Gauhati High Court
Pabitra Kalita vs The State Of Assam on 30 October, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
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GAHC010077642020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/23/2020
PABITRA KALITA
DIBRUGARH, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MRS. JUSTICE MITALI THAKURIA
For the appellant : Mr. P. Mahanta, Amicus Curiae
For the respondent : Ms. B. Bhuyan, Sr. Advocate & Addl. P.P., Assam
Date of hearing : 16.10.2025
Date of Judgment : 30.10.2025
JUDGMENT AND ORDER(CAV)
(M. Zothankhuma, J)
1. Heard Mr. P. Mahanta, learned Amicus Curiae for the appellant. Also heard Ms. B.
Bhuyan, learned Sr. Counsel and Addl. P.P., Assam assisted by Ms. R. Das, appearing for the
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State.
2. This appeal has put to challenge the impugned judgment dated
17.08.2019, passed by the learned Addl. District & Sessions Judge, Dibrugarh,
in Sessions Case No.173/2018, by which the appellant was convicted and
sentenced to undergo rigorous imprisonment for life with a fine of Rs.1,000/-,
in default, to undergo simple imprisonment for 3 months under Section 302 of
IPC.
3. The matter relates to the killing of the mother of the appellant by the
appellant himself, by hitting her with a dao, which resulted in her death. The
father of the appellant is the informant in the present case and in his FIR
dated 31.07.2018, he has stated that the appellant had hit the informant's wife
with a dao and thereafter tried to commit suicide by slitting his neck with the
dao.
4. The appellant's counsel submits that there is no denial of the fact that
the deceased had died due to the appellant (son) having killed his mother with
a dao. However, the act committed by the appellant was not an offence, as the
said act had been done due to unsoundness of mind on the part of the
appellant. He submits that the appellant did not know the nature of the act
that he had done on his mother, due to unsoundness of mind, which attracted
the provision of Section 84 IPC.
5. The appellant's counsel submits that the appellant had slit his throat with
the same dao after having killed his mother with the same. The incident had
occurred on 29.07.2018 and the FIR had been lodged by the appellant's father
on 31.07.2018. There were 3 eyewitnesses out of 11 prosecution witnesses
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examined by the learned Trial Court, who had seen the appellant killing his
mother. These eyewitnesses are PWs-1, 4 & 6. He submits that in respect of
Section 84 of IPC, there is presumption of sanity on the part of an accused. In
terms of Section 105 of the Indian Evidence Act, when a person is accused of
any offence, the burden of proving the existence any of the General Exceptions
in the IPC such as Section 84 IPC, the Court is to presume the absence of such
Exception. However, the said presumption has to be rebutted by the accused.
He further submits that on a reading of the definition of Sections 3 & 4 of the
Evidence Act pertaining to the words 'proved', 'disproved', 'not proved', 'may
presume', 'shall presume' and 'conclusive proof', the standard of proof for
rebutting a presumption under the General Exceptions provided in Chapter-IV
of IPC is preponderance of probability. In support of his submission, the
learned counsel for the appellant has relied upon the judgment of the Hon'ble
Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar Vs. State
of Gujarat, reported in 1964 SCC OnLine SC 20 [AIR 1964 SC 1563]. He
submits that the rebuttability of a presumption of the General Exceptions, as
stated in the above judgment, provides that the accused is to satisfy the
standard/test of a prudent man, which also includes within it's meaning the
test of preponderance of probability. In this regard, he has relied upon the
judgment of the Supreme Court in the case of Devidas Loka Rathod Vs.
State of Maharashtra, reported in (2018) 7 SCC 718 and in the case of
State of U.P. Vs. Ram Swarup and Anr., reported in (1974) 4 SCC 764.
6. The learned counsel for the appellant submits that after the appellant had
killed his mother with a dao, he had slit his own throat. At the time the
appellant was arrested by the police, he was found to be murmuring. The
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appellant was thereafter taken to the hospital, where he remained for 1 month
16 days due to his injury. The 161 Cr.P.C statement of the appellant was
thereafter recorded on 13.09.2018, wherein he stated that he called his child on
the date of the incident, when his child was playing with the appellant's mother
(victim). As, the child ran away, the appellant became angry. The appellant
thereafter stated that he did not know what had happened. The above thus
clearly shows that the appellant was not in a proper frame of mind and implied
that he was of unsound mind.
7. The learned counsel for the appellant submits that when there has been a
stand taken by the appellant that he was mentally unsound and when it was
known that his actions were not of a prudent man, it was the duty of the
learned Courts to have the appellant examined by a Civil Surgeon of the district
to determine whether the appellant was of unsound mind. This would thus
clarify whether the appellant could have been found guilty of committing a
crime under Section 302 of IPC and whether he would be capable of making his
defence before the learned Trial Court. The appellant's counsel submits that
there was no motive established by the prosecution for the appellant to have
killed his mother and the same being supported by the evidence of the
prosecution witnesses, the act of the appellant, who was of unsound mind
would not attract Section 302 of IPC in view of Section 84 of IPC.
8. The learned counsel for the appellant submits that in terms of the
judgment of the Division Bench of the Hon'ble Gujarat High Court in the case of
State of Gujarat Vs. Manjuben, D/o Kasturbhai Nanjibhai, Criminal
Appeal No.474/2019, if a plea of insanity is raised by an accused, it is the
duty of the prosecution to subject the accused to a medical examination
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immediately. If the same is not done, the criminal proceedings initiated against
an accused would be violative of Article 21 of the Constitution of India, as his
life or liberty would have been deprived without following the procedure
established by law. However, in the present case, the appellant was never sent
for medical examination to determine if he was sane or otherwise.
9. The learned counsel for the appellant further submits that the Doctor, who
had attended upon the appellant for 1 month 16 days was never made or
examined as a witness and the Medical Report of the appellant for the said
period was also never brought on record. As such, Section 114(g) of the Indian
Evidence Act was attracted, inasmuch as, the evidence which could be produced
by the Prosecution, had not been produced by the Prosecution. The learned
counsel for the appellant thus prays that the impugned judgment should be set
aside and the appellant should be acquitted from the charge under Section of
302 IPC due to Section 84 IPC.
10. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand,
submits that a reading of the various orders of the learned Trial Court would
show that there was no occasion for the learned Trial Court to have a suspicion
that the appellant was not a normal and prudent person. She further submits
that an unsigned application had been submitted on behalf of the appellant to
the learned Trial Court on 08.03.2019, praying for examination of the appellant
by a Psychiatric Doctor of AMCH, as the attempt to suicide by the appellant and
the evidences of the prosecution witnesses suggested that the appellant may
have been suffering from mental illness/ insanity. However, the learned Assistant
District & Sessions Judge, Dibrugarh, in his order dated 08.03.2019, had held
that besides the application not showing who had filed or signed the petition,
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the Court had talked with the appellant, where he was found to be of sound
mind. The appellant had answered all the queries of the Court reasonably and it
was not found even for a single moment that the appellant was incapable of
making his defence. The Court thus held that Section 328 and 329 Cr.P.C was
not applicable to the appellant.
11. The learned Additional Public Prosecutor further submits that the unsigned
application made on behalf of the appellant was made without annexing any
documents, showing that the appellant had suffered or was suffering from any
mental problem.
12. The learned Additional Public Prosecutor further submits that in the order
dated 24.09.2018, the learned Court of the Magistrate who was to record the
confessional statement of the appellant after having been given 5 days'
reflection time had stated-
"24/09/2018
Accused person is produced before me after reflection period for recording
of confessional statement.
The accused person is examined by me to ascertain his mental state and
voluntariness by having verbal conversation with him but the accused was
found in fickle state of mind and failed to say what actually occurred at
the relevant time though he consented to confess his guilt. Hence under
the said circumstances I deemed it proper not to record his confessional
statement as the version of the accused cannot be considered to be
voluntary one with sound state of mind.
The accused is sent back."
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13. The learned Additional Public Prosecutor further submits that the above
order dated 24.09.2018 passed by the learned Judicial Magistrate First Class,
Dibrugarh is only with regard to the decision of the Magistrate not to record the
confessional statement of the appellant as his examination showed that his
confessional statement would not be voluntary one. The above order nowhere
implied that the appellant was of unsound mind.
14. The learned Additional Public Prosecutor submits that there was nothing in
the behaviour of the appellant during enquiry and the trial to show that the
appellant was of unsound mind. Rather, the appellant prayed that he wanted to
have a discussion with his Legal Counsel before making a confession, when the
appellant was first produced before the Judicial Magistrate First Class for
recording his confessional statement, as reflected in the order dated 18.09.2018
passed by the learned Judicial Magistrate First Class. She also submits that
appellant having been produced on numerous occasions before Magistrate,
Jailors, inmates of the Jails, there was ample opportunity for everyone to notice
the behaviour of the appellant for a long period of time. However there was no
occasion for the learned Magistrate to believe that the appellant was a person of
unsound mind, so as to adopt the procedure under Section 328 & 329 Cr.P.C.
respectively.
15. The learned Additional Public Prosecutor submits that there being no
evidence to show that the appellant was suffering from any unsoundness of
mind at the time of commission of the offence, the appellant cannot now pray
for a medical examination, to determine whether the appellant was of unsound
mind at the relevant point of time.
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16. In support of her submission that the onus of proving unsoundness of
mind is on the accused and that the crucial point of time at which
unsoundness of mind should be established is the time when the crime was
actually committed lies on the accused, she has relied upon the judgment of
the Hon'ble Supreme Court in the case of Prakash Nayi alias Sen Vs. State
of Goa, reported in (2023) 5 SCC 673.
17. We have heard the learned counsels for the parties.
18. As can be seen from the submissions of the learned counsels for the
parties and on perusing the records, there is no dispute with regard to the fact
that the appellant had killed his mother by hitting her with a dao and thereafter
tried to slit his own neck. The injuries on the mother of the appellant, are as
follows :-
"1. Chopped wound of size 15 cm. x 2 cm. and of spinal canal depth over back of the
neck, red in colour, placed horizontally.
2. Chopped wound of size 17cm. x 2cm. and of cranial cavity depth over occipital area
extending to the right external ear, red in color, placed horizontally.
3. Chopped wound over right shoulder area of size 8cm. x 3.5cm. and of bone depth,
red in color, placed obliquely.
4. Chopped wound over back of chest at inter scapular area of size 5cm. x 4.5cm. and
of muscle depth, red in color, placed horizontally."
19. As per the post-mortem report, death was due to hemorrhage and shock,
resulting from the injuries caused by a heavy sharp cutting weapon.
20. The only issue raised by the appellant's counsel is to the effect that no
normal person could have killed his mother and then tried to commit suicide,
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especially when there has been no motive or reason established by the
prosecution, for the appellant to have acted in the manner he did.
21. Section 84 & 299 of the IPC and sections 3, 4 & 105 of the Evidence Act,
states 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.
299. Culpable homicide. Whoever causes death by doing an act with the
intention of causing death, or with the intention of causing such bodily injury as
is likely to cause death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide.
3. Interpretation-clause.--In this Act the following words and expressions
are used in the following senses, unless a contrary intention appears from the
context:
"Court".--"Court" includes all Judges and Magistrates, and all persons, except
arbitrators, legally authorised to take evidence.
"Fact".--"Fact" means and includes--
(1) anything, state of things, or relation of things, capable of being perceived
by the senses;
(2) any mental condition of which any person is conscious.
"Relevant". -- One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the provisions of this
Act relating to the relevancy of facts.
"Facts in issue".-- The expression "facts in issue" means and includes-- any
fact from which, either by itself or in connection with other facts, the existence,
non-existence, nature or extent of any right, liability, or disability, asserted or
denied in any suit or proceeding, necessarily follows.
"Document". --"Document" 2means any matter expressed or described upon
any substance by means of letters, figures or marks, or by more than one of
those means, intended to be used, or which may be used, for the purpose of
recording that matter.
"Evidence". --"Evidence" means and includes --
(1) all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence;
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(2) [all documents including electronic records produced for the inspection of
the Court;]
such documents are called documentary evidence.
"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
circumstances of the particular case, to act upon the supposition that it does
not exist.
"Not proved". -- A fact is said not to be proved when it is neither proved nor
disproved.
["India". -- "India" means the territory of India excluding the State of Jammu
and Kashmir.]
[the expressions "Certifying Authority", "[electronic signature]", [(Electronic
Signature Certificate], "electronic form", "electronic records", "information",
"secure electronic record", "secure digital signature" and "subscriber" shall have
the meanings respectively assigned to them in the Information Technology Act,
2000 (21 of 2000).]
4. "May presume". Whenever it is provided by this Act that the Court may
presume a fact, it may either regard such fact as proved, unless and until it is
disproved, or may call for proof of it.
"Shall presume". Whenever it is directed by this Act that the Court shall
presume a fact, it shall regard such fact as proved, unless and until it is
disproved.
"Conclusive proof". When one fact is declared by this Act to be conclusive
proof of another, the Court shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for the purpose of disproving
it.
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.
22. In the case of Dahyabhai Chhaganbhai Thakkar (Supra), the
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Supreme Court has held that when a person is bound to prove the existence of
any fact, it is said that the burden of proof lies on that person.
23. With respect to the plea of insanity taken by the appellant, the accused
person would have to rebut the presumption that he was sane at the time of the
event, by placing materials before the Court sufficient to make it consider the
existence of said circumstances so probable that a prudent man would act upon
them. Thus, the accused had 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.
24. In the case of Dahyabhai Chhaganbhai Thakkar (Supra), the
Supreme Court has held that 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
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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 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.
25. In the case of Ram Swarup (supra), the Supreme Court has held that
under 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 Exceptions contained in Chapter IV of the Penal
Code, is upon him and the Court shall presume the absence of such
circumstances.
26. In the case of Devidas Loka Rathod (supra), the Supreme Court has
held the law presumes that every person committing an offence is sane and
liable for his acts, though in specified circumstances it may be rebuttable, as in
Section 84 IPC.
27. In the case of Prakash Nayi alias Sen (supra), the Supreme Court
has held that the burden of proof does lie on the accused to prove to the
satisfaction of the Court that one is insane while doing the act prohibited by
law. Such a burden gets discharged based on a prima facie case and
reasonable materials produced on his behalf. The extent of probability is one of
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preponderance. This is for the reason that a person of unsound mind is not
expected to prove his insanity beyond a reasonable doubt. Secondly, it is the
collective responsibility of the person concerned, the Court and the prosecution
to decipher the proof qua insanity by not treating it as adversarial. Though a
person is presumed to be sane, once there are adequate materials available
before the Court, the presumption gets discharged.
28. Paragraph nos.9, 10 and 11 of the said judgment are reproduced
hereinbelow, as follows :
"9. Section 105 of the Indian Evidence Act, which places the burden of
proving, has its exceptions. Though, as a general principle, the onus is
upon the person accused to bring his case under the exception, dealing
with the case under Section 84 of the IPC, one has to apply the concept
of preponderance of probabilities. The aforesaid provision has to be read
along with Section 8 of the Indian Evidence Act. The better way to
reconcile the aforesaid provision would be to have a look into the
behaviour and conduct before, during and after the occurrence.
10. As Section 84 of the IPC has its laudable objective behind it, the
prosecution and the Court have their distinct roles to play. The agency has
to take up the investigation from the materials produced on behalf of the
person claiming unsoundness. It has to satisfy itself that the case would
not come within the purview of Section 84 of the IPC.
11. The Court on its part has to satisfy itself as to whether the act was
done by a person with an unsound mind within the rigour of Section 84 of
the IPC."
29. In the case of Bapu vs. State of Rajashthan, reported in (2007) 8
SCC 66, the Supreme Court has held that the onus of proving unsoundness of
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mind is on the accused. However, when during investigation previous history of
insanity was revealed, it was the duty of the investigator to subject the
accused to medical examination and place that evidence before the Court. It
further held that mere abnormality of mind or partial delusion, irresistible
impulse or compulsive behaviour of a psychopath affords no protection under
Section 84 IPC.
30. In the case of Ratan Lal vs. State of M.P , reported in (1970) 3 SCC
533, the Supreme Court has held that the crucial point of time at which
unsoundness of mind should be established is the time when the crime is
actually committed and the burden of proving this lies on the accused.
31. In the case of Vijayee Singh vs. State of U.P, reported in (1990) 3
SCC 190, the Supreme Court has held that if a reasonable doubt is created in
the mind of the Court with regard to the mental condition of an accused at the
time of occurrence from the materials placed on record, the accused shall be
entitled to the benefit of reasonable doubt.
32. In the case of State of Gujarat Vs. Manjuben, D/o Kasturbhai
Nanjibhai, Criminal Appeal No.474/2019, the Division Bench of the
Gujarat High Court held that if a plea of insanity is raised by an accused, the
accused should be subjected to a medical examination immediately.
33. In the case of Surendra Mishra vs. State of Jharkhand, reported in
(2011) 11 SCC 495, the Supreme Court has held that that an accused who
seeks exoneration from the liability of an act under Section 84 of IPC has to
prove legal insanity and not medical insanity. Medical insanity is a clinical
diagnosis of a mental illness, while legal insanity is a legal determination of a
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person's mental state at the time of a crime, wherein a determination has to
be made as to whether the accused was aware and understood that his
actions were illegal. As such, the main difference between the legal insanity
and medical insanity would basically refer to whether the accused knew the
nature of his actions, vis-à-vis the accused mental state of health.
34. In the case of State of Madhya Pradesh vs. Ahmadullah , reported in
AIR 1961 SC 998, the Supreme Court has held that that to establish insanity,
it must be clearly proved that at the time of committing the act, the party is
laboring under such defect of reason, as not to know the nature and quality of
the act which he is committing. Thus, in terms of the judgments referred to
above, the appellant would have to be subjected to a medical examination, if a
plea of insanity had been raised by him or on his behalf in terms of Section
328 and 329 Cr.P.C.
35. In the present case, there is nothing to show that the appellant had any
past history of insanity. There is also nothing to show that the appellant
suffered from unsoundness of mind during the time of the incident or even
after the said incident had occurred. Only because of the fact that the
appellant had killed his mother and thereafter had slit his throat without any
reason being established for the same by the Prosecution, does not ipso-facto
mean that the appellant was of unsound mind. There is no stand taken by the
appellant's father, the appellant's relatives, the Doctor who treated the
appellant, the Police, the Jailors, other inmates in the Jail and the Magistrate
who had been in contact with the appellant, making any observation or making
a whisper that the appellant appeared to be of unsound mind. Assuming the
appellant had suffered from insanity for the first time at the time of the
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incident or even thereafter, the same would not have gone unnoticed from the
numerous people that the appellant had been in contact with, such as the
Jailors and the inmates of the Prison in which he was kept as an under-trial, as
they would have surely noticed if the appellant was not quite sane/normal.
Further, the Magistrate before whom the appellant was produced time and
again, would also have noticed the same. No documents had been furnished
by anybody with regard to the appellant suffering from any unsoundness of
mind at any point of time. The unsigned application dated 08.03.2019 that had
been submitted on behalf of the appellant praying for a medical examination of
the appellant by a Psychiatric Doctor, on the ground that the appellant might
be suffering from mental illness/insanity, was decided by the Court of the
learned Assistant District & Sessions Judge, Dibrugarh, vide order dated
08.03.2019, where it had held that the appellant did not appear to be
incapable of making his defence after the concerned Judge had spoken to the
appellant. This order dated 08.03.2019 which has come to a finding that the
appellant was a sane person, has not been put to challenge by the appellant or
his counsel even till today.
36. In his cross-examination under Section 313 Cr.P.C, the appellant in his
answer to Question No.1, had admitted the fact that he had murdered his
mother. He however states in his later answers to other questions that he did
not know what he did at the time of the incident. The above admission by the
appellant under Section 313 Cr.P.C that he killed his mother, though he did not
know the reason for the same, does not ipso facto mean that the appellant
was insane at the time of incident. In fact no evidence has been produced by
the defence in the trial that the appellant was of unsound mind at the time the
incident occurred. It could also be a case of selective amnesia and a pretence
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to cover up his crime by taking a plea that he did not know what happened.
When the issue of the appellant being of unsound mind has not been raised
by the appellant or his family members at any point of time prior to the
unsigned application dated 08.03.2019 during trial, we are unable to convince
ourselves that there is a reasonable doubt regarding the appellant being of
sound mind at the time the incident occurred, just because a normal person
might not have normally done what the appellant did. The same does not
prove that the appellant was of unsound mind at the relevant point of time.
Much water has gone under the bridge and in the absence of any material to
show that the applicant was suffering from insanity at the time of the incident,
we do not find any grounds to interfere with the impugned judgment. We are
accordingly of the view that no ground for interference has been made out.
The appeal is accordingly dismissed.
37. Send back the TCR.
38. In appreciation of the assistance provide by the learned Amicus Curiae,
his fee should be paid by the Assam State Legal Services authority.
JUDGE JUDGE
Comparing Assistant
