1 2025:CGHC:39779-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 753 of 2025 Santu Ram Tulavi S/o Murha Ram Tulavi Aged About 41 Years R/o Otekasa P.S. Durgkondal District - (North Bastar ) Kanker (Chhattisgarh) ... Appellant(s) versus State of Chhattisgarh Through S.H.O. Police Station Lohattar District - (North Bastar) Kanker Chhattisgarh ...Respondent(s) For Appellant : Mr. Pushkar Sinha, Advocate. For Respondent/State : Mr. Malay Jain, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 08 .08.2025 1. Heard Mr. Pushkar Sinha, learned counsel for the appellant. Also heard Mr. Malay Jain, learned Panel Lawyer, appearing for the respondent/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.08.14 18:35:11 +0530 2 2. This criminal appeal filed by the appellant/accused under Section 415(2) of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short, ‘BNSS’) is directed against the impugned judgment of conviction and order of sentence dated 03.03.2025, passed by the learned Additional Sessions Judge, Bhanupratappur, District (North Bastar) Kanker (C.G.) in Session Trial No. 39 of 2019, whereby the appellant has been convicted and sentenced as under: Conviction under Section Sentence Section 302 of the Indian Penal Code (for short, ‘IPC’) Rigorous imprisonment (for short, ‘R.I.’) for life and fine of Rs. 200/-, in default of payment of fine, 01 month R.I. more. 3. The prosecution’s case, in brief, is that on 11.09.2019, Sub- Inspector C.L. Sahu (PW-7), while posted as In-charge at the Police Assistance Centre, District Hospital, Dhamtari, on the basis of a hospital memo, registered an unnumbered merg intimation (Ex.P/8) regarding the deceased, Ku. Pushpa Tulavi. For conducting the inquest proceedings, he issued a notice under Section 175 of the Cr.P.C. vide Ex.P/9 and prepared the naksha panchnama vide Ex.P/10. On the same date, he prepared a Dehati Nalsi (Ex.P/11) and issued a duty certificate (Ex.P/12) to Constable Mahendra Sinha 3 (PW-5) for getting the postmortem conducted on the deceased’s body. He also prepared the postmortem form (Ex.P/13). Later that day, when Constable Mahendra Sinha returned from the District Hospital, Dhamtari, with a sealed packet handed over by the Doctor — containing the viscera of the deceased (including the heart, lungs, liver, kidneys, stomach, small intestine, and large intestine), a small vial of formalin solution, and the deceased’s worn salwar suit and undergarments with blood stains — these were seized in the presence of witnesses through a seizure memo (Ex.P/2). The matter was then forwarded to the concerned jurisdictional Police Station Lohattar for further action. 4. On 12.09.2019, Investigating Officer, Uttam Kumar Tiwari (PW- 10), while posted as Station House Officer/Sub-Inspector at Police Station Lohattar, registered a zero numbered merg intimation at the Police Assistance Centre, Dhamtari (under Police Station City Kotwali). As the case fell under the jurisdiction of Police Station Lohattar, the case diary was transferred, and Merg No. 12 of 2019 under Section 174 of the Cr.P.C. was registered vide Ex.P/15. Subsequently, Crime No. 18 of 2019 under Section 302 of the IPC was registered against the appellant, Santu Ram Tulavi, based on the FIR (Ex.P/16). On 13.09.2019, based on the complainant’s 4 account, the crime details form (Ex.P/17) was prepared, and from the scene of occurrence, blood-stained soil and plain soil were seized in the presence of witnesses (Ex.P/18). On the same date, the memorandum statement of appellant, Santu Ram Tulavi was recorded before witnesses (Ex.P/19), in which he admitted to killing the deceased Pushpa with a tangiya (axe) kept in his house and hiding it beside the house. Upon production of the weapon by the appellant, it was seized before witnesses through a seizure memo (Ex.P/20). The appellant was arrested the same day before witnesses vide Ex.P/4, and his family was informed of the arrest vide Ex.P/5. 5. On 16.09.2019, the Investigating Officer sent a query memo (Ex.P/21) to Dr. Vibhor Nanda (PW-11), Medical Officer, District Hospital, Dhamtari, for an opinion and point-wise report on the seized tangiya. Statements of prosecution witnesses — complainant, Dulari Bai (PW-1), Rameshwari Netam (PW-8), Disiram (PW-2) and Suklal Tulavi — were recorded as per their version. On 24.09.2019, through the Superintendent of Police, Kanker, a memorandum (Ex.P/22) was sent to the Joint Director, Regional Forensic Science Laboratory, Jagdalpur, for chemical examination and report on the seized articles. The acknowledgment receipt 5 (Ex.P/23) was received, and the forensic examination report dated 26.11.2019 was marked as Ex.P/24. Thereafter, on 27.10.2019, a request letter (Ex.P/25) was sent to the Chief Medical Officer, Community Health Centre, Bhanupratappur, to obtain the deceased’s medical treatment records. When questioned, the appellant’s wife stated that the appellant was not undergoing any mental health treatment; this statement was recorded as Ex.P/26. On 04.11.2019, when Disiram Tulavi produced a discharge ticket from the District Hospital Komaldev, Kanker, it was seized before witnesses vide Ex.P/3. Statements of other witnesses — Manesh Kumar Tulavi (PW-4), Basai Bai Gawde, and Kumar Pudo — were also recorded in writing as per their accounts. 6. The dead body of the deceased was sent for postmortem to the District Hospital, Dhamtari (C.G.), where Dr. Vibhor Nanda (PW- 11) conducted the examination vide Ex.P/13 and opined, as recorded in his postmortem report (Ex.P/26), that the deceased had died approximately 10 to 18 hours prior to the examination due to a head injury. He further stated that on 17.09.2019, in response to a query from the Station House Officer of Lohattar regarding the seized tangiya (axe) received in sealed condition, he examined and measured it and opined that such an injury could indeed have been 6 caused by a blow from this weapon. 7. After due investigation, the police filed a charge-sheet against the appellant before the jurisdictional criminal court. The case was committed to the Court of Sessions for trial, from where the learned Additional Sessions Judge, Bhanupratappur, District (North Bastar) Kanker (C.G.), received it on transfer for trial, hearing, and disposal in accordance with law. 8. The learned trial Court framed a charge against the appellant for the offence punishable under Section 302 of the IPC and proceeded to trial. The appellant pleaded not guilty and entered into defence, asserting that he had not committed any offence and had been falsely implicated. 9. To prove its case, the prosecution examined as many as 11 witnesses and exhibited 27 documents. The defence did not examine any witnesses. 10. Upon appreciation of the oral and documentary evidence on record, by judgment dated 03.03.2025, the learned trial Court convicted the appellant for the offence punishable under Section 302 of the IPC and sentenced him as mentioned in paragraph 02 of this judgment, which is now under challenge in this criminal appeal 7 preferred by the appellant. 11. Learned counsel for the appellant submits that the learned trial Court, while passing the impugned judgment, failed to appreciate that the prosecution has not proved its case beyond reasonable doubt. It is contended that, as per the prosecution, Dulari Bai (PW-1), mother of the deceased, is projected as an eyewitness to the incident; however, she is not a reliable witness in view of the material omissions and contradictions in her deposition. He further submits that immediately after the incident, she did not lodge any report against the appellant, which creates serious doubt. In her cross-examination, she admitted that she was sleeping at the time of the incident and did not witness it, further stating that no third person was seen at the place of occurrence. Similarly, Disiram (PW-2), father of the deceased, admitted in paragraph 09 of his deposition that the appellant was a lunatic and that, after consultation with family members, and merely on suspicion, they alleged that the crime was committed by the appellant. Furthermore, the prosecution examined Dr. Priti Singh (CW-1), who admitted that the appellant’s IQ level was below that of an average person and was in the borderline category. 8 12. In light of these testimonies, it is submitted by the learned counsel for the appellant that the conviction of the appellant cannot be sustained and he deserves to be acquitted of the charge under Section 302 of the IPC. Therefore, the judgment of conviction and sentence passed by the learned trial Court is liable to be set aside as being contrary to the material available on record. 13. Per contra, learned State counsel supported the impugned judgment of conviction and the order of sentence, submitting that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt by leading cogent and reliable evidence. It was contended that there is ample material on record to clearly connect the appellant with the commission of the offence. The learned trial Court, after due and proper appreciation of the oral and documentary evidence available on record, has rightly convicted and sentenced the appellant. Therefore, the findings recorded by the learned trial Court are well-reasoned, based on proper appreciation of evidence, and do not call for any interference. Accordingly, the appeal is liable to be dismissed. 14. We have heard learned counsel for the parties, considered their rival submissions with due care, and have perused the entire record with utmost circumspection. 9 15. The prosecution’s case rests primarily upon the testimonies of two material witnesses — Dulari Bai (PW-1), mother of the deceased and an alleged eyewitness, and Disiram (PW-2), father of the deceased. 16. Dulari Bai (PW-1) has deposed in her examination-in-chief that the appellant, who had been residing in her house for about one and a half years after being brought there for exorcism rituals, suddenly struck her daughter above the ear with an axe while she was sitting near the fireplace, leaving the weapon embedded until it was removed by PW-2. However, in cross-examination, she categorically admitted that she was asleep at the time of the incident, had not witnessed the assault, and awoke only to find her daughter struggling for life. She further confirmed that no person other than herself and the deceased was present in the house, rendering her claim of being an eyewitness untenable. 17. Disiram (PW-2), father of the deceased stated in his examination-in-chief that Dulari Bai (PW-1) had informed him that the appellant was the assailant. Yet, in cross-examination, he conceded that the appellant was mentally unstable, had been brought for exorcism to treat his mental illness, and that the allegation rested solely on suspicion after discussion among 10 relatives. He further admitted that he had neither seen the appellant at the scene nor thereafter, and that the police never interrogated the appellant in his presence. These admissions, taken together, seriously impair the credibility of both witnesses and leave the prosecution without any trustworthy direct evidence to sustain the conviction. 18. In this backdrop, the testimony of Dr. Priti Singh (CW-1), Clinical Psychologist at Pandit Jawaharlal Nehru Medical College, Raipur, assumes significance. Upon referral from Professor Dr. Manoj Kumar Sahu of the Department of Psychiatry, she conducted a comprehensive intellectual capacity assessment of the appellant, recording an IQ score of 80 — which falls at the upper end of the borderline intellectual functioning range (70–85), the normal range being 86–100. She explained that such borderline classification may arise from factors such as limited educational exposure and prolonged non-use of acquired skills, in addition to inherent cognitive limitations. Importantly, she opined that, despite this classification, the appellant possessed the capacity to understand the nature and consequences of the proceedings against him. Viewed in conjunction with the absence of any credible eyewitness account and the admitted basis of suspicion rather than direct 11 observation, the prosecution’s case rests more upon conjecture than proof beyond reasonable doubt. 19. The plea of insanity was raised by the appellant before the learned trial Court, as is evident from the perusal of the impugned judgment. However, the said plea was negatived by the learned trial Court, which proceeded to convict the appellant. 20. The sole question that arises for determination before this Court is whether the appellant was, at the time of the incident, suffering from such unsoundness of mind as would attract the protection of law, and if so, whether he is entitled to the benefit under Section 22 of the Bhartiya Nyaya Sanhita, 2023 (corresponding to Section 84 of the IPC). 21. Section 22 Bhartiya Nyaya Sanhita (BNS), 2023 reads as under:- “22. 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.” 22. The Hon’ble Supreme Court in Bapu v. State of Rajasthan, reported in (2007) 8 SCC 66 held as under:- 12 “8. Under Section 84 IPC, a person 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. 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 the 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 13 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.” 23. In the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, reported in AIR 1964 SCC 1563, the Court held at para 7 as under:- “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 or 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 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 14 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.” 24. In the matter of Rupesh Manager (Thapa) v. State of Sikkim, reported in (2023) 9 SCC 739, the Court reiterated that standard of proof to prove the defence under Section 84 of the IPC is only a reasonable doubt. It is also well settled that a distinction has to be made between the legal insanity and medical insanity and it is not at all necessary to prove medical insanity. Another Bench of three Hon'ble Judges of the Supreme Court Court in the case of Surendra Mishra vs. State of Jharkhand, reported in (2011) 11 SCC 495 in paragraphs 11 to 13 held thus: “11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Indian Penal Code and it has mainly been treated as equivalent to insanity. But the term insanity carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental 15 ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to there was abnormal epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Indian Penal Code. 12. The next question which needs consideration is as to on whom the onus lies to prove unsoundness of mind. 13. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Indian Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is to take into consideration 16 the imperative circumstances and the behaviour preceding, attending and following the crime. Behaviour of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him.” 25. Similarly, in Dashrath Patra v. State of Chhattisgarh, CRA No. 821 of 2025 (decided on 08/05/2025), the Hon’ble Supreme Court held at paras 10, 11 & 12 as under:- “10. We are surprised to note that after the evidence was recorded, the prosecution did not move the Trial Court seeking permission to medically examine the appellant. The law lays down that no act done by a lunatic is an offence. The reason is that a lunatic is not in a position to defend himself. Right to defend a charge for an offence is a fundamental right guaranteed under an offence Article 21 of the Constitution of India. 11. The medical examination of the appellant made during the pendency of the appeal is meaningless. The reason is that it was made more than 5 years after the incident. 12. Looking to the depositions of the witnesses which we have quoted above, we are of the view that this is a case of more than a reasonable doubt about the 17 insanity or unsoundness of mind of the appellant. Hence, the benefit of doubt must go to the accused. In these circumstances, the impugned judgment cannot be sustained and the same are set aside.” 26. In a recent judgment of this Court in Prakash Nayi Alias Sen vs. State of Goa, reported in (2023) 5 SCC 673 after reiterating the above principles it is held that the procedure prescribed in Chapter XXV of the Code of Criminal Procedure, 1973 clearly indicates that there cannot be an acquittal on the ground of unsoundness of mind unless the act is actually done. The whole idea is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the court is to find the remedial measures and do complete justice. This Court held in para 17 thus: “17. Having noted the scope and ambit of Chapter XXV CrPC, including the provisions incorporated by way of amendments in the year 2009, one has to take into account the fact that the court has a larger role to play while considering the case under Section 84 IPC. If a friendly approach is required to be followed during the trial, when adequate powers have been conferred upon the court to even discharge an accused on the ground of a n unsound mind, the same reasoning will have to be applied with much 18 force when it comes to Section 84 IPC.” 27. In the present case, PW-1 and PW-2 both stated that the appellant was mentally unstable, brought for exorcism to treat his mental illness. (CW-1) Dr. Priti Singh’s report placed the appellant at borderline intellectual functioning with an IQ score of 80, but capable of understanding legal proceedings. When this mental profile is considered alongside the absence of credible eyewitness testimony and the admitted foundation of mere suspicion, it becomes clear that the prosecution’s case rests on conjecture rather than concrete proof. 28. Furthermore, there was no known or proven motive for the appellant to kill the deceased. The prosecution has not suggested any prior enmity, dispute, or provocation. 29. The absence of motive, especially in cases involving close kin, further supports the inference that the act was not driven by rational intent, but rather by a disturbed mental condition. 30. The above proposition has been reiterated in Devidas Loka Rathod v. State of Maharashtra and Ratan Lal v. State of Madhya Pradesh, reported in (2018) 7 SCC 718, as also in Surendra Mishra (supra) and Bapu (supra), wherein it has been held that an accused 19 must prove legal insanity, not medical insanity. Therefore, in the present case, the consistent testimony of family members of the deceased regarding the appellant’s mental condition; the absence of any motive; the failure of the prosecution to disprove the plea of insanity or to investigate it properly; and the behaviour exhibited by the appellant during the incident together create a strong presumption of legal insanity, warranting the protection of Section 22 of the BNS, 2023. 31. Applying the aforesaid principles to the facts of this case, we are of the view that there exists more than a reasonable doubt about the insanity or unsoundness of mind of the appellant. The benefit of doubt must, therefore, go to the appellant. The prosecution has failed to prove the guilt of the appellant beyond reasonable doubt, and its own evidence negates its theory. Accordingly, the conviction under Section 302 of the IPC is liable to be set aside. 32. For the foregoing reasons, the criminal appeal filed on behalf of appellant-Santu Ram Tulavi is allowed. His conviction and sentence under Section 302 of the IPC is hereby set aside. He is acquitted of the said charge. The appellant, who is in jail, shall be released forthwith if not required in any other case. 20 33. Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to furnish a personal bond in terms of Form No. 45 CrPC in the sum of Rs. 25,000/- with one surety in the like amount before the Court concerned, effective for a period of six months, along with an undertaking to appear before the Hon’ble Supreme Court in the event of filing of a Special Leave Petition against this judgment. 34. The learned trial Court record along with a copy of this judgment be sent back immediately to the Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Brijmohan