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.

( 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,

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