Gauhati High Court
CRL.A(J)/14/2023 on 17 July, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/43
GAHC010013722023
2025:GAU-AS:9522-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal [J] no. 14/2023
Borsing Phangcho
Karbi Anglong, Diphu, Assam.
..................Appellant
-VERSUS-
The State of Assam.
...................Respondent
Advocates :
Appellant : Mr. B. Prasad, Amicus Curiae
Respondent : Ms. S.H. Bora, Additional Public Prosecutor, Assam
Date of Hearing : 15.07.2025 & 17.07.2025
Date of Judgment & Order : 17.07.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER [ORAL]
[Manish Choudhury, J]
This criminal appeal from Jail under Section 383, Code of Criminal Procedure, 1973 ['CrPC' or 'the Code', for short] is preferred against a Page No. 2/43 Judgment and Order dated 13.12.2022 passed by the Court of learned Sessions Judge, Karbi Anglong at Diphu ['the Trial Court', for short] in Sessions Case no. 275/2017 [New] [Sessions Case no. 42/2005 (old)], which arose out of G.R. Case no. 444/2002 and Bokajan Police Station Case no. 164/2002. By the Judgment and Order dated 13.12.2022, the learned Trial Court has convicted the accused-appellant for the offence of murder under Section 302, Indian Penal Code [IPC] and he has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default of payment of fine, to undergo rigorous imprisonment for another year. The accused- appellant has also been found guilty for the offence under Section 326, IPC and he has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 10,000/-, in default of payment of fine, to undergo imprisonment for another year. The sentences are ordered to run concurrently.
2. The prosecution story, in brief, is that on 19.12.2002, one Lakheswar Teron [P.W.1] as the Secretary of the concerned Village Defence Party, Bheta Gaon Sarihajan lodged a First Information Report [FIR] at 03-00 p.m. on 19.12.2002 stating inter-alia that at around 10-30 a.m. on 19.12.2002, the accused-appellant inflicted injuries on the person of one Smti. Kamini Hansepi by hacking her with a dao, apart from hacking her child to death, when Kamini Hansepi with her child went to pay a visit to the house of the accused-appellant on that day. The FIR further stated that the condition of Kamini Hansepi was critical. The informant further stated that the accused- appellant also wounded his own wife by hacking her with the same dao. The informant also mentioned that the accused-appellant had, in the meantime, surrendered himself in the Police Station.
3. On receipt of the FIR, the Officer In-Charge, Bokajan Police Station registered the same as Bokajan Police Station Case no. 164/2002 under Page No. 3/43 Sections 326/302, IPC on 19.12.2002 and entrusted the investigation to one Karuna Bora [P.W.9], an Assistant Sub-Inspector of Police attached to Bokajan Police Station.
4. During the course of investigation, the Investigating Officer [I.O.] recorded the statements of the witnesses under Section 161, CrPC. As the accused- appellant had purportedly surrendered at the Police Station on 19.12.2002, the I.O. took him into custody and thereafter, arrested him on 20.12.2002. The I.O. forwarded the accused-appellant to the jurisdictional Court for production along with a prayer to record the statement of the accused- appellant under Section 164, CrPC. The statement of the accused-appellant was, accordingly, recorded under Section 164, CrPC on 20.12.2002 by one Jyotirmoy Daimari [P.W.10], a Magistrate, First Class posted at the Office of the Deputy Commissioner, Karbi Anglong, Diphu. The inquest proceeding on the deadbody of the deceased named Libison Terang, a child of three years of age [approx], was conducted on 19.12.2002 at the Police Station. A dao fitted with a bamboo handle was seized from the possession of the accused- appellant at the Police Station in presence of witnesses on 19.12.2002 vide a Seizure List. As there were two injured persons, they were taken, at first, to provide treatment at Bokajan Primary Health Centre [PHC] immediately after the incident on the date of incident itself, that is, on 19.12.2002, before they were referred for better treatment. The post-mortem examination on the deadbody of the deceased was performed at Diphu Civil Hospital on 20.12.2002.
5. After completing investigation into the case, Bokajan Police Station Case no.
164/2002 [corresponding G.R. Case no. 444/2002], the I.O. [P.W.9] submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 70/2002 dated 31.12.2002 finding a prima facie case against the accused-
Page No. 4/43appellant for committing the offences under Section 326, IPC and Section 302, IPC.
6. On submission of the charge-sheet, the procedure of furnishing the copies were complied with. The presence of the accused-appellant was secured before the Court by issuance necessary process. After hearing the learned Public Prosecutor and the learned defence counsel; and upon perusal of the materials on record, charges under Section 326, IPC and Section 302, IPC were framed against the accused-appellant on 24.07.2008. After framing the charges, the charges were read over and explained to the accused-appellant. On being read over and explained the charges, the accused-appellant pleaded not guilty and claimed to be tried.
7. One of the charges framed against the accused-appellant was that at around 10-30 a.m. on 19.12.2002, he voluntarily caused grievous hurt to one Smti. Kamini Hansepi and his own wife, Smti. Mala Engtipi with a dao. The other charge framed against the accused-appellant was to the effect that at/on the same time, date and place, he intentionally committed the death of a three years old child named Libison Terang with a dao.
8. During the course of the trial, the prosecution side examined ten nos. of witnesses and exhibited nine nos. of documents apart from a material object, to bring home the charges against the accused-appellant. After closure of the evidence from the prosecution side, the accused-appellant was examined under Section 313[1][b], CrPC by bringing to his notice the incriminating circumstances appearing against him in the evidence led by the prosecution. The plea of the accused-appellant was total denial. When the accused-appellant was asked whether he would adduce any evidence in defence, he stated that he would adduce defence evidence. The accused- appellant had thereafter, examined one Sarsing Terang as D.W.1.
Page No. 5/439. The particulars of the prosecution witnesses, defence witness, documentary evidence and the material object adduced during the course of the trial are as under :-
Prosecution Witnesses P.W.1 Shri Lakheswar Teron P.W.2 Shri Lunse Killing P.W.3 Shri Chandra Terang P.W.4 Smti. Mala Engtipi P.W.5 Smti. Kamini Hansepi P.W.6 Dr. Dimbeswar Bharali [M.O.] P.W.7 Dr. Rupali Nunisa [M.O.] P.W.8 Md. Sofi Ullah [I.O.] P.W.9 Sri Karuna Bora [I.O.] P.W.10 Sri Jyotirmoy Daimary Defence Witnsses D.W.1 Shri Sarsing Terang Exhibits Exhibit-1 First Information Report Exhibit-2 Inquest Report Exhibit-3 Seizure List Exhibit-4 Medical Report Exhibit-5 P.M.E. Report Exhibit-6 Charge Sheet Exhibit-7 Inquest Report Exhibit-P7 Order of the SDO Exhibit-P8 Confessional Statement Exhibit-P9 Order of the Executive Magistrate Page No. 6/43 Material Exhibit Material Exhibit-1 Dao
10. After hearing the learned Public Prosecutor and the learned defence counsel;
and after appreciation of the evidence materials on record; the learned Trial Court had passed the Judgment and Order of conviction and sentence dated 13.12.2022. Aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence, the present appeal has been preferred.
11. We have heard Mr. B. Prasad, learned Amicus Curiae for the appellant and Ms. S.H. Bora, learned Additional Public Prosecutor for the respondent State.
12. Mr. Prasad, learned Amicus Curiae appearing for the appellant has submitted that the testimony of P.W.3 is to be examined meticulously as he appears to be a chance witness and upon meticulous examination, it would emerge that his testimony is not to be believed. The prosecution story was to the effect that both P.W.5 and her child, that is, the deceased went to the house of the appellant at the relevant time and the appellant assaulted both of them with a dao which resulted into injuries on the person of P.W.5 and death of her child. But, P.W.5, allegedly an injured witness, did not depose on the aspect of witnessing the assault on her child. On the other hand, it was only P.W.3, the chance witness, who stated to have witnessed the assault on the child. The testimony of P.W.4 did not wholly support the prosecution case. The other witnesses, P.W.1 and P.W.2 were not eye-witnesses and their testimony were hearsay in nature. It is his submission that the appellant had raised the issue of his unsoundness of mind at the time of commission of the offence on 20.12.2002 when his statement under Section 164, CrPC was recorded. The fact that the appellant was mentally disturbed was also supported by P.W.4 in her testimony. That the appellant was a mentally disturbed person was also corroborated by P.W.5. The fact that the appellant Page No. 7/43 was suffering from illness was also endorsed by the defence witness, D.W.1. It is his submission that when the entire evidence on record is taken into consideration, it would emerge that the prosecution has not been able to prove either the charge of murder or the charge of causing grievous hurt, beyond all reasonable doubt and the case of the appellant regarding his unsoundness of mind is to be accepted on the standard of preponderance of probability. He has, thus, submitted that as the case of the appellant is one under general exception covered by Section 84, IPC, the Judgment and Order of conviction and sentence is not sustainable in law and therefore, the appellant is liable to be acquitted.
13. Vehemently opposing the contentions of the learned Amicus Curiae for the appellant, Ms. Bora, learned Additional Public prosecutor appearing for the State has submitted that notwithstanding the vacillating testimony of the wife of the appellant, P.W.4, there is an injured witness in the form of P.W.5, whose testimony has fully supported a substantial part of the case of the prosecution. The prosecution witness, P.W.3 has fully supported the case against the appellant. P.W.3 being an eye-witness to the assault on the deceased child, there is no reason to disbelieve his testimony. Ms. Bora has further submitted that the confessional statement of the appellant recorded under Section 164, CrPC has been discarded by the Trial Court due to non- compliance of the necessary safeguards. Even if the confessional statement of the appellant is not taken into account, the prosecution has been able to bring evidence on record to establish the case beyond all reasonable doubt and the Trial Court has rightly arrived at the finding of guilt. Though a feeble plea of unsoundness of mind was sought to be raised on behalf of the appellant, the same cannot be said to have met the standard required under Section 105 of the Evidence Act. As there was failure on the part of the defence to establish unsoundness of mind on the part of the appellant at the time of commission of the offence, the contentions advanced on behalf of Page No. 8/43 the appellant are not to be accepted. The nature of injury sustained by the deceased go to establish that the deceased was assaulted with intention to cause death and the appellant has rightly been convicted under Section 302, IPC as well as under Section 326, IPC. Summing up, the learned Additional Public Prosecutor has submitted that there is no ground to interfere with the Judgment and Order of conviction and sentence passed against the appellant.
14. We have given due consideration to the submissions of the learned counsel for the parties and have also gone through the evidence/materials on record available in the case records of Sessions Case no. 275/2017 [new], in original.
15. It was on the basis of the FIR [Ext.-1], the contents of which have been briefly recorded hereinabove, the investigation into the case was launched. From the evidence/materials on record, it has emerged that the prosecution witnesses, P.W.4, Mala Engtipi and P.W.5, Kamini Hansepi are sisters in relation. The appellant is the husband of P.W.4, Mala Engtipi; and therefore, the appellant is a brother-in-law of P.W.5, Kamini Hansepi. D.W.1, Sarsing Terang is the husband of P.W.5, Kamini Hansepi. The deceased, Libison Terang was a child of P.W.5, Kamini Hansepi and D.W.1, Sarsing Terang.
16. It has further emerged that P.W.1, the informant was the Secretary of the Village Defence Party [VDP] of Village - Bheta Gaon at the relevant point of time whereas P.W.2 was an inhabitant of Village - Bheta Gaon. P.W.6 was serving as the Medical & Health Officer-I, Bokajan PHC on 19.12.2002 when he examined the injuries of both P.W.4, Mala Engtipi and P.W.5, Kamini Hansepi at around 01-00 p.m. P.W.7, Dr. Ruplal Nunisa was serving as the Senior Medical & Health Officer at Diphu Civil Hospital on 20.12.2002 when he performed post-mortem examination on the deadbody of the deceased Page No. 9/43 child, Libison Terang in reference to Bokajan Police Station Case no. 164/2002. P.W.8, Sofi Ullah was the Officer In-Charge, Bokajan Police Station during the period of investigation and till 31.12.2002. It was on 31.12.2002, P.W.8 submitted the Charge-Sheet [Ext.-6]. P.W.9, Karuna Bora was the Investigating Officer [I.O.] at the relevant time who completed a substantial part of the investigation after being entrusted to investigate the case on 19.12.2002.
17 It has further emerged from the evidence on record that the house of P.W.4, Mala Engtipi and the appellant on one hand and the house of P.W.5, Kamini Hansepi and D.W.1, Sarsing Terang on the other hand; are located adjacent to each other.
18. As it is the testimony of P.W.3, Chandra Terang which has been extensively referred to by the learned counsel for the parties, we turn to his testimony, at first, before the testimony of the other witnesses.
19. In his evidence-in-chief, P.W.3 stated that he knew the informant -
Lakheswar Teron [P.W.1], the appellant, the deceased-Libison Terang and the injured - Kamini Hansepi [P.W.5]. P.W.3 deposed to the effect that on the date of the incident, he went to Hanse Basti and when he was passing by the front of the appellant's house, he saw the appellant hacking the son of Kamini Hansepi [P.W.5] with a dao in his courtyard. P.W.3 stated that the appellant also chased to hack another boy of Kamini Hansepi [P.W.5]. At that time, as Kamini Hansepi [P.W.5] came in the way, the appellant hacked her too. P.W.3 stated to have rescued the other son of Kamini Hansepi [P.W.5] to take him to the house of Kamini Hansepi [P.W.5] to keep him there. The son of Kamini Hansepi [P.W.5] who was hacked, died in the courtyard of the appellant. P.W.3 further stated that Kamini Hansepi [P.W.5] on being hacked, became unconscious and fell on the ground. P.W.3 then Page No. 10/43 took Kamini Hansepi [P.W.5] to the hospital. P.W.3 stated that he saw the appellant going towards Police Station with the dao in hand. P.W.3 testified that the incident took place at around 10-30 a.m. Kamini Hansepi [P.W.5] was treated in a hospital at Dimapur for about twenty days. On being informed, Police personnel arrived at the place of occurrence and the deadbody of Kamini Hansepi's [P.W.5] son was taken to the Police Station. The deadbody was thereafter, taken to Diphu Civil Hospital for post-mortem examination and he accompanied the deadbody. P.W.3 further stated that he was present when Police held inquest on the deadbody of the deceased and he gave his signature as a witness to the Inquest Report [Ext.-2] and identified his signature therein as Ext.-2[2].
19.1. When P.W.3 was cross-examined, he stated that Kamini Hansepi's [P.W.5] husband, Sarsing Terang [D.W.1] was his elder brother in relation. He stated that on the date of the incident, he went to pay a visit to Kamini Hansepi's [P.W.5] house. When P.W.3 arrived at the place of occurrence, the appellant; Mala Engtipi [P.W.4]; and Kamini Hansepi [P.W.5] were present there. P.W.3 did not know if there was any dispute between the two families. P.W.3 reiterated that the appellant assaulted Kamini Hansepi [P.W.5] and her deceased son. The father-in-law of Kamini Hansepi [P.W.5], Pota Terang was present in his house consuming liquor at that time. P.W.3 further stated that he did not know why the appellant had assaulted the deceased and the injured. P.W.3 categorically denied a suggestion put to him by the defence that he did not witness the incident.
20. P.W.5, Kamini Hansepi in her examination-in-chief, stated that on the date of the incident, 19.12.2002, she along with her deceased child had gone to the appellant's house to enquire about his health as she heard about his illness. P.W.5 further stated that at that time she was nine months pregnant. Going to the house of the appellant, P.W.5 enquired about the appellant's health Page No. 11/43 and it was at that moment, the appellant inflicted injuries on the various parts of her person. As a result of the assault, she became unconsciousness. It was later on, she came to know that she was taken to the hospital at Dimapur for treatment and the appellant had also hacked her son, who died instantaneously as a result. P.W.5 further stated that she was informed by the doctor that her unborn child was also passed away at that time when she was under treatment in the hospital for about three months.
20.1. During cross-examination, P.W.5 stated that she did not know about the mental condition of the appellant at the time of the incident. She further stated that her family had no dispute with the appellant and there was cordial relationship between them. As there was only cordial relationship, she went to enquire about the health of the appellant. She stated to have heard that the appellant had become insane. She stated that she did not know whether the appellant had committed the incident having gone insane. P.W.5 further stated that the appellant did not assault her and her son intentionally.
21. P.W.4, Mala Engtipi in her examination-in-chief, deposed that the incident took place around 10-00 a.m. on 19.12.2002. P.W.4 stated that the appellant was ill for three days before the incident and he was showing restlessness. According to P.W.4, the appellant showed inclination not to stay in home and he used to get scared seeing any third person. P.W.4 stated that at around 10-00 a.m. on the date of the incident, she went to fetch water from a pond and at that time, the appellant was inside their house. When P.W.4 came back with water, she told the appellant that she was going to boil water for him. When she returned with boiled water, the villagers told her that the appellant had hacked Kamini Hansepi's son. Having heard so, P.W.4 came back and saw that Kamini Hansepi's son was lying in their courtyard after being hacked with a dao. P.W.4 saw wounds on the back of the child of Page No. 12/43 Kamini Hansepi [P.W.5]. P.W.4 stated that having been frightened, she fled from her house and it was only on the following day, she returned to her house. It was Sarsing Teron [D.W.1] who informed her that the appellant had also hacked Kamini Hansepi [P.W.5] with a dao. P.W.4 stated to have noticed cut marks on the face of Kamini Hansepi [P.W.5]. P.W.4 further stated that when she returned home, she saw that the appellant was arrested by the Police.
21.1. During cross-examination, P.W.4 stated that she got the news while she was going to fetch water. When P.W.4 returned home, she did not find anyone in her house. P.W.4 further stated that she did not see Chandra Terang [P.W.3] who was a member of Kamini Terang's [P.W.5] family, in her house. P.W.4 further stated that the appellant was ill at the time of the incident and he behaved like a lunatic. The appellant used to make attempts to escape from the house and he exhibited such behaviour for about three days prior to the incident.
22. Before appreciation of the testimony on the afore-mentioned three witnesses, we turn to the testimony of the Medical Officers who stated to have treated the injured persons, Mala Engtipi [P.W.4] and Kamini Hansepi P.W.5 and performed the autopsy on the deadbody of the deceased child, Libison Terang.
23. P.W.6, in his testimony, deposed to the effect that at 01-00 p.m. on 19.12.2002, he examined both Mala Engtipi [P.W.4] and Kamini Hansepi [P.W.5]. On examination of Kamini Hansepi [P.W.5], P.W.6 found a deep cut injury over the right side of her neck, involving muscle and deep structures. At the time of examination, P.W.5 was in a pool of blood. P.W.6 testified that the injury was caused by a sharp cutting object and the nature of injury sustained by P.W.5 was grievous in nature. P.W.6 further deposed that on Page No. 13/43 examination of Mala Engtipi [P.W.4], he noticed a deep cut injury over frontal scalp involving muscle and blood vessels. P.W.6 opined that the injury was caused by a sharp cutting object. However, the nature of injury sustained by Mala Engtipi [P.W.4] was simple in nature. P.W.6 exhibited the Medical Report which he prepared after medically examining Mala Engtipi [P.W.4] and Kamini Hansepi [P.W.5] as Ext.-4.
23.1. During cross-examination, P.W.6 stated that the kind of injuries sustained by the two injured persons could be sustained during a minor fight and he did not mention in Ext.-4 about the depth of the injuries sustained by the two injured persons. P.W.6 further stated that if immediate treatment was given to the injured, he would not have died.
24. From the testimony of P.W.6, it has emerged that on 19.12.2002, both the injured persons, Mala Engtipi [P.W.4] and Kamini Hansepi [P.W.5] along with the deadbody of the minor child were taken to Bokajan PHC for medical examination and treatment. The injuries recorded in respect of the two injured persons Mala Engtipi [P.W.4] and Kamini Hansepi [P.W.5] in the Medical Report [Ext.-4] are found to be consistent with the testimony of P.W.6.
25. P.W.7, Dr. Rupali Nunisa performed the Post-Mortem Examination on the deadbody of the deceased, Libison Terang on 20.12.2002 in reference to the Bokajan Police Station Case no. 164/2002. On examination, he found bleeding present in the wound of the scalp of occipital bone and frontal bone of the deceased. There was a sharp cut of the scalp extending from mid of occipital scalp to the right side of occipital scalp, just above right survical vertebra. There was also a sharp cut of the scalp extending from mid of occipital scalp to the frontal bone scalp and the membrane was found Page No. 14/43 ruptured. The brain matter and blood vessels of occipital and frontal regions were found ruptured. P.W.7 described the injuries in the following manner :-
i. Facture of the occipital bone from mid of occipital to the right side of the occipital bone, Size : 6 x ½.
ii. Facture of the occipital bone from mid of frontal bone in the meet of posteriously, Size : 5 x ½.
P.W.7 opined that the injuries were ante-mortem in nature and were caused by sharp weapon. He further opined that the death was due to shock and hemorrhage. P.W.7 exhibited the Post-Mortem Examination Report as Ext.-5 and his signature therein as Ext.-5[1]. P.W.7 also identified the signature of the Joint Director of Health Services, Karbi Anglong, Diphu in Ext.-5 as Ext.- 5[2]. When cross-examined, he stated that he found presence of rigor mortis on the body and observed that normally, rigor mortis remained present after occurrence of 48-60 hours.
26. P.W.9, as stated above, was the Investigating Officer [I.O.] who had completed substantial part of the investigation initially after being entrusted with the investigation on lodgment of the FIR on 19.12.2002. P.W.9 stated that when he was posted as an Assistant Sub-Inspector at Bokajan Police Station on 19.12.2002, the informant, P.W.1 lodged the FIR and the same was registered by the Officer In-Charge, Bokajan Police Station, Md. Sofi Ullah [P.W.8] and entrusted the investigation to him. P.W.9 exhibited the FIR as Ext.-1. P.W.9 further stated that the informant, Lakheswar Teron [P.W.1] and four other witnesses, namely, Chandra Terang [P.W.3], Lunse Killing [P.W.2], Jecob Orang and Beni Terang brought the deadbody to the Police Station. He examined the informant and the four witnesses at the Police Station and recorded their statements. At that time, the appellant surrendered himself at the Police Station with a Naga dao in his hands and Page No. 15/43 confessed that he assaulted his wife, Mala Engtipi [P.W.4], Kamini Hansepi [P.W.5] and Kamini Hansepi's son, Libison Terang [the deceased] with that dao. P.W.9 then took the dao from the hands of the appellant and arrested him. The appellant was thereafter, kept in the lock-up. The seizure of the dao was made in presence of the witnesses, Chandra Terang [P.W.3], Lunse Killing [P.W.2], Jecob Orang, Beni Terang and Lakheswar Teron [P.W.1- informant]. As he learnt that there were two injured persons, Mala Engtipi [P.W.4] and Kamini Hansepi [P.W.5], he sent a requisition to the Medical & Health Officer, Bokajan Civil Hospital with Constable Ram Singh Kro for their medical treatment. Thereafter, P.W.9 conducted inquest proceeding on the deadbody which was brought by the informant and the four witnesses. He exhibited the Inquest Report as Ext.-7 along with his signature therein. It was on 20.12.2002, the deadbody of Libison Terang was sent to Diphu Civil Hospital for Post-Mortem Examination and the appellant was forwarded for production before the jurisdictional court with a prayer to record his confessional statement. P.W.9 stated that the confessional statement of the appellant was recorded accordingly and thereafter, the appellant was remanded to jail custody. Thereafter, P.W.9 stated to have visited the place of occurrence at Hanse Gaon along with his staff and examined the house of the appellant, that is, the place of occurrence [P.O.]. He did not find anything to seize at the P.O. He had, however, noticed some dried bloodstains in the courtyard of the appellant's house. He further stated that at the time of his visit, Lunse Killing [P.W.2], Chandra Terang [P.W.3], Jecob Terang and Beni Terang were with him. When he made enquiry about the condition of the two injured persons, Mala Engtipi [P.W.4] and Kamini Hansepi [P.W.5], he came to know that they had recovered to an extent. The statements of the two injured persons were recorded by him on 23.12.2002 at Bokajan PHC. He also collected the Post-Mortem Examination Report of the deceased, Libison Terang; the confessional statement of the appellant; and the Injury Report of the two injured persons. After completing Page No. 16/43 the investigation, he stated to have handed over the case diary to the Officer In-Charge, Bokajan Police Station, Md. Sofi Ullah [P.W.9] on 28.12.2002. In cross-examination, P.W.9 submitted that he did not notice the seized dao in the court.
27. The Officer In-Charge, Bokajan Police Station, Md. Sofi Ullah [P.W.9] deposed as regards the subsequent part of the investigation. P.W.8 stated that on 28.12.2002, the I.O. [P.W.9] handed over the case diary of Bokajan Police Station Case no. 164/2002 to him. As he found that the investigation was complete, he submitted the Charge-Sheet on 31.12.2002 finding sufficient evidence against the appellant for committing the offences under Section 326, IPC and Section 302, IPC. P.W.8 exhibited the Charge-Sheet as Ext.-6 and his signature therein as Ext.-6[1]. In cross-examination, P.W.8 stated that he did not carry out the preliminary investigation of the case.
28. P.W.10 was serving as the Magistrate, First Class, O/o the Deputy Commissioner, Karbi Anglong, Diphu, when he recorded the confessional statement of the appellant on 20.12.2002. P.W.10 exhibited the statement of the appellant recorded under Section 164, CrPC as Ext.-8 and his signatures and the signatures of the appellant therein. He also exhibited an Order dated 20.12.2002 [Ext.-9] whereby the case records along with the statement of the appellant recorded under Section 164, CrPC were returned back to the Court of Sub-Divisional Magistrate, Karbi Anglong, Diphu.
29. At this juncture, it is pertinent to mention that the appellant had assailed the validity and sanctity of the alleged confessional statement of the appellant [Ext.-8] during the trial and the Trial Court had tested the validity and sanctity of the said confessional statement qua the procedural safeguards and the legal formalities required to be followed as per the provisions of Section 164, CrPC. It emerged from the testimony of P.W.10 itself that Page No. 17/43 during the three hours' time given to the appellant on 20.12.2002 for reflection, there were Police personnel from P.I. Court outside the room where the appellant was kept for reflection. It further emerged that the appellant told P.W.10 that the appellant would like to depose in Assamese language, yet, P.W.10 proceeded to record the statement of the appellant in English language.
30. Having regard to the proposition laid down in Sarwan Singh Rattan Singh vs. State Of Punjab, AIR 1957 SCC 637, the Trial Court had found that minimum twenty-four hours' time was not offered to the appellant for reflection before recording his statement under Section 164, CrPC. The Trial Court reached a finding that P.W.10 did not adhere with the procedural safeguards prescribed in Section 164, CrPC as per the settled propositions while recording the confessional statement of the appellant. The Trial Court had, therefore, observed that the statement made by the appellant was not voluntary and completely free from any possible fear and influence of Police. The Trial Court proceeded to hold that the confessional statement of the appellant could not be taken into account and relied upon in support of the prosecution case.
31. In view of such finding reached by the Trial Court in so far as the confessional statement [Annexure-8] of the appellant, it is to be looked into whether, notwithstanding the said confessional statement, the prosecution has been able to bring home the charges against the appellant beyond all reasonable doubt.
32. The first issue which is to be examined is whether the death of the deceased, Libison Terang, the boy of about three years of age, was due to an act of murder. In the scheme of the Indian Penal Code, culpable homicide is the genus and murder is specie. All murders are culpable homicide but all Page No. 18/43 culpable homicides are not murders. Culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder. It can be said that the Indian Penal Code recognizes three degrees of culpable homicide. The first category is culpable homicide of the first degree and it is the gravest form of culpable homicide, which is defined in Section 300 as murder. The second form can be termed as culpable homicide of the second degree and it is punishable under the first part of Section 304, IPC. Thirdly, there is culpable homicide of the third degree and it is the lowest form of culpable homicide and the punishment provided for it is also the lowest and punishment is provided under the second part of Section 304, IPC.
33. After making a detail survey of a number of precedents including Virsa Singh vs. State of Punjab, AIR 1958 SC 465; and State of A.P. vs. Rayavarapu Punnayya, [1976] 4 SCC 382; the Hon'ble Supreme Court in Thangaiya vs. State of T.N., [2005] 9 SCC 650; has brought out the distinction between culpable homicide amounting to murder and culpable homicide from amounting to murder in the following manner :-
10. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences :
Section 299 Section 300 Page No. 19/43 A person Subject to certain commits exceptions culpable culpable homicide is murder if homicide if the act by which the the act by death is caused is which the done-- death is caused is done-- INTENTION [a] with the [1] with the intention intention of causing death; of or causing death; or [b] with the [2] with the intention intention of causing such of bodily injury as causing the offender such knows to be likely bodily to cause the injury as death of the is likely person to whom to cause the harm is death; or caused; or [3] with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE [c] with the [4] with the knowled knowledge that ge that the act is so the act is imminently likely to dangerous that it cause must in all death. probability cause death or such bodily injury as is Page No. 20/43 likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
11. Clause [b] of Section 299 corresponds with clauses [2] and [3] of Section 300. The distinguishing feature of the mens rea requisite under clause [2] is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause [2]. Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause [2] is borne out by Illustration [b] appended to Section 300.
12. Clause [b] of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause [2] of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge Page No. 21/43 about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause [3] of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause [b] of Section 299, the words 'sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause [b] of Section 299 and clause [3] of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause [b] of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words 'bodily injury ... sufficient in the ordinary course of nature to cause death' mean that death will be the 'most probable' result of the injury, having regard to the ordinary course of nature.
13. For cases to fall within clause [3], it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509] is an apt illustration of this point.
14. In Virsa Singh v. State of Punjab [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818] Vivian Bose, J. speaking for the Court, Page No. 22/43 explained the meaning and scope of clause [3]. It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly'. First, it must establish quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
15. The ingredients of clause 'thirdly' of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows :
[SCR pp. 1500-01] To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly'. First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.Page No. 23/43
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.'
16. The learned Judge explained the third ingredient in the following words [AIR at p. 468] : [SCR p. 1503] 'The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.'
17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case [AIR 1958 SC 465 Page No. 24/43 : 1958 SCR 1495 : 1958 Cri LJ 818] for the applicability of clause 'thirdly' is now ingrained in our legal system and has become part of the rule of law. Under clause "thirdly" of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied : i.e. [a] that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and [b] that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.
18. Thus, according to the rule laid down in Virsa Singh case [AIR 1958 SC 465 : 1958 SCR 1495 : 1958 Cri LJ 818] even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration [c] appended to Section 300 clearly brings out this point.
19. Clause [c] of Section 299 and clause [4] of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause [4] of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of Page No. 25/43 the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
20. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
21. The position was illuminatingly highlighted by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382 : 1976 SCC (Cri) 659] , Abdul Waheed Khan v. State of A.P. [(2002) 7 SCC 175 : JT (2002) 6 SC 274] and Augustine Saldanha v. State of Karnataka [(2003) 10 SCC 472].
22. Keeping the aforesaid legal principles in view, the factual position is to be examined. It cannot be said as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the facts of each case. The weapon used, size of the weapon, place where the assault took place, background facts leading to the assault, part of the body where the blow was given are some of the factors to be considered.
34. It is also settled that the intention to cause death can be gathered from a combination of a number of circumstances like [i] the nature of the weapon used; [ii] whether the blow is aimed at a vital part of the body; [iii] the amount of force employed in causing the injury/injuries; [iv] whether the weapon was carried by the accused; [v] whether the accused dealt a single Page No. 26/43 blow or several blows, etc. The circumstances above are obviously not exhaustive. There may be several other circumstances with reference to individual cases.
35. In the case in hand, the deceased who was a child of only three years of age, was dealt two blows, as emerged from the testimony of the Autopsy Doctor [P.W.7], at a vital part of the body and as a result of the blows, brain matters and blood vessels of occipital region and frontal region were ruptured. The assault made was fatal. The said injuries sustained by the deceased were ante-mortem in nature. The Autopsy Doctor [P.W.7] had opined that the death of the deceased was homicidal in nature. There was nothing beyond the injuries on the deceased. Having regard to the nature of injuries caused on the deceased, we of the clear view that the death of the deceased fell in the first category, that is, culpable homicide amounting to murder.
36. The injuries sustained by the injured witness, Kamini Hansepi [P.W.5] was found to be grievous. The treating doctor, P.W.6, in his testimony, stated that the deep cut injury sustained by P.W.5 on the right side of the neck was by a sharp cutting object and the nature of injury was grievous. The injured, Kamini Hansepi was examined by P.W.6 on 19.12.2002 and the said fact is recorded in the Injury Report [Ext.-4]. From the above discussion, it has clearly emerged that Kamini Hansepi [P.W.5] sustained a grievous injury on 19.12.2002.
37. The learned Amicus Curiae is found correct in his submission that Kamini Hansepi [P.W.5] did not testify specifically as regards the assault made on her deceased son. Leaving aside that aspect, when we examine her testimony, we find that P.W.5 testified to the effect that on the date of the incident, 19.12.2002, she along with her child went to the house of the Page No. 27/43 appellant to enquire about his health after learning that the appellant was suffering from some illness. P.W.5 had clearly testified that the appellant had made cut injuries on various parts of her person and as a result of being hacked, she fell unconscious at the place of attack itself. The defence did not put any question to P.W. 5 as regards such assault made by the appellant on her. The line in which the defence had questioned P.W.5 is to be adverted to in the later part of the Judgment.
38. It was P.W.3, Chandra Terang, who had testified about witnessing the assault made on both the injured, Kamini Hansepi [P.W.5] and the deceased by the appellant. P.W.3 had categorically testified that he saw the appellant hacking the injured Kamini Hansepi's son with a dao in the courtyard of the appellant's house. P.W.5 also testified that as a result of the hacking by the appellant, the child died instantaneously in the courtyard of the house of the appellant itself. P.W.3 also corroborated the version of Kamini Hansepi [P.W.5] that the appellant hacked her too and as a result of such hacking, Kamini Hansepi fell on the ground losing her consciousness. The testimony of P.W.3 on the said two vital aspects could not be demolished by the defence in any manner whatsoever during his cross-examination. Rather, it was elicited from P.W.3 that when the appellant hacked the deceased, Libison Terang and Kamini Hansepi [P.W.5], the father-in-law of Kamini Hansepi, Pota Terang was in his own house consuming liquor. From the manner of such examination, it can be said that the defence had also implicitly admitted that it was the appellant who had hacked the deceased, Kamini Hansepi and her three years old son.
39. The testimony given by the P.W.3 as has been assailed on the ground that P.W.3 was a chance witness and his testimony is not to be believed.
Page No. 28/4340. A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. It is elucidated in Rajesh Yadav and another vs. State of Uttar Pradesh, [2022] 12 SCC 200 , to the effect that a person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This is an aspect which is to be looked into in a given case by the court. It is a well settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable.
41. In State of A.P. vs. K. Srinivasulu Reddy, [2003] 12 SCC 660, the Hon'ble Supreme Court has observed as under :-
13. ....... 'chance witnesses' who have not explained how they happened to be at the alleged place of occurrence, it has to be noted that the said witnesses were independent witnesses. There was not even a suggestion to the witnesses that they had any animosity towards any of the accused. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses.
Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression Page No. 29/43 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence.
42. In Jarnail Singh vs. State of Punjab, [2009] 9 SCC 719, the Hon'ble Supreme Court as regards chance witness has observed as under :-
21. In Sachchey Lal Tiwari v. State of U.P. [(2004) 11 SCC 410 :
2004 SCC (Cri) Supp 105] this Court while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and a passerby had deposed that he had witnessed the incident, observed as under :
If the offence is committed in a street only a passerby will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.
The Court further explained that the expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.Page No. 30/43
22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence [Satbir vs. Surat Singh [(1997) 4 SCC 192], Harjinder Singh vs. State of Punjab [(2004) 11 SCC 253], Acharaparambath Pradeepan vs. State of Kerala [(2006) 13 SCC 643] and Sarvesh Narain Shukla vs. Daroga Singh [(2007) 13 SCC 360]. Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded [vide Shankarlal vs. State of Rajasthan, (2004) 10 SCC 632].
43. Reverting back to the testimony of the P.W.3, it is found that P.W.3 is a brother in relation of the husband of the injured witness, Kamini Hansepi [P.W.5], that is, Sarsing Terang [D.W.1]. It has been elicited from P.W.3 by the defence that on the date of the incident, P.W.3 had gone to the village to visit the house of the D.W.1 and P.W.5. It was in the course of such visit when P.W.5 was in front of the house of the appellant, a house adjacent to the house of P.W.5 and D.W.1, P.W.3 testified to have witnessed the incident of assault on P.W.5 and the deceased in the courtyard of the house of the appellant with a dao. P.W.3 testified further to the effect that after committing the assailt, the appellant had proceeded towards the Police Station with the dao in his hands, which is a circumstance to be considered under Section 8 of the Evidence Act. The fact of appearance of the appellant at the Police Station some time after the incident which occurred in and around 10-00 a.m., on 19.12.2002 has been corroborated by the informant [P.W.1] and the I.O. [P.W.9]. Mala Engtipi [P.W.4] had admitted that P.W.3 was a relative of Kamini Hansepi's [P.W.5] family.
44. In view of clear testimony of P.W.3 regarding the assault made on the minor child of the injured witness, Kamini Hansepi [P.W.5], the alleged non- mention on the part of the injured person, Kamini Hansepi [P.W.5] about the Page No. 31/43 assault made on her minor child would pale into insignificance. From a combined reading of the testimony of P.W.3 and P.W.5, it has emerged that as soon as assaults were made by the appellant on P.W.5, she lost her consciousness. Therefore, it is quite possible for P.W.5 to have lost consciousness prior to hacking of the minor child by the appellant. In any matter of the view, the defence has not been able to disturb the categorical testimony of P.W.3 on the point of hacking of the minor child by the appellant in any manner whatsoever. There is no evidence on record to suggest that P.W.3 had any kind of animosity either with the appellant or with any member of his family including P.W.4. Occasional visits to near relations are common in rural areas and among the village folks. Thus, the presence of P.W.3 at the place of occurrence at the time and date of the incident cannot be viewed with any suspicion when he was not a stranger either to the place of occurrence or to the families of the injured person, Kamini Hansepi [P.W.5] and the appellant to have emerged suddenly out of nowhere in the scene.
45. It has further emerged from evidence on record that after the incident of assault, P.W.3 took the injured, Kamini Hansepi [P.W.5] to the hospital. From the testimony of D.W.1, it would emerge that prior to taking the injured to the hospital, P.W.3 went to the School of D.W.1 to inform him about the incident. P.W.3 was found to have taken initiatives also to take the deadbody of the deceased to the Police Station, as testified by the I.O. [P.W.9]. P.W.3 was a witness to the inquest proceeding as well as a signatory to the Inquest Report [Ext.-2]. P.W.3 was also a signatory to the Seizure List [Ext.-3] whereby the I.O. [P.W.9] seized a Naga dao fitted with a bamboo handle having its sharp end of about 8 inches. P.W.3 along with the informant, P.W.1 was also instrumental in taking the deadbody of the deceased to Diphu Civil Hospital. The Autopsy Doctor [P.W.9] testified to the effect that the deceased was brought by P.W.3, P.W.1-informant and a Constable. Thus, Page No. 32/43 we find that the assail made to disregard the testimony of P.W.3 has no basis at all. The testimony of P.W.3 is found to be reliable and credible and there is a proper explanation for his presence at the scene. There is no ground to disbelieve the testimony of P.W.3. Therefore, it is clear that it was the appellant who had inflicted the injuries on the deceased, Libison Terang. In the absence of anything more, the only possible inference is that the appellant intended to inflict there injuries.
46. It is a well settled proposition in criminal jurisprudence that the evidence of an injured witness is considered to be on a higher pedestal than that of a witness simpliciter. A close relative who is a natural witness cannot always be termed as an interested witness. In State of Andhra Pradesh vs. S. Rayappa and others, [2006] 4 SCC 512, it has been observed that the term, 'interested' postulates that the person concerned must have direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. Kamini Hansepi [P.W.5] apart from sustaining grievous injuries on her person, had lost her minor son in the incident. P.W.3 also testified that her family and the family of the appellant had cordial relationship. The defence did not even suggest of existence of any inimical relationship between the two families. Nothing has emerged from the record either to disbelieve or to discard the testimony of P.W.5 as regards the grievous injuries caused to her by the appellant.
47. After stating that he would adduce evidence in his support, the appellant examined Sarsing Terang as D.W.1. As mentioned earlier, D.W.1, Sarsing Terang was the father of the deceased child and is the husband of injured, Kamini Hansepi [P.W.5]. In his evidence-in-chief, D.W.1 deposed that the appellant was his brother-in-law, the deceased, Libison Terang was his son and the injured, Kamini Hansepi [P.W.5] is his wife. He further testified that the occurrence took place on 19.12.2002 and on that day, he being a Lower Page No. 33/43 Primary School Teacher, went to the School for duty at around 08-00 a.m. D.W.1 stated that 2/3 days prior to the occurrence, the appellant was suffering from illness. When he was at the School, P.W.3 and another person from the village came to his School to inform him about the incident. Then, he came to his house and found that his son and his wife, Kamini Hansepi [P.W.5] were on the bed inside the house. D.W.1 stated that his son, Libison Terang had already expired and his wife was struggling for her life. Then, he took his wife, Kamini Hansepi [P.W.5] to Bokajan Hospital at first and from Bokajan Hospital, he took her to Dimapur Civil Hospital as per the advice of doctors at Bokajan Hospital, who provided the initial treatment there.
47.1. During the cross-examination, D.W.1 stated that the incident took place in the house of the appellant. It was after an hour from the incident, he came to the place of occurrence. D.W.1 reiterated that it was Chandra Terang [P.W.3] and another person from the place, who informed him that the appellant had cut his son and his wife. After the incident, the villagers took his son and wife to his house and he saw cut marks on the head of his son, Libison Terang and his wife, Kamini Hansepi [P.W.5]. D.W.1 further stated that when he arrived at his house, he found that his son was already dead. He noticed many cut injuries on the person of his wife, Kamini Hansepi [P.W.5].
48. When we examined the testimony of Sarsing Terang [D.W.1], we have not been able to find anything in the testimony of Sarsing Terang [D.W.1] which go to support the case of the appellant. On query, the learned Amicus Curiae for the appellant has submitted that the fact deposed by the Sarsing Terang [D.W.1] to the effect that 2/3 days prior to the occurrence, the appellant was suffering from illness is relevant. The learned Amicus Curiae has further submitted that it is the testimony of Malai Engtipi [P.W.4] coupled with the Page No. 34/43 testimony of Sarsing Terang [D.W.1] which would go to indicate about the fact of mental incapacity of the appellant at the time of the incident.
49. In Vadivelu Thevar and Chinniah Servai vs. State of Maddras, AIR 1957 SC 614, the Hon'ble Supreme Cour has observed that witnesses can be categorized in three categories : [i] wholly reliable; [ii] wholly unreliable; and [iii] neither wholly reliable nor wholly unreliable.
50. When we closely examine the testimony of Mala Engtipi [P.W.4], we find that the witness would belong to the third category. Mala Engtipi [P.W.4] is found to be supporting the case of the prosecution as regards the time, date and place of the incident and the fact of the deceased minor child lying dead in the courtyard. Mala Engtipi [P.W.4] is also found to be supporting the case of the prosecution about sustaining of injuries by Kamini Hansepi [P.W.5]. Though Mala Engtipi [P.W.4] admitted that in and around the time of the incident, she was either in her house or nearby her house, Mala Engtipi [P.W.4] is found to have taken a vacillating stand as regards her presence at the time of the incident by deposing that at the time when the incident of assault took place, she had gone out to fetch water and also by remaining silent about any assault on her person by the appellant or about sustaining injury by her. Mala Engtipi [P.W.4] further stated to have fled from her house only to return on the next day. The reason why we find this witness to be of the third category is that from the testimony of the Medical Officer [P.W.6] and the Injury Report [Ext.-4] it has clearly emerged that Mala Engtipi [P.W.4] was provided medical treatment at Bokajan PHC at around 01-00 p.m. on 19.12.2002 along with the other injured person, Kamini Hansepi [P.W.5]. Mala Engtipi [P.W.4] was found to have sustained a deep cut injury over frontal scalp involving muscle and blood vessels by a sharp cutting object by the Medical Officer [P.W.6]. The Medical Officer [P.W.6] found the nature of injuries sustained by Mala Engtipi [P.W.4] simple in Page No. 35/43 nature. One cannot be oblivious of the fact that Mala Engtipi [P.W.4] is the wife of the appellant who was facing charges of committing murder of one and causing grievous hurt to another. It is quite possible that having been confronted with the situations of her husband facing such charges and of the spectre of being visited with severe punishments, Mala Engtipi [P.W.4] adopted a strategy of describing the events in a different manner with a desire to extricate her husband. It is quite plausible and it cannot be ruled out that a wife circumstanced like Mala Engtipi [P.W.4] would have the tendency to depose in a manner, which was neither wholly reliable nor wholly unreliable, to extricate her husband from the clutch of a charge of murder.
51. Upon analysis and appreciation of the evidence on record in its entirety in a dispassionate manner, we found ourselves in agreement with the finding of the Trial Court that the death of the deceased, Libison Terang, a child of about three years of age, was a homicidal death. The deceased had suffered fatal injuries of the nature described above on vital parts of the body and therefore, the death had occurred due to an act of culpable homicide of the first degree. From the testimonies of the witnesses, more particularly, P.W.3, it is evidently clear that it was the appellant who had inflicted the fatal blows on the deceased which were sufficient in the ordinary course of nature to cause death and the offence is clearly under Clause Thirdly of Section 300, IPC, meaning thereby, it was a case of murder. It has also been fully established that it was the appellant who had caused grievous hurt to the injured, Kamini Hansepi [P.W.5].
52. There can be some variations in the statements of witnesses with respect to a particular incident. Every variation or immaterial contradiction which cannot provide advantage to the accused. The variations or contradictions sought to be highlighted on behalf of the appellant in the case in hand, are found to be Page No. 36/43 immaterial. It is settled principle of law that while appreciating the evidence, the Court has to examine the evidence in its entirety upon reading the statements of the witnesses as a whole and if the Court finds the statements of the witnesses, more particularly, the material witnesses to be truthful and worthy of credence, then any variation or discrepancy of minor nature which does not affect the root of the case, would be of no consequence.
53. In the case in hand, the incident had occurred on 19.12.2002 and except P.W.1, who was examined in September, 2009, all other witnesses were examined only in July, 2018 and thereafter. Some lapses in the memory of the witnesses had definitely occurred if the witnesses were examined after such a long gap. But after having examined and analyzed the evidence on record in its entirety, we find that the minor variations occurred have not affected the core case of the prosecution.
54. In the light of the discussions made above and for the reasons assigned therein, we are of the unhesitant view that findings reached by the Trial Court as regards guilt of the appellant for the offences under Section 300, IPC and Section 326, IPC were after correct and proper appreciation of the evidence on record and there is no ground to interfere with such findings.
55. Chapter IV of the Indian Penal Code [IPC] has dealt with general exceptions.
Section 84 of the IPC with a nominal heading 'Act of a person of unsound mind' provides that 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 the nature of the act, or that he is doing what is either wrong or contrary to law.
56. When a plea of insanity is raised on behalf of an accused, the Court has to consider whether at the time of commission of the offence, the accused, by Page No. 37/43 reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Penal Code can only be established by the circumstances which preceded, attended and followed the crime.
57. Section 101 of the Evidence Act places the burden on the prosecution to bring home the charge framed against an accused. Once the prosecution has been able to bring home the charge against the accused by way of cogent, credible and reliable evidence, thereafter the Court has to examine whether the case of the appellant falls within one of the general exceptions like Section 84 of the Penal Code and for examining such an issue, the rules of evidence embedded in Section 105 of the Evidence Act springs into action.
58. Section 105 of the Evidence Act speaks about 'Burden of proving that the case of the accused comes within exception'. As per Section 105 of the Evidence Act, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exception in the Indian Penal Code or within any special exception or proviso contained in any other part of the Penal Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
59. In the case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563, the Hon'ble Supreme Court has elucidated about the manner in which an accused can discharge the onus to bring his case under the general exception of Section 84 of the IPC, in the following words :-
Page No. 38/435. Before we address ourselves to the facts of the case and the findings arrived at by the High Court, it would be convenient to notice the relevant aspects of the law of the plea of insanity. At the outset let us consider the material provisions without reference to decided cases. The said provisions are :
Indian Evidence Act
105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code [45 of 1860] or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
4. Shall presume.--Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as proved unless and until it is disproved.
Proved.--A fact is said to be 'proved' when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Disproved.--A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the Page No. 39/43 circumstances of the particular case, to act upon the supposition that it does not exist.
101. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of 'shall presume' in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that Page No. 40/43 they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a 'prudent man'. If the material placed before the court such, as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of 'prudent man', the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.
60. In Surendra Mishra vs. State of Jharkhand, [2011] 11 SCC 495, the Hon'ble Supreme Court has observed as under :
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 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 Page No. 41/43 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.
61. Section 84, IPC recognizes only an act which could not be termed as an offence. The words 'nothing is an offence' appearing in Section 84, IPC are a pointer to the intention behind the general exception. Existence of an unsound mind is a condition precedent to the applicability of the general exception. The benefit is available only if it is established that at the time of committing the act, the accused did not know the nature in quality of the act he was doing and the act was either wrong or contrary to law. There is a distinction between legal insanity and medical insanity. A Court is concerned with legal insanity and not with medical insanity.
62. In the present case, no evidence has been brought on record to the effect that the appellant was at any time, prior to the incident, had been treated medically for mental insanity. In other words, no previous history of the appellant's insanity has been revealed from the evidence on record. The only materials which have been referred to on behalf of the appellant are from the testimony of Mala Engtipi [P.W.4], Kamini Hansepi [P.W.5] and Sarsing Terang [D.W.1]. Mala Engtipi [P.W.4] stated that the appellant was ill from three days prior to the incident and he showed restlessness with a tendency not to stay in the house and showed frightfulness in presence of a third person. The testimony of Kamini Hansepi [P.W.5] as regards illness of the Page No. 42/43 appellant as evident from above, was neither here nor there. Though Sarsing Terang [D.W.1] was purportedly brought in by the appellant to testify about the mental incapacity of the appellant, Sarsing Terang [D.W.1] only testified to the effect that 2/3 days prior to the incident, the appellant was suffering from illness. The fact regarding his illness, as deposed to by Mala Engtipi [P.W.4], was brought to the notice of the appellant during his examination under Section 313, CrPC. But, the appellant negated it by saying that the same was not true. Similarly, when the factum of illness, as deposed by Kamini Hansepi [P.W.5] during her testimony, was bought to the notice of the appellant during the stage of his examination under Section 313, CrPC, the appellant also negated the same by categorically saying that the same was not true. When the appellant was asked whether he had anything further to state, the appellant did not speak anything about his mental capacity or mental incapacity.
63. Other than the behaviour demonstrated and the illness suffered by the appellant, as deposed by the above three witnesses, there is nothing on record to even infer that the appellant was suffering from legal insanity at the time of the incident. Thus, we are unable to find anything on record for which the benefit of Section 84, IPC can be extended to the appellant.
64. In view of the discussions made above and for the reasons recorded above, we find ourselves in agreement with the Judgment and Order of conviction and sentence rendered by the Trial Court. Therefore, the Judgment and Order of conviction and sentence passed against the appellant for the charges under Section 302, IPC and Section 326, IPC by the Trial Court is affirmed. Resultantly, the criminal appeal fails.
65. We reiterate the direction made by the Trial Court in Paragraph 61 of the Judgment and Order dated 13.12.2022 as regards the payment of Page No. 43/43 compensation and it is ordered that if the compensation has not yet been disbursed, the same should be disbursed with utmost expedition.
66. Before parting with the record, we wish to place our appreciation on record as regards the services rendered by Mr. B. Prasad, learned Amicus Curiae appearing for the appellant and direct the Registry to make available to him just remuneration as per the notified fee structure applicable to the Amicus Curiae.
67. The records of the Trial Court are to be sent back forthwith.
JUDGE JUDGE
Comparing Assistant