L.MOHAPATRA, J & B.K.PATEL, J. JCAR NO. 96 OF 2001 (Dt.29.11.2011) NAGESH KHILLO ………Appellant .Vrs. STATE OF ORISSA ……….Respondent PENAL CODE, 1860 (ACT NO.45 OF 1860) – S.84. For Appellant - Mr. Harekrushna Mallick For Respondent- Mr. Sangram Das, Addl. Standing Counsel. L. MOHAPATRA, J. This appeal is directed against the judgment and order dated 16.10.2001 of the learned Additional Sessions Judge, Jeypore in Sessions Case No.68 of 1998. The appellant who stood charged for commission of offences under Sections 302/307/324/436 of the Indian Penal Code (for short ‘the I.P.C.’) was found guilty of offences under Sections 324/436 of the I.P.C. for voluntarily causing hurt to his co- villagers, namely, Madhaba Garam, Monima Khillo, Dohana Khillo, Shyamo Khillo, Sukra Garam and Kumudan Garam, and for setting fire to the dwelling houses of the villagers. He was also found guilty under Sections 302 of the I.P.C. for committing murder of deceased Sellu Garam. Learned Additional Sessions Judge sentenced him to undergo imprisonment for life for conviction under Section 302 of the I.P.C. and also imposed fine of Rs.1000/-. For conviction under Section 436 of the I.P.C. the appellant has been sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/-. For conviction under Section 324 of the I.P.C., no sentence has been imposed. All the sentences have been directed to run concurrently. 2. The case of the prosecution is that in the night of 27/28 of March, 1998 there was a quarrel between the appellant and his wife. The appellant for the above reason set fire to his own house by means of a burning fire wood. His wife ran away to the house of Ram Chandra Garam P.W.3. The appellant, therefore, set fire to the house of P.W.3. Then a pandemonium broke out in the village. The appellant suddenly thereafter assaulted the villagers by means of the said burning fire wood and also set fire to other houses in the village. The appellant also set fire to the houses of P.Ws.1 and 2 and assaulted the deceased, who happens to be the mother of P.W.1 and wife of P.W.2, by means of an axe he was holding. Because of such conduct of the appellant, entire village was destroyed due to fire and the deceased who was assaulted by means of an axe succumbed to the injuries. P.W.1 lodged a report before the Officer-In-Charge of Boipariguda P.S. and a case was registered. On completion of investigation, charge- sheet was submitted against the appellant for commission of offences under Sections 302/307/324/436 of the I.P.C. 3. The prosecution examined as many as eighteen witnesses to establish the charges. Out of eighteen witnesses examined on behalf of the prosecution, P.W.1 is the son of the deceased and is also the informant. P.W.2 is the husband of the deceased. P.Ws.3, 4, 5, 6, 7, 8, 9, 10, 13, 14 and 15 are witnesses to setting fire to different houses as well as assault on some of them. P.Ws.11 and 18 examined some of the injured witnesses. P.W.16 also examined some of the injured witnesses and conducted post- mortem examination. P.W.17 is the I.O. in the case. 4. The appellant not only took the plea of denial of the prosecution allegation but also took the plea of temporary insanity and to support such plea he examined himself as D.W.1. The trial court relying on the evidence of the above witnesses did not find the appellant guilty of charge under Section 307 of the I.P.C. but found him guilty of rest of the charges and convicted him thereunder. 5. Learned counsel appearing for the appellant assails the impugned judgment solely on the ground that the appellant was temporarily insane at the time of occurrence and the said fact is proved from his conduct in course of the entire incident. According to the learned counsel, the appellant is entitled to the benefit under Section 84 of the Indian Evidence Act. 6. Learned counsel for the State referring to the evidence of all the villagers including P.Ws.1 and 2 submits that the witnesses are consistent in their statements with regard to conduct of the appellant at the time of the occurrence and their evidence is also corroborated by the evidence of three doctors, namely, P.Ws.11, 16 and 18. It is also contended by the learned counsel for the State that though the plea was taken by the appellant that he was temporarily insane, no evidence was adduced in support of such plea. Accordingly, the appellant is not entitled to benefit under Section 84 of the Indian Evidence Act. 7. The prosecution examined as many as eighteen witnesses to prove the charges. P.W.1 is the informant and is also the son of the deceased. He in his deposition stated that in the night of occurrence he was sleeping in his cottage which is situated at a distance of 5 to 10 feet from the cottage of his parents. Hearing shout he came out and saw that the appellant was holding an axe in one hand and a torch (Nia Hula) on the other. He also saw the appellant setting fire to his own house and thereafter to the houses of Ram Chandra Garam, Durjaya Garam, Kundan Garam, Sunadhar Garam and some others. He further stated that the appellant came to the cottage occupied by his parents and assaulted his father P.W.2 by means of the burning fire wood as a result of which he left the place out of fear. Thereafter, the appellant dealt an axe blow on the back of his mother as a result of which she fell down sustaining bleeding injury and died. Before assaulting by means of the axe the appellant had also dealt a blow by means of the burning fire wood to the deceased. Nothing has been brought out in cross- examination of this witness to disbelieve his testimony. P.W.2, who happens to be the husband of the deceased, in his deposition stated that the appellant in the night of occurrence set fire to different houses and when he came out of his cottage, he was given a blow by the appellant by means of the burning fire wood and he ran way from the place. While running away he saw the appellant dealing an axe blow on the back of the deceased. He also saw that the deceased falling down on the ground being assaulted by the appellant. Though P.W.2 stated so in the court, from the evidence of the I.O. P.W.17 it appears that during investigation P.W.2 had not stated before him that he had seen the appellant dealing blow by means of an axe to his wife. Therefore, much reliance cannot be placed on the evidence of P.W.2 so far as assault on the deceased is concerned, he having been contradicted by the I.O. P.W.17. From the evidence of P.W.16, the doctor, who conducted post-mortem examination, we find that the deceased had sustained as many as eight injuries and he was of the opinion that the cause of death was due to head injury leading to intracranium haemorrage and shock. He was also of the view that the injuries could be caused by hard and blunt object. On analysis of evidence of these three witnesses, we find that P.W.1 the son of the deceased is a reliable witness and his evidence has been corroborated by the evidence of P.W.16. Therefore, the charge under Section 302 of the I.P.C. has been established against the appellant. So far as charge under Section 436 of the I.P.C. is concerned, from the evidence of all the injured witnesses and P.W.1 it is clear that in the night of occurrence the appellant by means of a burning fire wood set fire to different houses of the village and also assaulted some of the villagers who were examined by the three doctors P.Ws.11, 16 and 18. Evidence of the injured villagers has been closely examined by us. We find no reason to disbelieve them except P.Ws.5, 6 and 14 who had not made any allegation with regard to setting fire to their respective houses at the time of investigation. Therefore, charge under Sections 436/324 of I.P.C. is also well established. 8. Coming to the plea of defence it appears that in the statement recorded under Section 313 of the Cr.P.C. a plea was taken by the appellant that he had become temporarily insane at the time of occurrence. No evidence whatsoever was led on behalf of the appellant in support of such plea. On the other hand, the appellant examined himself as defence witness, and from his deposition we find nothing to suggest that he was temporarily insane at the time of occurrence. Except the suggestion made to some of the villagers in their cross-examination there is no other evidence on the basis of which it can be held that the appellant was temporarily insane at the time of occurrence. 9. For the reasons stated above, we find no infirmity in the judgment of the trial court. Accordingly, the appeal, being devoid of merit, is dismissed. Appeal dismissed.