Non-compliance with mandatory provisions in criminal procedure resulted in the vitiation of the trial and prejudice to the accused's defense, leading to the setting aside of the conviction and retrial of the case.

KADER, J.

At a trial held in the Court of Session, Quilon, Janardhanan Pillai aged 28, the appellant herein, was convicted under Section 302, I.P.C. and sentenced to imprisonment for life. It was for intentionally causing the death of Visalakshan Pillai aged 27 by stabbing him on his right chest with a dagger that he was convicted and sentenced as aforesaid. The occurrence in the case was at about 2 a.m. on the night between 9th and 10th January 1979. The scene of offence is said to be the steps leading from the northern Gopuram of Thirunettarakkavu Bhagavathi Temple in Mavanakkonam Cheri of Kallavathukkal Village within the limits of Chathannoor Police Station. There was a Bajana festival going on in that temple on the night of occurrence. Till about 9 p.m. there were Bajana songs in the temple and thereafter two dramas were staged at the adjacent compound of the temple on the western side. The stage where these dramas were enacted was facing north. Ropes were tied separating and demarcating the places where women and men were sitting. Women were sitting on the western side of the stage. At about 10-30 p.m. the appellant came to the place where women were sitting and created some commotion. P.Ws. 1 and 5 and Visalakshan Pillai forcibly removed the appellant from there, took him away to the western pathway leading to the paddy field and from there, Visalakshan Pillai gave the appellant a blow and issued a warning that he should leave the place immediately and he should not be seen anywhere there. The appellant wanted to return the blow but that was prevented by P.Ws. 1 and 5. The appellant then left the place giving a threat against the deceased that he would retaliate. At about 2 a.m. Visalakshan Pillai went to pass urine. He had to pass through the steps to pass urine from underneath the tree where he was sitting. On seeing this, the appellant followed him and at the scene of offence, overtook him and standing in front of Visalakshan Pillai inflicted a stab on the right front of his chest causing an injury. On receiving the stab Visalakshan Pillai, crying that Janardhanan Pillai stabbed him fell down on the southern side of the Kalithattu. P.Ws. 1, 2 and 3 came running to the place and the injured was removed in a car to the Government Hospital, Quilon. But on the way Visalakshan Pillai succumbed to the injury. P.W. 1 went to the Chathannoor Police Station and laid Ex. P1, first information statement, at 4 p.m. on 10-1-1979, and a case was registered on that basis by P.W. 12, Sub-Inspector of Police. After due investigation, P.W. 13, Circle Inspector of Police, laid a charge-sheet against the accused.

2. When examined on the prosecution evidence, the plea of the appellant was one of denial. He stated that he is innocent; that P.Ws. 1 to 3 are related to each other and that the witnesses are giving false evidence. A written statement also was filed on 17-3-1980 by the appellant.

3. The learned Sessions Judge on a due consideration of the prosecution evidence finding the prosecution evidence reliable, convicted and sentenced the appellant as aforesaid.

4. At the time when this appeal was taken up for hearing, the learned advocate appearing for the appellant submitted that he was not going to argue the case on merits, as according to him, the whole trial has been vitiated because of the violation of the mandatory provisions in S. 233(1), Cr.P.C. and the appellant has been seriously prejudiced thereby. The counsel submitted that the provisions in S. 233(1) are mandatory; that this is a valuable right given to the accused and that, although the appellant was defended, in view of the fact that the provision in this sub-section is mandatory, the trial Judge ought to have reminded the appellant and called upon him whether he wanted to adduce any evidence. The counsel therefore requested that the case may be remanded to the trial Court to give an opportunity to the appellant to adduce evidence in support of his plea. It wa