JUDGMENT - BRAHME P.S., J.:—This is an appeal filed by the appellant challenging the judgment passed in Sessions Trial No. 46/1997 by Additional Sessions Judge, Pusad on 29-10-1999 convicting the appellant for offence under section 302 I.P.C. and sentencing him to imprisonment for life. 2.The appellant was tried for committing murder of Vyankat Yellappa Pawar on 17-5-1997 at 12.00 noon at Arni within the limits of Police Station, Arni. The prosecution case is that the appellant had a dream in which he was sounded that a short person was going to commit his murder. So it was in that context the appellant came to Arni in search of such a short person with axe and dagger with him. The victim Vyankat Yellappa Pawar, since now deceased, was a short person though he was aged 40 years. He was a beggar and he used to earn his livelihood on begging. One Raisabi (P.W. 6) who was having a shop of scrap material at Arni near bus stand, was present in her shop. On the date of occurrence she had seen victim Vyankat sitting by the side of drainage near her shop in front of house of one Bapurao Gophne. It is alleged that the victim Vyankat teased the appellant by calling him as thief. The appellant getting enraged by that, took out an axe and inflicted blow of it on the head of Vyankat due to which he sustained injuries on his head. Thereafter, the appellant took out the dagger that was kept in shirt and inflicted many of the blows of dagger on his abdomen. As a result of that assault the victim Vyankat sustained multiple bleeding injuries. Raisabi had witnessed the incident of assault. She started shouting and hearing her shouts people present at the bus stand reached to the spot. The appellant tried to run away with weapons, but people caught him. He was also assaulted by the persons collected there. The appellant had thrown the weapons on the spot. The appellant had also sustained injuries when people assaulted him. By that time Police Constable Ashoksingh (P.W. 9) and one Police Constable Bhagat reached on the spot. Police Constable Ashoksingh had taken the accused in his custody. One Mangala Shinde (P.W. 7) who was residing in the same locality rushed there and saw the victim Vyankat lying in injured condition. The appellant had also sustained injuries when people assaulted him. By that time Police Constable Ashoksingh (P.W. 9) and one Police Constable Bhagat reached on the spot. Police Constable Ashoksingh had taken the accused in his custody. One Mangala Shinde (P.W. 7) who was residing in the same locality rushed there and saw the victim Vyankat lying in injured condition. She went to the house of the victim Vyankat and told his mother that Vyankat was lying in injured condition. His mother Girjabai (P.W. 5) reached to the place of occurrence and took her son Vyankat to the hospital, but he died on the way. Police Constable Ashok Singh had taken the appellant to Police Station. 3.Thereafter, the mother of victim-Girjabai (P.W. 5) went to the Police Station and lodged report about occurrence against the appellant. On the basis of that report offence was registered vide Crime No. 74/1997 under section 302 of I.P.C. and section 3(ii) and (xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. P.S.O. Omprakash Ambelkar (P.W. 10) carried out investigation in the matter. He visited the place of occurrence as shown by witness-Girjabai and prepared a spot panchnama. The weapons lying on the spot, blood mixed earth, etc. were seized under seizure memo (Exhibit 11). The Investigating Officer visited hospital and made inquest panchanama of dead body of Vyankat and referred the dead body for post-mortem examination. Dr. Madhukar Rathod (P.W. 4) carried out autopsy on the dead body and prepared post-mortem report (Exhibit 34). He found the following external injuries on the dead body as detailed in Column No. 17 of the post-mortem note.: (1) Sickle shape clean out injury over the scalp at the middle region. Horizontally placed with concivity backward with scratch over the scull at the middle of the injury. Size 3½" x ½" bonny deep, caused due to heard and sharp object. (2) Stab injury over right fore arm lower third ulnar side obliquely placed with upward and medial direction. Spindle shaped 1 cm x 1 cm by skeen deep. Horizontally placed with concivity backward with scratch over the scull at the middle of the injury. Size 3½" x ½" bonny deep, caused due to heard and sharp object. (2) Stab injury over right fore arm lower third ulnar side obliquely placed with upward and medial direction. Spindle shaped 1 cm x 1 cm by skeen deep. (3) Five spindle shaped clean cut injury over left fore arm (i) Ventral aspect of elbow vertically placed 1" x 1 cm by skeen deep, (ii) over radial side upper third of fore arm obliquely placed 1" x 1 cm by muscle deep,; (iii) two spindle shape horizontal place over ventral aspect ½" x 1 cm x muscle deep. (iv) spindle shape injury lower third dorsal aspect left forearm obliquely placed 1" x ½ cm by skeen deep. (4) Spindle shape stab injury over left thigh oughter aspect 1" x 1 cm one inch deep. Upward direction. Injury is vertically placed. (5) Lacerated injury over left knee just below the patella obliquely placed with downward direction. Tailing downward and medially. (6) Lacerated injury over upper third of left leg oughter aspect 1" x 1 cm. by muscle deep. (7) Lacerated injury over left leg gastrocnemius 1" x 1 cm. by muscle deep by upward direction. (8) Spindle shape injury left intraglutial region vertically placed 1" x 1 cm. by muscle deep. (9) Graze type abrasion over both knees dorsal aspect 2 x 2" each. (10) 14 stab injuries over the left side abdomen on left side lower back and left inquinal region, 1" x 1 cm. and are in spindle shape. All the varying direction. Most of them penetrated wall at through peritionium to the abdominal cavity; (11) 18 spindle shape stab injuries over right side abdomen, back and right costal region. All injuries are 1 inch x 1 cm except two injuries which are 3½" x 1 cm with protrusion of small intestine from these two injuries. All in varying direction. (12) Stab injury over spigastoic region with protrusion of viscera 1" x 1 cm. with down ward direction. Doctor also found perineal rupture beneath the corresponding stab injury over the trunk with rupture lever. All the injuries were antemortem in the nature. In his opinion cause of death was due to injuries on vital organs. On 20-5-1997, the opinion of Medical Officer Dr. with down ward direction. Doctor also found perineal rupture beneath the corresponding stab injury over the trunk with rupture lever. All the injuries were antemortem in the nature. In his opinion cause of death was due to injuries on vital organs. On 20-5-1997, the opinion of Medical Officer Dr. Madhukar Rathod was sought by referring the dagger seized during the course of investigation. He has opined that the injuries found on the dead body were caused by the dagger. He has also issued certificate Exhibit 35 to that effect. 4.The appellant was arrested under panchnama made on 19th. His blood stained shirt was also seized under seizure memo. Blood sample of deceased as also the blood sample of the accused was collected for analysis. All the seized articles were sent for analysis to Chemical Analyser. As per Chemical Analysers Report Exhibit (Exhibit 53). The human blood of Group B was found on the seized articles. But the blood group of the blood samples of the accused and deceased could not be determined as the results were inconclusive. During the course of investigation the appellant was interrogated while he was in custody and he made disclosure statement showing the places from where he had taken weapons. After completing the investigation the charge-sheet was filed in the Court of J.M.F.C., Digras, who in turn committed the case for trial to the Court of Sessions. 5.At the trial the learned Sessions Judge framed the charge under section 302 I.P.C. (Vide Exhibit 4) against the appellant who pleaded not guilty to the charge and claimed to be tried. His defence as revealed from the tenore of prosecution witnesses and his statement recorded under section 313 Cri.P.C. was that of denial and false implication. He stated that he has not committed any offence and that he is falsely implicated by police as real culprit could not be found by police. The appellant however, did not lead any defence nor he examined himself on oath. He stated that he has not committed any offence and that he is falsely implicated by police as real culprit could not be found by police. The appellant however, did not lead any defence nor he examined himself on oath. The prosecution examined in all 10 witness including Girjabai (P.W. 5) the mother of deceased who lodged the report Exhibit 18, Raisabi (P.W. 6) alleged eye-witness to the incident, Rafiq Khan (P.W. 8) who came to the spot and saw the accused with the weapons running away and caught hold of the assailant and handed over to police, (P.W. 7) Mangala who arrived on the spot after the incident and informed the mother of Vyankat Girjabai about the incident and had seen the assailant running away; P.W. 9 Police Constable-Ashok Singh who brought accused to the Police Station, Dr. Madhukar Rathod (P.W. 4) who carried out autopsy on the dead body and prepared post-mortem report; and P.S.I. Omprakash Ambelkar (P.W. 10) who carried investigation in the matter. The trial Court accepting the prosecution case and giving much emphasis on the fact that the appellant was apprehended with weapons immediately after the assault on the victim, who was found lying dead having sustained multiple injuries on his person, found that the appellant has committed murder of victim Vyankat and accordingly the appellant came to be convicted for offence under section 302 of I.P.C. and sentenced to suffer imprisonment for life. Hence this appeal. 6.We have gone through the evidence with the assistance of learned Counsel for the appellant as also learned A.P.P. for the respondent. Learned Counsel for the appellant submitted that on the evidence on record the prosecution has utterly failed to prove that the appellant caused death of deceased Vyankat Pawar, since none of the witnesses has given eye-witness account in the matter, nor any of them has claimed to be eye-witness to the incident identifying the appellant as the assailant of the victim. He pointed out that the appellant has also sustained injuries but prosecution has failed to produce injury report and this has created inherent infirmity in the prosecution case and so appellant is entitled to benefit of doubt. The learned Counsel further submitted that the prosecution has failed to prove that there was any enmity between the appellant and the deceased. There was no tangible reason for the appellant to commit assault on the victim. The learned Counsel further submitted that the prosecution has failed to prove that there was any enmity between the appellant and the deceased. There was no tangible reason for the appellant to commit assault on the victim. So taking into consideration the facts and circumstances of the case it stands probable that the appellant have attacked the victim in the fit of lunacy and if that is so, then the appellant is immuned from criminal liability by way of general exception as per section 84 of I.P.C. He therefore, urged that the appeal be allowed and the appellant be acquitted. 7.Mrs. Jog, learned A.P.P. for respondent referring to the evidence of witness Raisabi (P.W. 8) and Rafikshah (P.W. 8) submitted that the involvement of the appellant in assaulting the deceased is clinchingly established. She also referred to the evidence of witness Ashok Singh, who was the Police Constable who apprehended the appellant and brought to the Police Station. She further submitted that seizure of the weapon of the assault from the place of occurrence has been duly proved and it is brought on record on evidence. She submitted that defence has failed to make out a case for exception under section 84 I.P.C. There is no iota of evidence, nor it is elicited through the prosecution evidence by the defence that the appellant was of unsound mind and that the alleged act of assault was committed by him in the fit of unsound mind. She therefore, urged that the appeal be dismissed. 8.It is not disputed by the defence that the victim Vyankat Pawar died homicidal death, as a result of assault on him on 17-5-1997 at the time and place as alleged by the prosecution. We have referred to the medical evidence while narrating the prosecution case and the factum of homicidal death of the victim is clinchingly established by the prosecution on the basis of medical evidence. We have carefully considered the evidence of prosecution witnesses and in our considered opinion on the evidence of the witnesses, the involvement of the appellant is clinchingly established even though there is no direct evidence showing the involvement of the appellant. 9.The appellant was arrested on 19-5-1997 under arrest panchnama (Exhibit 26) and that time his shirt (Article D) came to be seized under seizure memo (Exhibit 27). 9.The appellant was arrested on 19-5-1997 under arrest panchnama (Exhibit 26) and that time his shirt (Article D) came to be seized under seizure memo (Exhibit 27). This fact of seizure of shirt of the appellant is established by the prosecution through the evidence of witness-Shaikh Gaffar Shaikh Amid (P.W. 3). Omprakash Ambelkar (P.W. 10) has also stated in his evidence that the appellant was arrested by making arrest panchnama (Exhibit 26) and at that time his shirt having blood stains came to be seized under seizure memo (Exhibit 27). Apart from that defence has not disputed this fact. 10.As regards the occurrence of the incident there is evidence of witness- Rafikshah Vazirshah (P.W. 8). He has stated that when he was at the bus-stand, he heard shouts from the place near the shop of Sattarbhai and when he went there he saw deceased Vyankat lying near Nali and the assailant was running away. He stated that Vyankat was lying in injured condition in the pool of blood. There were injuries on his head and abdomen. He stated that while running the assailant had fallen down and so people caught hold of him and he was having axe and dagger in his hand, he also stated that people who had caught held him were beating him. He was one of the persons who caught hold the assailant. The police came there and then appellant was taken by police. Victim Vyankat was taken to hospital by his mother and other persons. He identified the appellant as the assailant who was caught by them on that date. He also identified the weapon articles-A and B. Evidence of this witness, remained undisturbed though he was subjected to cross-examination. There was absolutely no reason for this witness, independent as he was, to implicate the appellant falsely. His evidence as such, therefore, inspires confidence. Whatever has been stated by this witness in his evidence relating to the presence of the appellant, as also his attempt of running away from the place of occurrence and also his having possessed the weapons at that time, is further corroborated by their evidence on record. 11.The witness-Raisabi Shaikh Shabir (P.W. 6) did state in her evidence about occurrence that took place on 17th at about 12.00 noon. She was knowing the deceased-Vyankat who was beggar and who used to earn his livelihood by begging. 11.The witness-Raisabi Shaikh Shabir (P.W. 6) did state in her evidence about occurrence that took place on 17th at about 12.00 noon. She was knowing the deceased-Vyankat who was beggar and who used to earn his livelihood by begging. She admitted that incident has occurred adjoining her shop and the victim-Vyankat was murdered. It is true that the witness was required to be declared hostile, by the prosecution as she was found not supporting the prosecution. But then in her cross-examination taken by the prosecution she almost admitted entire prosecution case. She stated that Vyankat was lying in injured condition on the spot and she had seen him. She also admitted that the person who had gathered on the spot caught held of the person who assaulted Vyankat. She admitted that police had taken the assailant in their custody. It is pertinent to note that admissions given by this witness remained uncontroverted even though she was cross-examination by defence. So at least to the incident to the extent that the victim Vyankat came to be assaulted, in the incident that took place on 17th at noon and then he received multiple injuries and died of the same, is clinchingly born out on the evidence of this witness. 12.The Apex Court in 2002(4) Crimes 200 (S.C.) (Balu Sonba Shinde v. State of Maharashtra)1, respondent, on appreciation of evidence of witness who is declared hostile has observed that the evidence of hostile witness could not be totally rejected if spoken in favour of the prosecution or the accused, but it could be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In view of this legal position and the principle enunciated by the Apex Court there is no hurdle in the way in accepting the evidence of witness-Raisabi which is favourable to the prosecution. That apart, whatever she has stated and admitted in her evidence, though she is declared hostile, gains corroboration from the evidence of other witnesses. 13.Girjabai Pawar (P.W. 5) was the mother of the deceased-Vyankat. That apart, whatever she has stated and admitted in her evidence, though she is declared hostile, gains corroboration from the evidence of other witnesses. 13.Girjabai Pawar (P.W. 5) was the mother of the deceased-Vyankat. In her evidence she has stated that on receiving information that her son Vyankat was assaulted and was lying in injured condition near the bus-stand by the shop of the scrap material, she went there and found her son lying injured and many people had collected there and that the police had seized the dagger and axe from the appellant. She identified the appellant before the Court. She lodged report (Exhibit 40). It is significant to note that in her cross-examination she admitted that her son had no enmity with the person who assaulted him. There was no reason for this witness to implicate the appellant falsely. It is borne out from the report (Exhibit 40), that the appellant Dashrath was the person who committed murder of her son by assaulting him with Jambia and axe. The trial Court has accepted the evidence of this witness Girjabai in correct perspective. It is true that witness Girjabai was not an eye-witness to the incident. She also did not claim to be eye-witness to the occurrence. But in her evidence she did state about the presence of the appellant being caught by the people who had collected there and who was latter on taken in custody by the police and taken to the Police Station. So the involvement of the appellant in commission of assault on her son, is clinchingly borne out on the evidence of this witness Girjabai. 14.There is evidence of witness Mangala Shinde (P.W. 7) who in fact on hearing the shouts, that Vyankat was assaulted, when went to the spot saw that Vyankat was lying in injured condition near shop of scrap material and many persons had collected there and said persons had caught a person who was running away. She then went to the house of Vyankat and informed his mother-Girjabai that her son was killed. It is true that this witness Mangala very fairly stated in her evidence that she could not identify the person who was caught. But her evidence as it stands gains corroboration to the effect that Vyankat came to be assaulted by a person who was caught by the persons who had collected there. It is true that this witness Mangala very fairly stated in her evidence that she could not identify the person who was caught. But her evidence as it stands gains corroboration to the effect that Vyankat came to be assaulted by a person who was caught by the persons who had collected there. As pointed out from the evidence of other witnesses, the person who was caught while running from the place of occurrence was identified as the appellant. In such circumstances, the evidence of this witness Mangala, lends assurance to the extent of assault on the victim by the appellant at the time and place when the incident took place. 15.We have already pointed out from the evidence of witness Rafikshah (P.W. 8) that he was amongst the persons who caught the appellant who was assailant of the victim and he was identified and then he was taken in custody by police. This fact is further corroborated by the evidence of witness Ashok Singh Thakuar (P.W. 9) who was Police Constable who happened to be at the bus-stand at that time on duty. He saw many persons gathered near the shop of scrap material and saw when he went there, he saw one short person lying on the spot near the drainage and there was injuries on his persons and his clothes were stained with blood. He found that the injuries on his persons were caused by axe and dagger. He found people running after one person and so he went there and the person who was apprehended was taken in his custody. Persons who was apprehended and taken in custody was the appellant. He stated that he had taken the appellant to the Police Station. This witness Ashok Singh was subjected to cross-examination by defence, but inspite of searching cross-examination, nothing has been elicited in his evidence so as to dent in his testimony. The material part of his evidence is apprehension of the appellant by the people who had collected on the scene while he was running away and handing over him to his custody and later on he himself taking him to the Police Station. Accepting his evidence, it is clinchingly established that it was the appellant who was caught by the people who had collected there on the scene and he was the person who had assaulted victim Vyankat. Accepting his evidence, it is clinchingly established that it was the appellant who was caught by the people who had collected there on the scene and he was the person who had assaulted victim Vyankat. 16.It is a matter of record that when Investigating Officer-Omprakash Ambelkar (P.W. 10) visited the place of occurrence, he found the axe and dagger lying on the spot and he seized the same under seizure memo (Exhibit 23). We have already pointed out that factum of seizure of weapon is also duly established through the evidence of the panch witnesses. It is a matter of record that person who was caught while running away, had thrown these weapons which came to be later on seized by the Investigating Officer when the spot panchnama was made. As per the report Chemical Analyser (Exhibit 53) dagger and axe (Exhibit 4 and 5) were found stained with blood of group B. It is further clear from the report of Chemical Analyser (Exhibit 53) that the blood detected on the clothes of the deceased was of group B. Even the blood detected on the shirt of the appellant was of group B. So this fact of detection of blood of the same blood group on the clothes of the deceased, on the shirt of the appellant and on the weapon of the assault, is clinchingly an incriminating circumstance pointing out the involvement of the appellant. 17.There is no substance in the submission of the learned Counsel for the appellant that the prosecution has failed to establish its case against the appellant for want of direct evidence giving eye-witness account of the incident. The evidence on record, as discussed above accepted with the circumstantial evidence clinchingly goes to show that the assailant of victim Vyankat was the appellant only. It is borne out on the evidence on record that the appellant inflicted injuries on the person of Vyankat by assaulting him with the axe and the dagger. His involvement in the act of assault on the victim is clinchingly established by the fact that he was apprehended by people, who had collected on the spot while he was running away after assaulting the victim and at the same time the weapons which he was armed with were seized from the place of occurrence. His involvement in the act of assault on the victim is clinchingly established by the fact that he was apprehended by people, who had collected on the spot while he was running away after assaulting the victim and at the same time the weapons which he was armed with were seized from the place of occurrence. Therefore, even though there is no eye-witness account of the incident, that does not impair the prosecution case against the appellant which is established on the evidence on record. 18.It is true that on the evidence on record it is brought that there was no enmity between the appellant and the victim, so apparently there was no cause for the appellant to assault the victim. But then that by itself is not sufficient to discard the prosecution case when on the evidence on record it clinchingly established on facts and circumstances of the case that the appellant and the appellant alone was the assailant. 19.Much has been made by the learned Counsel for the appellant about the claim of appellant for immunity from the criminal liability of assault on victim on the basis of exception as given under section 84 I.P.C. There could not be quarrel about the immunity from criminal liability as envisaged under section 84, wherein it is stated that nothing is an offence which is done by a person who, at the time of doing it by reason of unsound mind is incapable of knowing the nature of the act or that he is doing is either wrong or contrary to law. But burden lies on the accused to show that his case is covered under exception under section 84 and he is immuned of criminal liability on the ground of unsoundness of mind. The learned A.P.P. Mrs. Jog was right in her submission that there is no iota of evidence nor it is elicted through the prosecution evidence even to probablise the fact that the appellant did the act in the fit of unsoundness of mind. The learned Counsel for the appellant was unable to make out even a case for exception under section 84 I.P.C. It is true that though burden was heavily on the accused to establish that he did act in the fit of unsoundness of mind, or that he was of unsound mind when the act was committed. The learned Counsel for the appellant was unable to make out even a case for exception under section 84 I.P.C. It is true that though burden was heavily on the accused to establish that he did act in the fit of unsoundness of mind, or that he was of unsound mind when the act was committed. But then it was for the appellant to show even probability of state of mind, from the evidence attending the case. It is true that the accused is not required to lead the evidence to establish the fact that he was of unsound mind. In the case before hand as can be seen from the tenor of cross-examination of the witnesses by the defence, nothing is even suggested that the appellant was while he did the act was of unsound mind. Therefore, we do not accept the submission of the learned Counsel for the appellant that the appellant is entitled to benefit of doubt and that he is entitled to acquittal as envisaged under section 84 of I.P.C. 20.In the result on our own assessment of the evidence we have no even slightest hesitation to hold that the prosecution has proved its case beyond reasonable doubt. The appellant has committed the offence under section 302 of I.P.C. for committing murder of Vyankat Yellappa Pawar. The trial Court has rightly found him guilty for offence under section 302 I.P.C. We do not find any reason to interfere with the order of conviction and sentence. The appeal therefore, merits no consideration at all. Hence the appeal is dismissed. Appeal dismissed.