JUDGMENT : D. Pathak, C.J. - This appeal from Jail is directed against the judgment and order dated 5-12-1981 passed by the Additional Sessions Judge, Keonjhar, convicting the Appellant u/s 302, I.P.C. and sentencing him to R.I. for life in Sessions Trial No. 20/17-K of 1981. 2. A brief narration leading to the present appeal is that the deceased Kalakar Naik, father of P.W. 1, was living in village Kathakaranjia. On 7-9-1980, the Nuakhia festival day, the deceased came to the house of P.W. 1 in village Kampasara. Towards the evening the Appellant who is the brother of P.W. 3 came to the house of P.W. 1. When Kalakar was taking his meals in the house of P.W. 1, the Appellant dealt Lathi blows on his head as a result of which he became unconscious. P.W. 2, daughter of P.W. 1, saw that the Appellant was raising a Lathi and in that position her grandfather Kalakar was lying on the ground unconscious. She raised alarm calling her father P.W. 1 to come to the spot quickly and stating that her Mama (the Appellant) killed her grandfather (Dada). P.W. 1 rushed to the spot and caught hold of the Appellant and raised hullah. On hearing the hullah, P.W. 4 and others came to the place of occurrence. With the help of P.W. 4, the Appellant was tied with a rope to a pole, The Grama Rakhi was informed and the injured Kalakar was taken to the Keonjhar Civil Hospital where he was admitted as an indoor patient. In spite of treatment, Kalakar succumbed to the injuries on 10-9-1980. P.W. 1 lodged information about the incident at the Keonjhargarh Police Station on 9-9-1980. On receipt of the F.I.R., Ext. 1, the police started investigation. The Appellant was arrested on 11-9-1980. The dead body of the deceased was sent for autopsy. The police examined some witnesses during the course of investigation and the Appellant was charge-sheeted for an offence u/s 302, I.P.C. 3. During trial, as many as eleven witnesses including some official witnesses, i.e., P.W. 9, Officer-in-charge, Keonjhar Police Station, P.W. 10, Dr. Pradip Chandra Patnaik, who conducted the post-mortem examination on the dead body of the deceased, and P.W. 11, Investigating Officer, were examined on behalf of the prosecution. During trial, as many as eleven witnesses including some official witnesses, i.e., P.W. 9, Officer-in-charge, Keonjhar Police Station, P.W. 10, Dr. Pradip Chandra Patnaik, who conducted the post-mortem examination on the dead body of the deceased, and P.W. 11, Investigating Officer, were examined on behalf of the prosecution. On completion of the trial, on the basis of the evidence on record, the learned trial court returned a verdict of guilty against the Appellant and convicted and sentenced him as aforesaid. 4. The defence plea is one of complete denial. The further plea of the Appellant, as can be gathered from the trend of cross-examination and from his statement u/s 313, Code of Criminal Procedure is that on account of certain quarrel between him and the deceased, the latter got hurt by the planks of a Vadi partitioning the verandah from the room. 5. Mr. Sahu, the learned Counsel for the Appellant, submits that there is no eye - witness to the occurrence and that the entire prosecution case is based on circumstantial evidence. According to the learned Counsel, the circumstances sought to be relied upon by the prosecution which have been accepted by the trial court are of such shaky nature that no credence could be given to such evidence. The learned Counsel further submits that from the evidence of P.W. 2 and D.W. 1 Harekrishna Naik, brother of the Appellant, and some suggestions given to the witnesses, the learned trial court should have accepted the defence plea of insanity of the Appellant at the time of assault on Kalakar. 6. There is no dispute about the factum of the death of Kallakar. It has been testified by the evidence of P.Ws. 1. 2, 3 and 4 coupled with the evidence of P.W. 10, the doctor who conducted post-mortem examination on the dead body of the deceased. 7. The only question that arises for our consideration is whether the Appellant is the author of the crime. 8. P.W. 10, the doctor. who conducted the post mortem examination, found the following external injuries on the dead body of the deceased: (1) One linear contused lacerated wound over the left parietal region 1" away from the mid-line and 71/2" above the medial and of the left eye-brow. Size 3" x 1/2" x bone deep. 8. P.W. 10, the doctor. who conducted the post mortem examination, found the following external injuries on the dead body of the deceased: (1) One linear contused lacerated wound over the left parietal region 1" away from the mid-line and 71/2" above the medial and of the left eye-brow. Size 3" x 1/2" x bone deep. (2) One contused lacerated wound over the left side of the vertex over the parietal region 6" above the medial end of the left eye - brow. It was 1 1/2" away from the mid-line and 1/2" to the left of the external injury No. 1. Both the injuries were stitched with nylon. Seven stitches were given. On opening the stitches, contusion was seen surrounding the injuries by 1/2" on either side. (3) One contused lacerated wound over the posterior part of the left fore-arm 2" below the elbow joint. Size 2" x 1/4" x 1/4" 3 nylon stitches had been given. On opening of the stitches, contusion was seen 1/2" on either side of the wound. On dissection, P.W. 10 found the following corresponding internal injuries: (1) The underlying soft tissues were contused corresponding to external injuries Nos. 1 and 2. (2) Depressed fracture of the left parietal bone of size 3" x 2" x 2" corresponding to external injuries Nos. 1 and 2. (3) Subdural haematoma over the left parietal region corresponding to external injuries Nos. 1 and 2. According to P.W. 10, all the injuries were ante-mortem in nature and might have been caused by a blunt and hard weapon like a Lathi. He has further opined that external injuries Nos. 1 and 2 corresponding to the internal injuries were fatal in nature. On a query by the police officer, he opined that the injuries on the person of Kalakar could have been caused by the Lathi, M.O. I. P.W. 10 has further opined that when Kalakar was admitted as an indoor patient, he was given all modern and scientific treatment, but in spite of that he could not survive. P.W. 2 has given a graphic description of the occurrence. Although she did not see the actual assault, the description she has given in her testimony shows the position and state of occurrence. In her deposition she has stated that at about 10 a.m. on the date of occurrence the Appellant came to their house. P.W. 2 has given a graphic description of the occurrence. Although she did not see the actual assault, the description she has given in her testimony shows the position and state of occurrence. In her deposition she has stated that at about 10 a.m. on the date of occurrence the Appellant came to their house. On that day, her grandfather Kalakar had come to their house. At about 9 p.m. her father (P.W. 1) and grandfather (deceased) returned home after finishing the Puja (worship) of the Thakurani on the occasion of the Nuakhia festival. As Kalakar did not want to take non-vegetarian meals on that day, P.W. 2's mother asked him to take his meals first. P.W. 2 served that meal to Kalakar in the middle room. When Kalakar was taking his meals, P.W. 2 sat on the verandah where the Appellant was sitting and at that time a Dibiri (country lamp) was burning at the place where Kalakar was taking his meals. After a little while when the witness found that the curry served to Kalakar had exhausted, she went to the kitchen to get some curry for him. After serving the curry P.W. 2 again went to the kitchen to leave the pot. When she returned from the kitchen she found the Appellant assaulting her Dada (Kalakar) with a Lathi and Kalakar was lying on the ground. When P.W. 2 shouted for help, her father (P.W. 1) and mother (P.W. 3) came to the spot. P.W. 1 took away the Appellant outside while the Appellant was 1 raising the Lathi to assault the deceased. From the evidence of this witness it is found that Kalakar was lying unconscious on the ground and his head was cracked and there was bleeding from the injuries'. She was cross-examined at great length, but nothing of substance has been elicited from her so as to discredit her testimony. She is candid in her statement in the cross-examination that she did not see the actual assault on Kalakar. What she saw is that the appleant who was her maternal uncle was raising a Lathi to assault Kalakar and that at that point of time except Kalakar and the Appellant none else was present on the scene. She is candid in her statement in the cross-examination that she did not see the actual assault on Kalakar. What she saw is that the appleant who was her maternal uncle was raising a Lathi to assault Kalakar and that at that point of time except Kalakar and the Appellant none else was present on the scene. A suggestion was given to her that she did not see the Appellant raising a Lathi to as sault Kalakar, but the same has been stoutly denied by her. In her cross-examination she has stated that the Appellant had developed insanity and for that he had been treated. She has also stated that at times the Appellant loses balance of mind. P.W. 3 in her evidence has corroborated P.W. 2. She has literally stated what has been stated by P.W. 2 with regard to the place where Kalakar was taking his meals and where the Appellant was sitting. She has further stated in her evidence that when P.W. 1 took away the Appellant from the room, the Appellant was holding a stick (M.O. I) and that it was the stick used by them for supporting to close the door from inside. A suggestion was given to her that the Appellant was suffering from insanity. But the witness has clearly stated that the Appellant, her brother, had never suffered from insanity. P.W. 1 has also corroborated the evidence of P.Ws. 2 and 3. He has stated in his evidence that on the Nuakhia festival day his father had come to their house in the afternoon and that after his father's arrival, both of them' went to the Thakurni to offer Puja. He has also stated that on that day the Appellant had also come to their house. According to the witness, after worshipping the Thakurani he and his father returned home at about 9 p.m. A cock had been sacrificed before the Thakurani, but as his father told him that he would not take non-vegetarian meals that day, he was given rice to eat and the witness went to the back side of his house to cut and prepare the meat. He has further stated that his daughter (P.W. 2) served meals to the deceased. After some time, the witness heard P.W. 2 shouting at him to come to the place of occurrence stating that "DHAINBA BAPA MANU DADAKU MARIDELA" meaning thereby "Father, come. He has further stated that his daughter (P.W. 2) served meals to the deceased. After some time, the witness heard P.W. 2 shouting at him to come to the place of occurrence stating that "DHAINBA BAPA MANU DADAKU MARIDELA" meaning thereby "Father, come. Maternal uncle has killed my grandfather". The witness also raised alarm saying that "DHAINBA HO BASANTA MARIDELA" (Come all. Basanta has killed) Upon hearing his hullah, P.W. 4 and one Papnua Naik followed by others arrived there. Panua Naik, however, died about two months before this witness gave evidence in the court. He has stated that when P.W. 4 and others came to the place of occurrence, with their help the Appellant was tied to a pole and that he sent other persons to call the Grama Rakhi, the Ward Member and other persons to the spot. After the Grama Rakhi came, the witness gave the Appellant in his Zima. He took Kalakar to the Keonjhar Hospital for treatment and lodged the F.I.R. at the Keonjhar Police Station on 9-9-80. The witness has been cross-examined at great length and certain suggestions were given as to whether he had any dissenssion with his father with regard to supply of some paddy for the purpose of Nuakhia festival. It is in his evidence that he got some paddy from his father for the Nuakhia festival. All these Suggestions were denied by the witness. He has stated that the Lathi. M.O. I, with which the Appellant assaulted his father had been brought by the witness and was handed over to the police. No suggestion has been given to the witness as to whether the Appellant had ever been suffering from insanity. P.W. 4 came to the place of occurrence upon hearing the alarm raised by P.W. 1. He has corroborated the evidence of P.W. 1. A suggestion was given to him as to whether the Appellant ever suffered from insanity. This the witness has stated that he knew the Appellant for the last 3-4 years and that he could not say if the Appellant ever suffered from insanity and that he was Insane. P.W. 11 is the Investigating Officer. When asked in his cross-examination about the insanity of the Appellant, he has stated that while he interrogated the Appellant after his arrest he did not find him to be mentality imbalanced or suffering from insanity. P.W. 11 is the Investigating Officer. When asked in his cross-examination about the insanity of the Appellant, he has stated that while he interrogated the Appellant after his arrest he did not find him to be mentality imbalanced or suffering from insanity. P.W. 5 has stated that on the Nuakhia day in the month of Bhadrab he had come to Keonjhar to call his brother and at about 11 a.m. while he was returning from there to his village Kampasara, he met the Appellant on the way. The Appellant was going towards village Kampasara on foot. Seeking the witness, the Appellant asked him for a lift on his cycle which was given. In cross-examination he was pointedly asked as to whether the Appellant was ever suffering from insanity to which he replied that he did not know if the Appellant had ever suffered from insanity. In cross-examination he has stated that he knew the Appellant for the last fifteen years. 9. It is true that the actual infliction of injuries on the head of the deceased was not seen by any witness, but the circumstances gathered from the evidence of P.Ws. 1, 2 and 3 are of such clinching nature that they cannot be discarded as unworthy of credence. From the evidence of these witnesses it is revealed that at the time of the occurrence the Appellant was the only person present near Kalakar. P.W. 2 has stated in her evidence that she saw the Appellant raising the Lathi, M.O. I, to assault Kalakar. M.O. I is the stick which was used for closing the door from inside as can be gathered from the evidence of P.W. 3. The injuries found by P.W. 10 on the person of the deceased were caused on the head, a vital part of the body. The mens rea or the malice prepens for the offence can be gathered from the conduct of the Appellant and the weapon of offence as also the nature of injuries on the person of the deceased. We have very carefully perused the statement of the Appellant u/s 313, Code of Criminal Procedure. He has not denied his presence at the place of occurrence while the incident took place. It is also found from his statement that he was holding the Lathi, M.O. I. 10. We have very carefully perused the statement of the Appellant u/s 313, Code of Criminal Procedure. He has not denied his presence at the place of occurrence while the incident took place. It is also found from his statement that he was holding the Lathi, M.O. I. 10. The learned Counsel for the Appellant lays much stress on the plea of insanity of the Appellant. On the evidence on record, we do not think that the plea of insanity can be believed so as to attract the provision of Section 84, I.P.C. On a plain reading of Section 84, I.P.C. it is found that "irresistible impulse" seems to be a defence which on account of such impulse the accused is incapable of knowing the nature of the act he is doing and what he is doing is either wrong or contrary to law. Such impulse or abnormal urge to perform certain activity due to mental disease might be covered by Section 84, I.P.C. However, application of defence need be considered if the Appellant has made out a prima facie case of irresistible impulse. In Kumar Sunilal Deb v. State of Assam, it has been-held by a Division Bench of the Gauhati High Court where one of us (Chief Justice) was a party on a consideration of the provision of Section 84, I.P.C. that the Section casts a burden on the accused to adduce evidence to prove that at the time of the occurrence his mental condition was such that he did not know what he was doing. A duty is also cast on the court itself to find out from the materials on record, namely, the evidence of the prosecution witnesses, the conduct of the accused as to whether any doubt arises in the mind of the court that the time of the occurrence the accused was mentally not in a fit condition to have the requisite mens rea for the commission of the offence. The above position of law has been reiterated by this particular Division Bench in Khageswar Pujari v. State of Orissa. 11. In this case there is no material to show that at the time of the occurrence the Appellant was suffering from insanity. Even in his statement u/s 313, Code of Criminal Procedure the Appellant does not take such a plea. D.W. 1. 11. In this case there is no material to show that at the time of the occurrence the Appellant was suffering from insanity. Even in his statement u/s 313, Code of Criminal Procedure the Appellant does not take such a plea. D.W. 1. brother of the Appellant, has stated that for some time past the Appellant was suffering from mental disease. But P.W. 1 does not say that at the time of occurrence or about that time the Appellant was suffering from insanity. We do not think that in the facts of this case, the provisions of Section 84, I.P.C. would be applicable to the present case. 12. On a thorough scrutiny and careful consideration of the evidence on record and for the reasons stated above we do not find any merit in this appeal. It is accordingly dismissed. D.P. Mohapatra, J. 13. I agree. Final Result : Dismissed