The main legal point established in the judgment is that the provisions of Chapter XXXIV Cr. P.C. apply to appeals, and notice under S.422 Cr. P.C. to the appellant is necessary. The court also emphasized the right of the appellant to be heard in person or through a lawyer of his choice before the appeal is disposed of.

1. The question that falls to be decided at this stage of the appeal is whether the procedure prescribed in Chapter XXXIV Cr. P.C. during enquiry or trial in the court of the first instance has to be followed in appeal in respect of an accused person who is reported to be of unsound mind.

2. This question comes up for consideration in this appeal against the conviction and sentence of life imprisonment under S.302 IPC. for causing the death of one George alias Chori by the appellant stabbing him with M.O.1 pair of scissors on his abdomen at about 3.30 PM. on 2 4 67.

3. The appellant and Chori lived in adjacent houses and the appellant suspected that Chori was in illegal intimacy with his wife. So, he got into the but where Chori was lying on a mat with M.O.1 in his band on the afternoon of 2 4 67 and made the fatal attack on him, as a result of which he succumbed to the injury before he was taken to the hospital. Immediately after the incident, pws.1 to 4 saw the appellant coming out of the but of Chori with M.O.1 in his hand and then pws. 5, 9 and 10 overpowered him by wresting M.O.1 scissors from his hand. After investigation and preliminary enquiry, the case was committed to the Sessions.

4. On behalf of the appellant, it was contended, inter alia, before the Sessions Judge, Alleppy, that at the time of the incident by reason of unsoundness of mind the appellant was incapable of knowing the nature of the act which be committed and that therefore be was not guilty of any offence. However, the Sessions judge proceeded with the trial of the case by examining all the prosecution witnesses. But, at the end of the examination of these witnesses, the learned Sessions Judge felt that the appellant should be sent for medical examination to ascertain whether he was of unsound mind or not. Accordingly, the appellant was sent to the Mental Hospital, Trivandrum, for examination and report. He was found to be suffering from insanity. He was then treated there. After he was cured of the illness the Board of Examiners conducted an examination of the appellant on 28 169 and they certified that be was fit to stand the trial. So, a de novo trial was conducted and one Dr. K. B. Jacob, who issued Ex. D1 certificate on examination of the appellant, had also given evidence at the trial. On conclusion of the trial, the learned Sessions Judge found that the appellant's plea under S.84 IPC. that he was of unsound mind and was incapable of knowing what he did could not be sustained. Accordingly, the Sessions Judge entered on the conviction and sentence on 3 4 69.

5. The appeal memo submitted by the appellant through the Superintendent, Central Prison, Trivandrum, was received in this court on 24 6 69. The Division Bench which consisted of one of us admitted the appeal on 10 7 69 and ordered notice to the appellant as well as to the State. The State appeared through the Public Prosecutor and on behalf of the appellant the counsel appointed at State cost also appeared on 30 9 69 when the appeal came up for hearing for the first time. It was reported that the notice under S.422 Cr. P.C. could not be served on the appellant as he was not in a fit mental condition. So, the appeal was adjourned and thereafter the appeal was being adjourned from time to time on the basis of a report from the Superintendent, Mental Hospital, Trivandrum, where the appellant is now undergoing treatment that the appellant's mental condition was not normal and that he was not fit to stand the trial.

6. It is, therefore, necessary to consider whether the provisions of Chapter XXXIV Cr. P.C. which deal with enquiry and trial in the court of first instance are applicable to appeals also. This Chapter deals with accused, who are lunatics. S.84 IPC. deals with an accused, who is a lunatic at the time of the commission of the offence. If an accused is a lunatic at the time of the trial and therefore is incapable of making his defence, the trying Magistrate under S.464 Cr. PC. a