Mian Jalaluddin, J.
1. This criminal 2nd appeal is directed against the judgment of the Addl. Sessions Judge, Srinagar dated 7-7-1976 maintaining the conviction of the accused appellant under Section 380 R.P. C recorded by the Judicial Magistrate (Judge Small Causes) Srinagar but modifying the order of sentence and reducing the term of imprisonment from eighteen months to six months and also fine to the tune of Rs. 100/-.
2. Briefly speaking the alleged prosecution version of the case is that on 5-10-1971 the appellant entered the shop of the complainant Mohd Yousuf Khan situate at Bohori Kadal, Srinagar, The accused broke the show-case and made away with a dozen of watches from there. During the course of investigation the accused was apprehended and two watches were recovered from his person. The remaining watches were recovered at the instance of the accused pursuant to a disclosure statement made by him to the police. One of the watches was re-covered from Mehraj-ud-Din P.W. and the remainining were recovered from the house of the accused. The police submitted the charge sheet in the court of Judicial Magistrate (Judge Small Causes) Srinagar who tried the accused and convicted him under Section 380 and sentenced him to substantive term of imprisonment and also to pay a fine of Rs. 300/-. On appeal the learned Addl. Sessions Judge upheld the conviction but reduced the sentence as mentioned above.
3. On behalf of the appellant it has been argued that the conviction recorded by the trial Magistrate is liable to be set aside inasmuch as no questions in regard to the material circumstances appearing in evidence against the appellant were put to him by the trial court and that this has caused serious prejudice to the accused. It is submitted that according to the prosecution and the evidence led in the case, it was in consequence of the information given by the accused (vide his disclosure statement) that the incriminating articles were recovered. Two watches were also recovered from the person of the accused. But no questions in regard to these material circumstances appearing against the appellant were at all put to him. A further contention raised is that the appellant was of unsound mind at the time of the alleged occurrence and had been in the lunatic asylum for five months. He was under the treatment of a doctor. Although he produced a certificate of the concerned doctor in support of this fact and this was corroborated by the very P.W. this was not taken into consideration by the trial Magistrate. When this circumstance also was in evidence it was the duty of the trial court to exercise its power and discretion under Section 540 Cr.P.C. and summon the doctor in the court to substantiate this fact.
4. The learned Advocate General appearing for the State has conceded the proposition of law that omission on the part of the trial court to have put important and necessary questions to the accused has worked to the prejudice of the appellant and has indeed, occasioned failure of justice. He therefore, submitted that it was a case of retrial. As regards the contention that the accused was mentally unsound and should not have therefore been dealt with under the ordinary criminal law, he has submitted that this was purely a question of fact which the appellant ought to have established by producing cogent and reliable evidence. No obligation was cast on the court to have summoned ilia doctor under Section 540 Cr.P.C. In fact no such application was ever made by the accused in the Courts below.
5. Record of the case reveals that the trial Magistrate has recorded the examination of the accused under Section 342 in the most perfunctory way. It is in prosecution evidence that the accused made disclosure of the fact before the police that he would show the places where he had deposited the stolen articles. It is also in the evidence that pursuant to this disclosure statement made by the accused incriminating articles were recovered from the house of accused and from tile shop of Mehraj-ud-din P.W. to whom the accused is alleged to have sold the two watches. It is also in prosecution evidence that two watches were recovered from the person of the accused. The evidence of recovery is the sheet anchor of the prosecution case. But it is curious to find that none of these questions was put to the accused-appellant by the trial court. Section 342 of Cr.P.C. requires that the court shall put questions to the accused in regard to all the circumstances' appearing in evidence against him. The only question that was put to the accused was to the effect whether he had entered the shop of the complainant on the material date with the intention of committing theft and also whether he stole away the watches from there. Law requires- that the accused must be questioned separately about each material circumstance which is intended to be used against him. The object of this is to afford an opportunity to the accused to enable him to explain the circumstances which appear against him. He must be told what are the circumstances upon which it is intended to rely. I cannot understand as to why and how the learned Magistrate has omitted to put these material questions to the accused. This is not the satisfactory way of handling a criminal case. This material omission has rendered the conviction illegal. It is a serious infirmity which cannot be cured under Section 537 Criminal P.C. as it has caused serious prejudice to the accused in his defence.
6. Again, the Magistrate has overlooked an important fact appearing in the very prosecution evidence in favour of the accused. Gh. Ahmad Dagga P.W. has admitted that the accused was unsound and was in the Mental Hispital for about 5 months and that the offence of theft was committed during those very days when the accused was insane. This statement of the prosecution witness is corroborated by Ghulam Ahmad Zargar uncle of the accused who appeared as defence witness in the case. He testified to the fact that the accused was insane and from the year 1970 he has been getting occasional fits of insanity. The witness treated him privately but later on the accused was sent to the Mental Hospital. According to him the accused gets lucid intervals, There is also a certificate of Dr. Ganjoo on the record. This doctor has treated the accused, All these materials appearing in evidence have not been considered by the trial court in their true perspective. It is true that mere production of the certificate is not a proof of the fact of the unsound state of mind of the accused unless the Doctor was examined, but even then considering the fact that it has appeared in the statement of the very prosecution witness as also from the deposition of the uncle of the accused, that the accused was a mental patient, and according to Gh. Ahmad Dagga P.W. the theft was committed by him during those days when the accused appellant was in an abnormal state of mind the court should have in the interest of. justice exercised its power under Section 540 and summoned the doctor. The exercise of this discretion was all the more necessary and important as the interests' of the accused were not properly looked after in the course of trial by the counsel in charge of defence. It is noticed that there has not been proper cross-examination of the prosecution witness and in respect of> some witnesses no cross-examination at all. In this connection I may quote here with advantage the observations made by their Lordships of the Allahabad High Court in case reported in : AIR1952All829 :
It is the duty of the Judge, to find out whether the examination of any witness is necessary in the interest of justice or not and that the Court is bound to examine any witnesses whose evidence it considers essential for the purpose of revealing the truth, The Judge or Magistrate cannot evade the statutory responsibility by omitting to give all thought to the question whether the evidence of any witness left out by the parties is essential or not.
7. For all these material defects and the legal infirmities that have crept in the trial of the case, I was at one stage of the case inclined to remand it for retrial but considering the fact that the case is of the year 1971 and the accused appellant has remained under trial for all these years and has also undergone a substantial portion of imprisonment, I do not think that it would be in the interest of justice to do so on the other hand retrial would cause great hardship to the appellant. As observed by their Lordships of the Supreme Court in case 'Machander v. State of Hyderabad reported in : 1955CriLJ1644 , that where the triall Judge has omitted to do his duty under Section 342 Cr.P.C. and the error is not a mere technicality, the court would not be prepared to get the accused persons on trial for their lives, and keep them under indefinite suspense. In the circumstances of that case the Court held that it was not prepared to order retrial. The accused in that case were, therefore, acquitted.
8. Following this authority, I do not think ft proper to order retrial in the case.
9. The result is that the appeal is allowed, the conviction and sentence passed on the accused are set aside and he is acquitted.