IMPORTANT POINT
The court clarified that the burden of proof for legal insanity rests on the accused, and mere claims of mental illness do not absolve one from criminal liability without sufficient evidence.

JUDGMENT :

(Michael Zothankhuma, J.)

1. Heard Mr. D. Borah, learned Amicus Curiae for the appellant and Ms. A. Begum, learned Addl. PP, Assam.

2. The present appeal has been filed against the impugned judgment dated 06.04.2022 passed by the Court of the Sessions Judge, Udalguri, Assam in Sessions (I) Case No. 71 of 2019, by which the appellant has been convicted under Section 302 IPC for murdering his brother and has been sentenced to undergo Rigorous Imprisonment for life with a fine of Rs. 5,000/-, in default to undergo simple imprisonment for another 6 months.

3. The prosecution case in brief is that an FIR dated 03.04.2019 was submitted before the Officer In-charge, Khairabari P.S. by PW-2, who was a villager living in the village of the appellant. The FIR stated that at around 10 PM on 02.04.2019, the appellant had hit his elder brother Raju Pasowan on his head with a piece of wood while he was sleeping, due to which the elder brother Raju Pasowan died. The FIR also says that there was no other person in their family except the two brothers, who were both unmarried. Pursuant to the FIR dated 03.04.2019, Khairabari P.S. Case No. 10 of 2019 under Section 302 IPC was registered.

4. The case IO thereafter went to the place of occurrence and seized the piece of wood, which had been used by the appellant for hitting his brother. Inquest of the dead body was made and the body was sent for post-mortem examination. After examining witnesses and the appellant, the case IO submitted the charge-sheet, having found a prima facie case under Section 302 IPC against the appellant.

5. 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. 10 prosecution witnesses were examined by the learned Trial Court and the appellant was examined under Section 313 Cr.PC. The learned Trial Court thereafter came to a finding that the appellant had murdered of his brother. The appellant was accordingly convicted under Section 302 IPC and sentenced as stated in the foregoing paragraphs.

6. The learned Amicus Curiae submits that the entire case of the prosecution rests on circumstantial evidence and the extra judicial confession made by the appellant to PW Nos. 7 & 8. He submits that the circumstantial evidence do not form a complete link, to allow the learned Trial Court to come to a finding that the appellant was the only possible suspect who could have committed the crime against the deceased. He also submits that the evidence of the prosecution witnesses all point to the fact that the appellant was mentally ill and in view of Section 84 IPC, the appellant could not have been convicted of an act done while he was mentally ill. In this regard he has relied upon the judgment of the Trial Court in the case of Rupesh Manger (Thapa) v. State of Sikkim, reported in (2023) 9 SCC 739.

7. The learned Amicus Curiae submits that the alleged murder weapon i.e. the wood that has been used by the appellant to kill his brother has not been sent to the FSL for examination, to prove that the wood was the murder weapon, even though the same had been seized by the police. In this regard he relied upon the judgment of the Supreme Court in the case of A. Shankar v. State of Karnataka, reported in (2011) 6 SCC 279.

8. The learned Amicus Curiae also submits that though the appellant had allegedly given an extra judicial confession to PW-7 & 8, the same cannot be acted upon, in view of the fact that the IO was not informed of the same. He further submits that as there was a lacuna in the finding of the learned Trial Court in convicting the appellant, the impugned judgment and sentence should be set side. He also submits that as the prosecution witnesses had consistently given their testimonies to the effect that the appellant was mentally ill, it was the duty of the learned Trial Court to have the appellant examined by a civil surgeon in terms of Section 328 Cr.PC. He submits that