The burden of proving insanity lies with the defense, and every minor mental aberration does not constitute legal insanity.

A. Hazarika, J.

1. Heard Mr. B. Cherry, learned Amicus Curiae for the appellant. Also heard Mr. P.C. Gayan, Addl. Public Prosecutor, Assam.

2. This appeal has been preferred by the accused from Jail, challenging the legality and validity of the judgment and order dated 4.3.2002 passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court, Sonitpur, Tezpur, convicting the accused appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life.

3. The appellant herein is alleged to have killed his own mother namely Homeswari Rajowar. The facts leading to prosecution of the appellant are that on 23.3.1997 one Sri Betharam Boro lodged an FIR with the Officer-in-Chatrge, Bebejia Police Outpost alleging inter alia that at about 6 p.m. on 22.3.1997 Sri Dhebua Rajowar, son of Sri Pirika Rajowar of Balisia Bahbari Tea Estate killed his mother by inflicting injuries on her person with sharp weapon as soon as she returned home after day long begging.

It is further stated in the said FIR that he was informed about the said occurrence at about 7:30 p.m. and the villagers had managed to apprehend the accused and kept him tied. While explaining the delay in loading the FIR, it is stated that due to lack of conveyance the FIR could not be lodged in the night itself.

4. Upon receipt of the FIR, the In-Charge of Bebejia Police Outpost made a GD. Entry No. 386 dated 23.3.1997 and forwarded the FIR to the Officer-in-Charge (O/C for short) of Tezpur Police Station and on receipt of the same, Tezpur P.S. Case No. 157/97 was registered under Section 302 I.P.C. After completion of the investigation police submitted charge-sheet under Section 302 IPC vide Ext. 3. Since the offence alleged to have been committed by the accused appellant is exclusively triable by the Court of Sessions, it was committed by the learned Judicial Magistrate, 1st Class, Tezpur to the Court of learned Sessions Judge, Tezpur, Sonitpur, by an order dated 3.1.2000 passed in GR. Case No. 378/97 (corresponding Tezpur P.S. Case No. 157/97).

5. On commitment, the learned Addl. Sessions Judge, Tezpur framed charge against the accused appellant under Section 302 I.P.C.

6. The charge so framed being read over and explained to the accused he pleaded not guilty and claimed to be tried. Hence trial proceeded against the accused appellant. During the course of trial prosecution examined as many as 10(ten) witnesses (P Ws for short) to prove its case while defence examined none. Defence plea is of complete denial.

7. PW-1, Betharam Boro is a reported witness who lodged the FIR at Bebejia Police Outpost. He stated that on being informed by the father of the accused appellant about the occurrence, he went to the place of occurrence and saw 4(four) injuries in the neck of Homeswari who had died already. The accused appellant was tied there for the whole night. Night had descended in the mean time. The village where they lived being an interior place, they could not inform the police in the night of occurrence itself. He had lodged the FIR next day.

During cross-examination he stated that he had not seen the incident.

8. P.W. 2, Sri Dulal Rajowar is a child witness aged about 10 years. During his deposition he stated that the accused appellant is his elder brother. On the day of occurrence the accused appellant came charging the P.W. 2 and pressed his neck. However, his father separated him mom the accused appellant and then he ran away towards the village. Later on coming back, P.W. 2 saw that the accused appellant took his mother out of the road, assaulted her with a dao and killed her. Although the P.W. 2 asked the accused appellant to leave her, the accused appellant did not do so and killed his mother Homeswari. Thereafter three or four villagers including Deben (P.W. 6) caught the accused appellant. P.W. 2 further stated that his father (P.W. 3) also came with Deben Bhengra. The weapon i.e. the dao was thrown into Ghagra river by the accused appellan