U.V. Bakre, J.

1. Heard Mr. Rivankar, learned Public Prosecutor appearing on behalf of the appellant and Mr. Menezes, learned Amicus Curiae for the respondent.

2. This appeal is directed against the judgment and order dated 28/06/2012 passed by the learned Additional Sessions Judge- I (Trial Judge, for short) in Sessions Case No. 10/2010/I.

3. Initially, charge sheet No.09/2009 was filed against the accused for the offence punishable under section 307 of Indian Penal Code (I.P.C., for short). The allegation was that the accused, on 01/12/2009 at 22.00 hours at House no. 202, near Pai Hospital, at Vaddem, Vasco, after latching his bed room from inside, assaulted his wife, Rupa alias Samiksha Shetye, by stabbing her in her stomach by means of a knife and caused grievous injuries to her and attempted to commit her murder. Charge was framed by the Trial Judge for the said offence punishable under section 307 of the Indian Penal Code (I.P.C., for short) to which the accused pleaded not guilty. The prosecution examined 12 witnesses and 13th witness partly till 01/09/2010. The deposition of Rupa alias Samiksha Shetye was scheduled to be recorded on 17/09/2010.

4. Unfortunately, on 06/09/2010, the said Rupa alias Samiksha Shetye died. The prosecution filed an application under Section 216 of the Code of Criminal Procedure, 1973 (Cr. P.C., for short) which was allowed by the Trial Judge by order dated 12/10/2010 and charge was altered from Section 307 of I.P.C. to Section 302 of I.P.C. Fresh charge was framed, on 12/10/2010, to the effect that the accused committed the offence of culpable homicide amounting to murder under Section 300 of I.P.C. and punishable under Section 302 of I.P.C. for having stabbed his wife Rupa alias Samiksha Shetye on 01/12/2009 in her stomach thereby causing dangerous injuries to her, with the intention of causing her bodily injuries as he knew, were likely to cause her death due to which she succumbed to the injuries on 06/09/2010. The accused pleaded not guilty. The deposition of PW13, which was partly recorded, was then completed on 26/10/2010.

5. The case of the accused was that he was mentally not sound. On 03/11/2010, the accused moved an application before the Trial Judge to refer him to Institute of Psychiatry and Human Behaviour (IPHB), Bambolim. for examination and medical treatment. Accordingly, he was referred to IPHB and provisional report was received and the accused was admitted to IPHC, on 04/11/2010, for treatment due to which further proceedings were stayed under Section 329 of Cr.P.C. On 12/01/2011, report dated 05/01/2011 was received from IPHB certifying that the accused was fit for trial. The trial resumed under Section 331 of Cr.P.C. and was completed on 17/04/2012. The prosecution examined 8 more witnesses. Thus, the prosecution in all examined 21 witnesses in support of its case.

6. The statement of accused came to be recorded under Section 313 of Cr.P.C., in which he denied the case of the prosecution and further stated that he was not mentally fit prior to the incident and that he was admitted to the IPHB, Bambolim. It appears that since during the statement under Section 313 of Cr.P.C. the accused had stated that all his medical certificates were at home, by order dated 05/05/2012 house of the accused was ordered to be opened and PW13, PSI Filomeno Luis Costa, carried out panchanama on 11/05/2012 and attached the medical papers which were in the house. PW13 was recalled and his further evidence, with regard to the said panchanama (Exhibit 98) was recorded. However, the said panchanama and medical papers, did not reveal any evidence about mental condition of the accused prior to the date of the incidence.

7. The accused did not examine himself or any witness in his defence.

8. Upon consideration of the entire evidence on record and upon hearing the learned Counsel for the parties, the learned Trial Judge held that the prosecution had proved beyond reasonable doubt that on