Judgment

SIKRI, J.:- This appeal by special leave is from the judgment of the High Court of Mysore confirming the conviction of the appellant under Sections 302 and 309, I. P, C. but setting aside the sentence of death passed by the learned Sessions Judge and instead imposing on the appellant a sentence of imprisonment for life on both the counts. The High Court also confirmed the sentence under Section 309, I. P. C.

2. Two questions have been raised before us by the learned counsel for the appellant:

(1) At the time of the occurrence the appellant was by reason of unsoundness of mind incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law:

(2) The violation of Sections 464 and 465 Criminal P. C. vitiated the commitment of the appellant and the trial.

3. On the first point the learned Sessions Judge came to the conclusion that "neither on the 21st March, 1966 nor during any day subsequent thereafter including the days on which the accused took his trial before this Court, was the accused in an unsound state of mind". He held that "on the contrary, during all the relevant period, above referred to, he showed himself to be in perfectly sound state of mind". It may be mentioned that the accused had not pleaded any defence under Section 84 of Indian Penal Code before the learned Sessions Judge.

4. In the High Court the find point was not raised but the second point was urged and the High Court held that as the Sessions Judge came to the conclusion that the accused appeared to be perfectly normal in mind it was not necessary, much less incumbent to hold an enquiry under Section 465, Criminal P. C. The High Court further held that "the mere circumstance that the counsel appearing for the accused made a submission that the accused did not answer him coherently is no ground to hold an enquiry under Section 465, Criminal P. C."

5. The relevant facts for determining the two points mentioned above may now be stated.

6. The appellant had three brothers and one sister. P. W.2, Puttaswamagowda, was the son of appellant s deceased father by his first wife. The other two brothers Chandra Gowda, deceased, Ramagowda, P. W. 14, the appellant and their sister were from the second wife, Dyavamma, P. W. 5. Chandra Gowda s wife was Nagamma, P. W. 4, and one of their children was Sumitra, P. W. 16, aged about 15 or 16 years. Nagamma had a brother, Jayaramagowda, who was alleged to have been murdered by the appellant on March 21, 1966, when the appellant is alleged to have also murdered his brother Chandra Gowda.

7. The appellant was married to Susheela, P. W. 7, daughter of Thammanagowda, P. W. 16. P. W. 2, Puttaswamagowda,P. W. 14, Ramegowda, the appellant and the deceased, Chandra Gowda, were all living in Indavara P. W. 2 had separated himself from the joint family about 20 years ago and was living separately in a portion of the house. The other three brothers effected a partition among themselves about 6 or 7 years ago and began to live separately in different portions of the fondly house. It was alleged that the appellant was dissatisfied because Chandra Gowda, deceased, was not getting the registration of the partition deed done.

8. The appellant was working as a First Division Clerk in the D. A C. G. Polytechnic at Chikmagalur. He took casual leave on 16th, 17th, 18th and 19th of March, 1966. The appellant was admitted as an inpatient in a special ward at about 6-45 p. m. on March 17, 1966, in the General Hospital at Chikmagalur. P. W. 10, Dr, J. K. Paramashivaiah examined the appellant on the morning of March 18, 1966. Ext. P 13, out-patient slip of the appellant showed against the heading history chest and back pain. Screening of the chest was ordered and medicine prescribed. No reference was made on that day to the mental condition of the appellant. The hospital case sheet of the accused showed the following particulars:

"History of present illness: The Patient complains of fever, chest pain, cough si