IN THE COURT OF ADDITIONAL SESSIONS JUDGE,

UDALGURI, ASSAM

Present: N. Goswami, Addl. Sessions Judge, Udalguri,

Assam.

Date of Hearing: 21.02.2022

Date of Judgment: 07.O3.2O22

Criminal Appeal- 09/2018

u/s- 324\PC

P/S- Khoirabari

APPEALLANT: Bijay Nath @Biju

REPRESENTED BY Mr. Tarun Ch. Boro, Advocate

RESPON DENT STATE OF ASSAM

REPRESENTED BY Mr. Rajiv Sarmah, Addl. PP

JUGDMENT

1. This appeal has been filed UIS-374(3) of the Cr.P,C,

assailing the judgment and order dated 27-03-2018 in

G.R. Case No. 1158/2016, whereby the then Ld.

SDJM(S), Udalguri, Smt. Arpita Kar. convicted the

accused/appellant Sri Bijay Nath U/S 324 .IPC and

sentenced him to undergo rigorous imprisonment for

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two years and six months and to pay a fine of Rs.

20001 -.

Facts of the Case:

The facts in brief, relevant for the disposal of this

appeal, are that on 13-11-2016 one Smt. purnima Nath

lodged an FIR at the Khoirabari police station alleging

therein that on L2-lL-2013 at about 07:30 pM when her

younger brother Sri Bapukan Nath was attending a

religious ceremony at the Dhupguri Basudev Satra, the

accused came to that place and stabbed her brother

with a knife at his belly and thus caused serious injury

to her brother. The informant's brother was taken to

the Gauhati Medical College and Hospital and he

remained admitted there for treatment.

Based on that FIR, Khoirabari PS Case No. 59/2016 U/S

34t1326 of IPC was registered. police started

investigation and after completion of investigation a

charge-sheet was submitted against the accused Sri

Bijay Nath @Biju UIS- 3411326 of IpC.

4. Cognizance of the offence was taken and when the

accused was produced before the Court, charges were

framed against the accused U/S- 3411326 of IpC. When

the charges were read over to the accused, he. pleaded

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not guilty and claimed to be tried. Thus the case

proceeded to the trial stage.

5. During the course of the trial, the prosecution side

adduced evidence of eleven witnesses. The accused

was examined U/S- 313 of Cr.P.C. The accused simply

denied the prosecution case and asserted that he was

innocent. No evidence was adduced by the accused for

his defence. After perusal of the evidence produced by

the prosecution and hearing argument of both sides,

the Ld. Trial Court delivered a judgment on 27-03-20L8,

convicting the accused Sri Bijay Nath UIS- 324 of IPC.

He was acquitted from the charge U/S- 34L of IPC.

Considering the manner in which the accused

committed the crime, the Ld. Trial Court refused to

provide the benefits of the Probation of Offenders Act to

the accused. The accused was heard on the question of

sentence and thereafter he was sentenced to undergo

rigorous imprisonment for two years and six months

and to pay a fine of Rs. 2000/- with default clause for

the offence U/S 324 of IPC.

Grounds of Appeal:

6. Being highly aggrieved by the judgment and order

dated 27-03-2018, the accused/appellant filed the

present appeal on the following grounds-u'oooqlt-**n1fffi P P ea I o e / 2 o 1 B

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That the Ld. Court below erred both in law and facts

while appreciating evidence and that the impugned

judgment and order is bad in law and is liable to be

set aside.

ii. That the Ld. Lower Court committed grave error in

not considering the evidence beneficial to the

appellant.

iii. That the appellant was entitled to get protection U/S

84 of IPC. The Ld. Court below did not pay any heed

to the settled provision of law.

iv. That the independent witnesses, namely, PW-1,

PW-2, PW-3, PW-4, PW-5, PW-6, PW-7 and PW-B

had stated in their deposition that prior to the

incident, the appellant was suffering from mental

illness and he was under treatment at the LGBRIMH,

Tezpur. Hence this case falls within the purview of

Section 84 of IPC, and

v. Though PW-11 stated in his evidence that the family

members of the accused gave him some documents

issued by the Institute of Medical Health (LGBRIMH),

the Ld. Court below did not take notice of that.

Hence the impugned judgment and order is liable to

be set aside.

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7.

Points for Determination :

Whether the judgment and order dated 27-03-20t8

passed by the Ld. SDJM(S), Udalguri convicting the

accused Sri Bijay Nath UIS 324 of IPC and sentencing

him to rigorous imprisonment for two years and six

months and to pay a fine of Rs. 2000/- with default

clause is bad in law and is liable to be set aside?

Discussions, Decision and Reasons thereof:

I have heard the Ld. Counsel for the accused/appellant

and also the Ld. Addl. P.P. for the state and I have also

perused the judgment and order dated 27-03-2018, the

evidence adduced by the prosecution side and the

record of the examination of the accused U/S- 313 of

Cr.P.C. The Ld. Counsel for the accused/appellant had

emphasized the point that the accused was undergoing

treatment for his mental illness before the incident and

that this is a relevant fact. The Ld. Counsel has further

submitted that in this case the mens rea of the accused

was not proved.

The evidence on record shows that the accused was

suffering from some kind of mental illness and he was

undergoing treatment before the occur.rence and even

thereafter when his trial was continuing.

B.

9.

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PW-1 Sri Kishor Sarma had stated that before the

alleged occurrence he accompanied the accused to the

LGBRIMH, Tezpur for treatment on three occasions. The

accused used to take medicines as prescribed by the

doctors and when he did not take medicines, he

behaved like a mad man.

PW-2 Miss Purnima Nath (informant) has also stated

that prior to the date of occurrence the accused was

treated at LGBRIHM, Tezpur for his mental sickness.

She also stated that she knew that whenever the

accused did not take regular medicine he behave like a

mad person.

The other witnesses have also answered, in response to

the suggestions put to them by the Ld. Defence counset

in their cross-examination, to the effect that the

accused was suffering from mental illness and he was

undergoing treatment. This aspect was also considered

by the Ld. Trial Court in details in her judgment.

13. Referring to Section 84 of the IpC the Ld. Trial court

has observed that an act will not be an offence if it is

done by a person who, at the time of doing the same,

by reason of unsoundness of mind, is incapable of

knowing the nature of the act of what he is.doing is

either wrong or contrary to law. Section 84 of Ipc reads

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thus, * Nothing is an offence which is done by a person

who, at the time of doing i0 by reason of unsoundness

of minQ is incapable of knowing the nature of the act,

or that he is doing what is either wrong or contrary to

lavt/'.

14. The Ld. Lower Court had, after referring to various

precedents on this subject, recorded the conclusion that

in a case where the exception U/S 84 of the Indian

Penal Code is claimed, the Court has to consider

whether at the time of commission of the offence, the

accused, by reason of unsoundness of mind, was

incapable of knowing the nature of the act or that he is

doing what is either wrong or contrary to law. Hence

the crucial time is the time of commission of the

offence. The accused must be able to show that his

unsoundness of mind existed at the time when he was

alleged to have committed the offence.

15, Reverting back to our present case, the evidence on

record nowhere suggests that the accused Sri Bijay

Nath was suffering from unsoundness of mind at the

time when he entered the "Basudev Satra" premise and

stabbed the victim Sri Bapukan Nath. The evidence

reveals that the accused was in a drunken .conditionwhen he came to the Satra premise. The PW-1 Sri

Kishor Sarma has stated that in the evening when the

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"Ramayana Puthi" was being read publicly in the Satra,

suddenly accused Sri Bijay Nath came there in a

drunken condition by jumping the wall and he stated

that he would dance inside the Satra. At that time the

victim Sri Bapukan Nath and other persons present in

the function tried to restrain the accused and gave him

slaps. PW-6 Sri Dhruba Nath has stated that at about

07:30 PM while they were busy in the "naamghar", the

accused came there in heavily drunken condition and

asked for tea. PW-9 Sri Bapukan Nath (victim) also

stated that at the time of the incident the accused came

to the "naamghar" premise in the drunken condition

and he misbehaved with the persons present there.

Though these witnesses were duly cross-examined by

the defence side, their testimony with regard to the

drunken condition of the accused could not be shaken.

There is no medical evidence to show that the accused

was not under the influence of intoxication at the time

when he came to the Satra premise. In the absence of

any medical evidence, we will have to rely solely on the

oral testimony of the witnesses. The unshaken

testimonies of the prosecution witnesses have proved

that the accused Sri Bijay Nath was intoxicated at the

relevant time. Situated thus, it can be inferred that the

accused was actuated to behave in an abnormal

manner by such intoxication. The mere fact that the

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or

PW-3 Sri Hari Ch. Deka observed, while deposing before

the Couft, that the accused came in the temple and

behaved like a mad man and started dancing does not

necessarily mean that the accused was suffering from

any legal insanity when he entered the place of

occurrence.

16. During the course of the argument the Ld. Counsel for

the accused/appellant has referred to the decision of

the Hon'ble Supreme Couft in Shrikant Anandrao

Bhosale vs. State of Maharashtra 2003 SCC (Cri)

L44 in support of his argument that even if the accused

was not able to establish conclusively that he was "

insane at the time of committing the offence, the

evidence placed before the Court may raise a

reasonable doubt in the mind of the Court as regards

one or more of the ingredients of the offence, including

mens rea of the accused and in that case, the Couft

would be entitled to acquit the accused on the ground

that the general burden of proof resting on the

prosecution was not discharged. The burden of proof on

the accused to prove insanity is no higher than that

rests upon a party to civil proceedings which, in other

words, means preponderance of probabilities. The Ld.

Counsel has also referred to the decision of the Hon'ble

Gauhati High Court in Gonga Prasad Limboo vs.

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t7.

State of Assam 2018(1) GLT 53 in this regard. In

that decision the Hon'ble Court observed, inter-alia, that

whether the accused was in such a state of mind as to

be entitled to the benefit of Section 84 IPC can only be

established from the circumstances which preceded,

attended and followed the crime.

As it has been discussed above, the accused Sri Bijay

Nath came to the Satra premise in a drunken condition.

He brought a dagger with him in a clandestine manner

and after the incident he left the place of occurrence by

riding a bicycle. PW-2 Purnima Nath has stated that she

was present in the temple along with her brother

Bapukan Nath (victim). At that time the accused Bijay

Nath was continuously shouting outside the campus of

the temple. After sometime he jumped over the wall

and came inside the temple. The villagers tried to

obstruct him. Bapukan Nath also came forward.

Suddenly the accused took out a dagger from inside his

wearing clothes and dealt a blow in the stomach of her

brother. Thereafter the accused left the place of

occurrence by riding a bicycle. PW-3 Hari Ch. Deka also

stated that the accused came to the temple and

behaved like a mad man and started dancing. The

villagers requested him not to do so and pus'hed him

out. Suddenly the accused brought out a dagger and

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gave a blow in the stomach of Bapukan Nath and then

he fled away from the place of occurrence by riding a

bicycle. PW-4 Atul Saikia stated that in the evening the

accused came there and created chaotic situation by

using obscene language. He asked the PW-4 for a cup

of tea and then he said that there is nothing in the

temple and he can urinate inside. PW-6 Sri Dhruba Nath

has stated that the accused came to the "naamghar" in

a drunken condition and started a commotion by using

obscene words. PW-6 was sitting with the victim

Bapukan Nath. Bapukan Nath stood up and pushed the

accused out of the gate of the "naamghar". Then the

accused stabbed Bapukan in his belly. PW-9 Bapukan

Nath has stated that the accused came to the naamghar

in a drunken state, he entered the temple and was

about to urinate inside when they pushed him out of

the temple. Thereupon the accused took out a knife and

stabbed the PW-9 in his stomach. These conducts of

the accused suggests that he was under the influence

of alcohol. He brought his weapon in a clandestine

manner inside his wearing apparels and after the

occurrence he also fled away by using a bicycle. This

shows that the cognitive faculties of the accused were

not totally impaired at the time of the incident. Since

the victim (PW-9) pushed him out of the temple, the

accused got infuriated.

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18. The Ld. Trial Court had rightly observed that the

accused had failed to discharge his burden under

Section 105 of the Evidence Act. Section 105 of the

Evidence Act provides that when a person is accused of

any offence, the burden of proving the existence of

circumstances bringing the case within any General

Exceptions in the IPC is upon the accused and the Court

shall presume the absence of such circumstances. In

the present case the accused has not produced any

evidence to show that he was laboring under any kind

of mental disorder at the relevant time. The suggestions

made on behalf of the accused, while cross-examining

the prosecution witnesses, merely show that the

accused was suffering from some kind of mental

disorder, not necessarily at the time of the alleged

occurrence, and that he was undergoing some

treatment at the LGB Regional Institute of Mental

Health. Legal insanity is different from medical insanity

and the Court is required to ascertain whether the

accused was suffering from any legal insanity at the

time of the occurrence, before extending the benefits of

Section 84 of the IPC. In the present case the accused

has not even explained the circumstances under which

he allegedly committed the offence, during his

examination U/S 313 of Cr.P.C.

.if Annell 0e/201t)

Additiorral Sodbhru JuseUdalguri, Assam

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19. In view of the above I do not find any infirmity in the

appreciation of evidence made by the Ld, Trial Court.

The Ld. Trial Court has rightly convicted the

accused/appellant UIS 324 of IPC.

20. However, on the question of sentencing, this Court is of

the considered view that the Ld. Trial Court had not

properly considered the mitigating circumstances which

entitles the accused for a lesser punishment. The Ld.

Trial Court has considered only one circumstance,

namely, that no previous criminal record or conviction

of the accused was shown by the prosecution. The facts

that the accused is a daily wage earner, that he

remained in custody for several months during the

investigation and trial stage and that he was suffering

from some mental illness, for which he was undergoing

treatment at the LGBRIMH, Tezpur are also some

mitigating factors. The accused caused hurt to the

victim but the manner in which he committed the

offence was not diabolical in nature. This Court is of the

considered view that a sentence of six months simple

imprisonment will serve the ends of justice, Moreover

since the accused is a poor person, being a daily wage

earner, imposition of fine is not justified.

Judoo

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W

2t.

ORDER

In view of the above, the appeal is allowed. Conviction

of the accused Sri Bijay Nath @Biju UIS 324 of IpC is

upheld. However the sentence imposed upon the

accused is modified and reduced to six (6) months

simple imprisonment. The period of detention already

undergone by the accused during investigation and triar

shall be set off against the sentence of imprisonment

imposed upon him.

Let a free copy of the judgment be furnished to the

accused immediately. Let a copy of the judgment be

also furnished to the District Magistrate, Udalguri.

The accused is directed to surrender before the Ld. Triar

Court within fifteen days of the receipt of a copy of this

judgment to serve the sentence imposed upon him.

Let the Lower Court record be sent back along with acopy of this judgment.

Given under my hand and seal of this Court on this 7th

day of March, 2A22.

' (N. Goswami)Addl. Sessions Judge,

Mditicnal Sesisrcgffiffi1Udalguri, Assam "

ia.

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