The burden of proof on the defense regarding the plea of insanity under Section 84 of the IPC and the requirement for establishing legal insanity.

JUDGMENT

Suman Shyam, J. - Heard Mr. A. Ahmed, learned Amicus Curiae, appearing for the appellant. We have also heard Mr. M. Phukan, learned APP, Assam, appearing for the State/ respondent No.1. None has appeared for the other respondents.

2. The instant appeal is directed against the judgement and order dated 23/01/2011 passed by the learned Sessions Judge, Tinsukia in connection with Sessions Case No. 33(T)/2008, convicting the sole appellant under Section 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and also to pay fine of Rs. 3,000/- and in default, to undergo rigorous imprisonment for one month.

3. The prosecution case, in a nutshell, is that on 29/07/2007 at around 9 a.m., the accused had dealt cut blows on the head of Gobinda Kahar, as a result of which, he had sustained grievous injury and had to be shifted to Tinsukia Civil Hospital wherein, he had died.

4. On 29/07/2007, seven persons including PWs. 2, 3, 4, 5, 6 and 8 had lodged an ejahar with the Officer-in-Charge of Panitola Police Out Post coming under the Tinsukia Police Station. Upon receipt of the ejahar, GD entry No. 511 dated 29/07/2007 was made in the Panitola Out Post and the ejahar was forwarded to the Tinsukia Police Station for registration of a case. Accordingly, Tinsukia Police Station case No. 405/2007 was initially registered under Section 326 of the IPC. Subsequently, after the death of the injured, section 302 of the IPC was added. Upon completion of investigation in connection with Tinsukia PS case No. 405/2007, the IO had submitted charge sheet against the appellant, based on which, charge was framed under section 302 of the IPC. Since the appellant had pleaded not guilty and claimed to be tried, the matter went up for trial.

5. The prosecution had examined as many as 11 witnesses including the doctor who had conducted the post mortem examination as well as the IO Shri Chintaharan Barman, so as to bring home the charge. However, surprisingly enough, the sole eye witness in this case Smt. Faguni Kahar i.e. the wife of the deceased was not examined as a prosecution witness. Noticing the above, Faguni Kahar was examined as a Court Witness (CW) No.1. Since the CW-1 is the sole eye witness in this case, let us first analyze the testimony of this witness.

6. In her deposition, CW-1 had stated that the deceased was her husband and he was residing in their house at the time of occurrence. On the date of the incident, the deceased had gone to his son's house at about 7 a.m. and came back at about 9 a.m. She was watching him coming back to their house across the field when she saw accused Meghu dealing two cut blows to her husband by means of a dao, when he was about to reach home. At that time, her husband fell down; he had sustained injuries on his head. On reaching there, she had held her injured husband and also raised alarm, as a result of which, neighbouring people gathered there and apprehended the accused. Later on, they handed the accused over to the Police. CW-1 has also stated that her husband was put into a thela (hand-cart) and taken to the local Tea Estate Hospital and from there, to the Dibrugarh Medical College and Hospital, where he had breathed his last. CW-1 has also deposed that the Police had seized the dao and the people of the VDP took the same from the accused. She has also categorically deposed of having seen the accused hacking her husband from a distance of about 25/30 ft. During her cross examination, the testimony of this witness could not be shaken.

7. Pw-1 Dr. Netromoni Kakoti was the doctor on duty in the Assam Medical College and Hospital, Dibrugarh, who had conducted the post mortem examination on the dead body. According to the post mortem report (Ext.1), there were three incised wounds on the dead body, which are of following nature:-

"Injuries :-

(i) Incised wound of size 12 cm with 12 numbers of stitches present over the right parieto-temporal bones longitudinal and laterally in the bone depth.