The main legal point established in the judgment is the requirement of establishing insanity at the time of the act under Section 84 IPC and the burden of proof on the accused to establish the exception of insanity.

JUDGMENT :

Biswanath Rath, J.

1. This appeal arises out of an order of acquittal dated 4.5.1999 passed by the Sessions Judge, Dhenkanal-Angul at Dhenkanal acquitting the respondent from the charge under Section 302 of the Indian Penal Code.

2. Prosecution led the story that on 21.4.1996 at about 3 P.M. while the son of the accused was counting money, the accused demanded for immediate handing over the money to him failing which accused threatened to kill his son. Son of the accused being afraid of the same ran away from the place and it is alleged that after the above, the accused chased his daughter, namely, Salma and assaulted her by means of a spade inflicting several blows resulting death of his daughter Salma in the backyard near the fence. Prosecution has the further story that at the above point of time, wife of the accused, namely, Basanti, who had been to fetch water, on her arrival protested the drastic act of the husband. Unfortunately, the husband then chased his wife Basanti and killed her by use of same spade. Prosecution story further reveals that for the ghastly act of the accused-respondent people from the neighborhood fled away from their houses and gathered at the end of the village. When the informant, who is the immediate neighbor of the accused, returned to village he was told about the incident by the villagers as well as his mother, who were all then assembled at the end of the village. Where after the informant rushed to the house and found the dead body of Salma lying near their common fence. As per informant, he also heard the shoutings raised by the accused being present inside the house. The informant along with two other villagers proceeded to Kamakhyanagar Police Station and reported the incident, which was reduced in to writing by the Officer-In-Charge, Kamakhyanagar Police Station on 21.4.1996 at about 8 P.M. Upon completion of investigation, the police submitted charge sheet against the accused-respondent under Section 302 of the Indian Penal Code facing the trial.

3. The plea of the accused is a complete denial. The accused took his defence on his examination under Section 313 of the Code of Criminal Procedure that he was not only innocent but had no idea regarding the alleged incident and he was not even in a position to say as to who is the author of the crime and who are responsible for killing his wife and daughter. The accused had also disclosed in the said statement that two months preceding to the date of occurrence he was suffering from fever.

4. To prove the charge, prosecution examined as many as six witnesses. P.W.1 is the informant and is a post occurrence witness. P.W. 2 is the son of the accused claiming to be an eye witness to the occurrence. P.W.3 claimed to be a witness to the occurrence. P.W.4 is the old mother of the informant and the immediate neighbour of the accused also claiming to be an eye witness to the occurrence. P.W.5 is the witness to the seizure of blood stained earth from the spot and the blood stained wearing apparels of the accused. P.W.6 is the Officer-In-Charge of Kamakhyanagar Police Station at the relevant point of time and investigated into the matter. On the other hand, defence examined none. Basing on the prosecution story, depending on the evidence of P.W.2 disclosing that the accused was semi-mad and was howling on the date of occurrence further applying the provisions under Section 84 of the Indian Penal Code, particularly, the general exception in Chapter-IV of the Indian Penal Code, the Sessions trial was concluded with an order of acquittal, thereby further directing setting the accused to liberty forthwith.

5. Challenging the aforesaid judgment, the State filed the Government Appeal which was admitted by this Court vide its order dated 24.11.2003.

6. Challenging the judgment of acquittal, Sri Soubhagya Ketan Nayak, learned Additional Government Advocate urged that prosecution had a strong case against the accused-respondent. Prosecution established its