JUDGMENT B. K. NAYAK, J. (1) IN this Jail Criminal Appeal, the appellant has challenged the judgment dated 22-12-2001 passed by the learned Additional Sessions Judge, Talcher in S.T. Case No. 38-A/46 of 1998/30 of 2000 convicting the appellant under Sections 302/ 324 of the I.P.C. and sentencing him to undergo imprisonment for life for the offence under Section 302 of the I.P.C. and rigorous imprisonment for one year for the offence under Section 324 of the I.P.C. (2) THE prosecution case is that on 27-11- 1997 at about 3.00 p.m. while the adult members of village-Chhanchunia were engaged in harvesting paddy in their fields, deceased- Sushila Champia, a child aged about nine years was playing with some other children on the land of one Kusha Champia, the accused-appellant came there with a tangi and indiscriminately assaulted Sushila with the same causing several injuries. Sushila fell down and succumbed to the injuries. THE appellant also chased and assaulted the other children, namely, Rama Kala, Tuni Kala and Tunguri Kala and caused injuries to them. Being informed by some children about the occurrence, the informant-Benudhar Tiria came to the spot and found Sushila Champia lying dead with injuries on her body. He also found the other girls having sustained bleeding injuries on their person. THE injured children also informed him about the occurrence. THEreafter, the informant intimated about the occurrence to the Ward Member-Dhoba Sahu and on his advice lodged F.I.R. at Khamar Police Station at 6.00 p.m. on the basis of which the case was registered. In course of investigation, the I.O. visited the spot, examined the witnesses and recorded their statements. He also arrested the accused, who had been detained by the villagers, and seized the weapon of offence (M.O.I.), which was recovered from the appellant along with a napkin. THE I.O. also conducted inquest over the dead body of Sushila Champia and sent it for post-mortem examination. He issued requisition for medical examination of injured children and also seized some sample earth and blood stained earth from the spot. After completion of investigation, charge- sheet was submitted against the appellant. The defence plea is one of completely denial of the prosecution case. (3) IN order to bring home the charges to the accused, the prosecution examined seventeen witnesses. P.Ws. 1 and 2 are respectively the mother and wife of the appellant. P.W.3 is a co-villager. P.Ws. After completion of investigation, charge- sheet was submitted against the appellant. The defence plea is one of completely denial of the prosecution case. (3) IN order to bring home the charges to the accused, the prosecution examined seventeen witnesses. P.Ws. 1 and 2 are respectively the mother and wife of the appellant. P.W.3 is a co-villager. P.Ws. 4 and 14 are the police constables, who escorted the body to the hospital for the post-mortem examination and are also witnesses to seizure of wearing apparels of the deceased. P.W.5 is the informant. P.Ws. 6, 7, 8 and 9 are the eye-witnesses to the occurrence out of whom P.Ws. 7 and 8 are injured witnesses. P.W.10 is a post occurrence witness. P.Ws. 11 to 13 are witnesses to the seizure of sample earth and blood stained earth and some other incriminating materials. P.W. 13 is also a witness to inquest. P.W. 15 is the doctor who examined the injured girls and P.W. 16 is the doctor who conducted post-mortem examination over the dead body of the deceased. P.W. 17 is the INvestigating Officer. On consideration of the ocular testimony of the eye-witnesses and other incriminating evidence, the trial Court found the appellant guilty and accordingly convicted and sentenced him as aforesaid. (4) THE learned counsel for the appellant contends that the evidence of eye-witnesses with regard to the occurrence is not believable in view of the contradictions brought out and further P.W. 7 being a child of five years and the trial Judge having already certified that the said witness was not answering rationally to any question put to her, her evidence carries no value. It is his further submission that assuming that the appellant caused murder of one girl and injured three to four others, his act was without any motive and the evidence on record reveals that he is a mad person and when he assaulted the deceased and injured girls he was suffering from unsoundness of mind and incapable of knowing the nature of his act or what he was doing was wrong and contrary to law. THE learned Addl. Standing Counsel, on the other hand, contends that the evidence of eye-witnesses is quite clear, cogent and trustworthy and that even if the evidence of P.W. 7 is discarded, the evidence of other three eye-witnesses along with other inriminating circumstances is sufficient to prove the guilt of the appellant. THE learned Addl. Standing Counsel, on the other hand, contends that the evidence of eye-witnesses is quite clear, cogent and trustworthy and that even if the evidence of P.W. 7 is discarded, the evidence of other three eye-witnesses along with other inriminating circumstances is sufficient to prove the guilt of the appellant. His further submission is that though there is some evidence that the appellant was behaving in an erratic manner, there is no evidence that he was suffering from unsoundness of mind at the time of commission of offence so as to be incapable of understanding the nature of his act or what he was doing was wrong and contrary to law. There is no dispute nor was it challenged by the defence that deceased-Sushila. Champia died a homicidal death having suffered incised injuries on her neck and back which had cut the second vertebrae along with the skin, muscle and major vessels on the left side of the neck. The injuries were ante-mortem in nature and the death was due to profuse blood loss and injury to spinal cord. This is evident from the evidence of P.W.16, the medical officer, who conducted post-mortem examination and from his report, Ext.9. Similarly, the fact that three girls, namely, Tuni Kala, Rama Kala (P.W.7) and Tunguri Kala (P.W. 8) sustained incised injuries in course of the occurrence is also undisputed and well proved from the evidence of P.W. 15, the doctor and the injury reports vide Exts. 6, 8 and 7 respectively. (5) OUT of the eye-witnesses, P.W.7 is a child witness of five years. The trial Judge has given a certificate that she was not answering rationally to any of the questions put to her. However, in her brief evidence she answered taking the name of the appellant that the appellant inflicted injury on her face by a Tangi and also assaulted Sushila (deceased), Tuni and Tunguri. She also showed the injury mark to the trial judge that was extending on the left side of her face from the left side lip to the root of the left car. There was practically no cross-examination with regard to her aforesaid evidence. P.W. 8 is an other injured girl of 12 years of age. She has stated in her evidence that while she was playing with the deceased, Rama and Tuni etc. There was practically no cross-examination with regard to her aforesaid evidence. P.W. 8 is an other injured girl of 12 years of age. She has stated in her evidence that while she was playing with the deceased, Rama and Tuni etc. in the Bari of Kusha Champia, the accused came there being armed with a Tangi and all of a sudden assaulted Sushila by means of the same. The appellant also assaulted her (P.W.8) on her right ankle while she was trying to hide on seeing the assault on Sushila. It is also in her evidence that the appellant also assaulted P.W. 7 by means of that Tangi. P.W. 8 has also stated in her evidence that the accused caused bleeding injury to all of them and on receipt of the injuries Sushila fell down on the ground. P.W. 8 after being assaulted ran away. Nothing has been brought out in her cross-examination. In her cross- examination she has stated that the appellant had no quarrel or enmity with her and other girls. Nothing has been brought out in her cross-examination to discredit her evidence. P.W. 9 is none other than the grandfather of the deceased girl. In his evidence, he stated that on the date of occurrence at 3.00 p.m. while he was present on his threshing floor, he saw the appellant going towards the bari carrying a tangia and at that time the deceased and other injured girls were playing in that bari. On arrival, suddenly the appellant assaulted the girls by means of the Tangia on different parts of their body causing injuries. He also states that on being assaulted, Sushila fell down on the ground and succumbed to the injuries and other girls ran away in panic and thereafter the appellant also ran away from the spot holding the tangia. After the appellant left he came to the spot. Nothing substantial has been brought out in his evidence except that he was not examined by the police. P.W.6 is the husband of P.W.9. His testimony reveals that while the deceased and the injured girls were playing, the appellant went towards that side holding Tangia and on seeing the appellant when the girls started to run away, the appellant chased them and first assaulted the deceased and thereafter assaulted P.W. 7 and thereafter the other girls. P.W.6 is the husband of P.W.9. His testimony reveals that while the deceased and the injured girls were playing, the appellant went towards that side holding Tangia and on seeing the appellant when the girls started to run away, the appellant chased them and first assaulted the deceased and thereafter assaulted P.W. 7 and thereafter the other girls. The deceased died at the spot and other injured girls came to his verandah with injures on their person. After assaulting the girls, the appellant ran away from the spot with the weapon. In cross-examination, he states that he was present in his threshing floor along with his wife (P.W.9). To a defence suggestion, he admitted that he saw the injuries on the person of the girls, but did not see the assault on them. Because of such contradictory statement, the trial Court put further questions to him in order to get clarification when he answered that he had seen the assault inflicted by the appellant. The trial Court has opined that P.W. 6 was a rustic person and was replying the questions put to him without understanding the same. The trial Court has accepted his evidence and we do not find any reason to differ from the same. Evidence of P.Ws. 6, 8 and 9 is quite clear, cogent and trustworthy. (6) P.W. 3 is the Ward Member of the village in question and a disinterested witness. He deposed that on the date of occurrence while he was working in his garden some small children ran to him and disclosed that the appellant chased them being armed with Tangia. P.W. 3 went in search of the appellant and found him taking handia with Tunuku Pingua in the latter's house. A Tangia was kept by the side of the appellant. He picked up the Tangia saying that he would return it on the following day. After some time, when he returned home he got information that the appellant had already assaulted and killed some children. With the assistance of some covillagers P.W.3 again went and caught hold of the appellant and kept him detained and informed the Grama Rakhi about the incident. He fairly admitted in cross-examination that he himself had not seen the occurrence. After some time, when he returned home he got information that the appellant had already assaulted and killed some children. With the assistance of some covillagers P.W.3 again went and caught hold of the appellant and kept him detained and informed the Grama Rakhi about the incident. He fairly admitted in cross-examination that he himself had not seen the occurrence. That I.O. (P.W. 17) states that after receipt of the F.I.R. (Ext.2) he visited the place of occurrence and recorded the statements of some witnesses and found the accused detained by the villagers. He seized the Tangia and one napkin from the possession of the accused under seizure list (Ext. 11). The I.O. has identified the tangia (M.O.I.) and the napkin (M.O.II). At 6.00 a.m. on the next morning he conducted inquest over the dead body of the deceased in presence of witnesses and prepared inquest report (Ext.4). He also seized sample earth and blood stained earth from the spot under seizure list (Ext.5). He also sent requisition vide Ext. 13/1 for the medical examination of the accused. The medical examination report of the accused has been proved as Ext. 13. The seized articles were chemically examined in the State Forensic Science Laboratory, Bhubaneswar and the chemical examination report and the serologist report are respectively Exts. 14 and 15. The tangia has been found to have contained blood of human origin though group could not be ascertained. The seized gamuchha of the appellant also contained human blood of 'B' group which tallies with the blood group of the deceased that was found on her frock which was also chemically examined. Unfortunately, however, the trial Court has not put any question to the appellant with regard to detection of human blood on his gamuchha and tangia as per the chemical examination report and serologist report and therefore Exts. 14 and 15 cannot be taken into consideration as incriminating pieces of evidence against the appellant. However, considering the clear, cogent and trustworthy oral evidence of P.Ws. 6, 8 and 9, out of whom P.W. 8 is an injured witness, corroborated by the medical evidence and recovery of weapon of offence, we are of the view that there is no semblance of doubt that the appellant being the author of the crime caused the death of one girl and injured three others by assaulting them by means of tangia (M.O.I). (7) WITH regard to the contention of the learned counsel for the appellant that the appellant was of unsound mind at the time of commission of offence, it is apt to note the defence of unsoundness of mind as enshrined in Section 84 of the Indian Penal Code, which reads as under : "84. Act of a person of unsound mind - Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." The burden of proving the defence that by reason of unsoundness of mind, the appellant was incapable of knowing the nature of the act committed by him or that he was incapable of knowing the nature of his act or that what he was doing was wrong or contrary to the law is on the appellant, as has been held in (2010) 10 SCC 582 : ( AIR 2011 SC 265 ); Sudhakaran v. State of Kerala. In the aforesaid case, the Apex Court referred to the following principles laid down in the case of Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 ; "34. (1) The prosecution must prove beyond reasonable doubt that the (appellant) had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the (appellant) was not insane, when the committed the crime, in the sense laid down by Section 84 of the Penal Code: the (appellant) may rebut it by placing before the Court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the (appellant) was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the (appellant) or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens reason of the (appellant) and in that case the Court would be entitled to acquit the (appellant) on the ground that the general burden of proof resting on the prosecution was not discharged." (8) LEARNED counsel for the appellant places strong reliance on the reported case of State of Orissa v. Kalia alias Debabrata Maharana; 2008 (I) OLR 845 : (2008 Cri LJ 3107) (Ori), where even though the respondent (accused) committed three murders, he was acquitted on acceptance of the plea of the insanity. In that case, the accused indiscriminately assaulted six different persons one after another by Bhujali running from place to place and three of the victims died. In order to come to the conclusion that the accused was not in a position to know the nature of his act or what he was doing was wrong or contrary to law because of unsoundness of mind, the Court took into consideration the following circumstances : (i) there was no motive for assulting six persons indiscriminately at six different places in quick succession; (ii) after assault the assailant made no effort to run away or escape; (iii) there was clear evidence of some prosecution witnesses and defence witnesses that the assailant was not mentally sound and had been taken to the hospital for treatment for his insanity prior to the occurrence; (iv) he was having spells of insanity during intervals; (v) three to four days prior to the occurrence, the accused had developed madness and during that period he had assaulted his mother and cut down many trees and was undergoing treatment. In the instant case, there is no evidence led by the defence with regard to the insanity of the appellant at all. P.Ws. 1 and 2 are respectively the mother and wife of the appellant. They have merely stated that during the relevant time of occurrence the appellant was behaving erratically and was moving with a tangi in a furious mood. P.Ws. 1 and 2 are respectively the mother and wife of the appellant. They have merely stated that during the relevant time of occurrence the appellant was behaving erratically and was moving with a tangi in a furious mood. On the contrary, the evidence of P.W. 5 shows that the accused was of sound mind and never behaved erratically like a mad man. P.W. 9 stated in his cross-examination that appellant was not behaving like a mad person at the relevant time. P.W. 10 has also denied the defence suggestion that the accused was mad during the relevant time. There is no evidence worth the name that the accused was ever suffering from unsoundness of mind or at any point of time, during or prior to the occurrence. There is neither any evidence of his madness or any family history of unsoundness and mind. He has never been treated for madness. The evidence on record rather shows that soon after assaulting the deceased girl and other injured girls he ran away from the spot with the tangi. Soon after the occurrence he was searched for and being found was detained by the villagers and on his medical examination on the next morning he was found to be a alcoholic as per the medical evidence (Ext. 13). In the circumstances, the views expressed by this Court in Kalia alias Debabrata Maharana, (2008 Cri LJ 3107) (Ori) (supra) which has been relied upon by the learned counsel for the appellant has at all no application to the facts and circumstances of the present case. We, therefore, reject the contention raised by the learned counsel for the appellant. (9) IN the light of the aforesaid discussions, we find no scope for interference with the impugned judgment. The JCRA is, therefore, devoid of merit and accordingly dismissed. PRADIP MOHANTY, J.:- 14.I agree. Appeal dismissed.