IMPORTANT POINT
The burden of proving unsoundness of mind as a defence lies with the accused, and must be established at the time of the offence, which was not satisfied in this case.

JUDGMENT :

S.K. Medhi, J.

The instant appeal is preferred from jail against the judgment dated 10.12.2020 passed by the learned Sessions Judge, Udalguri in Sessions Case No. 38/16 (GR Case No. 1304/2015) u/s 302 IPC with R.I. for life and fine of Rs.2,000/- (Rupees Two Thousand).

2 . The criminal law was set into motion by lodging of an Ejahar on 16.12.2015 by the PW1. It was stated that on that day, at about 11.30 am, the deceased, who was the elder brother of the appellant-accused, on being informed that the accused person was engaged in noisy quarrel had gone to his residence to persuade and then the accused person had killed the deceased by stabbing him on the left side of the chest by a batali (carpenter chisel). The informant (PW1) is the son of the deceased.

3 . Based on the aforesaid information, the formal FIR was registered and investigation was done leading to laying of the charge sheet. The charges were accordingly framed and upon its denial, the trial had begun in which 10 nos. of prosecution witnesses were examined.

4 . PW1 is the informant who had stated that the deceased is his father and the accused is his paternal uncle and the occurrence had taken place in the year 2015. He had deposed that on the date of occurrence, the appellant had picked up a quarrel with his grandmother and the deceased, who was the father of the PW1 had asked the appellant why he was shouting and at that stage, the appellant had assaulted the father of the informant with a batali (an instrument used by carpenter for piercing wood). The deceased had accordingly died on the way to Kalaigaon Hospital. The Ejahar was proved as Ext.-1. In the cross- examination, the informant had stated that at the time of occurrence, one Sanu Das (PW7) was also present with the PW1 and the deceased. A suggestion was also given to him that the offence was committed by the accused when he was mentally ill and the said suggestion was negated. PW1 had however stated in his cross-examination that prior to the incident, the appellant was mentally ill and was treated at the L.G.B. Mental Research Centre, Tezpur.

5 . PW2 is the village Headman, who had deposed that on the fateful day, he was in the market and he saw the deceased being carried on a thela (hand pull cart). In his cross-examination, he had however stated that he heard that the appellant was suffering from mental illness.

6 . PW3 is a neighbour who had deposed that PW2 had informed him over phone that the accused had killed his brother. He had accordingly come to the house of the accused and saw the accused on the veranda whereafter, the police had come and interrogated him. PW3 is also a seizure witness and the Seizure List was proved as Ext. 2. In his cross- examination, PW3 had deposed that prior to the incident, the appellant was mentally ill and was admitted in the Tezpur Mental Hospital several times.

7 . PW4 is a cousin and the appellant is the son of his uncle. He deposed that at the relevant point of time, he was at his house and was about to proceed to Kalaigaon for work when he was informed by a cousin that the appellant had assaulted the deceased. Immediately thereafter, he proceeded to the nearby chowk where he met the village headman who had informed that the deceased had in the meantime expired. Thereafter, he came to the house of the accused by which time, the dead body of the deceased was already taken to the hospital and the accused was found in the house whom he had confined at his house so that he could not escape and after half an hour, the police had come to the place of occurrence and recovered the batali which was accordingly seized and the accused was taken into custody. PW4 is also a seizure witness as well as inquest witness which were respectively proved as Ext. 2 and Ext. 3. In his cross-examination, however, he had clarified that he was not an eyewitness. He had also stated that the appellant and the deceased were brothers who had resided separately and before the