V.P. Gupta, J.
1. The Sessions Judge, Dharamsala, by his judgment dated 9-10-1980 has convicted the appellant under Section 302, I.P.C, (for having committed the murder of his wife, Maya Devi) and under Section 309, I.P.C. (for attempting to commit suicide himself), and has sentenced him to rigorous imprisonment for life under Section 302, I.P.C. and simple imprisonment for one year under Section 309, I.P.C. and both the sentences are to run concurrently.
2. Feeling aggrieved from this judgment of the Sessions Judge the appellant has filed this appeal.
3. The charge against the appellant is that on 5-4-1977. he committed the murder of his wife, Smt. Maya Devi, at village Bandian, Tehsil Palampur, and thereafter attempted to commit suicide himself.
4. Appellant was committed to the Court of Session at Dharamsala vide orders of (he Judicial Magistrate, Palampur, dated 26-7-1977.
5. The Superintendent of District Jail, Dharamsala (where the appellant was in judicial custody) had written a letter to the Judicial Magistrate, Palampur, for getting medical treatment to the appellant. The Judicial Magistrate, Palampur, however, vide order dated 19-7-1977 informed the Superintendent District Jail, Dharamsala, that the matter regarding unsoundness of mind can only be enquired by the trial court under S.' 329 Cr. P.C and, therefore appropriate steps may be taken at the appropriate stage. The appellant appeared before the Sessions Judge for the first time. On 9-8-1977 and the Sessions Judge ordered that the appellant be examined medically at Amritsar. Thereafter the case was postponed from time to time and was transferred to the Court of Additional Sessions Judge vide order dated 15-11-1977. The Additional Session, Judge vide his order dated 31-12-1977 again sent back the file to the Session Judge. Dharamsala, for proceeding in the matter because the Additional Sessions Judge was of the view that the Sessions Judge was seized of the matter from 9-8-1977, on which date the Sessions Judge proceeded to hold an enqniry into unsoundness of mind or otherwise of the appellant under Section 329 Cr. P.C. In this manner the case again came up for hearing before the Sessions Judge, Dharamsala, and the Sessions Judge, Dharamsala, passed the following order on 20-6-1978:
Present: P. P. for the State.
Accused in person in custody.
The accused appears to be normal. Therefore the report from the Chief Medical Officer, Dharamsala. may be asked for as to whether the accused is sane, and capable of defending himself. The accused has not engaged any counsel to defend him. Let his statement be recorded.
The statement of the accused has been recorded. The accused is a poor man and is not in a position to engage a counsel. He is sent up for trial under Section 302 I-P-C It is a session case. I order that he be defended at the State expense as required under Section 304 Cr. P.C. I appoint Shri Kuldip Singh Advocate as his counsel. To come up on 13-7-1978.
6. From the perusal of the aforesaid order it appears that there is a typographical mistake in writing the word 'normal' in place of 'abnormal'. If the appellant was normal then there was no question of calling the report from the C. M.O. Dharamsala, regarding the sanity of the appellant or his capability of defending himself. The only conclusion from the reading of the order is that the Sessions Judge was of the view that the appellant appeared to be abnormal. In such a case the Sessions Judge was required to call for the report of the Don-tor regarding the soundness or unsound-ness of the mind of the appellant, as is provided under Section 329 Cr. P.C. which reads as follows:
329. Procedure in case of person of unsound mind tried before Court.- (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.
(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to he part of his trial before the Magistrate or Court.
7. The Sessions Judge received a letter on 5-12-1978 from the C. M.O. Dharamsala wherein the C. M.O. Dharamsala had shown his inability to submit his report because of the fact that no facilities for the examination of the appellant regarding the fact as to whether he was sound and capable of defending himself were available in Himachal Pradesh. It was further opined that the appellant be admitted in the Mental Hospital at Amritsar. The Sessions Judge ordered that requests be made for examination of the appellant by the concerned authorities in the Mental Hospital, Amritsar. Finally the report of Medical Superintendent, Punjab Mental Hospital, Amritsar, was received. The Sessions Judge on the basis of this report passed the following Order on 3-5-1979:
Present: P. P. for the State,
Accused Dhani Ram in judicial custody with Saroop Singh C. No. (sic) and Sita Ram C. No. 659.
Kr. Kuldip Singh Advocate for the defence is also present. The report of the Medical Superintendent, Pb. Mental Hospital Amritsar received in this Court which shows that the accused is a sane. This being so he is charged accordingly.
8. After these proceedings the appellant was charged for having committed the offences under Sections 302 and 309 I.P.C
9. Shri Chitkara appearing on behalf of the appellant contends that the procedure adopted by Sessions Judge in proceeding with the trial of the case is highly illegal and unwarranted and is not in accordance with the provisions of Section 329 Cr. P.C.
10. Shri Malkiat Singh, Assistant Advocate General, appearing on behalf of the Stale, however, contends that the appellant was sane and there was no necessity of invoking the provisions of Section 329 Cr. P.C. He contends that the Sessions Judge in his order dated 20-6-1978 had stated that the appellant was 'normal' and the statement of the appellant was also recorded wherein he had prayed that a counsel be engaged for defending his case at Slate expense.
11. We have considered the contentions of the learned Counsel for the parties.
12. The various orders which have been passed in the case from time to time clearly suggest that the Judicial Magistrate, Palampur, as well as the learned Sessions Judge were of the view that provisions of Section 329 Cr. P.C. had to be invoked. The order dated 20th June, 1978, of Sessions Judge clearly states that the report of the C.M.O. Dharamsala be called as to whether the appellant is sane and capable of defending himself. The prior orders of the Sessions Judge or the Additional Sessions Judge also indicate that proceedings under Section 329 Cr. P.C. were being taken. There can be no manner of doubt that the mistake in writing the word 'normal' instead of the word 'abnormal' in the order dated 20-6-78 is a typographical mistake. Recording of the statement of the appellant after the passing of this order is immaterial because, according to the opinion of the learned Sessions Judge, the appellant appeared to be abnormal. If this is the position then under Section 329 Cr. P.C. the Sessions Judge had to try the fact with respect to the unsoundness and incapacity of the appellant. The Sessions Judge was further required to record a finding to the effect and had to postpone the further proceedings in the case. As we have taken the view that on 20-6-78 it appeared to the Sessions Judge that the appellant was of unsound mind, therefore, it was the bounden duty of the Sessions Judge to have decided this issue after considering the medical evidence and other evidence as is required under Section 329 Cr. P.C. In the present case the Sessions Judge has failed to do so. The Sessions Judge has not even recorded the statement of the doctor who had examined the appellant. The order of the Sessions Judge dated 3-5-1979 thus illegal and proceedings after this order are vitiated. The provisions of Section 329 Cr. P.C. are mandatory and an omission to decide the preliminary issue shall vitiate the whole trial. A similar view was taken by a Division Bench of Punjab and Haryana High Court in Mst. Satya Devi v. State wherein it was held that (Para 3):
The provisions of Section 465 do not embrace an idle formality but are calculated to ensure to an accused person a fair trial which cannot obviously be afforded to an insane person and the non-observance of those provisions must be held to convert a trial into a farce. Courts must, therefore, guard against dealing with the matter of suspected sanity of an accused person in a perfunctory manner as such a course is bound to result in the trial Judge, more often than not, coming to an incorrect conclusion about the sanity of the accused before him.
13. Thus, we are of the view that the trial in the present case is vitiated for the reasons that proper enquiry under Section 329 Cr. P.C. has not been held by the learned Sessions Judge and the learned Sessions Judge has failed to record a finding with respect to the insanity of the appellant. As the trial is vitiated, therefore, the present conviction and sentence cannot be maintained and this appeal has to be accepted.
14. The result of the above discussion is that the present appeal is accepted, the judgment of the learned Sessions Judge is set aside. The case is remitted back to the Court of Sessions Judge, Dharamsala, for re-trial in accordance with law. The appellant is directed to be produced before the learned Sessions Judge on 3rd May, 1982 and the Sessions Judge shall proceed in the case and try to decide the case within a month.