D. S. R. Varma, J. ( 1 ) HEARD the learned counsel for the appellant-accused as well as the learned Public prosecutor, appearing for the respondent-State. ( 2 ) APPELLANT is the sole accused in the sessions Case. ( 3 ) THIS Criminal Appeal, under section 374 (2) of the Code of Criminal procedure, is directed against the judgment, dated 29-07-2005, in Sessions Case No. 4 of 2005, passed by the IV Additional District and sessions Judge, Visakhapatnam, convicting the appellant forthe offence punishable under section 302 of the Indian Penal Code (for brevity "ipc") and sentencing him to suffer imprisonment for life and to pay a fine of rs. 100/- in default to suffer rigorous imprisonment for one month. ( 4 ) THE gravamen of the charge is that there were disputes between the accused and the deceased regarding sale of land; that, on 23-11-2001, at bout 3. 00 p. m. the accused beat the deceased with a stick on his head and the deceased fell down on the ground; that thereafter the accused hacked the deceased with knife on his neck and head, causing bleeding injuries, as a result of which the deceased died instantaneously. ( 5 ) IN order to bring home the guilt of the accused, the prosecution examined P. Ws. 1 to 10 and got marked Exs. P-1 to P-15 and m. Os. 1 to 5 on its behalf and on behalf of the accused, D. Ws. 1 to 3 were examined and marked Exs. D-1 to D-5. ( 6 ) THE Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, particularly the evidence of P. Ws. 2 and 3, eye-witnesses to the incident, recorded a finding that the accused was guilty of the offence punishable under Section 302 IPC and eventually convicted and sentenced him, as stated supra. Aggrieved by the same, the accused has preferred the present Criminal appeal. ( 7 ) THE questions that fall for consideration, in this Criminal Appeal, are - whether the conviction and sentence, imposed by the court below, of the accused for the offence punishable under Section 302 IPC are sustainable and whether the accused is entitled for the benefit under Section 84 IPC. ( 8 ) IN this context, it is necessary to scan the evidence on record, with due care and caution. ( 8 ) IN this context, it is necessary to scan the evidence on record, with due care and caution. ( 9 ) P. W. 1 stated that, on 23-11-2001, at about 3. 00 p. m. , P. W. 2 sent a word, through his brother, by name Baburao, to him that the accused killed his younger brother by name balendraveerabhupathi Raju (the deceased); that by the time he went to the scene of offence, P. W. 2 was there, where the dead body of the deceased was lying and that p. W. 2 informed him that the accused stated that he killed the deceased and another two persons are yet to be killed by him. He gave an account of injuries suffered by the deceased, which are not in controversy. Therefore, he lodged a report, Ex. P-1, basing on which, investigation was pressed into service. ( 10 ) IN the cross-examination of P. W. 1, nothing useful could be elicited. Certain suggestions were made to him about his statement allegedly made before the police in connection with the sale transaction between the deceased and the accused. He further stated that about four years age, the accused was taken to mental hospital, Visakhapatnam, and he was treated there for two months. ( 11 ) FROM the above evidence, it could be seen that P. W. 1 is not an eye-witness, but only a witness, who saw the dead body of the deceased, immediately after occurrence of the incident, in the presence of P. W. 2, who is an eye-witness. It further reveals that the accused was treated for some time in the mental hospital for mental illness, a bout four years ago from the date of deposition. If the said period is calculated, it falls after occurrence of the offence. ( 12 ) P. W. 2, as already stated, is an eye-witness. He gave categorical account of events that took place. He stated that he witnessed the accused killing the deceased; that the accused first beat the deceased on his head and after he fell down, the accused hacked the deceased on the head twice and then came to him and said that there are two other persons to be killed and that, immediately, he sent a word to P. W. 1. ( 13 ) FROM the cross-examination of P. W. 2, his evidence could not be demolished in any manner, because of his consistent version. Upon being questioned, in the cross-examination, he stated that he did not know that the accused was taken to mental hospital. ( 14 ) P. W. 3 is yet another eye-witness, who stated that, on 23-11-2001, between 2. 00 p. m. and 3. 00 p. m. , on hearing the shouts of the accused, he came out of his house and witnessed the accused beating the deceased with stick and then hacked him with the knife on his neck and head. He also stated that the accused stated that there were two other persons whom he wants to kill. ( 15 ) THEREFORE, it is P. Ws. 2 and 3, who are the eye-witnesses. It has to be further seen that in the cross-examination, P. W. 3 stated that he came to know that the accused was admitted in mental hospital after the date of offence. ( 16 ) P. W. 4, the then V. A. O. ,basangikothur village, Chinthapalli Mandal, Visakhaptnam, spoke abut the process of investigation and preparation of sketches, recovery of blood stained earth and control earth, M. Os. 4 and 5, respectively, Under Ex. P-2. He further spoke that inquest over the dead body of the deceased was conducted in his presence, under Ex. P-3, and thereafter the lungi of the deceased, M. O. 3, was also recovered from the dead body of the deceased. ( 17 ) P. W. 5, a villager of Chinthapalli Village, stated that himself and one Rajarao, V. A. O. , chinthapalli Village (L. W. 10), acted as mediators, in this case, for arrest of the accused and seizure of stick and knife, M. Os. 1 and 2, respectively. He stated that, on 28-11 -2001, the police took him and the said V. A. O. , to the house of the accused; that the accused confessed regarding commission of offence, because of some land dispute with the deceased; that thereupon, the accused went to his house and brought one stick and knife and handed over the same to the police, saying that he beat the deceased with the said stick and hacked the deceased with the said knife and that the seizure of two weapons was made in their presence under the cover of mediators' report, Ex. P-4. ( 18 ) IT is to be noted that the confessional statement of the accused, only to the extent of recovery of weapons used, can be admitted in evidence, as contemplated under section 27 of the Evidence Act and rest of the same is not admissible. ( 19 ) P. W. 7, Civil Assistant Surgeon, community Health Centre, Chinthapalli, who conducted autopsy over the dead body of the deceased, found the following external injuries: 1. A deep cut chop wound 7 1/2 x 2 x 31/2 Cm, transverse on the lower part of the front of neck extending about 3/4th of the circumference of the neck almost separating the neck from the trunk, exposing the cut survical vertebral, grand vessel and other deep structures of the neck, edges clear cut, wound showing blackish blood coybulum. 2. A deep cut wound 4 x2 x 1 obliquely extending from above the outer part of the left eye brow to about the middle of the hair line of the forehead with depressed fracture of the skull, edges irregular, pale in colour. 3. A deep cut wound 2 x 2 1/2 in triang ular shape, Depth cannot be assessed, situated above the outer cantus of right eye, edges rugged associated with penetration of bone, pale in colour. 4. Two linear abrasion marks each 3" x 1/4" with 1", pale center in middle on the right parietal eminence directed antro-posteriorly. ( 20 ) HOWEVER, P. W. 7 explained the nature of injuries, in detail. The same need not be referred to, since they are not disputed by the other side. ( 21 ) P. W. 8 is the then Sub-Inspector of police, Chinthapalli Police Station, whose evidence is not of much relevance. P. W. 9, the then investigation officer, stated that, during the course of investigation, he recorded the statements of all the listed witnesses. The evidence of P. W. 10, the then Inspector of police, is also not of much use, except for the purpose of arresting the accused and recovery of weapons, as stated by P. W. 5. ( 22 ) FROM the above, it appears that only p. Ws. 2 and 3 are eye-witnesses and the evidence of other witnesses is incidental and consequential. Therefore, in order to assess whether the offence was committed by the accused, it is only the evidence of P. Ws. ( 22 ) FROM the above, it appears that only p. Ws. 2 and 3 are eye-witnesses and the evidence of other witnesses is incidental and consequential. Therefore, in order to assess whether the offence was committed by the accused, it is only the evidence of P. Ws. 2 and 3 that has to be looked into. ( 23 ) FROM a perusal of evidence on record, pertaining to P. Ws. 2 and 3, we have absolutely no doubt that it is the accused alone, who committed the offence. Important aspect in this regard is that P. W. 3 is no other than the brother of the accused. ( 24 ) THIS view is further strengthened by another important factor on record is that the blood found on the knife, which was recovered at the instance of the accused, and the blood group of the deceased were matching with each other. This factor may not be relevant, when the accused wants to take shelter under section 84 I. P. C. nevertheless, it cannot be ignored that the seizure of weapons was effected, at the instance of the accused himself. ( 25 ) HOWEVER, we feel it essential to deal with the evidence on record adduced on behalf of the defence. ( 26 ) IT is to be noted that the defence took a specific plea before the Court below that the accused was suffering from paranoid schizophrenia and, therefore, he is entitled for protection under Section 84 I. P. C. ( 27 ) D. W. 1, Assistant Professor of psychiatry, Government Hospital for Mental care, Visakhapatnam, deposed that the mandal Executive Magistrate, Chinthapalli, referred the accused to their Mental Care hospital for treatment through the superintendent, Central Prison, visakhapatnam; that Ex. D-2 is the O. P. , slip, dated 05-12-2001, issued by the Medical officer, Chinthapalli and that in Ex-D-2, it was mentioned that the accused was suffering pain in abdomen, delusion and sleep disturbance since one week. In other words, the said period of one week has to be computed from the date of Ex. D-2, which is dated 05-12-2001, subsequentto the commission of offence on 23-11 -2001. There is a gap of about 12 days between the date of commission of offence and entry made in Ex. D-2,i. P. , Chit. It is stated in Ex. D-2 that the accused got suspicious thoughts of homicidal tendency. D-2, which is dated 05-12-2001, subsequentto the commission of offence on 23-11 -2001. There is a gap of about 12 days between the date of commission of offence and entry made in Ex. D-2,i. P. , Chit. It is stated in Ex. D-2 that the accused got suspicious thoughts of homicidal tendency. ( 28 ) D. W. 1 further stated that, on enquiry, he came to know that the accused was treated by another Doctor, by name P. S. Srikumar, as an outpatient, who also opined that the accused got persecutory delusion. He further deposed that, in the case sheet issued by the said doctor, who actually treated him initially, it was mentioned that the accused was having delusion that one Bhupathiraju (the deceased)killed his family members by practicing witchcraft on them and that he treated the accused from 03-01 -2002 and Ex. D-3 is the case sheet pertaining to the treatment given to the accused. ( 29 ) D. W. 1 opined that he had given antipsychiatric treatment and, as there was no improvement, electro convulsive therapy was also given to the accused and was discharged on 18-05-2002. He further deposed that the symptoms of paranoid schizophrenia are that the patient will have delusion i. e. , fixed and false beliefs, which cannot be shaken, hallucination i. e. , hearing voices without any stimulus, which others do not hear. The accused was not having command hallucination that the accused got persecutory delusion i. e. , false belief that on Bhupathiraju (the deceased) killed his family members. He finally stated that, on 18-05-2002, he addressed a letterto the Superintendent, Central Prison, visakhapatnam, informing him that the accused was restored to his normal condition and can be taken to the prison from the hospital and that the accused had completely recovered from the ailment. ( 30 ) IN the cross-examination, D. W. 1 deposed that, on 14-12-2001, the accused was admitted in their hospital. ( 31 ) ONE important aspect to be noticed is that; D. W. 1 stated that neither the accused disclosed anything about the past history relating to his mental health or mental illness nor there was any record relating to his past history pertaining to mental illness prior to 14-12-2001. ( 31 ) ONE important aspect to be noticed is that; D. W. 1 stated that neither the accused disclosed anything about the past history relating to his mental health or mental illness nor there was any record relating to his past history pertaining to mental illness prior to 14-12-2001. Therefore, he could not express any view as to whether the accused had really suffered from mental ill health from 14-12-2001 or as on the date i. e. , 23-11 -2001 or not. ( 32 ) D. W. 1 further deposed, in his cross-examination, that a letter was addressed by him to the Mandal Executive Magistrate, chinthapalli, to inform the family members of the accused and send them to the hospital to ascertain the past history of the accused regarding the present state of mind and, in spite of it, none of the family members responded and none had turned up and approached them. ( 33 ) THE conspicuous statement made by d. W. 1, in his cross-examination, is that he could not say when the accused, for the first time, got or suffered the said ailment of paranoid schizophrenia. He further deposed that the accused recovered from the ailment on 04-03-2002, fully recovered on 03-04-2002 and till the Committee of the hospital decided to discharge him, he was not discharged till 18-05-2002. Ex. P-14 is the letter, dated 14-02-2003, by the accused, to the Mandal executive Magistrate, Chinthapalli, visakhapatnam, seeking to recommend pursuant to which D. W. 1 issued Ex. P-15, certificate, regarding admission and discharge of the accused on 14-12-2001 and 18-05-2002, respectively, forthe treatment. ( 34 ) ANOTHER important aspect to be noticed from the cross-evidence of D. W. 1 is that if a patient is admitted in the hospital for second time, they will maintain the same record, which was maintained at the first instance of his treatment. ( 35 ) FOR the specific question posed to d. W. 1, by the Court below, - what was the ailment from which accused was suffering as per Ex. D-2,0. P. , Chit, issued by the Medical officer of Chinthapalli - he stated that: "as perthe international classification of disease, we need at least one month history of the patient to ascertain whether he is suffering from paranoid schizophrenia or not? As perthe findings in Ex. D-2,0. P. , Chit, issued by the Medical officer of Chinthapalli - he stated that: "as perthe international classification of disease, we need at least one month history of the patient to ascertain whether he is suffering from paranoid schizophrenia or not? As perthe findings in Ex. D-2, O. P. , Chit, only one week history of the patient was given. Therefore, my diagnosis is that the accused was suffering from acute transient psychosis. Therefore will be symptom of the delusion of the disease. Since 1990, we are having computerized record upto date in our hospital and if any person underwent treatment previously, we can collect the said date from our computer. The details of patient will also be entered in the computer and we can trace out the case sheet from the said details. As per the data available in our computer, the accused did not take any treatment in our hospital previously. There are private clinics in Vigaz to treat patient of mental ill-health. " ( 36 ) FROM the above, it appears that there was no case record for treatment of the accused, any time before the incident. ( 37 ) THE evidence of D. W. 2, Mandal executive Magistrate, and D. W. 3, in-charge superintendent, Chinthapalli Sub-Jail, is not very relevant, since they were only instruments to send the report, as required by the hospital authorities at Visakhapatnam. ( 38 ) FROM the above evidence, the following are obvious: (i) The deceased was not treated for his mental ill health any time before the date of offence. Even there is nothing on record that he was suffering from any such illness. (ii) About mental illness of the accused, even P. W. 3, who is no other than his own brother, did not speak anything in his deposition, particularly to the effect that the accused was suffering from mental ill health even prior to the date of offence. (iii) As per the evidence of P. Ws. 1 to 3, both the accused and deceased were living in the same house, which actually belonging to the accused. (iii) As per the evidence of P. Ws. 1 to 3, both the accused and deceased were living in the same house, which actually belonging to the accused. (iv) D. W. 1, the Doctor, addressed a letterto the Mandal Executive Magistrate to inform the family members of the accused to furnish any other information about the mental illness of the accused before the offence, but none of the family members of the accused, including his own brother, who was examined as p. W. 3, furnished any information. (v) As stated by D. W. 1, international standards require information about the mental condition of the patient at least for one month before the treatment, but he admitted that there was only one week history of the accused. (vi) However, the accused was suffering from acute mental ill health, which was intermittent or transient psychosis -meaning thereby, the disease was not a permanent feature, when such ill health actually surfaced, is not known either to the Doctor or anyone, on the other hand, it is revealed only on the date of Ex. D-2 i. e. , 14-12-2001. (vii) The weapons i. e. , stick and knife were recovered, at the instance of the accused only, as spoken to by P. W. 5, the V. A. O. , and the blood found on the knife also matched with the blood group of the deceased. ( 39 ) THE initial complaint of the accused when he was taken to the hospital was, pain in abdomen, delusion and disturbed sleep since one week. His expression 'since one week' gains much significance. If one goes back to one week from 14-12-2001, at best, it could be the beginning of second week of december, 2001; whereas, the offence took place on 23-11-2001. ( 40 ) FURTHER, it is to be noticed that the mental ailment was acutetransient psychosis, which itself discloses that the accused was not suffering, in any eventfrom mental ill health continuously for the past several months or years. ( 41 ) AS already pointed out, there is no history whatsoeveron record as to whetherthe accused had received any treatment, at any pointed of time, before commission of offence. Therefore, at best, the mental ailment, as spoken to by D. W. 1 himself, was medically reversible and, in fact, was reversed after a considerable treatment. The said ailment was not continuous in nature. Therefore, at best, the mental ailment, as spoken to by D. W. 1 himself, was medically reversible and, in fact, was reversed after a considerable treatment. The said ailment was not continuous in nature. When thesaid ailment was not continuous and it is irregular, unusual or peculiar behaviour, including the behaviour that is harmful to anybody, was only for temporary period or periods. ( 42 ) FURTHER, nobody could say as to whether the accused was suffering from mental ill health, at that particular moment, nor there is any reason for this Court to arrive at such a conclusion when there is nothing whatsoever, on record, or earlier history whatsoever about his mental unsoundness, on the date of offence. ( 43 ) IN Jagmohan Singh v. State of U. P. 1 the Supreme Court observed that it has to be assumed that the appellant was rightly convicted in view of the nature of his act, when he committed offence, with which he was charged. ( 44 ) IT is essential to note Chapter XXXI, which deals with 'forensic Psychiatry', of medical Jurisprudence and Toxicology, First edition, by Dr. K. S. Narayan Reddy, in which clause (4), deals with Paranoid Schizophrenial (paraphrenia), is thus: 'paranoid Schizophrenial (Paranoia, paraphenia): Paranoia is the mild form, and is common in males. Paranoid schizophrenia develops insidiously in the fourth decade. It is characterized by suspiciousness. delusionsof persecution and auditory hallucinations. At first delusions are indefinite, but later they become fixed on some person. The patient usually retains his memory and orientation. When delusions affect his behaviour, he is often a source of danger to himself and others. In paraphrenia, delusions and hallucinations are present, but the personality is relatively intact. ' ( 45 ) FURTHER, it is essential to note chapter XIX, which deals with 'insanity and its medico-Legal aspects', of Medical jurisprudence and Toxicology, Eighteenth edition, by Sri N. J. Modi, in which clause (4)of Symptomatology, deals with paranoid scizophreia, Paraoia and Paraphrenia, is thus: "paranoid schizophrenia, Paranoia and paraphrenia- Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than females. The main characteristic of this illness is a well elaborated delusional system in a personality that is otherwise well preserved. The delusions are of a persecutorytype. It occurs more in males than females. The main characteristic of this illness is a well elaborated delusional system in a personality that is otherwise well preserved. The delusions are of a persecutorytype. The true nature of the illness may go unrecognized for a long time because the personality is well-preserved, and some of these paranoiacs may pass off as social reformers or founders of queer psecudoreligious sects. . . . . Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Supspciousness is the characteristic symptom of the early stage. Ideas of reference occur which gradually develop into delusions of persecution. Auditory hallucinations follow which, in the beginning, start as sounds or noises in the ears, but are afterwards changed into abuses or insults. Delusions are at first indefinite, but gradually they become fixed, and definite so as to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes the his food is being poisoned, some noxious gases are blown into his room, and people are plotting against him to ruin him. . . . . . . . . . . When delusions affect his behaviour, he is often a source of danger to himself and to others. " ( 46 ) HOWEVER, in Elkarishankariv. State of andhra Pradesh2, a Division Bench of this court has considered this aspect to a considerable extent and, having regard to the facts and circumstances of the said case, found that though the accused therein was suffering from mental ailment, ultimately recorded the order of conviction. ( 47 ) COMING back to the case on hand, it is to be seen that paranoid schizophrenia is originally not a severe form of mental ailment, but may aggravate attimes. Further, as pointed out by Sri N. J. Modi, in Medical Jurisprudence and Toxicology, 18th Edition, the nature of illness may go unrecognized for a considerable period. ( 48 ) IN the instant case, there is no proof whatsoever regarding the earlier history of the accused, as to whether he was really suffering from any such noticeable mental ailment or not. Even if such mental ailment is not very conspicuous, still by virtue of the behaviour, perhaps, the person can be identified as one suffering from mental disturbance. Even if such mental ailment is not very conspicuous, still by virtue of the behaviour, perhaps, the person can be identified as one suffering from mental disturbance. Even that is not spoken to by any of the witnesses or by the doctors or supported by any medical record, particularly abut the conduct of the accused prior to the date of offence. ( 49 ) THE conduct of the accused, immediately after the offence or his arrest, appears to be normal. No abnormality was ever noticed by anyone, including the mediators, or even by P. W. 3, who is no other than the brother of the accused himself. ( 50 ) THEREFORE, by virtue of the conduct of the accused, from the date of offence till he was admitted in the mental hospital, there is nothing on record as to his past history. Further, Paranoid Schizophrenia, as already discussed, requires several other things to be proved. Since the ailment is basically of mild form, severity of the said ailment ought to have been proved by the accused himself unlike in other cases. ( 51 ) THE general principle is that burden lies on the prosecution to prove all the charges, but when an attempt was made, at the earliest point of time, to take shelter under Section 84 ipc the burden shifts to the accused and the said burden was not at all discharged much less properly. ( 52 ) THEREFORE, we are of the view that the accused is the person who committed the offence and hence he cannot take the shelter under Section 84 IPC. ( 53 ) FOR the foregoing, the Criminal Appeal fails and is liable to be dismissed. ( 54 ) IN the result, the Criminal Appeal is dismissed, confirming the judgment, dated 29-07-2005, in Sessions Case No. 4 of 2005, passed by the IV Additional District and sessions Judge, Visakhapatnam, convicting the appellant-accused for the offence punishable under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 10o/-, in default of suffer rigorous imprisonment for one month.