P.S. Datta, J.

The appellant Sahadeb Mondal @ Kshyapa Mondal feeling aggrieved with judgment of conviction under section 302 IPC and order of sentence of life imprisonment with fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment of two years as was passed by learned Additional Sessions Judge-cum-Judge, E.C. Act on 20.12.2001 in Sessions Serial No. 67 of 1996 corresponding to Sessions Trial No. 1(5) of 2000 has preferred the appeal on two-fold grounds namely (i) the charge of murder was not proved through the evidence of the witnesses examined by the prosecution and (ii) that at the time of alleged commission of offence he had been suffering from insanity.

2. Sukumar Mondal of village Mankara under Police Station Berhampore of the district of Murshidabad lodged a written complaint with the O.C. Berhampore P.S. at 8.20 a.m. on 9.6.1987 alleging that at 3 a.m. Rabi, the eldest son of his elder sister Nirmala Mondal who was married to the appellant a couple of years preceding the happening of the incident came from Kalitala village to him and reported that the appellant herein had been assaulting his mother Nirmala. Sukumar Mondal being accompanied by Sudhir Mondal of his village, his mother and Rabi came to the house of the appellant where it was found through focussing a torch light by Sambhu Mondal that his sister Nirmala was lying dead on the floor with cut injury on throat and on different parts of the back deep bleeding injuries. The appellant fled away from the house but in the morning he was apprehended while he was found naked in the village Mankara and at the time of apprehension the appellant confessed to have murdered his wife by hasua by cutting her throat.

3. On this complaint (Ext. 1) Berhampore P.S. Case No. 13 dated 9.6.1987 was registered against the appellant under section 302 of the IPC and upon completion of investigation chargesheet was submitted against the appellant under that section of the law and the trial that followed ended in conviction and sentence of life imprisonment.

4. The oral testimonies in the case are indeed very brief inasmuch as there is no direct evidence of murder and the entire prosecution case hinges upon the circumstantial evidence. The FIR-maker (P.W. 1) said in his evidence that the relationship of the appellant with his wife deceased was a strained one and he would abuse her and at the call of the son of his sister he came to the house of the appellant where the two sons of her sister told him that the appellant had assaulted their mother and by focusing torch light inside the room of her sister she was found lying deep with cut injury on her throat. The appellant was apprehended by the members of the village. The testimonial value of this witness lies in his being reported by Rabi about murdering Nirmala by the appellant and finding the deadbody of Nirmala through the window of the room. Sudhir Kumar Mondal P.W. 3 who accompanied to P.W. 1 to the house of the accused found the deceased lying dead in their room and sons of the appellant disclosed to him that her mother was assaulted by his father. P.W. 2 another Sudhir Mondal, son of Nani Gopal Mondal, P.W. 4 Sirish Ch. Mondal, P.W. 7 Jnanath Mondal, who is the younger brother of the appellant, P.W. 9 Bulbuli Mondal, the wife of P.W. 7, P.W. 12 Nityananda Mondal and P.W. 15 Hari Charan Mondal said in their evidence that after having received the information of murder they came to the house of the appellant and found Nirmala lying dead in the room. P.W. 5 Ganesh Mondal deposed that at bout 5 a.m. when he was going to field to attend to nature's call he found the appellant standing by the side of the house of Yasin Molla in naked condition and soon thereafter the villagers came and took away the accused. P.W. 13 Yasin Molla says that near his fertilizer shop at Mankara he found the appellant standing in undressed condition with a hasua stained with blood and subsequently the elder brother-in-law of the appellant came there, caught hold of the appellant, tied him in a tree nearby and then the accused/appellant confessed to having committed murder of his wife. Rabi Mondal (P.W. 8) who according to P.W. 1 and P.W. 3 told them his mother was being assaulted by his father turned hostile to say that he was not present in the house at the material time. P.W. 11 Ismail Sk. who according to the prosecution told the I.O. that the appellant escaped by the side of the shop of Kalitaladiar and was apprehended by his brother-in-law in his presence turned hostile.

5. P.W. 16 Dr. A.K. Maitra who held post-mortem examination on the body of the deceased found the body beheaded _ the head being attached only with the skin on the left side of the neck, multiple overlapping incised wound of left scapula region and left shoulder joint measuring about 8" × 4" × bone deep, and one stabbed wound on lateral aspect of right shoulder measuring about 2" × ½" muscle deep. According to the doctor, the death was due to the injuries which were all ante-mortem and homicidal and the injuries might be caused by a sharp-cutting weapon like hasua.

6. Though insanity of the appellant at the time of commission of the offence is the main plea that has been canvassed strenuously by citing decisions in Shrikant Anandrao Bhosale vs. State of Maharashtra as reported in 2003 C Cr. LR (SC) 14; Kamala Bhuniya vs. State of West Bengal, as reported in 2006(1) CHN 439; Dinoprasad Barman @ Sallan Burman vs. State of West Bengal, as reported in 2003 C. Cr. LR (Cal) 847; Bhikari vs. State of Uttar Pradesh, 1966 Cr. LJ 63 (SC) and in Baburam Mahali vs. State of West Bengal, as reported in 2006(3) CHN 614, we shall at the outset take up the points of arguments raised by Mr. Partha Sarathi Bhattacharyya, learned Advocate for the appellant touching upon the circumstantial evidence.

7. The factum of murder of Nirmala in the early morning of 9.6.1987 in the house of the appellant who was the husband of the victim admits of no dispute. It is also not in dispute, as there is evidence in plenty, that the deceased lived with the appellant in the house along with her children of whom Rabi was one as an eldest son of the appellant as also of the deceased. The doctor who conducted post-mortem examination on the body of the deceased was clearly of the opinion, unchallenged and unrebutted in cross- examination, that the injuries as were noticed on the body of the deceased might have been caused by sharp-cutting wound like hasua, a kind of which was found in the possession of the accused while he was found standing with hasua stained with blood by the side of the shop of P.W. 13 Yasin Molla at Mankara. The only question, therefore, is whether the circumstantial evidence was sufficient enough to record the judgment of conviction.

8. Mr. Bhattacharyya raised volley of questions to submit that apart from the plea of insanity which is the second chapter of his argument evidence do not suggest that it was so convincing as to find the appellant guilty of the offence of murder, for, according to him the extra-judicial confession allegedly made by the appellant when he was allegedly apprehended by the members of the village was a vague one since there is no evidence that it was addressed to any particular member of the village who was present when the appellant was apprehended with hasua in his possession. According to Mr. Bhattacharyya, save and except alleged apprehension of the appellant in the village Mankara by unascertained members of the village there was no evidence, worth considering, to connect the appellant with the offence complained of.

9. Mr. Kalyan Moitra, learned Advocate appearing for the State respondent submits to the contrary that P.W. 5 and P.W. 13 are the two important witnesses in this that in their presence the appellant was apprehended with hasua in his possession and before them the appellant made extra-judicial confession having killed his wife. We have considered the submissions of Mr. Bhattacharyya and Mr. Moitra and are of the opinion that since the case is not solely based on extra-judicial confession the same which though cannot be obliterated from the purview of judicial consideration does not assume much importance because of other circumstantial evidence which can in no way be ignored. Although evidence of P.W. 5 and P.W. 13 successfully testifying to the fact that the appellant made an extra-judicial statement long before the arrival of the police to the effect that he had committed murder of his wife such extra-judicial confession which could not be dislodged by any amount of cross-examination would stand as one of the pillars of the prosecution case only if the plea of insanity remains unsubstantiated. In other words, extra-judicial confession would lose its force only if the appellant is able to substantiate that he had been suffering from insanity at the time of commission of the offence.

10. Mr. Bhattacharyya argued that the I.O. did not seize the blood-stained hasua and send it to the FSL for chemical examination and non-seizure of the hasua in support of which there is no explanation has made the case a failure. Mr. Moitra submits in opposition that medical evidence of P.W. 16 clearly revealing that the wounds were caused by no other than a sharp- cutting instrument like hasua and evidence of P.W. 13 that the accused was found by the side of his fertilizer shop at Mankara with blood-stained hasua in his possession established the fact that murder was caused by means of hasua by the appellant and omission on the part of the I.O. to seize the hasua does not make the prosecution case improbable. After having heard the learned Counsels for the parties on this point we are of the considered opinion that non-seizure of hasua does not in any way in the circumstance of the case negate the case of murder in view of the fact that the oral testimony of the witnesses, particularly of P.W. 13 about apprehension of the accused with hasua has been successfully corroborated by the medical evidence of P.W. 16.

11. Mr. Bhattacharyya argued that in fact there is no circumstantial evidence save and except the appellant having resided with his wife together at his house and unless circumstantial evidence is cogent and comprehensive leaving no scope of any missing link the appellant cannot be held to have caused murder of his wife. Mr. Moitra has strenuously refuted the argument submitting that circumstantial evidence was quite sufficient to warrant conviction against the appellant.

12. We have heard the respective submissions of the learned Counsels and are of the opinion that the circumstantial evidence in this case was clinching with no missing link operating therein. The circumstances are that the deceased and the appellant lived together in the house of the appellant. In the night between 1.6.1987 and 2.6.1987 there was no other adult male member in the family. Though P.W. 8 turned hostile, in the night the children of the deceased as also of the appellant were sleeping inside the house. Neither there is any evidence nor is there any circumstance to suggest that any outsider had any access to the house of the appellant so as to cause murder of the deceased. In Ganesh Lal vs. State of Maharashtra, as reported in 1992 Cr. LJ 1545, it has been observed that it is a settled law that conduct of the accused previous and subsequent to the incident are relevant facts. The incident in the instant case happened in the bed room of the deceased which was in the exclusive occupation of the victim and her husband and circumstances excluded appearance of any other third person for the murder of the victim. The deceased was lying dead with cut bleeding injuries on different parts of the body in the house of the appellant. Immediate after the incident the appellant fled away and was found in naked condition with hasua in his possession by the side of fertilizer shop of P.W. 13. The accused was soon thereafter apprehended by the members of the public from near the fertilizer shop of P.W. 13 and evidence has it that he made an extra-judicial confession which was heard by P.W. 5 and P.W. 13 when they came along with others to apprehend the appellant. So these circumstances are quite sufficient to hold that no missing link was operating in favour of the appellant in the instant case and it was the appellant who and none but him who committed murder of his wife.

13. Mr. Bhattacharya's second branch of argument namely that the appellant was insane at the time of commission of the offence merits serious consideration and with the aid of the decision cited above Mr. Bhattacharya argued that the learned Trial Court in spite of having evidence on record to that effect committed gross illegality in convicting the appellant under section 302 of the IPC and the matter of the fact was that the appellant's nick name was `Kshyapa' because he was an insane person. Evidence of P.W. 2 and P.W. 4 is placed before us in support of the submission of Mr. Bhattacharyya in favour of insanity of the appellant at the time of commission of the offence. Mr. Kalyan Moitra, learned Advocate appearing for the State respondent left no stone unturned to contradict Mr. Bhattacharyya and the principal submission of Mr. Moitra is that the burden of proof in support of insanity which lies on the appellant has not been discharged by the appellant at any stage of the trial and since the appellant did not discharge his burden he cannot be granted the benefit of section 84 of the IPC and the plea of insanity raised in course of hearing of the appeal is simply a device to escape punishment which otherwise was fortified through circumstantial evidence. Mr. Moitra in support of his submission referred to the decision in Shrikant Anandrao Bhosale's case (supra) and argued that in the reported decision it has been clearly established that the burden of proof of insanity of the accused in terms of section 105 of the Evidence Act lies on the accused and under no circumstance the Court shall presume that the appellant was of unsound mind.

14. We have heard the learned Counsels for the parties and before we embark upon the point we come to find that though the appellant did not adduce any evidence either oral or documentary in favour of his plea of insanity it is not that such a plea has been taken up for the first time in this appeal as it was taken up before the learned Trial Court and it necessitated the learned Trial Judge to advert to this point although the learned Trial Judge did not accept the plea of insanity. Learned Trial Judge, as it appears on perusal of the judgment impugned, has not rendered any systematic treatment on the point except referring to the evidence of the witnesses touching upon the murder of the deceased by the appellant and it seems to us that making of extra-judicial confession by the appellant which has been spoken of by P.W. 5 and P.W. 13 swayed the learned Judge against the plea of insanity. It is true that the accused has not adduced any evidence in support of his plea of insanity. It is true that the law enjoins that in terms of 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 in the Indian Penal Code or within any special exception to any other part of the IPC lies on the accused and the Court shall presume the absence of such circumstances. Making of extra-judicial confession which undoubtedly was proved and which otherwise undoubtedly tilted in favour of the prosecution cannot be taken to be the ground against the plea of insanity for the reason that a confession made by an insane person is no confession recognizable in the eye of law to be used against the appellant if, however, the appellant is really insane. It is not that the plea of insanity was not taken up at the time of cross-examination of the witnesses. The Division Bench of this Court in Kamala Bhuniya vs. State of West Bengal, as reported in 2006(1) CHN 439, in case of like nature had occasion to consider the plea of insanity threadbare and summed up the legal position in the following way:

(i) It would be a concern for the Trial Court whether the accused was insane at the time of commission of the offence and whether the accused was incapable of understanding the impact of wrongful act committed by him or her at the time of commission of the offence.

(ii) The investigating agency is duty bound to ascertain at the initial stage whether there is any indication about the mental condition of the accused.

This Division Bench decision (speaking through one of us) followed the leading decision of the Hon'ble Supreme Court on this point in Dayabhai Chhaganbhai Takker's case (supra) which has also been referred to in the later decision of the Hon'ble Supreme Court in Shrikant Anandrao Bhosale's case (supra). In this leading decision the Hon'ble Supreme Court held that in coming to the conclusion that a man was labouring under defect of reason as not to know the nature of the act he was doing the relevant circumstances like the behaviour of the accused before the commission of the offence and his behaviour after the commission of the offence should be taken into consideration and the Court may rely not only on defence evidence but also on what is elicited from the prosecution witnesses as well as on circumstantial evidence consisting of the previous history of the accused and his subsequent conduct in the surrounding circumstances including absence of the motive. It was held that the accused has only to satisfy the standard of a prudent man and he need not establish his plea beyond all reasonable doubt. It was further held that even if the accused was not able to establish conclusively that he was insane at the time of commission of 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 resting on the prosecution has been discharged. The Bhikari's case, AIR 1966 SC 1 [LQ/SC/1965/59] , is a complete answer to the submission of Mr. Moitra in this regard and the Bhikari's case has been referred to by another Division Bench of this Court in Dinoprasad Barman @ Sallon Burman vs. State of West Bengal, as reported in 2003 C Cr. LR (Cal) 847 and it has been held that if from the cross- examination of the witnesses the question of insanity is apparent the burden of proof as stipulated under section 105 of the Evidence Act can be said to have been discharged by a preponderance of probability emerging from such cross-examination of the witnesses. In Kamala Bhuniya's case it was further highlighted that motive of the crime although not important in criminal trial assumes unusual importance in a case where a plea of insanity has been taken and where the victim happens to be a close relation of the accused and finally the circumstances before and after the time of commission of crime.

15. Having thus found the above legal position we are to consider the merit of the plea of insanity in the instant appeal. The very first and primary evidence in favour of the plea of insanity as has appeared from evidence of the witnesses is that the appellant was found standing naked by a road side with a hasua stained with blood. The question a man of ordinary prudence can legitimately ask is whether it was probable on the part of a man of ordinary prudence to keep himself standing naked with a hasua in his possession before the public view on a public road where it was easily possible to get him apprehended by the members of the public. A murderer in normal circumstance cannot after commission of murder move away to a public place to keep standing making himself naked. We have considered in our anxiety the forwarding report of the I.O. when the I.O. forwarded the accused before the learned SDJM after the accused was made over to him by the members of the public and in that forwarding report the I.O. has said that the appellant was found naked by the people of the village who made over to him. In Kamala Bhuniya's case there was a reference to the decision of Andhra Pradesh High Court as reported in 1985 Cr. LJ 1824 where it was observed that it was the duty of the investigating agency to ascertain at the initial stage whether there is indication about the mental condition of the accused. When the I.O. in the instant case himself found the appellant naked before him and mentions the fact in his forwarding report it should have struck to his mind as a dutiful I.O. to get the accused examined medically so as to ascertain whether the accused was insane or not. This duty which is cast on the I.O. has not been discharged and the prosecution is unable to show the circumstance under which the accused could get himself naked and stood by the road side so as to offer himself to be apprehended with blood-stained hasua in his possession.

16. Secondly, evidence of P.W. 2 is important in this that he has said that at the time of the murder of his wife the accused was mad. This piece of evidence has emanated from cross-examination and the witness was not declared hostile. This witness is a co-villager of the appellant and his evidence has been corroborated by P.W. 4 who also said in his cross-examination that at the time of the incident the accused was mad and his destination was not fixed at that time. Therefore, insanity of the appellant at the time of commission of the offence is apparent from cross-examination of the witnesses and it is further fortified by the conduct of the appellant who immediate after commission of the offence moved with a hasua in naked condition and stood by the side of the road. Therefore, in the circumstance the question as to burden of proof becomes an academic one since it is the preponderance of probability that becomes in terms of the decision of Dayabhai Chhaganbhai Thakkar's case the determinant in finding whether the appellant was insane at the time of commission of the offence or not. In this context as above the extra-judicial confession of the appellant tilts rather in favour of his insanity and coupled with this the absence of motive behind murder is also addendum to the totality of the circumstances that inspire us to hold that the appellant was insane at the time of the commission of the offence.

17. Thus considered and situated we are of the considered judgment that since the appellant was insane at the time of commission of the offence the appeal has to succeed.

18. We, therefore, allow the appeal, set aside the judgment and order of the learned Trial Court, find the appellant not guilty of offence punishable under section 302 of the IPC, acquit him of the charge, set him at liberty and discharge him from bail bonds.

19. A copy of the judgment along with the LCR shall be sent to the learned Trial Court for information.

20. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties as early as possible.

A.K. Basu, J.: I agree.

Appeal allowed.