Crl.A. 166/2003 BEFORE THE HON’BLE MR JUSTICE P.G.AGARWAL Heard Mr.K.K.Gupta, learned Amicus Curiae appearing for the appe llant and Mr.B.L.Singh, learned Public Prosecutor, Assam. This appeal is directed against judgment and order dated 31.12.2 002 passed by the learned Additional Sessions Judge (Adhoc), Barpeta in Sessions Case No.3/2000 convicting the accused appellant under Section 307 IPC sentencin g to undergo imprisonment for 5 years and to pay fine of Rs.2000/-, in default i n payment of fine, to undergo further imprisonment for two months. Hence, the pr esent appeal. The prosecution case, in brief, is that on 13.05.1999 while PW-2 Ranjit Das was sleeping in the house of Harihar Das along with the accused, the accused picked up an Axe and assaulted PW-2 causing injuries on his back and le g, whereupon the injured raised alarm. PW-3 Harihar Das has also seen the incide nt and he also raised alarm, whereupon the accused fled the scene. Two witnesses have deposed about the assault made by the accused. The injured was examined by Dr. Dilip Kumar Das (PW-9), who found multiple cut injury near anus, forearm, hand and back of PW-2 and all the flexor and extensor tenders were cut wherein 3rd, 4th and 5th metacarpet bones were also cut. Learned Amicus Curiae has submitted that the accused was sufferi ng from mental illness. In this case, the defence has examined three witnesses. We have perused the testimony of those witnesses including Dr. Dilip Das, who wa s examined as Court witness. The evidence of Dr. Das clearly establishes that th e accused was not suffering from any mental illness. The settled position of law on this score is that the burden of proving insanity lies on the accused and we find that the learned trial Court has rightly rejected the same as appellant fa iled to establish the same. Considering the materials and evidence on record, we affirm the order of conviction under Section 307 IPC. So far the sentence of imprisonment o f five years is concerned, we find that the accused/appellant was in jail custod y from 15.05.99 to 24.06.99 and thereafter from 31.12.02 to till date nearly fou r years two months. We, therefore, reduce the sentence to the period already und ergone. The accused/ appellant be released forthwith, if not wanted in any other case. The appeal stands disposed of . Send down the record. Fees of learned Amicus Curiae is fixed at Rs.2000/-