JUDGMENT

S.Hukato Swu, J. - This jail criminal appeal is directed against the judgment and order dated 21-11-2017 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 65 (J-J)/2015 corresponding to G.R. Case No. 1463/2014 in connection with Teok P.S. Case No. 196/2014.

2. The facts of the case in brief is that on 30-06-2014, accused Achyut Mahili killed his mother Sakhila Mahili with a dao. His younger brother PW 4, Kesharam Mahili left the accused and his mother deceased and went to give tea to his father who was working in the paddy field. On his return found his mother lying in a pool of blood. He asked his accused brother of the incidence but he kept mum. There was no eye witness to the killing of the deceased but the appellant was circumstantially suspected to be the accused. There are five witnesses who have testified that the accused had mental disorder prior to the incidence. Doctor of the Jorhat Central Jail, DW 2, DW 1 and DW 3 of the Jorhat Medical College of Psychiatric Department, Dr. Kamla Deka and Dr. Soumik Sen Gupta, Assistant Professor of LGB Regional Institute of Mental Health Tezpur testified that the accused was a schizophrenia patient. Kopi dao which was the weapon of offence was seized but not sent to forensic examination. Plea of insanity was raised at the trial but it was not accepted and it was ruled as an afterthought defence. Accused was sentenced to imprisonment for life under Section 302 IPC and to pay a fine of Rs. 5,000/- by the learned Sessions Judge, Jorhat on 21-10- 2017 which is now under consideration as jail appeal.

3. The appellant is represented by Mr. A.K. Gupta, learned Amicus Curiae who has assailed the judgment and order dated 21-11-2017 on the ground that the plea of the accused under Section 84 IPC was not duly considered in its true legal perspective and has pleaded that the accused be given the benefit of Section 84 IPC.

4. The second plea taken by the learned Amicus Curiae is that the seized weapon of offence 'kopi dao' was not exhibited and the weapon of offence was described in different manner by the I.O. and P.W.4, who is the brother of the accused and the first person to appear in the place of occurrence has testified that the dao was stained with blood. P.W. 6 Sri Goneswar Kumar who was the I.O. of the case testified that there was no blood stain present in the aforesaid kopi dao and he stated that the weapon was not sent to the FSL for expert opinion. To drive home his point of arguments, he has placed reliance on the Division Bench of our High Court in the case of Bangla Bagti-vs-State of Assam, (2012) 1     GauLR 115 , where the police officer, PW 10 failed to sent the blood stained dao for chemical examination for ascertaining whether the same contained human blood or not. The Hon'ble Division Bench held that as there was no examination regarding existence of human blood in the seized dao, it cannot be held that the dao contained human blood, far less the blood of the deceased. Therefore, it cannot be held that the said weapon was used by the accused in killing the deceased. As discussed above, none of the witnesses saw the accused person committing the alleged offence. Therefore, there is no direct evidence, on record, to hold that the accused person had caused the injuries, sustained by the deceased. Mere presence of the accused, who is the son of the deceased and who is stated by PW 2 to be mentally unsound mind, near the dead body of his father, cannot be substantive evidence to conclusively lead to believe that he had killed his father.

5. Learned Amicus Curiae has argued that in the present case at hand, the same facts are seen. The dao was seized however, the same was not sent for forensic examination. Thus, taking the ratio decided in the above mentioned case, the learned Sessions Judge should have given benefit of doubt to the accused.

6. Furthermore, there is no eye witness in the whole evidence. The nearest person who could have been an eye witne