SHIV KUMAR SHARMA, J. - (1.) THE appellant was indicted before the learned Sessions Judge, Kota in Sessions Case No. 234/95 for having committed murder of his wife Ranjana. THE learned Judge vide judgment dated June 29, 1999 convicted and sentenced the appellant under Section 302 IPC to suffer imprisonment for life and fine of Rs. 1,000/- and in default to further suffer one month simple imprisonment and under Section 4/25 of the Arms Act to suffer six months simple imprisonment and fine of Rs. 600/- and in default to further suffer imprisonment for one month simple imprisonment. THE sentences were ordered to run concurrently.
(2.) AS per the prosecution story informant Israr, (PW. 12) submitted written report to the SHO Police Station Kethunipole, Kota on April 26, 1995 stating therein that the appellant inflicted injuries to his wife Ranjana with Kattar. While she was taken to the Hospital she died on the way on the basis of the said report a case under section 302 IPC was registered and investigation commenced. Autopsy on the dead body of Ranjana was conducted, the appellant was arrested and statements of witnesses under section 161 Cr. P. C. were recorded. On completion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Sessions Judge Kota. Charge under section 302 IPC and section 4/25 Arms Act was framed against the appellant, who denied the charge and claimed trial. The prosecution examination as many as 13 witnesses in support of its case. In his explanation under section 313 Cr. P. C. , the appellant claimed innocence and stated that her wife Ranjana was alive and was residing with Kayum. No witness was examined in defence. The learned trial judge on hearing the final submissions convicted and sentenced the appellant as indicated above. Mr. Amod Kasliwal, learned Amicus Curiae, vehemently canvassed that the appellant was of unsound mind and unable to produce his defence, therefore trial could not have been proceeded with in view of section 329 Cr. P. C. Mr. S. S. Rathore, learned Public Prosecutor on the other hand supported the impugned judgment. We have pondered over the rival submissions and scanned the record. On a close scrutiny of order sheets drawn at the trial we find that the counsel for the appellant filed application on October 25, 1996 to initiate enquiry in regard to mental condition of the appellant and the appellant was sent to Mental Hospital, Jaipur. On December 4, 1997 a certificate was issued by the Hospital that the appellant was suffering from Schizophrenia. There is nothing on record that could suggest that appellant was completely cured and was able to produce his defence. The trial of the appellant which got discontinued again resumed without ascertaining the mental state of the appellant. A look at the order sheet dated November 16, 1998 reveals that the appellant was not present and the case was posted on January 19, 1999 awaiting the report of the appellant in regard to his mental state. The appellant thereafter was produced in court on December 26, 1998 but report about his mental state was not produced but trial proceeded and prosecution witnesses were ordered to be summoned on January 19, 1999. We also find that on January 1, 1999 Deputy Superintendent Mental Hospital Jaipur requested Superintendent Central Jail Kota to send the appellant to Mental Hospital Jaipur for his mental check up but he was never sent back to Mental Hospital. On June 11, 1999 statement of the appellant under section 313 Cr. P. C. was recorded wherein he stated that Ranjana was alive and residing with Kayum. Section 329 Cr. P. C. lays down the procedure in case of person of unsound mind tried before court. It provides for three stages. First, it must appear to the court that the accused was of unsound mind and incapable of making his defence, Second, the court is required to make the enquiry about unsoundness of mind of the accused and Third, the court has to record finding to the effect that the accused was of unsound mind and incapable of defending himself and stop further proceedings of the case. Section 331 provides for the trial of a person who was incapable of taking his defence but has been subsequently found capable of defending himself where a trial is postponed under section 329, its resumption without recording medical evidence will vitiate it. The appellant in the case on hand on June 11, 1999 when his statement under section 313 Cr. P. C. was recorded, appears to be of unsound mind and was incapable of making his defence. This fact is evident from his statement wherein he stated about her deceased wife Ranjana that she was alive and residing with Kayum. On January 1, 1999 when Deputy Superintendent Mental Hospital Jaipur made a request to send the appellant for his mental check up, it was not paid any heed and trial was resumed without considering the fact that the appellant was still incapable of making his defence. Thus non compliance of the mandatory provisions of section 332 Cr. P. C. has vitiated the trial and the impugned judgment rendered by the learned trial judge is liable to be set aside.
(3.) FOR the reasons aforementioned the appeal is allowed. The impugned judgment dated June 29, 1999 is set aside and the case is remanded back to the learned Sessions Judge Kota for denovo trial in accordance with law. Record of the case be remitted forthwith. Before parting with the case we place on record our appreciation for the assistance rendered by Mr. Amod Kasliwal learned Amicus Curiae. .;