JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant/accused herein under Section 374(2) of the CrPC is directed against the judgment of conviction recorded for offence punishable under Section 302 of the IPC and sentence awarded for imprisonment for life and fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for two months by the Second Additional Sessions Judge, Raigarh by the impugned judgment dated 11.09.2014 in Sessions Trial No.145/2010.

2. Case of the prosecution, in brief, is that on 9.3.2010 at 3 p.m. at village Gadgaon, P.S. Punjipathra, District Raigarh the appellant herein murdered her minor son namely Devam aged about 5 years by axe and thereby committed the offence. It is further case of the prosecution that Smt.Gomti Bai, appellant herein, was suffering from mental illness and for which she was being treated in mental hospital. She at the relevant point of time was suffering from unsoundness of mind. On 9.3.2010 she came to his father's place along with younger son Devam, aged about 5 years and her husband Hemsagar had gone to village Munud for collecting money due to him. Hemsagar was informed by his brother-in-law that the appellant herein caused murder of her younger son by axe, he reached to the spot and saw that her son's dead body was lying inside the house with injuries. Hemsagar lodged FIR vide Ex.P-12 and thereafter wheels of investigation started running. Dead body of deceased Devam was sent for postmortem to Primary Health Centre, Libra vide Ex.P-7, where Dr.Dhansingh Paikra (PW-6) conducted postmortem and opined that mode of death was due to hypovolumic shock (excessive blood loss) caused by cardio respiratory arrest. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Gharghoda, who in turn, committed the case to the Court of Session, Raigarh, from where the Second Additional Sessions Judge, Raigarh received the case on transfer for trial. The appellant herein abjured the guilt and entered into defence.

3. In order to bring home the above-stated offence, the prosecution examined as many as 11 witnesses and exhibited 25 documents. However, the accused/appellant has examined none in her defence and no document has been exhibited in her support.

4. Main plea of the appellant herein was the plea of insanity as provided under Section 84 of the Indian Panel Code and that was taken by the appellant herein during the course of trial, but that has been negatived by the trial Court.

5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 11.09.2014, convicted the appellant for offence under Section 302 of the IPC and sentenced her as mentioned in opening paragraph of this judgment.

6. Mr.Deepak Jain, learned counsel for the appellant herein, would submit that in view of plea of insanity taken by the appellant herein the trial Court ought to have followed the procedure laid down in Section 328 of the CrPC. In absence of not following the procedure particularly when there was sufficient evidence on record to hold that she was suffering from unsoundness of mind, the trial is vitiated. The learned trial Court has committed grave legal error in not accepting the plea of unsoundness of mind of the appellant herein as provided under Section 84 of the IPC, as such, the judgment of conviction recorded and sentence awarded deserves to be set-aside.

7. On the other hand, Mr.Sunil Otwani, learned Additional Advocate General, Mr.Sudeep Verma, learned Deputy Government Advocate and Mr.Soumya Rai, learned Panel Lawyer for the respondent/State, would submit that as and when directed by the learned trial Court with regard to mental condition of the appellant/accused, information was furnished before the trial Court and considering the mental condition of the appellant herein, the Superintendent, Central Jail, Raigarh on 20.3.2010 requested the Judicial Magistra