- (1.) THIS appeal is directed against the judgment dated 25.02.2010 passed by the learned Additional Sessions Judge, Kachchh at Bhuj in Sessions Case No.13 of 2009. The appellant was original accused. He was charged with the offence punishable under Section 302. He was convicted for such offence and sentenced to imprisonment for life. For the reasons which follow, we would be well advised not to enter into the nature of evidence on record and its appreciation by the learned Judge in the impugned judgment. Briefly stated the prosecution version was that the accused and the deceased resided in the same locality in the village Sukhparvas, Taluka: Mundra. One Haroon Noormamad and the wife of the accused had eloped. The accused suspected that the deceased as a friend of Haroon Noormamad had a hand in this incident. Late at night of 2nd November 2008 i.e. in the early morning hours of 3:00 O'clock of 3rd November 2008 when the deceased was sleeping on a cot just outside his house, the accused attacked him with an axe causing his death. This incident was witnessed by the mother of the deceased who was sleeping close by in the veranda of the house. The father of the deceased was also sleeping there. He was, however, blind. The accused ran away and was arrested on 13th November 2008.
(2.) LEARNED Advocate Shri AP Shah for the appellant, after taking us through the entire evidence in addition to contending that the conviction of the appellant was wholly unsustainable, raised an alternative argument that the accused was not of sound mind when the trial was conducted. He was unable to defend himself due to such disability. The Trial Court, therefore, ought to have followed the procedure laid down in Sections 329 and 330 of Criminal Procedure Code. He contended that this procedure was not followed. The trial thus continued against a person of unsound mind. The trial had therefore vitiated.
(3.) WE have also heard learned Additional Public Prosecutor Ms. Punani for the State and perused the materials on record. We are inclined to allow the alternative contention of the counsel for the appellant and therefore restrain from referring to the other evidence on record. From the record, following aspects emerge. 4.1. Even before the case was committed for sessions trial by the learned Magistrate, Mundra, documents were produced by the police authorities suggesting that the accused was suffering from serious mental disturbance. (A) On 29.12.2008, the Doctor in -charge of Psychiatric department of Mental Health Hospital, Kuchchh at Bhuj wrote a letter to the Superintendent of Jail, Bhuj, stating that the accused was examined on 27.12.2008. He was once again examined and treated. Copy of the report of his mental condition is annexed. It is necessary to admit the accused in hospital for further treatment. The jail authority should therefore obtain necessary orders from the Court. The certificate annexed with the said letter indicates that: (a) the accused is unable to sit still at one place. (b) he is unable to converse properly with anyone. (c) he talks to himself (d) does not understand what he should do. (e) upon his examination, it appears that he is suffering from phychosis unspecified. (f) he is unable to defend himself. (g) his condition suggests that the illness is an old one. (B) On 29.12.2008, the Jail Superintendent, Bhuj sent a letter to the Magistrate, Mundra by fax in which it was conveyed that the accused was treated by the Psychiatrist of the Mental Hospital, Bhuj for his mental illness on 27.12.2008 during his visit to the jail. He was also given medicine. Since, no improvement was noticed, under police japta, the accused was sent to the said hospital at Bhuj on 29.12.2008 for further treatment, where, upon examination by the Psychiatrist Dr.Tilwani, he was advised admission in the hospital. Accordingly, the permission of the Court was required to admit the accused in the mental hospital. Such permission may be granted. On such application the Magistrate passed his order on the same day granting the prayer and further directed the jail authority that the application which has been sent by fax may be sent through other means for its proper maintenance. (C) The Jail Superintendent, Bhuj therefore sent a copy of his previous application which was verbatim same on which the Magistrate passed the following order: "Such application was already received by fax on which order is also passed. Along with the application the order is also communicated by fax. Accordingly, this application is granted. Report of the condition of the accused be called for." (D) On 09.03.2009, the Superintendent of Jail, Bhuj wrote a letter to the Magistrate, Mundra that the accused was admitted in the mental hospital for his treatment on 29.12.2008, he was returned back to the jail on ___(illegible) March 2009, he is therefore being produced before the Court today on 09.03.2009, case papers of his treatment are produced. The record of the case however does not contain any such case papers. (E) On 09.03.2009, the learned Magistrate, Mundra committed the case for sessions trial.;