Sonam Phintso Wangdi, J.@mdashThis Appeal is directed against the judgment dated 10-03-2014 passed in Sessions Trial Case No. 28 of 2010 by the Court of the Principal Sessions Judge, East Sikkim at Gangtok by which the Appellant was convicted for the offences under Sections 302 and 307 of the Indian Penal Code, 1860 (in short the "IPC") and was sentenced to undergo simple imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs. 5,000/- (Rupees five thousand) and, in default of payment of fine, to undergo further simple imprisonment of six months. Against the offence under Section 307 IPC, he was convicted to undergo simple imprisonment of 2(two) years and to pay a fine of Rs. 2,000/- (Rupees two thousand) and, in default in payment of fine, to undergo further simple imprisonment of six months with both the sentences running concurrently.
2(i). The gravamen of the prosecution case is that on 26-09-2010, Sub-Inspector Bijendra Thapa, P.W. 29, Investigating Officer (in short the "I.O.") of the case, received a written FIR at about 01.30 p.m. from one Pratap Singh Rai, P.W. 1, the Panchayat President of Singlaybong, West Pandam, stating that at about 12.53 p.m. of that day he received an information over the phone from one Jagat Rai, P.W. 2 of Singlaybong Busty informing him that the Appellant had murdered Amrita Rai, the deceased, by beheading her with a ''khukuri'' (sharp edged weapon) and on this information P.W. 29 had gone to the spot and found that the Appellant had indeed committed the murder of the deceased at about 12.40 p.m.
(ii) Accordingly, Singtam P.S. case No. 42(9)10 dated 26-09-2010 under Section 302 IPC was registered against the Appellant and investigation taken up.
(iii) The I.O., P.W. 29, then visited the place of occurrence at Singlaybong Primary School ground and conducted the necessary preliminary inspection, took photographs of the dead body as well as the severed head of the deceased, prepared a rough sketch map, conducted inquest over the dead body and the head of the deceased.
(iv) The Appellant was arrested on the date of the incident, i.e., 26-09-2010, from whom the weapon of offence, i.e., blood stained ''khukuri'', and the wearing apparels belonging to him were seized. The blood sample of the Appellant was also received from the doctor and blood stained mud and controlled mud sample lifted from the place of occurrence.
(v) Statements of Samir Rai @ Sumit, P.W. 4 and Sunita Rai, P.W. 3, were recorded by the Judicial Magistrate, East Sikkim. Seized Exhibits, i.e., M.O.I., ''Khukuri'', M.O.II, blue jeans pant of the Appellant with blood stains and M.O.III, white coloured nylon sugar sack, were forwarded to CFSL, Kolkata, for analysis and opinion.
(vi) Investigation revealed that the Appellant, a school dropout and a notorious character disliked by the villagers, was working as a labourer in his village. The deceased, Amrita Rai, daughter of Lok Bahadur Rai, P.W. 6, was studying in Class IV at Singlaybong Primary School. The deceased and the Appellant were neighbourers and distantly related to each other. The Appellant used to visit the house of the deceased frequently and shared a close relation with the elder sister of the deceased, Anita Rai, P.W. 9. When Anita Rai refused to have the kind of relationship, which the Appellant wanted to have with her as they were related as cousins, he had threatened her and for the fear of the Appellant got married early with one Ram Bahadur Rai in December, 2009. Even after that, the Appellant continued to visit her house and eventually developed a strong liking for her sister, the deceased, but his failure to win her heart got him frustrated which led him to decide to do away with her.
(vii) On 26-09-2010 at around 11 a.m., the Appellant had gone to the house of the deceased when an altercation followed between the two in the process of which the deceased slapped the Appellant on his face. After that, the deceased carrying a gunny bag went towards the shop to purchase rice after which the Appellant left the house in a rage.
(viii) At around 12 noon on her way to the shop, the deceased dropped in at the house of Sunita Rai, P.W. 3, her cousin Samir Rai @ Sumit, P.W. 4 and Sunder Rai, P.W. 5, and jointed them in watching a television programme in the bed room of their elder brother Mani Kumar Rai. After sometime the Appellant also appeared at the place and removed the kit-cut from the main electric switch board to disrupt the TV programme which they were enjoying. As the television went off, the deceased Amrita Rai, walked out of the house and resumed her way to the shop. The Appellant then put the kit-cut back in the main switch board and, while the others were watching the television, he went into the adjoining sitting room from where he picked up a ''khukuri'', M.O.I., which he had kept and went out. When P.W. 4 noticed the Appellant following the deceased with the ''khukuri'' in his hand, he followed them and on reaching the school ground, he saw the Appellant holding the deceased by her hair and threatening her to kill her with the ''khukuri''. When the deceased saw P.W. 4, she called out to him for help asking him to call her brother Subhas Rai, P.W. 7, for her rescue. The moment P.W. 4 left the spot to call P.W. 7, the Appellant struck the deceased with the ''khukuri'' on her neck completely severing her head from her body. The Appellant then held the severed head of the deceased and called out P.W. 3 from the edge of the school ground and, when she came out of the house, he threw the head on to the courtyard and fled holding the weapon of offence in his hand.
(ix) At about 12.30 p.m. Upaman Chettri P.W. 10 and Bikash Rai, P.W. 11 saw the Appellant going hurriedly from Singlaybong busty towards Bardang and, when they asked him where he was headed for, he told them that he was coming after hacking a person. The Appellant even tried to assault P.W. 11 with the ''khukuri'' when he attempted to stop him and then fled.
(x) As he reached Bardang, the Appellant met Roshan Sherpa, P.W. 17 and Chandra Bahadur Subba, P.W. 22 and asked them about the whereabouts of one Rupen Subba, P.W. 14 against whom he bore a grudge. When P.W. 14 could not be located, the Appellant headed for Singtam taxi stand on board a taxi driven by Suraj Tamang, P.W. 15, who was returning from Rangpo. The Appellant concealed the weapon of offence in his pullover and when he spotted P.W. 14 as they neared the Old Singtam Bridge, he charged at him with the ''khukuri'' but was intercepted by the police and other people leading to his arrest and the seizure of weapon.
(xi) Post-mortem report, Exhibit 10, revealed that the cause of the death as being ante-mortem due to neck injuries caused by sharp edged weapon and the injuries fresh.
(xii) The Appellant was sent for medical examination after his arrest, and the doctor opined that he was fit to be retained in Police custody. After completion of the investigation, a prima facie case was found to have been made out against the Appellant under Section 302 IPC for murdering the deceased and under Section 307 IPC for attempting to murder one Rupen Subba, P.W. 14. Charge-sheet was accordingly filed by the I.O.
3. The Learned Trial Court, having found sufficient materials on record, framed charges under Sections 302 and 307 IPC against the Appellant, which when read out, he pleaded not guilty and claimed to be tried.
4. At the trial, the prosecution examined as many as 29 witnesses and exhibited several documents. After completion of the prosecution evidence, the Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (in short the "Cr.P.C."). On consideration of the evidence on record, the Learned Trial Court found the Appellant guilty of having committed the murder of the deceased Amrita Rai and of having attempted to commit the murder of Rupen Subba, P.W. 14 and accordingly, convicted and sentenced him, as already set out earlier.
5(i). Mr. Udai P. Sharma, Learned Legal Aid Counsel, appearing on behalf of the Appellant, submitted at the outset that he would confine his arguments only on the limited question, of the defence of the Appellant under Section 84 IPC of having committed the offence by reason of unsoundness of his mind. Mr. Sharma would submit that the Learned Trial Court while rejecting this plea, had overlooked glaring evidence replete in the records which if noticed would have given a different complexion to the result of the case.
(ii) Referring to the evidence of Dr. Chandra Shekhar Sharma, Consultant Psychiatrist, STNM Hospital, C.W. 1 and his report Exhibit ''C'', it was submitted that the Appellant suffered from persecutory delusions and under such condition he believed that he was being persecuted, i.e., attempts were being made to kill him or that people were conspiring against him. That the Appellant was a patient of epilepsy, a condition that induces sudden discharge in the brain triggering off fits after which the person may commit some offence of which he would be unaware. It was also pointed out that the Psychiatrist in most unequivocal terms had stated that the medical history of the Appellant showed that he was suffering from epilepsy.
(iii) As per Mr. Sharma, the evidence of Suk Dev Rai, D.W. 1, Pushpa Kumar Rai, D.W. 2 and Dhurba Rai, D.W. 3, corroborated the evidence of the Psychiatrist, C.W. 1, as it had come in their evidence that he had been mentally ill for a very long period. In fact, the evidence of D.W. 1 was categorical in revealing that the Appellant was afflicted by epilepsy and would get into epileptic seizures during which time he was unable to control his action and that it was during one of such seizures that he had committed the offence. This part of the evidence of D.W. 1, as per Mr. Sharma, stands corroborated by D.W. 2, in his evidence where he has stated that on the day of the incident when he had met the Appellant, he looked abnormal and was behaving like a person of unsound mind and had glared at him with blood shot eyes. It was pointed out that as per this witness, in 2008 the Appellant was taken to Kalimpong for treatment of his mental illness and when he was not cured there, he was taken to Siliguri and emphasised on the portion of his evidence where he has stated that the Appellant was suffering from mental illness from his childhood.
(iv) Similarly, drawing our attention to the evidence of D.W. 3, Mr. Sharma would submit that the evidence of D.W. 2 stands fully corroborated by him on all material particulars and nothing had been brought out in the cross-examination to contradict or falsify those.
(v) Reference was made to the evidence of Upaman Chettri, P.W. 10, in emphasising that it was in his evidence on being cross-examined that in 2008, 2009 and 2010, the father of the Appellant had taken him for mental treatment to Kalimpong and other doctors thereby corroborating the evidence of D.Ws. 1, 2 and 3 strongly emphasising on the part where he had stated that when the Appellant used to have the bouts of mental illness, he would go berserk and violent.
(vi) The Learned Legal Aid Counsel would also point out that even in the evidence of Bikash Rai, P.W. 11, the same facts have come in his cross-examination and further that on 26-09-2010 the Appellant was found in a rage, looking abnormal and under such state he even attacked the witness with the ''khukuri'' which he was carrying when he came across him on the way. It was emphasised that this witness has also disclosed that the Appellant used to murmur to himself and remain disoriented while at work.
(vii) Even Prem Bahadur Chettri, P.W. 12. had corroborated the evidence of P.Ws 10, 11 and the defence witnesses 1, 2 and 3, on the fact that the Appellant used to be violent when suffering from bouts of mental illness and which, as per him, was the reason why he used to be taken by him to Kalimpong for treatment.
(viii) Mr. Sharma further urged that even other prosecution witnesses, namely, Jagat Rai, P.W. 2, Sunder Rai, P.W. 5, Subash Chandra Rai, P.W. 7, Kumar Rai, P.W. 13 and Rupen Subba, P.W. 14, have substantially corroborated the evidence of the defence witnesses as well as P.Ws. 10, 11 and 12, on the mental illness of the Appellant and his being taken to Kalimpong and other places for treatment and of him becoming violent when suffering from bouts of mental illness.
(ix) The Learned Legal Aid Counsel would urge that the evidence put forth on behalf of the Appellant was sufficient to bring his case within the ambit of the protection provided under Section 84 IPC. It was submitted that the onus placed upon the Appellant under Section 105 of the Indian Evidence Act, 1872, has thus been successfully discharged by him. In any case, as per the Learned Legal Aid Counsel, the weight of the evidence would create a serious doubt in the prosecution case as it whittles down the requisite onus of proof, i.e., proof beyond reasonable doubt, required to be discharged by the prosecution. Reliance have been placed on
"(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 S. 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 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."
(x) Relying upon the above proposition, it was thus submitted that there were sufficient oral evidence to rebut the presumption against the Appellant thereby bringing his case within the ambit of Section 84 IPC.
(xi) Mr. Udai P. Sharma reinforced his arguments by referring to question No. 105 put to the Appellant in his examination under Section 313 Cr.P.C. as to whether he had any statement to make in his defence in answer to which he had stated that he was an epileptic and was unmindful of what he would do while going through epileptic seizures. It was submitted that he had also successfully led oral evidence in support of this claim. These facts, considered in the light of the evidence of Dr. Chandra Shekar Sharma, C.W. 1, would clearly establish the factum of the Appellant suffering from epileptic attacks prior to the incident.
(xii) By referring to the evidence of Kumar Rai, P.W. 3, it was submitted that on 25-09-2010, i.e., the day before the incident, when he and Pratap Singh Rai, P.W. 1, the Panchayat of the area, had stopped the Appellant from removing one empty sand bag from house of the Panchayat and had rebuked him, he had got extremely agitated and later fainted in the road. Mr. Sharma referred to the case of the
"26. This oral and documentary evidence clearly shows that the respondent was suffering from epileptic attacks just prior to the incident. Immediately prior to the occurrence, he had behaved violently and had caused injuries to his own family members. After committing the crime, he was arrested by the police and even thereafter, he was treated for insanity, while in jail."
(xiii) The Learned Legal Aid Counsel, therefore, would urge that the Appellant be acquitted as being protected under Section 84 IPC.
6(i). Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, on the other hand, contended that the facts and circumstances and the evidence produced by the prosecution have clearly established that the Appellant had committed the offence consciously in a premeditated manner. Other than the oral evidence which were lacking in material particulars, no documentary evidence was produced to support the contention that the Appellant was a patient of epilepsy or any other mental disorder.
(ii) The Learned Additional Public Prosecutor emphasised on the extra-judicial confession made by the Appellant to Upaman Chhetri, P.W. 10, Bikash Rai, P.W. 11, Suraj Tamang, P.W. 15 and Surendra Thapa, P.W. 18. It was submitted that the Appellant had confessed that he had killed a person and that he was going to Singtam Thana to surrender. The subsequent events after the incident would thus indicate that the Appellant was aware of what he had done as would appear from what follows hereafter.
(iii) Upaman Chettri, P.W. 10, had seen the Appellant going down hurriedly towards Bardang and when he was asked as to where he was heading for, he had answered by stating that he had come after ''cutting'' a person and proceeded towards Bardang. This witness also saw that the Appellant was carrying a ''khukuri'' in his hand.
(iv) Bikash Rai, P.W. 11, while he was on his way to his in-laws'' field, met the Appellant at Singlaybong carrying a ''khukuri'' smeared with blood who told him that he was coming after ''cutting'' a person and then hurriedly went off towards Bardang.
(v) As per the evidence of Suraj Tamang, P.W. 15, a taxi driver, while proceeding towards Singtam from Rangpo, he was stopped by the Appellant for a lift after which he boarded the vehicle on the rear seat and a short distance later when the Appellant came on to the front seat after a passenger had got down, he saw a blood smeared ''khukuri'' in his hand and when asked, he had stated that he had killed a person with that ''khukuri'' and was going to Singtam Thana to surrender. The Appellant thereafter had got down near old Singtam Bridge.
(vi) Surendra Thapa, P.W. 18, who is a police personnel of the Singtam Police Station, saw the Appellant getting down from a vehicle near the old Bridge holding a ''khukuri'' in his hand and that after he was apprehended and taken to the police station, the Appellant had stated that he had killed a girl named Amrita Rai of Singlaybong busty.
(vii) These are the evidence, as per the Learned Additional Public Prosecutor, that would fully establish that the Appellant was not at all insane at the time when he committed the offence.
(viii) It was then submitted that Dr. Chandra Shekar Sharma, C.W. 1, no doubt has opined on the question of medical insanity but, as per him, what the Appellant was required to prove was that he was suffering from legal insanity which, as per him, is the principle underlying Section 84 IPC. As per him, there is also no evidence to show that the Appellant was suffering from insanity at the time when he committed the murder. The Learned Additional Public Prosecutor would rely upon
7(i). We have given anxious consideration to the rival submissions of the parties and carefully examined the evidence on the record.
(ii) In Narad Pariyar (supra), we have dealt with the jurisprudence governing Section 84 IPC by referring to Surendra Mishra (supra). Since this case sets out the jurisprudence underlying Section 84 IPC most lucidly, we deem it appropriate to reproduce the relevant portions of that decision which read as under:-
"8. Nobody had appeared on behalf of the respondent. However, we have perused the records and bestowed our consideration to the submission advanced by Mr. Agarwal and we do not find any substance in the same. In view of the plea raised it is desirable to consider the meaning of the expression "unsoundness of mind" in the context of Section 84 of the Penal Code and for its appreciation, we deem it expedient to reproduce the same. It 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."
Section 84 of the Penal Code is found in its Chapter IV, which deals with general exceptions. From a plain reading of the aforesaid provision it is evident that an act will not be an offence, if done by a person who, at the time of doing the same by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law.
9. But what is unsoundness of mind? This Court had the occasion to consider this question in
"13. The standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that an 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 had affected his emotions and will, or that he had committed certain unusual acts in the past, or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behavior, or that his behavior was queer, cannot be sufficient to attract the application of this section."
10. The scope and ambit of the Section 84 of the Penal Code also came up for consideration before this Court in
"10. ''17. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of "unsoundness of mind" in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term "insanity" itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.'' (Bapu v. State of Rajasthan)"
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 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 behavior or the behavior is queer are not sufficient to attract the application of Section 84 of the Penal Code.
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13. In law, the presumption is that every person is sane to the extent that he knows the natural consequences of his act. The burden of proof in the face of Section 105 of the Evidence Act is on the accused. Though the burden is on the accused but he is not required to prove the same beyond all reasonable doubt, but merely satisfy the preponderance of probabilities. The onus has to be discharged by producing evidence as to the conduct of the accused prior to the offence, his conduct at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. Even if the accused establishes unsoundness of mind, Section 84 of the Penal Code will not come to its rescue, in case it is found that the accused knew that what he was doing was wrong or that it was contrary to law. In order to ascertain that, it is imperative to take into consideration the circumstances and the behavior preceding, attending and following the crime. Behavior of an accused pertaining to a desire for concealment of the weapon of offence and conduct to avoid detection of crime go a long way to ascertain as to whether, he knew the consequences of the act done by him.
14. Reference in this connection can be made to a decision of this Court in
"9. Under the Evidence Act, the onus of proving any of the exceptions mentioned in the Chapter lies on the accused though the requisite standard of proof is not the same as expected from the prosecution. It is sufficient if an accused is able to bring his case within the ambit of any of the general exceptions by the standard of preponderance of probabilities, as a result of which he may succeed not because that he proves his case to the hilt but because the version given by him casts a doubt on the prosecution case.
10. In
11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought." "
(iii) As would appear from the above, the standard to be applied in determining the question of insanity is as to whether or not according to the ordinary standard adopted by a reasonable man, the act was right or wrong. Only because an accused is odd and his brain is not all right or that he would have recurring fits of insanity at short intervals or that he used to get epileptic fits, etc., was not sufficient to attract the application of Section 84 IPC. The decision also lays down that although the burden is on the accused by application of Section 105 of the Evidence Act to prove that he was incapable of knowing the nature of the act by reason of unsoundness of his mind, the burden is required to be discharged by preponderance of probability. However, this onus requires to be discharged by producing evidence as to the conduct of the accused prior to the offence, at the time or immediately after the offence with reference to his medical condition by production of medical evidence and other relevant factors. It is also further laid down that if the accused succeeds in establishing unsoundness of his mind, Section 84 IPC will not come to his rescue in case he knew that what he was doing was wrong or that it was contrary to law. It was thus held that in order to ascertain this, it was necessary to take into consideration the circumstances and the behavior preceding, attending and following the crime.
(iv) On the anvil of the law enunciated in the above decision, we may now proceed to examine the facts of the present case. We have seriously taken into consideration the evidence referred to on behalf of the Appellant and the submissions made on his behalf. The decisions cited at the bar by Mr. Udai P. Sharma no doubt lays down the necessary principle of law pertaining to Section 105 of the Evidence Act read with Section 84 IPC. There is no inconsistency in the decisions and in Surendra Mishra (supra) on the trite position set out therein. However, we are unable to be convinced that the Appellant had committed the offence on account of his mental disorder.
(v) The evidence of defence and the prosecution witnesses referred to by the Learned Legal Aid Counsel are only oral evidence bereft of any documentary support. If the Appellant had been undertaking medical treatment at Kalimpong and Siliguri as has been claimed, it is expected that he would be possessed of at least one medical prescription. Not even a scrap of paper has been produced on behalf of the Appellant to substantiate the factum of his treatment of his mental ailment.
(vi) The direct evidence produced by the prosecution, in our view, rather clearly establishes the deliberate manner in which the offence was committed. It is in the evidence of the father of the deceased, P.W. 6 that at around 12 noon he had heard his deceased daughter and the Appellant having an altercation in his house and, later had asked his daughter to go for marketing handing over her Rs. 200/- (Rupees two hundred). From this, it can be reasonably inferred that the Appellant had been to the house of the deceased and then had followed her out of the house as she proceeded for the purchases asked for by her father.
(vii) The evidence of Sunita Rai, P.W. 3, Samir Rai @ Sumit, P.W. 4, Sunder Rai, P.W. 5, would lend support to this circumstance when it has come in their evidence that the deceased had been with them around 11.30 a.m. watching the television when the Appellant had entered the house and disconnected the electricity by removing the kit-cut fuse. From their evidence, it also emerges that the TV programme being disrupted, the deceased left the house and went towards the Co-operative Shop after which the Appellant reappeared and reconnected the fuse restoring the electricity. As the Appellant went out, P.W. 3 demanded Rs. 150/- (Rupees one hundred and fifty) from him which he had borrowed from her but, the Appellant left without a word. All these witnesses are consistent in their statements that after about 10 minutes they had heard the Appellant calling out and when they had gone outside, the Appellant had thrown the severed head of the deceased saying "take it".
(viii) In fact, it is in the evidence of P.W. 4 that he had seen the Appellant take out a ''khukuri'' from the sitting room of the house of P.W. 3 and followed the deceased. When he saw this, he had followed the direction towards which the Appellant had gone and when he reached the school ground, he saw the Appellant pulling the deceased by the hair and shouting at her wielding the ''khukuri'' in his hand. The deceased had cried out asking P.W. 4 to call her brother P.W. 7 to rescue her. He then ran towards the house of P.W. 7 and called out to him from a distance but when he returned, he found the headless body of the deceased on the ground and saw her head in the courtyard of P.W. 3.
(ix) The evidence of P.Ws 3 and 4 have been found corroborated in full measure by Sunder Rai, P.W. 5, who also was with them watching the TV programme. More damning evidence against the Appellant is found in the depositions of Upaman Chettri, P.W. 10, Bikash Rai, P.W. 11, Rupen Subba, P.W. 14, Suraj Tamang, P.W. 15, Kawang Sherpa, P.W. 16, Roshan Sherpa, P.W. 17, Surendra Thapa, P.W. 18, Suman Tamang, P.W. 19 and Tulsi Sharma, P.W. 23. These witnesses have deposed in substance on the event that took place after the commission of the offence.
(x) As already noted earlier, P.W. 10 had seen the Appellant heading towards Bardang in a hurry and when he was asked as to where he was going, he answered by saying that he was coming after ''cutting'' a person. He also saw that the Appellant was carrying a ''khukuri'' in his hand. Sometime later at Singlaybong, he saw the severed head of the deceased in the courtyard of P.W. 3.
(xi) Similar is the evidence of P.W. 11 who also met the Appellant hurriedly going towards Bardang carrying a ''khukuri'' smeared with blood and told him that he was coming after ''cutting'' a person. When P.W. 11 went to Singlaybong School, he saw the dead body of the deceased.
(xii) P.W. 14, a driver by profession at Singtam taxi stand, when en route to Singtam on the day of the incident at about 1 p.m., he was informed by P.W. 1 that the Appellant had killed a girl with a ''khukuri'' at Singlaybong and asked him to fetch the police immediately. Tulsi Sharma, P.W. 23, a police personnel of Singtam Police Station, who by chance happened to be there, also boarded his vehicle at Bardang and, as they approached Singtam, saw the Appellant getting down from a vehicle with ''khukuri'' in his hand near the old Singtam Bridge. When the Appellant saw P.W. 14, he charged at him with the ''khukuri'' but the police intervened and apprehended him. It is stated by P.W. 14 that the Appellant bore a grudge against him for an earlier incident of a police complaint lodged by him against the Appellant.
(xiii) P.W. 15, also a taxi driver, had given a lift to the Appellant while proceeding from Rangpo to Singtam who found him holding a blood smeared ''khukuri'' in his hand and when asked, he stated that he had killed a person with the ''khukuri'' and was going to Singtam Thana to surrender himself.
(xiv) P.W. 18, a police personnel on duty at the Singtam police station, also saw the Appellant at the old Singtam Bridge holding a ''khukuri'' in his hand and after he was apprehended by him and others, the Appellant stated in the Thana that he had killed the deceased at Singlaybong busty before leaving for Singtam.
(xv) From an analysis of the evidence discussed thus far, it stands established that the Appellant had an altercation with the deceased in her house just before the noon of 26-09-2010. He had followed the deceased to the house of P.W. 3 where P.Ws. 3, 4 and 5 were watching a TV programme. When the Appellant attempted to intimidate the deceased by disconnecting the electricity, the deceased left the place. The Appellant then went into the sitting room, collected a ''khukuri'' which he had earlier kept, followed the deceased and shortly thereafter did her to death by severing her head with the ''khukuri'' which he disdainfully threw it on to the courtyard of P.W. 3 and asking her to "take it". He then proceeded for Singtam via Bardang where he met P.Ws. 10, 11 and 15 and declared to them that he was going to Singtam Thana to surrender as he had killed a person.
(xvi) The sequence of events thus unfolding from the evidence clearly reveal that the Appellant was in his full senses, aware and conscious. He had taken a conscious decision to kill the deceased and in furtherance to his decision, he had followed her from her house to the house of P.W. 3, where he tried to intimidate her by disconnecting the electricity. When she left the place on her way to the shop, he again followed her after collecting the ''khukuri'' from the adjoining room where he had kept it and, then to the school ground at which place he most brutally struck her with the ''khukuri'' severing her head from the body and killed her. If the Appellant was indeed undergoing bouts of insanity at the material time, the assault ought to have been indiscriminate and the first persons whom he ought to have attacked should have been P.Ws. 3, 4 and 5 but, evidently he did not do so. He rather restored the electricity which he had disconnected earlier and went out of the house without causing them any harm, not responding even to P.W. 3 who demanded return of the money borrowed by him. His disclosure soon after the incident made to P.Ws 10, 11 and 15 of his having killed a person and then proceeding towards Singtam Thana to surrender, would also irrefutably indicate that the Appellant was aware of what he had done. We are fortified in holding this view also by the medical report, Exhibit 22 of the doctor who examined the Appellant soon after his arrest which states that the Appellant was conscious, cooperative and oriented to time and place. No abnormality in his mental condition was noticed.
(xvii) In our view, the fact that the Appellant used to suffer from mental disorder from time to time requiring him to be taken to Kalimpong as has been revealed from the defence witnesses and some of the prosecution witnesses in their cross-examination, even assuming it to be true, do not constitute sufficient evidence for us to be convinced of the Appellant having discharged the burden placed upon him under Section 105 of the Evidence Act. We are conscious of the opinion of Dr. Chandra Shekar Sharma, C.W. 1, the Psychiatrist who examined the Appellant during the trial. However, the opinion does not disclose that he was undergoing the ailment at the time of the commission of the offence. We are of the firm view that at the time of commission of the offence, the Appellant did not suffer from any insanity. From the evidence of the prosecution witnesses discussed earlier, we are rather convinced that the heinous offence was well-planned and a premeditated one and, therefore, the Appellant would not be entitled to the protection under Section 84 IPC.
8. For all these reasons, we find no merit in the Appeal.
9. In the result, the Appeal is dismissed.
10. No order as to costs.
11. A copy of this judgment and the original case records be transmitted to the Court of the Learned Principal Sessions Judge, East Sikkim at Gangtok, for its record.
