Crl.A. 262/2001 BEFORE THE HON’BLE MR JUSTICE P. G. AGARWAL THE HON’BLE MR JUSTICE K MERUNO Heard Miss S. D. Baruah, learned Amicus Curiae and the learned P ublic Prosecutor, Assam. The accused-appellant has been convicted U/S 302 IPC fo r causing death of this own uncle Subha Kanta Bora. The learned Sessions Judge, Nagaon, sentenced the accused to imprisonment for life and pay a fine of Rs.1,00 0/-, in default, further imprisonment for one month. Deceased Subha Kanta Bora, aged about 60 years, came to attend t he Shradha ceremony at the accused’s house and thereafter, he was taking rest in their house. It is alleged that the accused assaulted the deceased Subha Kanta Bora with a dao and thereafter, went to the Police Station and surrendered with the blood stained dao. Dr. Dilip Kr. Baruah, (PW-4), who held the autopsy on the dead b ody and found as follows: \Ante-mortem incised wound transversely situated across the righ t cheek about 2\ x …\ x Muscle deep, duration of which was about 15 hours. Ante-mortem wound transversely situated across the right side of the neck, length of which was 4\ maximum breadth was about 1\ at about its midd le. Both the ends were gradually tapering, maximum depth and the wound was about 1\ at about its center. The wound cuts through the muscles of the neck, major b lood vessels with profound ante-mortem haemorrhage. The duration of the wound wa s 15 hours.\ In the opinion of the doctor, death has been due to the sock and haemorrhage as a result of the injury No.2. In this case, we find that the incident had taken place inside t he room and as such, there was no eyewitness. Bharat Bora (PW-2) is the own youn ger brother of the accused-appellant and he was in the house when the incident t ook place. He has deposed that while his uncle, deceased, was sleeping inside th e room, there was nobody else inside the room. They heard the sound like ’dhap’ ’dhap’ and thereafter, they saw the accused going out of the room with a blood s tained dao in his hand. Thereafter, the accused proceeded to the Police Station. They did not try to apprehend the accused as he was armed. Mat. Ext-1 is the we apon of assault seized by police from the accused. The evidence of PW-2 has not been seriously challenged and thus in the fact that he is the younger brother of the accused. He has no reason to falsely implicate his own brother for no appar ent reasons. The post crime conduct of the accused surrendered along with the we apon of assault has also been deposed to by the Investigating Police Officer, Bh ubaneswar Deka (PW-5). We, therefore, concurrent with the finding of the trial C ourt that the accused-appellant assaulted his uncle and killed him. The learned Amicus Curiae has submitted that while the accused w as in jail, he was found to be mentally sick and he underwent treatment at L.G.B . Mental Hospital, Tezpur and as such, the accused might not had been in proper mental state. The law is well settled that the crucial point of time for the pur pose of getting protection the plea of insanity U/S 84 IPC is the time when the incident took place. The incident took place in the month of June, 1995 whereas the accused was found mentally unstable in the month of June, 1996. We, therefor e, constrained to hold that protection U/S 84 IPC is not available to the accuse d. Learned Amicus Curiae has further submitted that deceased was th e own uncle of the accused. There was no motive on the part of the accused to ki ll his own uncle. The accused had no intension to cause death and may be in some weak moment. Considering the mental condition, he had assaulted his own uncle b ut the act may not constitute offence of murder U/S 300 IPC. From the evidence of PW-2, we find that the accused was armed wi th dao and he was alone in the room. The doctor found only two injuries on the p erson of the deceased. Injury No.1 was minor one, whereas the injury No.2 proved fatal. We, therefore, find force in the submission that the accused had intensi on to cause death; nothing prevented him from causing further injuries and no bo dy obstructed him from causing injuries and the accused himself came out from th e house with the dao and proceeded to the Police Station. We, therefore, hold that the act of the accused constitutes an o ffence defined U/S 300 IPC and punishable U/S 304 (1) IPC. In the result, the appeal is partly allowed, the conviction is modified and alte red to U/S 304 (1) IPC and the accused is sentenced to imprisonment for 10 years . The period of detention already undergone by the accused shall be set off U/S 428 Cr.P.C. Send down the records. The fee for the learned Amicus Curiae fixed at Rs.3,000/- (Rupee s Three thousand).