PRADIP MOHANTY, J. & B.K.PATEL, J. JCRA NO. 189 OF 2000 (Dt.15.07.2011) SIBA CHARAN SABAR ……. Appellant. .Vrs. STATE OF ORISSA ……..Respondent. PENAL CODE, 1860 (ACT NO.45 OF 1860) – S.84. For Appellant - M/s. Karunakar Sahoo & S.K.Mishra. For Respondent - Mr. Soubhagya Ketan Nayak Addl. Govt. Advocate PRADIP MOHANTY, J. This appeal is directed against the judgment and order of conviction passed by the Additional Sessions Judge, Nuapada in S.C. No.1/6 of 1999- 2000 convicting under Section 302 I.P.C and sentencing the appellant to undergo imprisonment for life. 2. The case of the prosecution, in short, is that on 4.9.98 at about 10:00 AM, the deceased (Dalsingh Majhi), who is a snake charmer, came to the house of the informant (P.W.3) to teach the son of the informant ‘mantra’. After the arrival of the deceased, the appellant, who happens to be the husband of informant’s neice, reached there. Two hours thereafter, father of the appellant (P.W.7) came to the house of the informant and stayed there. At about 8 PM, all of them took food and went to bed in the study room of the son of P.W.3, who slept in the door side of the said room. The door was open and electric light was available in the said room. At about 9:30, P.W.3 heard some sound and noticed that the appellant brought an axe from the room where he was sleeping and dealt two blows on the left side neck of the deceased causing profuse bleeding. Deceased succumbed to injury at the spot. Father of the appellant got up and asked the appellant as to why he did so to which the appellant replied the he would kill him. After the occurrence, P.W.3 went to Komna plice station and lodged the F.I.R. Police registered the case, took up investigation, held inquest over the dead body and sent the same for autopsy and after completion of the investigation, filed charge sheet against the appellant under Section 302 I.P.C. 3. The plea of the appellants is complete denial of the allegation. He took a specific plea of insanity during trial. 4. To bring home the charge, prosecution examined as many as eight witnesses including the doctor and the I.O. and exhibited twelve documents. The defence has examined none. 5. Learned Additional Sessions judge, who tried the case, convicted the appellant under section 302 I.P.C mainly basing upon the testimony of the informant (P.W.3) and P.W.7. 6. Learned counsel appearing for the appellant submits that there is no evidence to show that it was the appellant who caused injuries on the person of the deceased and even if it was the appellant, who caused injuries, he was not in a fit state of mind at the time of occurrence. 7. Mr. Nayak, learned Additional Government Advocate vehemently contends that the evidence of the informant (P.W.3) is very clear and cogent and is corroborated by the evidence of P.Ws.4 and 5. The evidence of the ocular witnesses is also corroborates the medical evidence. No evidence was adduced by the defence to show that the appellant was insane at the relevant point of time. 8. Perused the L.C.R. P.W.1 is the doctor who conducted the autopsy of the dead body of the deceased and found the following injuries. (i) One incised contused wound 2”X½”X½” on the left supra clavicular fossal; and (ii) One incised contused wound 2”X1”X3” depth obliquely situated on the left side of the neck 1½” above injury no.i.” He opined that all the injuries were ante mortem in nature. The cause of death was due to shock and haemorrhage due to injury no.ii caused by heavy and sharp cutting weapon. After examining the weapon of offence produced by the I.O, he opined that the above injuries could be possible by the said weapon of offence. He proved the post mortem report Ext.1. P.W.2 is the doctor who collected the nail clippings of the appellant, examined the same and gave his report under Ext.3. P.W.3 is the informant of the case. In chief, he stated that on the day of occurrence, the deceased and the appellant slept in one room. On hearing ‘KAT KAT’ sound from the room, he went and found the appellant was holding tangia, dealt a blow to the neck of the deceased. Father of the appellant tried to snatch away the tangia from the appellant. He shouted and gentlemen of the village came to the spot. Thereafter, he along with gentlemen and ward member went to the Komna police station and lodged report. In cross-examination, he admitted that before the occurrence, the appellant was insane and moved hither and thither and did not return to the village. As he came to know that the appellant is mad, he brought him to his house under good surveillance. He was talking incoherently and behaving like a mad man. His father some how came to know that the appellant is a mad man, he went in search of him to different places and ultimately came to his village in search of him. He also admitted that the appellant had never seen the Guru. When they tried to snatch the tangia from the appellant, he threatened his father also by showing the said tangia. Since the behaviour of the appellant had gone beyond control, his family members, out of panic, closed the door and remained outside. When the police came, the appellant was moving hither and thither in the house by holding the tangia. P.W.4 is a co-villager of the informant. Hearing hullah, he went to the spot and found the appellant moving by holding the tangia. The dead body was lying with bleeding injury. He also put his signature in the F.I.R. (Ext.4). He is a witness to the seizure of wearing apparels (Ext.5) of the appellant. In cross-examination, he admitted that as per his knowledge, the appellant is a mad man for which the informant and others brought him to his house. When they reached the spot, the appellant was in a state of madness and shouting to kill others. P.W.5 is another co-villager of the informant and a witness to the seizure of tangia (Ext.7). P.W.6 is the O.I.C. who reduced the F.I.R. into writing and directed the Sub-inspector of Police to take up investigation. P.W.7 is the father of the appellant. He specifically stated that 15 days prior to the occurrence, appellant behaved abnormally and became mad. Thereafter, the appellant ran away from the house and had been to different villages. He found his son in the house of P.W.3. He remained with him and thereafter, he found his son mad. P.W.7, Guru and P.W.3 remained in one room. At about 10:00 PM, after they slept, the Guru was found in bleeding condition. The appellant was holding tangia and moving from one place to other. Thereafter, he ran away from the place. In cross-examination, he admitted that his son had become mad and he did not know what he was doing. On the date of occurrence, he had been to the house of P.W.3 where his son was in insane and mad condition. P.W.8 is the I.O., who sent the dead body for autopsy, seized the wearing apparels and blood stained earth and tangia and sent the same of chemical examination, arrested the appellant and after completion of the investigation, filed charge-sheet against the appellant. In cross-examination, he also admitted that during investigation, it was revealed that some time, the appellant was behaving like a mad and had come to take the medicine in the village of the informant on the fateful day of the occurrence. He further admitted that prior to the occurrence, there was no relationship between the appellant and the deceased. 9. After scrutiny of the entire evidence, it is clear that P.W.3 had seen the occurrence. He specifically stated that the appellant gave axe blows to the deceased on the neck of the deceased. The post-occurrence witnesses (P.Ws.4 to 7) also corroborated the statement to the effect that the deceased was lying with bleeding injuries and the appellant was moving here and there. There is no material to disbelieve the evidence of P.Ws.3 and 7 which is corroborated by medical evidence. The doctor (P.W.1), who conducted the autopsy specifically stated that the death was due to shock and following haemorrhage due to injury no.2. Human blood stain was detected from the wearing apparels of the appellant and the axe which was seized from the possession of the appellant. Therefore, there is no doubt that the appellant was the author of the crime. 10. To establish that the acts done by the appellant are not an offences under Section 84 I.P.C., it must be proved clearly that, at the time of the commission of the acts, the appellant, by reason of unsoundness of mind, was incapable of either knowing the nature of the act or that the acts were either morally wrong or contrary to law. By applying the ratio decided in the cases of Dahyabhai Chhaganbhai Thakkar V. State of Gujarat; AIR 1964 SC 1563 and Sheralli Wali Mohammed V. State of Maharashtra; AIR 1972 SC 2443, this Court has to examine the evidence to see whether the appellant was in a fit state of mind or not at the time of commission of offence. The eye witness and the informant (P.W.3) admitted that some days prior to the occurrence, the appellant was insance and moved hither and thither. When the appellant came ho his house in the evening hour, he was also not taking food. As he came to know that the appellant is mad, he arranged 3 cots for sleeping in that room. The appellant was almost talking incoherently and behaving like a mad and he was naked. When P.W.3 and others tried to snatch away the tangia, the appellant gave threatening to his father also by showing the said tangia. He also admitted that the appellant had never seen the deceased. P.W.4, a post-occurrence witness, also specifically stated that the appellant was moving by holding the tangia from one place to other. In cross-examination, he admitted that the appellant is a mad person. When they reached the spot, the appellant was in a state of mad condition and shouting to kill others. He has further admitted that to the knowledge of P.W.4, the appellant was totally mad. P.W.5 also corroborated the above statement. P.W.7, the father of the appellant, also corroborated the testimony of P.Ws.3 to 5 with regard to insanity of the appellant. The I.O. in his cross-examination, admitted that during investigation, it was ascertained that the appellant was some time behaving mad like and had come to the village of the informant to take medicine. In the instant case, though the IO admitted about the madness of the appellant but he did not send him to the doctor to ascertain his mental condition. In view of the above, it is crystal clear that at the time of occurrence, the appellant was insane and is entitled to the benefit of Section 84 I.P.C. Accordingly, this Court sets aside the judgment and order of conviction passed by the Additional Sessions Judge, Nuapada in S.C. No.1/6 of 1999-2000 convicting and sentencing the appellant to undergo imprisonment for life for the offence under Section 302 I.P.C. The Jail Criminal Appeal is allowed. Appeal allowed.