Important Point:
In the course of the trial if the accused wants to take the defence that he being of unsound mind at the time of commission of the offence, and therefore, the act alleged would not constitute an offence, then the burden will be on the accused to establish the same by leading cogent evidence. The accused cannot seek to rely upon the evidence i.e. led or gathered in the course of an inquiry under Section 329 of the Cr.P.C

1. By this application under Article 227 of the Constitution of India, the applicant – original accused, through his brother, calls in question the legality and validity of the order dated 7th May 2016 passed by the 12th (Adhoc) Additional Sessions Judge, Rajkot Exhibit: 12 in the Sessions Case No.268 of 2014.

2. It all started with an application under Sections 328 and 329 of the Code of Criminal Procedure, 1973 filed by the elder brother and natural guardian of the accused stating that the accused namely, Sunil Tejbahadur Singh was of unsound mind and thus incapable of making his defence.

3. It appears from the materials on record that the accused namely, Sunil Tejbahadur Singh is facing trial for the offence punishable under Sections 302 and 324 of the Indian Penal Code. On 21st November 2014, the Additional Sessions Judge, Rajkot framed charge at Exhibit: 7 against the accused for the offence of murder.

4. It appears that on 13th July 2014, at about 1900 hours, the accused is alleged to have inflicted injuries on the body of two persons namely, Ravatbhai @ Rajubhai and Dashrathsingh Fatehsingh Jadeja. The injuries inflicted on the body of Dashrathsingh Fatehsingh Jadeja proved to be fatal.

5. The brother of the accused namely, Anil Singh preferred an application Exhibit: 12 before the trial Court stating that his brother i.e. the accused is of unsound mind and is incapable of making his defence. In the application Exhibit: 12, it has been stated that the accused is undergoing treatment as regards the mental ailment since 2012. It is further stated that since the accused is incapable of making his defence, the trial be stayed.

6. The trial Court adjudicated the application Exhibit: 12 and by the impugned order, rejected the same. While rejecting the application Exhibit: 12, the trial Court observed as under:

“(3) On perusing case papers, I do not find accused to be of unsound mind and consequently incapable of making his defence, because, he is able to put his signature on relevant papers steadily and similarly at every time. It is required to be noted that he did similar signature on vakilpatra and on the plea to charge at two different times.

(4) It is also required to be stated that when accused is in prison, it is obligation upon medical officer of prison to inspect, examine the health – physical and mental of prisoners and in case of sickness to report it to the jail superintendent after taking down such data in register of sick as per Jail Manual, in present case, there is not such report from the jail authority stating that the accused under trial prisoner is unsound of mind or he is mentally sick. Even the Rajkot Jail Superintendent has no occasion to submit abstracts of medical officer concerned, health register, register of sick pertaining to the accused to the Court. Had the accused been really mentally sick, there would have been report from Superintendent of Jail as contemplated in Jail Manual.

(5) In above circumstances, the accused does not appear to be of unsound mind to me. Section 329 contemplates two stages of procedure. The first stage laid down that two stages of the judge that the accused placed on his trial was of unsound mind and incapable of making his defence and the next stage that has to follow when it appears to the judge that accused was of unsound mind and consequently incapable of making his defence, is that the fact of such unsoundness of mind and incapacity has to be inquired into on the material placed before the court. If the judge entertains a doubt about sanity, it will be for the judge to proceed for second stage.

(6) If judge is not satisfied, that is to say, if it does not appear to judge that the accused is of unsound mind, there is no necessary to proceed for second stage. In view of above, discussion, I pass the following order with note that the learned advocate for the ac