Gauhati High Court
CRL.A(J)/116/2019 on 4 March, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
GAHC010282222019
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A(J)/116/2019
Ganesh Manki Munda,
S/o. Lt. Plus Munda @ Chaura Munda,
Village-Jagyapur, P.S.
Mazbat, District Udalguri.
.....Appellant
-Versus-
The State of Assam
Represented by PP, Assam.
......Respondent
For Appellant : Ms. R. D. Mozumdar, Amicus Curiae
For Respondent : Ms. B. Bhuyan, Additional Public Prosecutor
Date of Hearing : 21.11.2024
Date of Judgment : 04.03.2025
CRL.A(J)/166/2019 Page 1
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(Mridul Kumar Kalita, J.)
1. Heard Ms. R. D. Mozumdar, learned Amicus Curiae for the appellant.
Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor appearing for the State of Assam.
2. This Criminal Appeal (J) has been registered on receipt of a petition of an appeal under Section 383 read with Section 374 of the Code of Criminal Procedure, 1973 from one Shri Ganesh Manki Munda, who is presently serving out his sentence in the District Jail, Udalguri. The appellant has impugned the judgment dated 12.06.2019 passed in Sessions Case No. 49/2016 by the Court of the learned Session Judge, Udalguri, whereby he has been convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life.
3. The facts relevant for consideration of the instant appeal, in brief, are as follows:
i. On 14.03.2016, one Shri Bhim Urang had lodged an FIR before the Officer-in-Charge of Mazbat Police Station, inter-alia, alleging that on that day (14.03.2016) at about 5.00 a.m., after getting up from the bed, he saw a blood-stained bicycle and a bag containing a severed human head in his courtyard.
CRL.A(J)/166/2019 Page 2 ii. Thereafter, he immediately informed the local Gaonbura.
Sometime later, he found the present appellant, Ganesh Manki Munda, lying on a field behind his house. The FIR further states that upon inquiry, the appellant admitted to having beheaded his father at his residence in Jagyapur and carrying the severed head in a bag. Additionally, the FIR mentions that the appellant informed the first informant that an unknown person had cut off his penis.
iii. On receipt of the said FIR, the Officer-in-Charge of Mazbat Police Station registered the Mazbat Police Station Case No. 220/2016 under Section 302 of the Indian Penal Code and initiated the investigation.
iv. During the course of the investigation, the Investigating Officer visited the place of occurrence and prepared the sketch map of the crime scene, recorded the statement of witnesses, collected the severed head and the headless body of the deceased. He got the inquest over the dead body done, sent the dead body for post-mortem examination, seized the relevant materials and took other usual steps necessary during the investigation of a criminal case.
v. Ultimately, on completion of the investigation, charge sheet was laid against the present appellant under Section 302 of the Indian Penal Code. The appellant was also arrested during the course of the investigation.
CRL.A(J)/166/2019 Page 3
vi. The appellant faced the trial while remaining in custody. As he
was unable to engage a counsel of his own, he was afforded the benefit of a Legal Aid Counsel to defend him during the trial by the Trial Court.
vii. On 06.06.2016, after considering the materials available on record and after hearing the accused as well as the prosecution side, the Court of learned Sessions Judge, Udalguri, framed the charge under Section 302 of the Indian Penal Code against the appellant. When the said charge was read over and explained to him, the appellant pleaded not guilty to the same and claimed to be tried.
viii. To establish the charge against the appellant, the prosecution examined 10 witnesses. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he admitted to committing the offence of killing his father. He declined to present any evidence in his defence. ix. Ultimately, by the judgment, which is impugned in the instant appeal, the Trial Court convicted and sentenced the appellant in the manner as already described in paragraph No.2 herein above.
4. Before considering the rival submissions of both the sides, let us go through the evidence available on record.
5. PW-1, Shri Bheem Orang, who is the informant of this case, has deposed that on the day of the occurrence of the incident, at about CRL.A(J)/166/2019 Page 4 5.30 a.m. in the morning, he saw a bicycle on their veranda kept against the wall of the house. He also saw that there were blood stains on the bicycle, and nearby the cycle a bag was lying which was also stained with blood. He found that the said bag contained a severed human head. He has also deposed that thereafter, he informed the matter to the village headman, who came to the house of the informant on getting the said information. He has also deposed that there were blood stains in the house premises.
6. He has further deposed that following the blood trail, they proceeded towards the backside of the house and after proceeding about half a kilometer, they found the appellant sitting nearby the roadside. In the meanwhile, police also came and the appellant confessed that he had beheaded his father and taken the head in a bag. The appellant also told the PW-1 that he had carried the head of his father in a bag riding a bicycle and kept the said bicycle in the bag containing the head in the veranda of the house of the PW-1.
7. The PW-1 has further deposed that thereafter, he lodged the FIR before Mazbat Police Station, which is exhibited as Exhibit-1. He has also deposed that the police had seized the bicycle and prepared the seizure list. He exhibited the seizure list as Exhibit-2. The PW-1 has further deposed that the police took out the severed head from the bag and the PW-1 identified the head to be of Piyush Munda, who is the father of the appellant. He also deposed that the other family members of the appellant also identified the head of the Piyush CRL.A(J)/166/2019 Page 5 Munda. Thereafter, the appellant was arrested by the police and was taken to his house. The PW-1 also accompanied the police along with the appellant to his house where they found the remaining part of the body of Piyush Munda. The police also recovered one axe having a bamboo handle and one sickle having wooden handle from the house of the appellant. The same were seized in presence of the witnesses and seizure list was prepared. Exhibit-3 is the said seizure list. The PW-1 has further deposed that the Executive Magistrate came to the place of occurrence and conducted inquest over the dead body. The PW-1 has also deposed that while following the blood marks he also found one severed penis and two testicles and showed them to police. The police took them along with the severed head to the police station.
8. During cross-examination, the PW-1 has deposed that the appellant, during his interrogation, has told the police that his private part was completely cut by someone. He also deposed that he noticed bleeding from the person of the appellant. The PW-1 had denied the suggestions put to him by the learned defence counsel during his cross-examination.
9. The PW-2, Shri Indra Bhumij, has deposed that the appellant Shri Ganesh Manki Munda is known to him and he identified him in the dock in the court room. He also deposed that the deceased Piyush Munda was the father of the appellant. He has also deposed that his house is about one furlong away from the house of the appellant. He CRL.A(J)/166/2019 Page 6 has deposed that on the next morning of the date of occurrence at around 5.30 a.m., when he proceeded to the river bank to attend the call of nature, he met one Ajay Munda who told him that somebody has assaulted the appellant, Ganesh Munda and there were some blood stains in his house. He further deposed that after attending the call of nature, he came to the house of appellant but he did not find the appellant there. He saw blood marks in front of the door of the house of the appellant and he suspected something wrong on seeing the blood. The PW-2 has further deposed that thereafter, he called one Gal Bahadur Bishwakarma and went to the Jagyapur Police Patrol Post and informed the matter to the In-charge. Thereafter, he along with police personnel came to the house of the appellant. They found the door of the house was locked from the outside. He has further deposed that when police focused the torchlight inside the room, they saw a dead body and the head of the dead body was not there. Thereafter, the police informed the matter to Mazbat Police Station and police from Mazbat Police Station came to the place of occurrence and they apprehended the appellant at village Khusurabari. He has further deposed that thereafter, the police asked them to open the door and accordingly, the PW-2 along with a sweeper opened the door and took the beheaded dead body to the courtyard. The dead body was found lying on the floor of the room. He has also deposed that an axe with bloodstains was found lying beside the dead body and a sickle was also found beneath the bed.
CRL.A(J)/166/2019 Page 7 The sickle was also having bloodstain. The PW-2 has further deposed that later on he came to know that one severed head was recovered by police from the house of some other person.
10. During his cross-examination, he has deposed that he came to know that the appellant was taken to Mental Hospital Tezpur by his elder brother.
11. The PW-3, Shri Dharmalal Giri has deposed that the incident occurred on 14.03.2016 at around 5.00 a.m. He has also deposed that one Dulal Chandra Das, ASI of Police has informed him over phone that Piyush Munda has been killed by his son Ganesh Manki Munda (appellant). The PW-3 has further deposed that thereafter, he came to the house of the appellant and saw that a dead body was lying on the floor inside the room. He also noticed one bloodstained axe and one sickle beside the dead body which were seized by the police and he signed on the seizure list as a seizure witness.
12. During cross-examination, he answered in the negative to the suggestive questions put to him by the learned defence counsel.
13. The PW-4, Smt. Lakhimani Orang has deposed that the appellant Ganesh Manki Munda is her nephew and the informant is her son. She has deposed that the appellant brought a head of a person separated from the body to her house in a polythene bag and she thereafter, informed the village headman and police. It was found to be the head of Piyush Munda who is the father of the appellant.
CRL.A(J)/166/2019 Page 8
14. During cross-examination, she has deposed that she has not seen who brought the head separated from the body to her house. She also did not see who beheaded Piyush Munda.
15. The PW-5, Shri Bal Bahadur Bishwakarma has deposed that on the day of occurrence, he went to the house of the appellant and saw blood marks in the courtyard. He has also deposed that thereafter, the police came to the house of the appellant and found one beheaded body inside the house. He has also deposed that later on the head was found in the house of Bhim Orang. His cross- examination was declined.
16. The PW-6, Dr. Bhadrakanta Sharma, who conducted the post-mortem examination of the dead body of the deceased, has deposed that on 14.03.2016 he was working as Medical and Health Officer at Udalguri Civil Hospital. On that day, he performed the post-mortem examination upon the dead body of Piyush Munda in connection with Mazbat P.S. Case No.20/2016. He has deposed that on examination he found following:
External Appearance Built-Average, Rigor Mortis Present Wound Position and Character :
1. Several Abrasion on the anterior Chest Wall
2. Two fingers in the middle finger are amputated from the right hand
3. Heavy Laceration on Neck and Face Seen and Decapitated Head Cranium and Spinal Canal :
CRL.A(J)/166/2019 Page 9
Scalp, Skull, Vertebrae :
Several lacerations seen in skull
Skull bone intact
Cervical vertebrae are severely damaged
Spinal cord:
Dissection and laceration in neck
Organs of generation
Whole nerves and scortum is extended
Thorax:
Walls, ribs and cartileges-
Several abrasions seen on interior chest wall Pleurae-intact, larynx and trachea-intact Congested lungs-congested vessels-intact Heart-intact Abdomen :
All organs are intact More detailed description :
1. Several abrasions on the interior chest wall
2. Amputated index and middle finger on the right hand
3. Amputated penis at the bone and scrotum
4. Heavy laceration on the neck and face seen and decapitated head
5. Dissection, spinal cord at cervical level
17. The PW- 6 has further deposed that in his opinion, the death was due to shock and hemorrhage, due to severe injuries in neck with CRL.A(J)/166/2019 Page 10 decapitation of head and all the injuries are ante-mortem. He has also deposed that the time since death was approximately 10 to 14 hours. He exhibited the postmortem examination report as Exhibit-4 and his signatures as Exhibit-4(1). His cross examination was declined by the defence side.
18. The PW-7, Shri Bhadeshwar Panika, who is the village headman of Khusrabari village, has deposed that the incident occurred on 14.03.2016 at about 5.00 a.m. On that day, the Chowkidar of their village, Kartik Orang, came to his residence and informed him that a cut head of a human body is kept in the house of his father and the said head is of Piyush Manki Munda. He was also informed by Kartik Orang that the person, who brought the cut head has fled away. The PW-7 has further deposed that thereafter, he found the appellant lying on the road and on being asked, he confessed before him that he killed his father. The PW-7 has further deposed that thereafter, he informed the police and they came to the place of occurrence. He has deposed that the appellant confessed before the police and the police opened the bag and found the cut head of Piyush Manki Munda therein. Thereafter, police seized the cut head and bicycle in his presence and he exhibited the seizure list as well as his signatures thereon as Exhibit-2 and Exhibit-2 (2) respectively.
19. During his cross-examination, the PW-7 has deposed that the appellant was lying smeared with blood. He also deposed that on opening the pant of the appellant, they noticed that his penis was CRL.A(J)/166/2019 Page 11 amputed. He was asked a couple of suggestive questions by the learned defence counsel, which were answered in the negative by him.
20. The PW-8, Shri Ajoy Manki Munda, has deposed that he saw appellant in the lying condition. He also deposed that the chowkidar of the village informed the village headman. Thereafter, local people gathered there and on being asked, the appellant confessed before the local people that quarrel took place between him and his deceased father and in the course of the quarrel, he killed his father.
21. During cross-examination, he deposed that when he saw the appellant, he noticed blood was oozing out from his head. He denied the suggestion that the appellant did not confess before him as well as local people.
22. The PW-9, Shri Dulal Chandra Das has deposed that he is the Assistant Sub-Inspector of Police and was posted in Jagyapur Police Patrol Post under Mazbat Police Station at the time of occurrence. He has deposed that on the day of occurrence, villagers informed him over phone that Ganesh Manki Munda had beheaded one person.
Thereafter, he went to the place of occurrence and saw the beheaded dead body of the deceased. He has also deposed that the Magistrate conducted inquest over the dead body and obtained his signature as an inquest witness. He exhibited the inquest report as Exhibit-5 and his signature thereon as Exhibit-5 (1).
CRL.A(J)/166/2019 Page 12
23. During the cross-examination, he denied having conducted the investigation of the case.
24. The PW-10, Shri Sitangshu Kumar Ghosh, has deposed that on 14.03.2016, he was posted at Mazbat Police Station as the Second Officer. On that day, at around 6.15 a.m., he was in his quarter and at that time he received a telephone call from the Officer-In-Charge of Mazbat Police Station, Shri Dipu Bora, informing him that a murder took place at Jagiapur. Accordingly, he immediately rushed to the place of occurrence with armed police party. He has further deposed that while he was proceeding to the place of occurrence, the Officer- In-Charge of Mazbat Police Station again informed him over telephone that another murder took place at No.1 Khamtubari under Mazbat Police Station. He has further deposed that he saw a huge gathering of people at No.1 Khamtubari and went there. He has deposed that there he was informed by the village headman that a severed human head has been kept in a bag in a cycle where from blood was seeping out. The cycle was kept in the veranda of the complainant Bhim Orang (PW-1).
25. The PW-10 has further deposed that he opened the bag and found one head of a human being with grey hairs and the entire bag was stained with blood. He also saw blood was falling on the ground towards the western side and accordingly, he followed the stains of blood mark and found one penis with testicles covered with grey hairs lying there. He has further deposed that when he went further CRL.A(J)/166/2019 Page 13 western side, one injured person was found lying there. He saw blood in his pants. He was informed by the villagers that the penis as well as testicles of the injured persons had also been cut. The injured person was identified as Ganesh Manki Munda (the appellant). The PW-10 has further deposed that when he questioned the appellant, he replied that he cut his father to death in his house and after severing his head from the trunk, he brought the head in a bag and carried it to his aunt's house in the bicycle and same has been kept there. He was informed that the headless body of his father was lying in his house at Jagyapur. The PW-10 has further deposed that when he asked about the injury on the penis of the appellant, he told that same was eaten by a pig. The PW-10 has further deposed that considering the injuries on the appellant, he was immediately sent to the hospital for treatment with one constable namely, Mahesh Baishya and relatives of the appellant.
26. Thereafter, the PW-10 proceeded to the house of the appellant where he saw the headless body of Piyush Munda. He has further deposed that the penis of the dead body was removed and some of the fingers were also amputated with sharp cutting weapon. The PW-10 has further deposed that thereafter, he informed the Officer- In-Charge of Mazbat Police Station, Circle Inspector of Rawata and Deputy Commissioner, Udalguri to depute a Magistrate. Later on, the Executive Magistrate along with the Circle Inspector and the Officer In-Charge of Mazbat Police Station came to the spot. The PW-10 has CRL.A(J)/166/2019 Page 14 further deposed that he also found one blood-stained axe and a sickle beside the headless body. He also seized the hero bicycle at the place of occurrence. He has further deposed that he prepared one sketch map of the place of occurrence. He has also deposed that the village people identified the headless body was that of Piyush Munda, who was staying with his son Ganesh Manki Munda (appellant) in a small house. He has also deposed that the villagers informed him that the appellant used to quarrel with his father regularly regarding sale of their land. He has also deposed that the appellant who was injured was referred to Tezpur Medical College and Hospital for treatment and on 30th April 2016, he was released from the hospital. He has also deposed that Bhim Orang had lodged the FIR before the Officer-In-Charge of Mazbat Police Station. However, as he had already started the investigation of the case on the basis of GD Entry No. 286 dated 14.03.2016, he was entrusted to complete the investigation. The PW-10 has deposed that he recorded the statement of witnesses and sent the dead body of Piyush Munda for post-mortem examination. Later on, he collected the post mortem examination report and on completion of investigation, he laid the charge sheet against the appellant under Section 302 of the Indian Penal Code.
27. During the cross-examination, the PW-10 has deposed that on being questioned, the appellant had told him that he also cut his own penis CRL.A(J)/166/2019 Page 15 after beheading his father and cutting the penis of his father along with the testicles.
28. The appellant Shri Ganesh Manki Munda was examined under Section 313 of the Code of Criminal Procedure, 1973. During his examination, he admitted his guilt. While answering to question No.1 put to him by the Court, he has stated that on the day of occurrence, he beheaded his father at his home by means of an axe and thereafter, carried the severed head in his bicycle and kept the said bicycle and the bag containing the head at the veranda of Bhim Orang (Pw-1) who is his relative. He has also stated that he stayed with his father in the same home and used to have frequent quarrel with his father who wanted to sell his land without giving him any share thereof. While answering to the question No.6 put to him, during his examination, regarding the scissor, an axe and one bicycle, which were stained with blood, he answered that police might have seized one axe and one sickle from his house which he had used to kill his father.
29. While answering to the question No.8, put to him by the Court, he said that he not only cut the head of his father by means of axe but also severed his penis with two testicles. While answering to the question No. 12, put to him by the Court, he said that after beheading the head of his father, he carried the same in a bicycle to the house of Bhim Orang (PW-1). While answering to question No.13, the appellant has stated that he severed the head of his father from the trunk by means of axe and sickle. While answering to question CRL.A(J)/166/2019 Page 16 No.16, the appellant stated that he confessed before Bhadeshwar Panikar that he had killed his father by cutting his head. While answering to question No.19, the appellant had stated that he had quarreled with his father on the date of occurrence relating to land which his father wanted to sell and in the course of quarrel he killed his father. While answering to question No.21, the appellant has stated that he cut his penis himself as he wanted to atone for the sin of committing murder of his father. While answering to question No.23, the appellant has also stated that he cut his penis only as a repentance after killing his father. In answer to question No.24 put to him, the appellant has stated that he is a sinner and he has nothing else to say. He also declined to adduce any evidence in his defence.
30. Ms. R. D. Mazumdar, the learned Amicus Curiae appearing for the appellant has submitted that in the instant case there is no eyewitness who has seen the commission of the offence and the impugned judgment of conviction is based mainly on circumstantial evidence as well as extra-judicial confession of the witnesses.
31. The learned Amicus Curiae has submitted that the appellant was not mentally sound at the time of the alleged offence, as evident from the materials on record. She further submitted that after his arrest, the appellant was referred for medical examination due to his injuries. Additionally, the records indicate that while undergoing treatment in custody, the appellant was also referred to the CRL.A(J)/166/2019 Page 17 Psychiatric Department, which, in itself, is sufficient to cast doubt on his mental state.
32. She also submitted that the petitioner was not aware of the consequence of the act committed by him. She has also submitted that the petitioner was not having any intention of killing his father as he was not mentally sound, therefore, he was not having the requisite mens rea for commission of the offence for which he has been convicted.
33. She submitted that even if the appellant was not able to establish conclusively that he was insane at the time when the alleged offense was committed, the materials available on record raise a reasonable doubt regarding the presence of requisite mens rea when the alleged offence was committed.
34. In support of her submission, she has cited a ruling of the Apex Court in the case of "Rupesh Manger (Thapa) Vs. The State of Sikkim", reported in 2023, INSC 826
35. The learned Amicus Curiae has also submitted that though, the conviction of the appellant is based on circumstantial evidence, however, the chain of circumstances is not complete. She further submitted that the extrajudicial confession is a weak piece of evidence and cannot be the sole basis for arriving at the conclusion of guilt unless corroborated in material aspects. She has also submitted that in the instant case, there is no corroboration to the extrajudicial confession as the weapon of offense, the sickle and the CRL.A(J)/166/2019 Page 18 axe were not sent for any forensic examination. She has submitted that even the ownership of the bicycle in which the severed head was found could not be ascertained during the investigation. She, therefore, submits that the benefit of doubt should be given to the appellant and he should be acquitted of offence under Section 302 of the Indian Penal Code.
36. On the other hand, Ms. B. Bhuyan, the learned Additional Public Prosecutor, has submitted that the Trial Court has correctly arrived at the conclusion of guilt of the appellant on the basis of evidence available on record and that the impugned judgment needs no interference by this Court.
37. She submitted that the testimony of PW-7 and PW-8 clearly shows that the appellant had made extrajudicial confession regarding commission of the murder of his father before the said witnesses. She has submitted that the statement made by the appellant under Section 313 of the Code of Criminal Procedure, 1973 may be utilised as an aid to lend credence to the evidence, regarding the extrajudicial confession, led by the prosecution side.
38. She has submitted that, in his statement made under Section 313 of the Code of Criminal Procedure, 1973, the appellant has categorically admitted his guilt and he has narrated as to why and under what circumstances he killed his father. She has fairly submitted that though the statement of an accused recorded under Section 313 of the Code of Criminal Procedure, 1973 is not a substantive piece of CRL.A(J)/166/2019 Page 19 evidence, it can be certainly used for appreciating the evidence led by the prosecution to accept it or to reject it. She submitted that in the instant case, the conviction is not based merely on the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973 but on the other circumstantial evidence including the extrajudicial confession.
39. In support of her submission, the learned Additional Public Prosecutor has cited a ruling of the Apex Court in the case of "Mohan Singh Vs. Prem Kumar and Another" reported in 2002 SCC Online SC 933 wherein the Apex Court has observed as follows:
"30. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant [(1969) 1 SCC 347 : AIR 1969 SC 422] by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire CRL.A(J)/166/2019 Page 20 confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction."
40. Ms. B. Bhuyan, the learned Additional Public Prosecutor, submits that PW-7 and PW-8 had no enmity with the appellant and, therefore, no motive to falsely implicate him in the alleged offense. She further submits that the defense failed to controvert their testimony, leaving no ground to reject their unbiased evidence.
41. In support of her submission, she has relied upon a judgment of the Apex Court in the case of "Aftab Ahmed Ansari Vs. State of Uttaranchal" reported in (2010) 2 SCC 583 wherein the Apex Court has observed as follows:
"52. Though extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence relating to extra-judicial confession can be acted upon if the evidence about extra-judicial CRL.A(J)/166/2019 Page 21 confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused."
42. As regards the submission of the learned Amicus Curiae for the appellant regarding the plea of insanity, the learned Additional Public Prosecutor has submitted that the appellant had nowhere taken any plea of insanity during the trial.
43. She submitted that to give the benefit of Section 84 of the Indian Penal Code to the appellant, it was the burden on the part of the appellant to show that at the time when the offence is alleged to have been committed, he was incapable of knowing the nature of the act which constituted the offense and he was not aware as to whether it was either wrong or contrary to law. No such plea of insanity was taken by the appellant during the trial. She submitted that as the appellant was himself injured, he was referred to the medical treatment at the time of his arrest. She further submitted that after giving him treatment for his injuries, the appellant was discharged on 30.04.2016. However, there is nothing on record which would show that he was suffering from insanity when the alleged offense was committed. During his treatment, he was referred to the CRL.A(J)/166/2019 Page 22 Psychiatric Department also. The learned Additional Public Prosecutor submitted that mere reference to the Psychiatric Department in itself would not show that the appellant was an insane person when the offence was committed. She submitted that it was a routine procedure to get a patient examined, checked by various department of a medical college when the patient is admitted for treatment considering the circumstances and the history of the case. However, unless a person is certified to be insane or it is proved by the prosecution side that the appellant was insane when the offense was committed, he may not get the benefit of Section 84 of the Indian Penal Code.
44. In support of her submission, the learned Additional Public Prosecutor has relied upon following rulings:
i. Prakash Nayi alias Sen Vs. State of Goa reported in (2023) 5 SCC 673.
ii. Hari Singh Gond Vs. State of Madhya Pradesh reported in (2008) 16 SCC 109.
45. We have considered the submissions made by the learned counsel for both the sides and have gone through the materials available on record meticulously. We have also gone through the rulings cited by the learned counsel for both sides in support of the submissions made by them.
46. On perusal of the uncontroverted testimony of DW-6, i.e., the doctor, who conducted the postmortem examination of the deceased as well CRL.A(J)/166/2019 Page 23 as on perusal of the Exhibit-4, which is the postmortem examination report, there is no dispute that the death of deceased Piyush Munda was homicidal in nature. It is also not disputed that the headless body of the deceased was found in the house of the appellant where he used to live along with his deceased father.
47. Further, although, four prosecution witnesses namely, PW-1, PW-2, PW-7, and PW-8 claimed that the appellant made an extrajudicial confession before them, the testimony of PW-1 and PW-2 was contradicted during cross-examination. However, the testimony of PW-7 and PW-8, stating that the appellant had confessed to killing his father, remained uncontroverted.
48. It also appears that the appellant never took the plea of insanity during the entire trial, even when he was examined under Section 313 of the Code of Criminal Procedure, 1973, he did not take the plea of insanity. Rather, while answering to the questions put by the Trial Court, he explained as to under what circumstances he had beheaded his father by means of an axe and thereafter, carried the severed head in his bicycle and kept the same in the veranda of PW- 1, who is his relative. The appellant also stated that after committing the offence, he injured himself to atone for the sin of committing murder of his own father.
49. The Apex Court has observed in the case of "Sharad Birdichand Sarda Vs. State of Maharashtra" reported in A.I.R. 1984 SC 1622, as follows:
CRL.A(J)/166/2019 Page 24 "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved"
as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 :
1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they CRL.A(J)/166/2019 Page 25 should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
50. In the instant case, though, there are some lapses on the part of the Investigating Officer, such as not collecting the serological test report for the weapons used in the commission of the offence, namely, the axe and the sickle, and not determining the ownership of the bicycle in which the severed head of the deceased was carried, etc., however, the circumstances from which the conclusion of guilt has been drawn have been fully established. Moreover, the same conform to the guidelines laid down by the apex court in "Sharad Birdichand Sarda Vs. State of Maharashtra" (Supra). In the instant case, the following circumstances are fully established::-
i. The death of the deceased was homicidal in nature;
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ii. The body of the deceased without the severed head was
found in the house of the appellant where the appellant used to reside along with the deceased;
iii. The blood-stained axe and sickle were found in the house of the appellant beside the headless body of the deceased;
iv. The extrajudicial confession of the appellant made before PW-7 and PW-8 remained uncontroverted, wherein he admitted to his guilt before the said witnesses.
v. During his examination under Section 313 of the Code of Criminal Procedure, 1973 the appellant has categorically admitted that he had murdered his father by severing his head with a sickle, and thereafter, he injured himself to atone for the sin of murdering his father.
vi. The appellant never took the plea of insanity during the trial.
Even when the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, he did not take any plea of insanity.
vii. There is no evidence on record to suggest that the appellant was insane or that he was not knowing the consequences of act committed by him on the day of offence.
viii. There is nothing on record to suggest any animosity between PW-7 and PW-8 and the appellant that could have led them to falsely implicate him in this case.
51. In the instant case, the conviction of the appellant is not based solely on the extrajudicial confession made by the appellant before the PW-7 and PW-8. Rather, their evidence was appreciated by the Trial CRL.A(J)/166/2019 Page 27 Court in the light of the statement made by the appellant under Section 313 of the Code of Criminal Procedure, 1973. It is also pertinent to note that in his statement made under Section 313 of the Code of Criminal Procedure, 1973 by the appellant, there is no exculpatory part. The appellant admitted to the guilt without any reservation and he appeared to be repentant for the same.
52. The Apex Court has observed in the case of "Mohan Singh Vs. Prem Kumar and Another" (Supra) as follows:
"30. The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant [(1969) 1 SCC 347 : AIR 1969 SC 422] by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement CRL.A(J)/166/2019 Page 28 under Section 313 CrPC cannot be made the sole basis of his conviction."
53. We find no error in the Trial Court taking aid of the statement made by the appellant under Section 313 of the Code of Criminal Procedure, 1973 to lend credence to the testimony regarding extrajudicial confession made by the appellant before PW-7 and PW-8.
54. We are also of the considered opinion though the Investigating Officer could have collected more corroborative evidence to support the extrajudicial confession made by the appellant before PW-7 and PW-8. However, the materials available on record, when viewed in the light of the statement of the appellant made under Section 313 of the Code of Criminal Procedure, 1973 in our considered opinion are sufficient to come to a conclusion of guilt of the appellant in this case.
55. As regards the submissions made by the learned Amicus Curiae regarding the plea of insanity, the observations made by the Apex Court in the case of "Prakash Nayi alias Sen Vs. State of Goa"
(Supra) are relevant and same are reproduced herein below.
"3. Section 84 of the Penal Code, 1860:
"84. Act of a person of unsound mind.--
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing CRL.A(J)/166/2019 Page 29 the nature of the act, or that he is doing what is either wrong or contrary to law."
Section 84 IPC recognises only an act which could not be termed as an offence. It starts with the words "nothing is an offence". The said words are a clear indication of the intendment behind this laudable provision. Such an act shall emanate from an unsound mind. Therefore, the existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act. Such a person is incapable of knowing the nature of the said act. Similarly, he does not stand to reason as to whether an act committed is either wrong or contrary to law. Needless to state, the element of incapacity emerging from an unsound mind shall be present at the time of commission.
4. The provision speaks about the act of a person of unsound mind. It is a very broad provision relatable to the incapacity, as aforesaid. The test is from the point of view of a prudent man. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84IPC. There must be an inability of a person in CRL.A(J)/166/2019 Page 30 knowing the nature of the act or to understand it to be either wrong or contrary to the law.
5. The aforesaid provision is founded on the maxim, actus non reum facit nisi mens sit rea i.e. an act does not constitute guilt unless done with a guilty intention. It is a fundamental principle of criminal law that there has to be an element of mens rea in forming guilt with intention. A person of an unsound mind, who is incapable of knowing the consequence of an act, does not know that such an act is right or wrong. He may not even know that he has committed that act. When such is the position, he cannot be made to suffer punishment. This act cannot be termed as a mental rebellion constituting a deviant behaviour leading to a crime against society. He stands as a victim in need of help, and therefore, cannot be charged and tried for an offence. His position is that of a child not knowing either his action or the consequence of it.
6.1. Surendra Mishra v. State of Jharkhand [Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495 : (2011) 3 SCC (Cri) 232] : (SCC pp. 499-500, para 11) "11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity.
Expression "unsoundness of mind" has not CRL.A(J)/166/2019 Page 31 been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term "insanity" carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Penal Code."
6.2. Hari Singh Gond v. State of M.P. [Hari Singh Gond v. State of M.P., (2008) 16 SCC 109 : (2010) 4 SCC (Cri) 211] : (SCC pp. 111-12, para 10) "10. „7. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in IPC.
The courts have, however, mainly treated this expression as equivalent to insanity.
CRL.A(J)/166/2019 Page 32 But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.‟ "
6.3. Bapu v. State of Rajasthan [Bapu v. State of Rajasthan, (2007) 8 SCC 66 : (2007) 3 SCC (Cri) 509] : (SCC p. 73, paras 10-11) "10. Section 84 embodies the fundamental maxim of criminal law i.e. actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur;
but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est).
11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did CRL.A(J)/166/2019 Page 33 not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, p.
166 has observed that if a person cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognises nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the action he takes."
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56. In the instant case, it appears that no plea of insanity was taken by the appellant during the trial. Neither there is any material available on record to show that he was suffering from a mental disorder of such an extent that he was incapable of knowing the consequence of his acts when the alleged offence was committed, except the fact that when he was sent to Tezpur Medical College & Hospital and later on to the Gauhati Medical College & Hospital for the treatment of his injuries (penile amputation), he was also referred to the psychiatric department for the treatment, which in our considered opinion, in itself is not sufficient to give the benefit of Section 84 of the Indian Penal Code to the appellant under the facts and circumstances of this case. The benefit of Section 84 of the Indian Penal Code is available only after it is proved that at the time of committing the act, the appellant, due to unsoundness of his mind did not know about the nature of the act which he was doing and that he was not even knowing that what he was doing was either wrong or contrary to the law. However, in this case, the appellant in his statement made under Section 313 of the Code of Criminal Procedure, 1973 admitted that he had killed his father in the course of a quarrel over a matter relating to land that his father wanted to sell. He did not make even a whisper regarding insanity during his examination by the Trial Court.
57. In the instant case, the appellant has failed to raise any reasonable doubt in the mind of the Court regarding the plea of insanity.
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58. For the reasons discussed in the foregoing paragraphs, we find no ground to interfere with the impugned judgment of conviction of the appellant under Section 302 of the Indian Penal Code.
59. This appeal is accordingly dismissed.
60. Send back the records of the Trial Court to the Trial Court along with a copy of this judgment.
JUDGE JUDGE
Comparing Assistant
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