Page No.# 1/10 GAHC010027112020 2025:GAU-AS:12072 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J)/3/2020 MOHESH KACHARI S/O. LT. KIRAN KACHARI, VILL. KHAMABAI MAJULI, P.S. HARISINGA, DIST. UDALGURI, ASSAM. VERSUS THE STATE OF ASSAM REP. BY PP, ASSAM. Advocate for the Petitioner : MR. N K BARUA, AMICUS CURIAE, Advocate for the Respondent : PP, ASSAM, :::BEFORE::: HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA HON’BLE MR. JUSTICE ANJAN MONI KALITA Date of hearing & judgment : 04.09.2025 JUDGMENT & ORDER (ORAL) (M. Zothankhuma, J) Heard Mr. N. K. Barua, learned Amicus Curiae for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam for the State respondent. 2. This criminal appeal has been filed against the judgment dated 24.07.2019, passed by the learned Additional Sessions Judge, Udalguri in Sessions Case No. 53/2016, by which the appellant has been convicted under Page No.# 2/10 Section 302 IPC and sentenced to undergo life imprisonment with a fine of Rs. 10,000/- (Rupees ten thousand), in default, further rigorous imprisonment for 6 (six) months. 3. The prosecution case, in brief, is that an F.I.R. dated 20.02.2016 was lodged by the nephew of the deceased, P.W.-2, to the effect that at about 5.30 p.m., on 19.02.2016, the deceased had gone to the house of the appellant to charge his mobile. However, a quarrel broke out between them due to which the appellant struck the head of the deceased with an axe. Pursuant to the said F.I.R. dated 20.02.2016, Harisinga P.S. Case No. 12/2016, under Section 302 IPC, was registered. The investigation was thereafter conducted by the police and the same led to a charge-sheet being filed against the appellant, on a prima facie case being found against the appellant under Section 302 IPC. 4. The learned Trial Court thereafter framed charge under Section 302 IPC against the appellant, to which the appellant pleaded not guilty and claimed to be tried. The learned Trial Court thereafter examined 10 (ten) prosecution witnesses and after having examined the appellant under Section 313 Cr.P.C., it came to a finding that the appellant was guilty of committing an offence under Section 302 IPC by hitting the deceased with an axe. The appellant was accordingly convicted and sentenced under Section 302 IPC by the learned Trial Court. 5. Mr. Barua, learned Amicus Curiae for the appellant, submits that during the cross-examination of the prosecution witnesses, it had come to light that the appellant had undergone medical treatment for mental illness. He submits that besides the issue of mental illness of the appellant, the appellant and the deceased had been having drinking liquor, prior to the assault on the deceased by the appellant. The drinking of alcohol would have exacerbated the mental Page No.# 3/10 illness of the appellant, which apparently led to the assault being made on the deceased. He submits that as there was a history of the appellant suffering from mental illness, the appellant could not have been convicted under Section 302 IPC in terms of Section 84 IPC. 6. The learned Amicus Curiae submits that the fact that the murder weapon, i.e. the axe, was seen lying next to the deceased and the fact that there had been no attempt by the appellant to run away, would imply that the appellant was not in his full sense at the time the incident had occurred. He accordingly submits that keeping in view the mental history of the appellant, the alleged act of the appellant in killing the deceased could not be said to be an offence, due to the appellant suffering from unsoundness of mind. 7. Mr. Barua, learned Amicus Curiae for the appellant thus submits that in cases involving a defence of insanity and where insanity has been proved, the question would revolve around the degree of irresponsibility. In this respect, he has relied upon the judgment of the Supreme Court in the case of Surendra Mishra Vs. State of Jharkhand, reported in (2011) 11 SCC 495. 8. Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam, on the other hand, submits that the plea of insanity had never been taken by the appellant during the trial proceedings. In fact, the issue of whether the appellant was of unsound mind had only come up at the time of cross- examination of the prosecution witnesses. She submits that when there has been no plea taken by the appellant during trial that the appellant was of an unsound mind, the said question would not be raised in the appellate stage. She also submits that the issue of insanity was however taken up by the learned Trial Court during the trial and a report had been called for from the concerned Tezpur Mental Hospital. The Lokopriya Gopinath Bordoloi Regional Institute of Page No.# 4/10 Mental Health, Tezpur submitted its report stating that the appellant was fit to stand trial. Thereafter, the Trial Court again started the criminal proceedings against the appellant. She also submits that for taking the plea of insanity, the appellant would have to establish that at the crucial point of time when the incident occurred, the appellant was of unsound mind. However, no such evidence has been produced by the appellant even though Section 105 of the Evidence Act required such a person to prove the existence of any such fact, as the burden of proof lay on that person. She accordingly submits that when the appellant has not been able to provide any evidence to show that he was mentally unsound on the date of the incident, there was no infirmity with the conviction of the appellant by the learned Trial Court, especially when the appellant had given a extra-judicial confession to P.Ws.- 2 & 4. 9. We have heard the learned counsels for the parties and also perused the materials available on record. 10. A perusal of the records and the submissions made by the learned counsels for the parties show that the deceased had gone to the house of the appellant to recharge his mobile phone. The deceased and the appellant thereafter sat down and started drinking liquor. While drinking liquor, an argument broke out between them. Thereafter, the appellant apparently hit the deceased on the head with an axe, which resulted in the appellant succumbing to his injury. 11. The appellant went to the house of P.W.-2 (informant) and confessed that he had killed the deceased. The appellant then went to the house of the wife of the deceased, i.e. P.W.-4, and informed her that he had killed her husband. P.W.- 2 & 4 had thereafter gone to the house of the appellant, where they saw the dead body of the deceased. Page No.# 5/10 12. The evidence of P.W.-4 as recorded by the learned Trial Court is as follows: “I am the informant of this Court. I know the accused. Deceased Raju Baraik is my paternal uncle. The occurrence took place about 2 years ago at about 5 PM. On the day of occurrence while I was at my house the accused came to my house and confessed that he killed Raju Baraik. Then I went to the place of occurrence and saw the dead body lying in the house of the accused. Accused went to the house of the deceased for charging his mobile phone. Both of them then consumed alcohol. I informed police. Police came to the place of occurrence and arrested the accused and sent the dead body for post-mortem examination at Udalguiri Civil Hospital. I lodged ejahar and put my thumb impression in the ejahar”. XXX by defence. “I was not present in the house of accused at the time of incident. So, I do not know how the incident took place. Police did not record my statement. I do not know as to whether I have written in the ejahar that accused confessed that he killed Raju Baraik. I know very well that accused was mentally ill. On several time he was treated at Tezpur Mental Hospital”. 13. The evidence of P.W.- 6 is to the effect that on hearing a hue and cry, he had come out of his house and rushed towards the place of occurrence. When he went to the house of the appellant, he saw many people had gathered there. He saw the dead body of the deceased on the ground in a pool of blood and his head had been cracked open. The appellant had been detained by the local people in his house and had tied his hands. P.W.-6 further stated that the appellant had confessed before him and the police that he had caused the death of the deceased by hitting him on his head with an axe. P.W.-6 further stated that the father of the appellant produced the axe before the police, which was stained with blood. 14. The evidence of P.W.-7 is similar to the evidence given by P.W.-6. However, P.W.-7 stated that the family members of the appellant had produced the axe Page No.# 6/10 which was hidden inside the house and the axe was stained with blood. 15. The evidence of P.W.-8 is to the effect that the villagers had informed him that the appellant had killed the deceased and when he went to the house of the appellant, he saw the dead body of the deceased. On the side of the dead body of the deceased, a blood stained axe was lying. When the police came to the house, the father of the appellant told them that the accused killed the deceased by means of an axe and pointed to the blood stained axe lying by the side of the deceased. 16. The evidence of P.W.-9 is to the effect that he had been told by the village people that the appellant had killed the deceased and he had seen the dead body with a cut injury on the head. 17. The evidence of PW. 10 who is the I.O., is to the effect that he was informed over phone by the Officer-in-Charge of Panery Police station that a murder had taken place, which he was to investigate. On reaching the place of occurrence, he found the dead body of the deceased with injuries on his head and the axe was also lying by the side of the dead body. The appellant has been apprehended by the village people and had been confined by them in his courtyard. The dead body was then taken to the Harisinga Police station along with the appellant. The FIR was lodged on the next day. He submitted a Charge Sheet after completing the investigation. PW. 10 further stated that he did not send the seized axe for FSL examination. 18. The examination of the appellant under Section 313 Cr.P.C. shows that the appellant has made a blanket denial, with regard to all the evidence that had been adduced against him, by simply stating that he was innocent. On the question of sentencing, the appellant pleaded for mercy and prayed for being Page No.# 7/10 given a lesser punishment under Section 302 IPC. 19. In the case of Phula Singh Vs. State of H.P., reported in (2014) 4 SCC 9, the Supreme Court has held that when an accused chooses to remain silent or in complete denial, when his statement is recorded under Section 313 Cr.P.C., the Court would be entitled to draw an adverse inference against the accused, as may be permissible in accordance with law. 20. The facts of the case, as enumerated above, clearly show that the ‘last seen theory’ could also be relatable to the facts of this case and as the incident had occurred in the house of the appellant, he would be in the best position to give an explanation as to what had happened leading to the death of the deceased. However, the appellant has not discharged his burden in terms of Section 106 of the Evidence Act. 21. A perusal of the records shows that no plea of insanity has been taken at any time prior to filing of the Charge Sheet by the appellant. Though, the question of insanity cropped up during the time of committal of the case to the learned Sessions Court and in the cross-examination of the prosecution witnesses, the appellant had been found to be mentally sound in terms of the report issued by Lokopriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur which had stated that the appellant was fit to stand trial and it was only thereafter, that the criminal proceedings was allowed to continue. 22. The above being said, the issue pertains to whether the appellant was of unsound mind at the time the incident occurred, to enable him to get the benefit of Section 84 IPC. 23. Section 84 of IPC and Section 105 of Evidence Act states as follows: “84. Act of a person of unsound mind.—Nothing is an offence which is done by a person Page No.# 8/10 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.” “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.” 24. In the case of Sudhakaran-vs-State of Kerala; reported in (2010) 10 SCC 582, the Hon’ble Supreme Court has held that when a person is bound to prove the existence of any fact, the burden of proof lies on that person. It further held that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 IPC is the time when the offence is committed. Thus, the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this fact lies on the person claiming unsoundness of mind. 25. In the present case, no plea of insanity had been taken by the appellant at any time during investigation. The plea of insanity has not been taken even by the parents of the appellant at any point of time, even though the appellant was living with his parents. The question as to whether the appellant was of unsound mind could also have been noticed by the I.O., witnesses, villagers and family members, vis-a-vis the proximity of the said mental illness and the act of killing the deceased. However, the same was never an issue at any point of time, during the investigation period and as such, it cannot now be determined as to whether the appellant was of an unsound mind at the time when the incident occurred. When the burden of proving the said issue has long gone, we cannot go back in time to prove an unproven issue. Page No.# 9/10 26. In the case of Surendra Mishra-vs-State of Jharkhand; reported in (2011) 11 SCC 495, the Hon’ble Supreme Court has held that an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. The expression “unsoundness of mind” has not been defined in the 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 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 epileptic fits and there was abnormal behavior or the behavior is queer, are not sufficient to attract the application of Section 84 of the Penal Code. 27. The Supreme Court in the above case of Surendra Mishra (supra) has further held that though an accused may suffer from certain mental stability even before or after the incident, one cannot infer on a balance of preponderance of probabilities that the accused, at the time of commission of the offence did not know the nature of his act or that it was wrong or contrary to law. 28. On considering the law laid down by the Hon’ble Supreme Court, as indicated above, and keeping in view the fact that the appellant, his family members, villagers etc had not taken any plea that the appellant was incapable of knowing the nature of his act, which would attract Section 84 IPC, we are of the considered view that the plea of the appellant being of unsound mind at Page No.# 10/10 the time of the incident, is not attracted to the facts of this case, especially when there is nothing to prove the fact that the appellant used to suffer from mental stability on and off and which is alleged to be present at the time of commission of the act. 29. For the reasons stated above, we do not find any grounds to interfere with impugned judgment passed by the learned Trial Court. 30. The appeal is accordingly dismissed. 31. Send back the Trial Court record. 32. In appreciation of the assistance rendered by Mr. N. K. Barua, learned Amicus Curiae, the fees of the learned Amicus Curiae be paid by the Assam State Legal Services Authority. JUDGE JUDGE Comparing Assistant