- (1.) THIS appeal owes its origin in the judgment dated March 31, 2000 of the learned Additional Sessions Judge Aklera (Jhalawar) whereby the appellant was convicted and sentenced under Sections 302 and 324 IPC to suffer imprisonment for life and fine of Rs. 1000/- and six months imprisonment and fine of Rs. 500/- respectively. A report was lodged against the appellant on July 29, 1997 that he committed murder of Bapu Lal. The appellant denied the charge and claimed trial. As many as 11 witnesses were examined by the prosecution in support of its case. The appellant although pleaded innocence but did not examine defence witnesses.
(2.) HAVING considered the rival submissions and on a careful scrutiny of material on record we find that the appellant at the trial was of unsound mind and incapable of defending himself. A look at the order sheet drawn on August 29, 1998 by the trial court demonstrates that reception order under Indian Lunacy Act was issued whereby Superintendent Mental Hospital Jaipur was authorised to keep the appellant in Mental Hospital till the date he is cured and able to understand the proceedings pending against him the court. A further look at the order sheets reveals that the proceedings of the case were never postponed and case was posted on September 16, 1998. The appellant could not be produced on that date before the court and case was adjourned to October 14, 1998. When appellant was not produced on October 14, 1998 learned trial Judge directed to produce him on November 19, 1998. Pursuant to the directions of the learned trial Judge, the Jail Authorities brought back the appellant from Mental Hospital and produced him before the learned trial Judge on November 19, 1998 on such date the charge under section 302/324 IPC was framed against the appellant and case was stated for recording evidence on December 16 and 17, 1998. When prosecution witnesses did not turn up, the case was adjourned to January 11 and 12, 1999, Feb. 16 and 17, 1999, March 16, 1999, April 16, 1999, May 14, 1999, June 17, 1999, July 17, 1999, August 16, 1999 and Sept. , 22, 1999, but on the said dates the appellant could not be produced before the court as he was admitted in Mental Hospital. On November 6, 1999 the appellant was produced before the trial court and statements of prosecution witnesses were recorded. The trial thereafter concluded on March 31, 2000 and the appellant was convicted and sentenced as indicated above. Section 329 Cr. P. C. lays down the procedure in case of person of unsound mind tried before court. It provides that if at the trial it appears to the court that the accused is of unsound mind and incapable of making his defence, the court in the first instance, shall try the fact of such unsoundness and incapacity and if after considering the medical and other evidence the court is satisfied that accused is of unsound mind and incapable of making his defence, it shall record a finding to that effect and shall postpone further proceedings in the case. The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the court. It is mandatory that where the court decides that the accused is of unsound mind and consequently incapable of making his defence the trial should be postponed. Flouting the mandate of section 329 will vitiate the trial. In the case on hand learned trial judge completely overlooked the mandate of section 329. Despite the fact that the appellant was of unsound mind and admitted in Mental Hospital Jaipur, the trial proceeded. The appellant was called from Mental Hospital to hear the charge on November 19, 1998. Thereafter the appellant was again sent to Mental Hospital by the Jail Authorities and appellant remained admitted in the said Hospital till September 22, 199. It was only when the trial Judge faced the Jail Authorities, the appellant was produced in the Court. there is no material on record which could establish that the appellant was cured and discharged from the Mental Hospital. Learned trial Judge was required to follow the mandate of Section 329. Non compliance of the mandatory provisions has vitiated the trial and the impugned judgment rendered by the learned trial judge is liable to be set aside. For the reasons aforementioned the appeal is allowed. The judgment dated March 31, 2000 of the learned Additional Sessions Judge Aklera (Jhalawar) is set aside and the case is remanded back to the court of Additional Sessions Judge Aklera (Jhalawar) for de novo trial in accordance with law. Record of the case be remitted forthwith. .;