we have seen that though there is reference of mental illness being suffered by the appellant, such illness was prior to the incident and not at the time of the incident. We have also noticed that the said materials would not be sufficient to come to a conclusion that the burden cast upon an accused under Section 105 of the Evidence Act stood discharged. We have also noticed that in the response to the examination of the appellant under Section 313 of the Cr.P.C., there is no mention that the appellant was suffering from any mental illness at the time of commission of the offence. The appellant also opted not to adduce any defence witness. We are of the opinion that when the prosecution was able to discharge his burden of proving the offence beyond all reasonable doubt, in absence of any evidence being adduced by the appellant to rebut the said burden, the aspect of automatic application of Section 84 of the IPC would not come in. 31 . We are of the opinion that when the prosecution was able to discharge his burden of proving the offence beyond all reasonable doubt, in absence of any evidence being adduced by the appellant to rebut the said burden, the aspect of automatic application of Section 84 of the IPC would not come in. 31 . In any case, as discussed above, the requirement under Section 84 which is a part of Chapter-IV of the IPC is that the accused is to be found insane at the time of commission of the offence. In any other words, the crucial factor is the time of commission of the offence and not prior to or thereafter. In the instant case, there is nothing on record to show that at the time of commission of the offence, the accused was suffering from any mental illness which has to come within the purview of Section 84 of the IPC which requires a legal insanity. 32 . On the aspect of a plea of insanity, the Hon’ble Supreme Court, in the recent case of Prakash Nayi alias Sen Vs. State of Goa reported in (2023) 5 SCC 673 has laid down certain important aspects which are reproduced here: “3. …Section 84 IPC recognises only an act which could not be termed as an offence. It starts with the words “nothing is an offence”. The said words are a clear indication of the intendment behind this laudable provision. Such an act shall emanate from an unsound mind. Therefore, the existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act. Such a person is incapable of knowing the nature of the said act. Similarly, he does not stand to reason as to whether an act committed is either wrong or contrary to law. Needless to state, the element of incapacity emerging from an unsound mind shall be present at the time of commission. 4. The provision speaks about the act of a person of unsound mind. It is a very broad provision relatable to the incapacity, as aforesaid. The test is from the point of view of a prudent man. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. 4. The provision speaks about the act of a person of unsound mind. It is a very broad provision relatable to the incapacity, as aforesaid. The test is from the point of view of a prudent man. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84IPC. There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law.” 33 . In the instant case, it appears that no plea of insanity was taken by the appellant during the trial. Further, there is no material available on record to show that he was suffering from a mental disorder of such an extent that he was incapable of knowing the consequence of his acts when the alleged offence was committed. The only material available is that prior to the incident, the appellant was treated in the Tezpur Mental Hospital which in our considered opinion, in itself is not sufficient to give the benefit of Section 84 of the IPC to the appellant under the facts and circumstances of this case. The benefit of Section 84 of the Indian Penal Code is available only after it is proved that at the time of committing the act, the appellant, due to unsoundness of his mind did not know about the nature of the act which he was doing and that he was not even knowing that what he was doing was either wrong or contrary to the law. 34 . In the instant case, the appellant has failed to raise any reasonable doubt in the mind of the Court regarding the plea of insanity. 35 . As discussed above, the aspect of discharge of the burden by the prosecution to prove the complicity of the appellant in the commission of the offence has been done beyond all reasonable doubt. The version of PW1 which is supported by PW7 of witnessing the appellant inflicting serious injuries on the chest of the deceased with a chisel has been duly proved. The version of PW1 which is supported by PW7 of witnessing the appellant inflicting serious injuries on the chest of the deceased with a chisel has been duly proved. The medical evidence, as adduced by the Doctor as PW6 including the Postmortem Report which has been proved as Ext.- 4 would also lend full support to the ocular evidence of PW1. The part of the body where the assault was committed is also to be taken into consideration. It was not any other less important part of the body but one of the most vital parts, namely, the chest and as per the medical evidence, the heart was found to be ruptured. Such injuries caused by a chisel and the description given in the medical evidence cannot be said to be done without knowing that the same would cause death to the person. 36 . In the conspectus of the aforesaid discussion and the materials on record, we are of the view that the conclusion arrived at by the learned Sessions Judge, Udalguri in convicting and sentencing the appellant in Sessions Case No. 38/2016 (GR Case No. 1304/2015) vide judgment dated 10.12.2020 does not warrant any interference. 37 . The appeal accordingly stands dismissed. 38 . Send back the LCRs. 38 . Before parting, we put on record our appreciation for the assistance rendered by Shri B. Bhagawati, the learned Amicus Curiae, who would be entitled to the prescribed fee.