SHARMA, J. - (1.) THIS appeal impugns the judgment dated July 28, 2000 of the learned Additional Sessions Judge Chhabra District Baran whereby the appellant was convicted under Section 302 IPC in Sessions Case No. 89/1997 and sentenced to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months rigorous imprisonment.
(2.) THE allegations against the appellant were that on May 7, 1997 he committed murder of his father Latif and the prosecution by examining twelve witnesses was able to establish the charge under Section 302 IPC against the appellant. Having considered the rival submissions and on careful scrutiny of the material on record, we noticed that on August 4, 1997 learned counsel for the appellant moved an application with the averments that the appellant was mentally sick and needed to be examined by Medical Officer. Learned trial Judge thereupon passed an order directing Primary Medical & Health Officer Baran to get the appellant examined by Medical Board. The Primary Medical & Health Officer Baran referred the appellant to the MBS Hospital Kota vide its report dated December 16, 1997. The Department of Psychiatric, MBS Medical College Kota opined that the appellant needed to be kept under observation for ten days but looking to the fact that no lockup facility was available in the Hospital, the appellant was referred to the Psychiatric Centre, Jaipur for final opinion. It further appears that the Superintendent, Mental Hospital, Jaipur informed the Additional Sessions Judge Chhabra vide letter dated February 5, 1998 that the appellant was suffering from mental illness. The appellant was however discharged on February 24, 1998 by the Psychiatric Centre Jaipur with a direction that the appellant needed continuous treatment and was required to be regularly sent to the Psychiatric Centre, Jaipur. It thus appears that the trial of the appellant proceeded despite the fact that the appellant was mentally sick. 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 Cr. P. C. will vitiate the trial. In the case on hand, as already noticed, learned trial Judge completely overlooked the mandate of Section 329 Cr. P. C. Despite the fact that the appellant was of unsound mind and admitted in Mental Hospital, Jaipur the trial was not postponed. Even enquiry, as required by Section 328 Cr. P. C. , was not conducted. There is no material on record to establish that the appellant was completely cured. Non compliance of the mandatory provisions of Section 329 Cr. P. C. has vitiated the trial and the impugned judgment rendered by the learned Additional Sessions Judge, Chhabra District Baran is liable to be set aside. For these reasons, the appeal is allowed and the impugned judgment dated July 28, 2000 rendered by the Additional Sessions Judge, Chhabra District Baran is set aside and the case is remanded back to the Court of Additional Sessions Judge, Chhabra District Bran for de novo trial in accordance with law. Record of the case be remitted forthwith. . ;