JUDGMENT : G.B. Patnaik. J. 1. The Appellant having been convicted u/s 302, Indian Penal Code, and having been sentenced to rigorous imprisonment for life has preferred this appeal from jail. 2. The prosecution case, briefly stated, is that on 25-4-1985 at 5 p.m. in village Gopinathpur while the deceased along with P.Ws. 3 and 5 and some others was grazing goats, the deceased went to drink water. While he was returning back to the grazing ground, the accused throw some mud clay at the deceased which struck the back of the deceased. The deceased fell down on the ground. The deceased was holding a small axe (Budia) in his hand which also fell down. The accused then picked up the axe, dealt two or three blows on the head left the place after throwing the axe there P.W. 1, the uncle of the deceased, came to know about the occurrence and then submitted a report on the next day at the police station which was treated as F.I.R. (Ext. 1). The Police then registered the case and started investigation. After completion of the investigation the police submitted charge sheet against the accused. On being committed the accused stood his trial. 3. The defence plea is one of denial. Further the accused also took the plea that he was protested u/s 84 of the Indian Penal Code, since he was insane at the time of occurrence. 4. Prosecution examined 9 witnesses of whom P.W. 1 is the informant and P.W. 2 is the eye witness to the occurrence; P.Ws. 3, 4 and 5 are said to have seen a part of the occurrence; P.W. 6 is a seizure witness and P.W. 7 is the Investigating Officer; P.W. 8 is the doctor who conducted the post-mortem examination over the dead body and P.W. 9 was in charge of the Dog Squad who had taken the dog to the place of occurrence which dog after taking a smell from the axe went to the house of accused Sarat Naik. The said P.W. 9 had submitted a report which is Ext. 13. 5. The said P.W. 9 had submitted a report which is Ext. 13. 5. On the basis of the evidence of the doctor (P.W. 8) who found two lacerated wounds on the deceased and opined the cause of death to be profuse haemorrhage as a result of fracture of left temporal bene and shock and that the injuries were ante mortem in nature, the learned Sessions Judge recorded the finding that the death was homicidal in nature. Mr. Mohanty, the learned Counsel appearing for the Appellant, does not assail the said conclusion of the learned Sessions Judge and in our opinion, rightly so. The Sessions Judge has accepted the evidence of P.W. 2 as well as the corroborative evidence of P.Ws. 3, 4 and 5 and came to hold that it was the accused who dealt blows by means of the axe' on the deceased as a result of which the deceased died. The learned Sessions Judge negative the plea of insanity and ultimately convicted the accused of having committed the offence u/s 302, Indian Penal Code. 6. Mr. Mohanty, the learned Counsel raises the following contentions in assailing the Appellant: (i)The evidence on record, namely the evidence of P.Ws. 2, 3, 4 and 6 does not stand a moment's scrutiny and, their evidence cannot be relied upon to bring home the charge against the accused. (ii) If the oral evidence is discarded from consideration. then merely on the statement of the accused in his examination u/s 313, Code of Criminal Procedure, a conviction cannot be sustained. (iii) The Sessions Judge committed gross irregularity in not following the procedure provided for in Section 329, Code of Criminal Procedure, particularly when the Investigating Officer had made an application to get the accused medically examined under Ext. A and such inaction on the part of the Sessions Judge has vitiated the conviction. (iv) On the materials on record, the accused has discharged the burden that lay on him to prove that he was insane at the time of committing the murder and, therefore, the accused is entitled to have the benefit of Section 84 of the Indian Penal Code, and the conviction must be set aside. Each of these contentions require a careful examination. 7. So far as the first submission is concerned, the evidence has to be scrutinized. Each of these contentions require a careful examination. 7. So far as the first submission is concerned, the evidence has to be scrutinized. P.W. 2 in his evidence has stated that he was in the jungle to collect firewood and he found the deceased coming from his house by rolling a toy wheel and holding one 'Budia'. While the deceased was standing near a banyan tree the accused pelted a piece of hard mud clay which struck the deceased on his back and he fell down on the ground. The accused then picked up the axe (M.O. I) and dealt three strokes on the head of Chemuru (deceased) with the said axe. The accused then fled away by throwing M.O.I on the way. He shouted to catch-hold of the accused who was running away and thereafter left the place. In cross-examination the only thing that has been elicited is that he did not call others on seeing the blows and he fled away out of fear. This can hardly be said to be sufficient to impeach his direct evidence with regard to the assault made by the accused on the deceased. The basic prosecution case as unfolded by the witness in his evidence has not been shaken in any manner in the cross-examination. P.W. 2 appears to us to be a wholly reliable witness and his evidence can be fully relied upon. P.W. 3 was supposed to be tending cattle at the place of occurrence. He also in his evidence-in-chief has stated to have seen the accused dealing blows on the head of Chemuru with the 'Budia' of Chemuru, but later on stated that he heard the same from P.W. 2 and as be was at a distance from the spot he had not seen the occurrence. In that view of the matter, P.W.2's evidence cannot be utilised to bring home the charge against the accused. P.W. 4 has stated in his evidence that he heard shouts of some boys to the effect that chemuru mundaku hani dei palauchi dhara dhara and at that time the accused came running from his behind and fled away. Thus he is a post-occurrence witness who saw the accused almost contemporaneously running away from the place of occurrence. P.W. 5 has stated in his evidence that hearing the shout he saw deceased lying on a 'Gada' and accused running towards Hatilota. Thus he is a post-occurrence witness who saw the accused almost contemporaneously running away from the place of occurrence. P.W. 5 has stated in his evidence that hearing the shout he saw deceased lying on a 'Gada' and accused running towards Hatilota. But in his cross-examination he stated that he could identify the accused as the police showed the accused to him inside the jail. It would not, therefore, be safe to rely upon his evidence. Thus the unimpeachable character of the evidence of P.W. 2 who has been held by us to be wholly reliable gets corroboration from the evidence of P.W. 4 when P.W. 4 stated that when he heard about Chemuru being killed and the accused running away he saw accused came running and leaving the place. The medical evidence corroborates the oral evidence inasmuch as the doctor has stated that M.O.I could be the weapon of assault which could cause the injuries found on the deceased. Thus, on the evidence as stated above it must be held that the prosecution has been able to establish the charge beyond reasonable doubt and it must be held that it is the accused who dealt blows on the head of the deceased as a result of which the deceased died. The first submission of Mr. Mohanty must, therefore, be rejected. 8. In addition to the aforesaid prosecution evidence, the accused on being examined u/s 313, Code of Criminal Procedure, has clearly stated that it is he who dealt blows on the head of the deceased on the fateful day. In reply to questions 2, 3, 4, 5, 6, 7 and 8 he has categorically answered in the affirmative and those questions relate to the incriminating pieces of evidence as deposed to by P.Ws. 2, 3, 4 and 5. It is, of course, true that the statement of an accused u/s 313, Code of Criminal Procedure, cannot be utilised as a substantive piece of evidence nor can it form the basis of a conviction. But when the prosecution evidence otherwise available on record proves the charge beyond reasonable doubt against the accused, the statement of the accused u/s 313 can be utilised. In the present case, the conviction is not based upon the statement of the accused u/s 313, Code of Criminal Procedure. But when the prosecution evidence otherwise available on record proves the charge beyond reasonable doubt against the accused, the statement of the accused u/s 313 can be utilised. In the present case, the conviction is not based upon the statement of the accused u/s 313, Code of Criminal Procedure. The prosecution evidence otherwise available on record being sufficient to establish the charge, the statement of the accused is merely being looked into. Since the conviction is not being based on the statement of the accused u/s 313, Code of Criminal Procedure, the second contention of Mr. Mohanty is devoid of any force. Mr. Mohanty in support of his contention that the statement of the accused made u/s 313, Code of Criminal Procedure, cannot form the basis of conviction nor would it substitute the prosecution's failure to prove its case nor can it be used as a substantive piece of evidence places reliance on the decision of the Kerala High Court in the case of Appukuttan v. State of Kerala, 1985 (2) Crimes 676, as well as on the decision of this Court in the case of State Vs. Dwari Behera and Others. There is no dispute with the said proposition, but in view of our conclusion that the evidence of P.Ws. 2 and 5 is sufficient to bring home the charge, there is no infirmity in looking to the statement made u/s 313, Code of Criminal Procedure, wherein he admitted to have dealt the blows on the deceased. 9. The next contention of Mr. Mohanty depends upon an interpretation of Section 320 of the Code of Criminal Procedure. Under the said provision if it appears to the magistrate or Court that the accused is of unsound mind and consequently incapable of making his defence then the magistrate or Court must in the first instance try the fact of such unsoundness and incapacity and if after considering such medical or other evidence as may be produced before him is satisfied of the fact then he shall record a finding to that effect and shall postpone further proceedings in the case. A duty is, therefore, cast on the Court if it appears to the Court that the accused is of unsound mind to hold a preliminary inquiry to find out whether in fact the accused is of unsound mind or not and if the Court comes to the conclusion that the accused is of unsound mind then the trial must be postponed. Mr. Mohanty relying upon the aforesaid provision contends that since the Investigating Officer had made an application on 6-6-1985 as would appear from Ext. A that it is reported that the accused is of unsound mind and he should be medically examined, the Sessions Judge should have examined the accused by a doctor and not having done so he committed a grave irregularity and such irregularity vitiates the conviction. In support of the aforesaid contention, he places reliance on the decision of the Supreme Court in the case of I.V. Shivaswamy Vs. State of Mysore, ; a Bench decision of the Kerala High Court in the case of State v. Kochan Chellayyan, AIR 1954 TC 435 as well as another decision in the case of Gurjit Singh Vs. State of Punjab. But we are unable to accept the aforesaid contention since the decisions relied upon by the learned Counsel do not support the contention. In the Supreme Court case I.V. Shivaswamy Vs. State of Mysore, ), Section 465 of the Code of Criminal Procedure of 1898 came up for consideration which is in pari materia with Section 329. It has been unhesitatingly held by their Lordships of the Supreme Court that if it does not appear to the Sessions Judge that the accused is insane then he need not hold an inquiry into the matter, but if he has any serious doubt in the matter he should hold a proper inquiry. Their Lordships observed: ... It is true that the word 'appears' in S. 465 imports a lesser degree of probability than 'proof' but this does not mean that whenever a counsel raises a point before a Sessions Judge he has to straightway hold an elaborate enquiry into the matter. If on examining the accused it does not appear to him that the accused is insane it is not necessary that he should go further and send for and examine medical witnesses and other relevant evidence. If on examining the accused it does not appear to him that the accused is insane it is not necessary that he should go further and send for and examine medical witnesses and other relevant evidence. Of course if he has any serious doubt in the matter the Sessions Judge should hold a proper enquiry. In view of the aforesaid dictum of the Supreme Court and in view of the fact that the learned Sessions Judge has observed that he did not find any sign of insanity with the accused, the question of his following the procedure laid down in Section 329, Code of Criminal Procedure, pursuant to the application filed by the Investigating Officer on 6-6-1985 does not arise and non-following the same would not vitiate the conviction which is otherwise sustainable. In the facts and circumstances of the present case in our considered opinion there has been no irregularity committed by the learned Sessions Judge in not getting the accused examined by a doctor and the third submission of Mr. Mohanty must, therefore, be rejected. 10. The only other contention which survives for our consideration is whether the accused is entitled to the benefit of Section 84 of the Indian Penal Code in the facts and circumstances of the present case. In order to avail of the said benefit, it must be shown that the cognitive faculties of the accused were as a result of unsoundness of mind so completely deranged as to render him incapable of knowing the nature of his act or that what he was doing either morally wrong or contrary to law. The law on the subject has been fully dealt with by the Supreme Court in the case of Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat. The crucial point of time at which the insanity of the accused must be proved is the time when the alleged offence was committed. The burden of proving the insanity at the time of commission of the offence lies entirely on the accused. (See, Oyami Ayatu Vs. The State of Madhya Pradesh, ). It is of course true that the said burden could be discharged from the circumstances which proceded, attended and followed the crime. The burden of proving the insanity at the time of commission of the offence lies entirely on the accused. (See, Oyami Ayatu Vs. The State of Madhya Pradesh, ). It is of course true that the said burden could be discharged from the circumstances which proceded, attended and followed the crime. But if we examine the evidence in this case, we are not in a position to hold that the accused has discharged the burden of proving his insanity at the time when the occurrence took place. From the mere statement of some of the witnesses that the accused used to behave like a mad man, Mr. Mohanty for the Appellant contends that it must be held that the accused was insane and would be entitled to the protection of Section 84 of the Indian Penal Code. We are unable to accept this submission of the learned Counsel for the Appellant P.W. 2 categorically in his evidence has stated that though the accused used to behave like a mad man, but he was not mad. There is no material on record or even any circumstance preceding, attending or following the crime to come to a conclusion that the accused was legally insane at the time when he assaulted the deceased. In that view of the matter, in the facts and circumstances of the present case, the accused is not entitled to the benefit of Section 84 of the Indian Penal Code. The last submission of Mr. Mohanty must accordingly be rejected 11. All the contentions having failed, this appeal fails and the conviction of the Appellant u/s 302, Indian Penal Code, and the sentence passed thereunder are sustained. The Jail Criminal Appeal is dismissed. J.M. Mahapatra, J. I agree. Appeal dismissed. Final Result : Dismissed