Gauhati High Court
Page No.# 1/24 vs The State Of Assam on 6 June, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/24
GAHC010212022019
2025:GAU-AS:7475
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/68/2019
SMT. LUDHIYA SURIN
SONITPUR, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : ., MR. M SARMA, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM,
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE MarLI VANKUNG
Advocate for the Appellant : Shri M. Sarma, Amicus Curiae
Advocates for the respondent : Ms. S. Jahan, Addl. PP, Assam.
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Date of hearing : 08.05.2025
Date of judgment : 06.06.2025
JUDGMENT & ORDER
(S.K. Medhi, J)
1. The instant appeal has been preferred from jail against the judgment and
order dated 14.03.2019 passed by the Addl. Sessions Judge, FTC, Sonitpur,
Tezpur in Sessions Case No. 245/2017 (GR Case No. 1064/2017) corresponding
to Jamuguri P.S. Case No. 35/2017 convicting the appellant under Sections
302/201 IPC [corresponding to Section 103/238 of BNS] and sentencing to
undergo rigorous imprisonment for life with a fine of Rs. 2,000/-, in default of
payment of fine to undergo further rigorous imprisonment for two months for
the offence under Section 302 IPC and sentencing to undergo rigorous
imprisonment for 7 years with a fine of Rs.1,000/-, in default of payment of fine
to undergo rigorous imprisonment for another two months for the offence under
Section 201 IPC.
2. The facts concerned are very unfortunate and shocking which involves the
death of a 1½ year old infant and the accusation is against the mother who is
the appellant.
3. The criminal law was set into motion by lodging of an Ejahar on
31.03.2017 by the husband of the appellant, who is the father of the deceased.
He had stated that in the previous evening, i.e., on 30.03.2017, when he had
come home after playing volleyball at about 7 p.m., he had found his 1 ½ year
old son missing. Accordingly, he had made a search with the co-villagers but did
not find him. In the next morning at about 5.30 a.m., he got suspicious about
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the appellant and accordingly followed her and found her concealing the dead
body of the deceased in a small pit by covering it with leaves and branches near
a small jackfruit tree behind their house. On going there, he had recovered the
body of the deceased and started to cry out loud after which, the villagers had
gathered. When the appellant was questioned, she had confessed that she had
killed their 1 ½ year old son by pouring hot water on him and hitting him hard
on his forehead with a stone. Accordingly, the Ejahar was registered leading to
Jamuguri P.S. Case No.35/2017 under Section 302 of the IPC[corresponding to
Section 103 of BNS].The investigation was accordingly done whereafter the
charge-sheet was laid. The learned Trial Court had accordingly framed the
charges under Section 302 r/w Section 201 of the IPC [corresponding to Section
103/238 of BNS] and on denial thereof, the trial had begun in which the
prosecution had adduced evidence through 10 nos. of witnesses.
4. PW-1 is the informant, who is the husband of the appellant and father of
the deceased infant. He had deposed that on the date of occurrence at about 3
p.m., he had brought rice and biscuits to his house and when his son was eating
biscuits, he had noticed that the appellant was boiling water. On asking, the
appellant responded that the water was being boiled for the purpose of bathing,
both for herself and their minor son. Thereafter, he had left for playing volleyball
and on his return to his house at about 7 p.m., on asking about their son, the
appellant had replied that she could not find him. Thereafter, he had searched
for his son and could not find him on that night. Subsequently, on the next day,
he searched for his son in the well but could not find him. At that time, he had
noticed that his wife was trying to hide something with the garbage and on
being asked, she had stated that she had gone to attend nature's call.
Thereafter, on suspecting foul play and upon removing the garbage, he
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discovered the dead body of their minor son and came to know that the
appellant had killed him and had hidden the dead body below the garbage.
Thereafter, he had called the nearby villagers whereby PW-2 and other people
had gathered, and the FIR was lodged. He had also deposed that the appellant
had stated before the police in his presence regarding her involvement in
causing death of their son. His statement under Section 164 of the Cr.PC
[corresponding to Section 183 of BNSS] was also recorded which he had
accordingly proved as Ext.-2.
In his cross-examination, contradictions put to him were however
negated. He had however stated that he did not see personally as to how his
son had died. He had however added that the appellant did not take proper
care of the son while feeding him. He had however admitted that the public had
assaulted the appellant and thereafter she was subsequently handed over to the
police. He had also admitted that PW-2 had reached their courtyard when he
had brought the dead body of there.
5. PW-2 is a person of the locality who is a cultivator. He had deposed that on
the date of the occurrence at about 6 p.m., when the informant returned home
after playing volleyball, he had asked the appellant about their son to which the
appellant replied that he was not found in the house. The informant was found
crying, and PW-2 along with the other villagers had gone to his house and
searched for the minor son but could not trace him. On the following morning at
about 5 a.m., the informant had found the dead body of the minor son in the
backside of the house near a tree and the body was hidden below the garbage.
Hearing the cry of the informant, the villagers had gathered and he had also
gone to the house of the informant and seen the dead body of the minor son
with burn injuries and head injuries. He had also stated that the appellant had
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confessed before the villagers including himself, that she had poured boiling
water over their son and had killed him.The villagers had accordingly informed
the police who had come and prepared the Inquest Report wherein he is a
signatory and the said Inquest Report was proved as Ext.-3. The statement of
the said PW-2 was also recorded under Section 164 of the Cr.P.C [corresponding
to Section 183 of BNSS], which was proved as Ext.-4. PW2 was cross-examined
wherein, he had however admitted that the appellant was assaulted by the
villagers and then she had confessed about killing her son. He had also clarified
that he did not see how the death had taken place.
6. PW-3 is another cultivator, who was a resident of the locality. He had
deposed that the occurrence had taken place on 30.03.2017 when the minor
son of the appellant was found missing and a search was made. On the next
day at about 5-5.30 a.m., the informant had seen his wife near the jackfruit tree
doing something and on query no proper reply was given and accordingly the
informant had gone near the jackfruit tree and found the dead body of the
minor son which was hidden below the garbage. The informant had accordingly
raised a hue and cry when he had come to the house of the informant, leading
to a gathering of many people. On being asked, the appellant had confessed
before them that she had killed the minor son by pouring hot water and also by
striking with a stone. He had stated of witnessing burn spots on the dead body
of the minor son whereafter the police had come and the appellant had
confessed before the police in their presence. The police had seized the stone
and prepared the Inquest Report in which he was a signatory and the said
Inquest Report was proved as Ext.-3. His statement under Section 164 of the
Cr.P.C. [corresponding to Section 183 of BNSS] was also recorded which was
also proved as Ext.-5.
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PW-3 was cross-examined wherein the contradictions put to him were
negated. He had however clarified that he did not see what the appellant was
doing near the jack fruit tree, and he had heard the same only from the
informant. He had also admitted that the public had assaulted the appellant for
the aforesaid offence. However, he had negated the suggestion that the
appellant was compelled to confess falsely. He had however admitted that he
had not personally seen or have any personal knowledge in respect of the death
of the minor son of the appellant by means of hot water etc. He had however
stated that the stone which was seized was stained with blood.
7. PW-4 is a carpenter, who is also a resident of the locality. He had deposed
that on the date of the occurrence at about 7.30 p.m., the minor son of the
appellant was found missing and, on a search being made, he was not found till
11 p.m. On the next day at about 5-5.30 a.m., the informant had seen his wife
i.e., the appellant near the jackfruit tree doing something and on being asked,
no proper answer could be given and a suspicion was raised, whereafter the
informant went and saw the body of the deceased hidden below the garbage
near the jackfruit tree and the appellant was doing something. He had
accordingly raised a hue and cry whereafter the PW-4 along with other villagers
had gathered. The appellant had also confessed before the villagers that she
had killed the minor son by pouring hot water and by striking with a stone. He
had also stated that he had seen the burning spots on the dead body of the
minor boy. Thereafter, police came and the appellant had confessed before the
police in their presence. Police had accordingly prepared the Inquest Report
wherein he was signatory and the same was proved as Ext.-3.The said PW-4had
also made a statement under Section 164 of the Cr.P.C. [corresponding to
Section 183 of BNSS] which was also proved as Ext.-6.PW-4 was cross-examined
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where he had admitted that he had not personally seen the aspect of killing of
the minor son.
8. PW-5 is a student, who is a resident of the locality and had deposed that
on the date of occurrence, i.e., on 30.03.2017, the minor son of the informant
was found missing who was searched and not found till 11 pm. However, on the
next day at about 5-5.30 am, the informant had made a hue and cry and on
hearing he had come to the place of occurrence and the informant had told that
his son was killed by his wife, who is the appellant and the body was kept under
the garbage near a tree. Thereafter, police had come and seized one stone from
the backside of the house of the accused and the informant and PW-5 is a
signatory to the seizure list which was proved as Ext.-7. In the cross-
examination, PW-5 had deposed that there were some hair and blood stains on
the seized stone. He had however admitted that he did not personally see as to
how the minor boy had died. He had also denied the suggestion that the public
had threatened the appellant and, on such threatening, she was compelled to
confess.
9. PW-6 is a cultivator, who is a resident of the locality. He had stated on
similar lines like the PW-5. He had however deposed that when the appellant
was asked, she had stated before the villagers and the police that she had killed
the minor son by pouring hot water and by assaulting with a stone. In the
cross-examination however, he had clarified of not stating before the police
regarding the statement made by the appellant of her complicity with the
offence. He had also clarified of not personally witnessing the death of the
deceased. He had also stated that on 30.03.2017, he was not present and it was
only on 31.03.2017 that he had gone to the house of the appellant at 10 am. He
had negated the suggestion that the villagers had assaulted the appellant and
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had forced her to be implicated in the offence.
10. PW-7 is a cultivator, who is of the same locality. He had deposed that in
the evening hours of 30.03.2017, he had heard some hue and cry and the fact
that the minor son of the informant was found missing. The matter was
accordingly reported to the VDP Secretary of the village and in the evening,
police and the VDP personnel had enquired about the missing son and could not
find him. On the next morning at about 6.30 am, he had again gone to the
place of occurrence and saw the dead body of the deceased which was kept
hidden beneath the earth near a jackfruit tree. On being asked by the villagers,
the appellant had stated before him as well as the villagers that she had killed
her minor son. He had also deposed of witnessing a stone with blood stained at
the place of occurrence which was seized and the seizure list was proved as
Ext.-7 while the stone was proved as Material Ext.-1.
In the cross-examination, he had however clarified that the above version
was not told by him to the police and was told for the first time in the Court. He
had also stated that Material Exhibit 1 which was the stone, was seized from the
side of the wall of the house of the appellant.
11. PW-8 is a day labourer who is a resident of the locality. He had deposed
that on the date of occurrence, in the evening hours, he had heard some
rumour that some witch was coming to the village. On the next morning, he
heard a hue and cry in the house of the informant and people had gathered
there and he had also gone there and saw the dead body of the deceased -
minor son of the appellant. At that time, police were also available at that place
and the appellant in presence of the police and villagers including himself had
confessed that she had killed her son by means of stone. The stone was seized
from the place of occurrence, and he had proved the seizure list as Ext.-7. In the
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cross-examination, however, he had clarified that the statements made in the
chief examination were not stated before the police and it was made for the first
time in the Court. He had also stated that the stone was seized from the
jackfruit tree.
12. PW-9 is the Doctor of the Civil Hospital, Tezpur, who had conducted the
post-mortem on the body of the deceased on 31.03.2017. In the findings, the
following were stated.
"A dead body of a male child with rigor mortis present. Eyes and mouth
closed.
(i) Peeling of skin on the whole body due to pouring of hot
water.
(ii) A sharp cut mark on the right side of the fore-head, size
was 3 cm x 3 cm x 2cm.
(iii) Haematoma seen on the brain on right parietal lobe, size
was 6 cm x 4 cm x 3 cm.
(iv) Fracture of the right parietal bone seen.
(v) Time of injury was approximate 6 pm on 30.03.2017.
These injuries were ante mortem in nature involving 95% burn.
Opinion: In my opinion, the cause of death was due to hemorrhage as
well as neurogenic shock."
In his cross-examination, he had however clarified that there was use of
sharp weapon for causing the cut marks. The Post-Mortem report was proved by
him as Ext.- 8.
13. PW-10 is the Investigating Officer, who had deposed that on 31.03.2017,
he had received the Ejahar which was accordingly registered. He had also
deposed of recording GD Entry No. 713 dated 31.03.2017and the steps taken
which included recording of statements, preparing of sketch map and the fact
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that the appellant had led to the recovery of the stone which was used for
commission of the offence. In the cross-examination, he had however denied
the suggestion that the appellant was assaulted by the people.
14. The incriminating materials were put to the appellant in her examination
under Section 313 of the Cr.PC. [Corresponding to Section 351 of BNSS]. It is
pertinent to note that all the allegations made against her were accepted and
against question No. 7, she had specifically admitted of killing her son.
15. Considering the aforesaid facts and circumstances and the materials
placed before the Court, the impugned judgment of conviction has been passed
which is the subject matter of challenge in the present appeal.
16. We have heard Shri M. Sarma, learned Amicus Curiae for the appellant.
We have also heard Ms. S. Jahan, learned Addl. Public Prosecutor, Assam.
17. Shri M. Sarma, learned Amicus Curiae has submitted that firstly the
materials on record including the depositions would make it clear that there was
no intention to cause the death by the appellant. He has submitted that in
absence of any eyewitness to the occurrence and the conviction and sentence
based on circumstantial evidence, it was essential on the part of the prosecution
to prove the intention of the offence and in absence thereof, the impugned
judgment is unsustainable in law. He has submitted that though the prosecution
has alleged that the appellant had confessed her involvement, no such
confession was recorded in the manner prescribed by law and such confession
was recorded admittedly in the presence of police which will have no evidentiary
value. He has also submitted that there was no attempt made by the
prosecution to connect the murder weapon which is the stone with the appellant
as no fingerprint examination was done on the said stone. He has also
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submitted that no forensic test was done of the hair and blood stain allegedly
found on the stone.
18. Assailing the impugned judgment, the learned Amicus Curiae has
submitted that the conviction appears to be only on the basis of the response to
the examination under Section 313 of the Cr.PC.[Corresponding to Section 351
of BNSS]. He submits that such statements cannot be used to convict an
accused and at best can be used only to corroborate the other evidence on
record. He has also raised the aspect that from the deposition of PW-8, it
appears that some superstitious belief was prevailing in the village regarding a
witch and therefore, a duty was cast upon the Court under Section 329 of the
Cr.PC.[Corresponding to Section 368 of BNSS] on the aspect of unsoundness of
mind. He has emphasized that it was wholly unnatural on the part of a mother
to kill her own infant child by pouring hot water and striking with a stone
without she being of an unsound mind.
19. In support of his submission, the learned Amicus Curiae has relied upon
the case of Jayaraj Vs. State of Tamil Nadu reported in (1976) 2 SCC 788.
The said case has been referred and relied with regard to the requirement of
intention in applying Section 300 of the IPC [Corresponding to Section 101 of
BNS]. For ready reference, the relevant observations of the Hon'ble Supreme
Court are extracted herein below.
"32. For this purpose we have to go to Section 299 which defines
"culpable homicide". This offence consists in the doing of an act
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause
death, or
(c) with the knowledge that the act is likely to cause death.
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33. As was pointed out by this Court in Anda v. State of Rajasthan [AIR
1966 SC 148 : 1966 Cri LJ 171] x"intent" and "knowledge" in the
ingredients of Section 299 postulate the existence of positive mental
attitude and this mental condition is the special mens rea necessary for
the offence. The guilty intention in the first two conditions
contemplates the intended death of the person harmed or the
intentional causing of an injury likely to cause his death. The
knowledge in the third condition contemplates knowledge of the
likelihood of the death of the person."
20. The learned Amicus Curiae accordingly submits that the present appeal is
liable to be allowed as the impugned judgment of conviction and sentence is
unsustainable in law.
21. Ms. S. Jahan, learned Addl. Public Prosecutor, on the other hand has
defended the impugned judgment and has submitted that the appeal is without
any merits and is liable to be dismissed. She has submitted that the
circumstances in the present case are continuous which leads to only one
conclusion which is the guilt of the appellant, and no other hypothesis is
possible.
22. Regarding the circumstances, the learned Addl. Public Prosecutor has
submitted that it has been proved that the appellant was already boiling water
when the informant (PW-1) had gone out of the house to play volleyball and
when asked, the appellant had replied that she was preparing hot water to have
a bath as well as to bath their minor son. Secondly, she has submitted that PW-
1, PW-2, PW-3, PW-4, PW-7 and PW-8 have deposed that the appellant had
made confession before them. Though the learned Addl. Public Prosecutor has
submitted that in deposition of few of such witnesses, the presence of police
has been indicated, such confession can be considered as it was made in front
of the public. She has also highlighted the part of the cross examination of PW-
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3, PW-4, PW-5 and PW-6 where by the suggestion given of threatening and
assaulting the appellant to force her to confess have been negated. She has
submitted that the post-mortem report which was proved as Ext. 8 corroborates
the oral evidence made by PW-1, PW-2, PW-3, PW-4, PW-7 and PW-8 as the
report clearly states that the death was a cumulative effect of striking by the
stone and pouring hot water on the body of the infant child. She has submitted
that both the aspect of pouring hot water and striking with the stone have been
duly proved by the prosecution. She has also submitted that the murder weapon
which, in the instant case was a stone, was seized and such seizure was duly
proved.
23. By drawing the attention of this Court to the examination of the appellant
under Section 313 of the Cr.PC. [Corresponding to Section 351 of BNSS], the
learned Addl. Public Prosecutor has submitted that in such examination the
appellant had clearly admitted her guilt and therefore, there is not even an iota
of doubt on the complicity and involvement of the appellant in causing the
death of the infant son.
24. In support of her submission, the learned Addl. Public Prosecutor has
relied upon the case of Ramanand @ Nandlal Bharti vs. State of Uttar
Pradesh reported in AIR 2022 SC 5273 in which it has been laid down that in
a trial which is based on circumstantial evidence, if the circumstances are
strong, the aspect of lack of motive may not be fatal. For ready reference, the
relevant observations of the Hon'ble Supreme Court are extracted hereinbelow:
"87. It is a settled principle of criminal jurisprudence that in a case based
on circumstantial evidence, motive for committing the crime on the part of
the accused assumes greater importance. This Court in various decisions
has laid down the principles holding that motive for commission of offence
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no doubt assumes greater importance in cases resting on circumstantial
evidence than those in which direct evidence regarding commission of
offence is available. It is equally true that failure to prove motive in cases
resting on circumstantial evidence is not fatal by itself. However, it is also
well settled and it is trite in law that absence of motive could be a missing
link of incriminating circumstances, but once the prosecution has
established the other incriminating circumstances to its entirety, absence
of motive will not give any benefit to the accused."
25. She has also referred to the case of Sahadevan and Anr. vs. State of
Tamil Nadu reported in (2012) 6 SCC 403 wherein the evidence in the form
of extra-judicial confession has been explained. It has been laid down that if
such extra-judicial confession is supported by other circumstances, those are
relevant piece of evidence. For ready reference, the relevant observations made
by the Hon'ble Supreme Court are extracted hereinbelow:
"16. Upon a proper analysis of the above-referred judgments of this Court, it
will be appropriate to state the principles which would make an extra- judicial
confession an admissible piece of evidence capable of forming the basis of
conviction of an accused. These precepts would guide the judicial mind while
dealing with the veracity of cases where the prosecution heavily relies upon an
extra-judicial confession alleged to have been made by the accused.
(i) The extra-judicial confession is a weak evidence by itself. It has to be
examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
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(iv) An extra-judicial confession attains greater credibility and evidentiary
value, if it is supported by a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should
not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in
accordance with law."
26. The learned Addl. Public Prosecutor has accordingly submitted that the
impugned conviction and sentence be upheld and the appeal be dismissed.
27. The rival submissions have been duly considered and the materials,
including the TCRs placed before this Court have been carefully examined.
28. From the materials on record including the depositions and the exhibits, it
is clear that the present case is based on circumstantial evidence and there is
no direct evidence in the form of eyewitnesses. Therefore, the burden is cast
upon the prosecution to prove that the circumstances available form a
continuous chain so as to lead to only one conclusion i.e., the guilt of the
appellant and none else. It is also essential that no other hypothesis which
would indicate anything towards the innocence of the appellant has to be ruled
out.
29. The informant, as PW-1 had stated that after playing volleyball when he
had come home, he did not find their infant son. The aforesaid deposition is
also to be examined from the context of his previous statement that while he
had gone out to play volleyball, he had found the appellant boiling water and
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when asked, she had stated that the same done for the purpose of bathing,
both for herself and their minor son. The aspect of the infant son being missing
when he had reached home without there being any sign of alarm from the
appellant is a circumstance from which an inference can be drawn. It should
have been the natural conduct of a mother to raise an alarm if her 1 ½ year old
son goes missing, that too from the house. The PW-1 claims to have made a
search for the son till late in the night and such deposition is also supported by
other witnesses who had joined the search. As the son was not found in the
search made in the night, the informant had renewed the search early in the
morning and could sense some foul play on the part of the appellant. He had
clearly stated that he could see suspicious conduct on the part of the appellant
in trying to hide something beneath the garbage near the jackfruit tree.
However, on asking, no convincing answer could be given by the appellant
which led to the informant to go to the place and make a search and to his
shock, he found the body of the deceased son. The evidence on record would
show that the body was found fully burnt with hot water and the skin had come
out. Further, there were also signs of injuries on the head.
30. The aforesaid ocular evidence was duly corroborated by the medical
evidence led by the Doctor as PW-9 who had conducted the post-mortem over
the dead body. In his deposition, PW9 had clearly stated that the peeling of the
skin was because of pouring of hot water and the injury on the forehead was
caused by a sharp cut mark and in his cross- examination, such cut mark has
been stated to be caused by a sharp weapon. It is on record that a stone was
recovered from the place of occurrence which was stated to be bloodstained
and contained hair. Though the learned Amicus Curiae may be correct in
contending that no serological test was done of the bloodstain, nor any forensic
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test done of the hair found on the stone, the said aspect would not be fatal to
the case of the prosecution in view of the fact that other convincing materials
exist. We have noted that the deposition of the PW-1 who is the father of the
deceased and the husband of the appellant is well supported by the deposition
of witnesses PW-2 to PW-8.
31. There is one aspect which the learned Amicus Curiae had tried to highlight
which is regarding the application of Section 329 of the Cr.PC [Corresponding to
Section 368 of BNSS].We have examined the aforesaid provision of law by which
a duty is cast upon the Court when it is found that the accused facing the trial is
of unsound mind. Though in a given case the aforesaid provision may be put
into application, in the instant case, the defense of unsoundness of mind was
never taken at any point of time. Even as an Appellate Court, if we examine as
to whether there were any circumstances which may have led the Trial Court to
suo moto apply the said provision, we are also aware of the fact that under
Section 84 of the IPC [Corresponding to Section 22 of BNS], unsoundness of
mind comes under the General Exception which is in Chapter IV of the IPC.
However, such defense cannot be taken in a routine manner as it would lead to
a situation wherein in all criminal cases such a defense would be taken.
32. Section 84 of the Indian Penal Code comes under Chapter- IV dealing with
"General Exceptions" and reads as follows:-
"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 the nature of the act, or that
he is doing what is either wrong or contrary to law."
33. The aforesaid provision which deals with the defense of insanity lays down
that an act is not an offense if committed by a person who, due to unsoundness
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of mind, is incapable of knowing the nature of the act, or that it is either wrong
or contrary to law. The crucial time is that of the commission of the offence and
the requirement is of legal insanity. Since the aforesaid provision acts as an
exception, it is the duty of the Courts to carefully scrutinize such a plea of
defence as otherwise the same would be grossly misused leading to miscarriage
of justice. To discharge the burden which is cast upon an accused taking a
defence under Section 84 of the IPC, (corresponding to Section 22 of BNS) one
has to look into the provisions of Section 105 of the Evidence Act, 1872
(corresponding to Section 108 of BSA) is extracted herein below:
"Section 105 - Burden of proving that case of accused comes within exceptions 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."
34. It may be mentioned that there is a specific illustration given under the
aforesaid Section 105, which reads as follows:
"Illustrations 1. A, accused of murder, alleges that, by reason of unsoundness of mind,
he did not know the nature of the act. The burden of proof is on A."
35. In the case of Prem Singh vs. State (NCT of Delhi) reported in (2023)
3 SCC 372, the aforesaid aspect of discharge of burden by an accused under
Section 105 of the Evidence Act has been elaborately explained. It has been laid
down that though the initial burden in a criminal case would always be on the
prosecution to prove beyond all reasonable doubt, once the said burden is
discharged, the onus would shift on the accused and the said burden can be
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rebutted by defence evidence. For ready reference, the relevant portion is
extracted herein below:
"65. It remains trite that the burden of proving the existence of circumstances so as to
bring the case within the purview of Section 84 IPC lies on the accused in terms of
Section 105 of the Evidence Act; and where the accused is charged of murder, the
burden to prove that as a result of unsoundness of mind, the accused was incapable of
knowing the consequences of his acts is on the defence, as duly exemplified by
illustration (a) to the said Section 105 of the Evidence Act. As noticed, the mandate of
law is that the Court shall presume absence of the circumstances so as to take the
case within any of the General Exceptions in the Indian Penal Code, 1860."
36. In the aforesaid case of Prem Singh (supra), the observation made in the
case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat reported in
AIR 1964 SC 1563 has been reiterated which reads as follows:
"7. The doctrine of burden of proof in the context of the plea of insanity may be stated
in the following propositions:
(1) The prosecution must prove beyond reasonable doubt that the accused had
committed the offence with the requisite mens rea, and the burden of proving
that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when
he committed the crime, in the sense laid down by Section 84 of the Indian
Penal Code: the accused may rebut it by placing before the court all the
relevant evidence oral, documentary or circumstantial, but the burden of proof
upon him is no higher than that rests upon a party to civil proceedings.
(3) Even if the accused was not able to establish conclusively that he was
insane at the time he committed the offence, the evidence placed before the
court by the accused or by the prosecution may raise a reasonable doubt in the
Page No.# 20/24
mind of the court as regards one or more of the ingredients of the offence,
including mens rea of the accused and in that case the court would be entitled
to acquit the accused on the ground that the general burden of proof resting on
the prosecution was not discharged."
37. There is another important aspect of the matter which is in connection
with the examination of the appellant under Section 313 of the Cr.PC
[Corresponding to Section 351 of BNSS]. It is astonishing to note that all the
incriminating circumstances against the appellant were admitted by her. In a
specific question, being Q No. 17 wherein the appellant was asked if she would
like to say anything in this case, she had clearly admitted her guilt. For ready
reference, the relevant question and the response are extracted herein below:
"Q No. 17 Would you like to say something in the case?
Ans. I killed my son, but, I do not know why I committed such act."
38. Though the response in an examination under Section 313 of the Cr.PC
[Corresponding to Section 351 of BNSS] may not be the sole material to come
to a finding of conviction, such response can no doubt be a support to the links
in a case of circumstantial evidence. In support of the aforesaid finding, reliance
can be made upon the case of Premchand Vs. State of Maharashtra
reported in (2023) 5 SCC 522 wherein the Hon'ble Supreme Court had made
the following observations:
"What follows from these authorities may briefly be summarized thus:
a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable
safeguard in the trial process for the accused to establish his innocence;
b. section 313, which is intended to ensure a direct dialogue between the
court and the accused, casts a mandatory duty on the court to question
Page No.# 21/24
the accused generally on the case for the purpose of enabling him to
personally explain any circumstances appearing in the evidence against
him;
c. when questioned, the accused may not admit his involvement at all
and choose to flatly deny or outrightly repudiate whatever is put to him
by the court;
d. the accused may even admit or own incriminating circumstances
adduced against him to adopt legally recognized defences;
e. an accused can make a statement without fear of being cross-
examined by the prosecution or the latter having any right to cross-
examine him;
f. the explanations that an accused may furnish cannot be considered in
isolation but has to be considered in conjunction with the evidence
adduced by the prosecution and, therefore, no conviction can be
premised solely on the basis of the section 313 statement(s);
g. statements of the accused in course of examination under section 313,
since not on oath, do not constitute evidence under section 3 of the
Evidence Act, yet, the answers given are relevant for finding the truth
and examining the veracity of the prosecution case;
h. statement(s) of the accused cannot be dissected to rely on the
inculpatory part and ignore the exculpatory part and has/have to be read
in the whole, inter alia, to test the authenticity of the exculpatory nature
of admission; and
i. if the accused takes a defence and proffers any alternate version of
events or interpretation, the court has to carefully analyze and consider
his statements;
j. any failure to consider the accused's explanation of incriminating
circumstances, in a given case, may vitiate the trial and/or endanger the
Page No.# 22/24
conviction."
39. Further, in the case of State of Uttar Pradesh vs. Lakhmi reported in
(1998) 4 SCC 336, the aspect of making an admission in an examination
under Section 313 has been explained by the Hon'ble Supreme Court and
following the said judgment, the Hon'ble Supreme Court has later on passed the
judgment in the case of Paul vs. State of Kerala reported in (2020) 3 SCC
115. The relevant observations read as follows:
"19. In State of U.P. v. Lakhmi the case involved death of the respondent's wife.
The respondent and the deceased had two children. The prosecution case was
that there were intermittent skirmishes between the couple. The wife accused
the appellant of dissipating his money on account of having drinks. During the
early hours of the fateful day, it is further alleged that the respondent inflicted
blows on the head of the deceased, smashed her skull leading to instant death.
The trial court convicted the respondent but the High Court acquitted him. We
may notice para 8. It reads as under: (SCC pp. 339-40)
"8. As a legal proposition we cannot agree with the High Court that
statement of an accused recorded under Section 313 of the Code does not
deserve any value or utility if it contains inculpatory admissions. The need of
law for examining the accused with reference to incriminating circumstances
appearing against him in prosecution evidence is not for observance of a
ritual in a trial, nor is it a mere formality. It has a salutary purpose. It
enables the court to be apprised of what the indicted person has to say
about the circumstances pitted against him by the prosecution. Answers to
the questions may sometimes be flat denial or outright repudiation of those
circumstances. In certain cases the accused would offer some explanations
to incriminative circumstances. In very rare instances the accused may even
admit or own incriminating circumstances adduced against him, perhaps for
Page No.# 23/24
the purpose of adopting legally recognised defences. In all such cases the
court gets the advantage of knowing his version about those aspects and it
helps the court to effectively appreciate and evaluate the evidence in the
case. If an accused admits any incriminating circumstance appearing in
evidence against him there is no warrant that those admissions should
altogether be ignored merely on the ground that such admissions were
advanced as a defence strategy."
(emphasis supplied)
20. We, therefore, have no hesitation in holding that a statement made by
the accused under Section 313 CrPC even if it contains inculpatory admissions
cannot be ignored and the court may where there is evidence available proceed
to enter a verdict of guilt."
40. As regards, the extra-judicial confession allegedly made by the appellant
before certain witnesses, this Court takes the aid of the case of Sahadevan
(supra) relied upon by the learned Addl. Public Prosecutor. It has been clearly
laid down that extra-judicial confession, though is a weak piece of evidence can
be taken into consideration if it is supported by other circumstances.
41. In the instant case, though PW-1, PW-3, PW-4 and PW-8 who had
deposed of such extra-judicial confession had also indicated the presence of
police, such presence of police however was not indicated by PW-2, PW-5 and
PW-7.
42. As would be available from the materials on record that before arrival of
the police, many villagers including the PWs, were already there in the place of
occurrence and therefore, the presence of police cannot be assumed from the
point of discovery of the body. We have also noted that PW-3, PW-4, PW-5 and
PW-6 had also negated the suggestion that the appellant was forced by the
Page No.# 24/24
public to make a false confession by threatening and assaulting her.
43. In the conspectus of the aforesaid discussion and the materials on record,
we are of the considered view that the conclusion arrived at by the learned
Addl. Sessions Judge, FTC, Sonitpur, Tezpur in convicting and sentencing the
appellant in Sessions Case No. 245/2017 vide judgment dated 14.03.2019, does
not warrant any interference.
44. The appeal accordingly stands dismissed.
45. Send back the TCRs.
46. Before parting, we place on record our appreciation for the valuable
assistance rendered by Shri M. Sarma, the learned Amicus Curiae, who would be
entitled to the prescribed fee.
JUDGE JUDGE
Comparing Assistant
