The main legal point established in the judgment is that the trial was vitiated by non-compliance with the mandatory provision of S. 465 CrPC, and the accused should be retried according to law.

1. The State has preferred this revision to correct a palpable error made by the learned Sessions Judge of Nagercoil in awarding the sentence upon a person whom he convicted of murder and to have a proper sentence passed by invoking this Court's power to enhance a sentence passed by a subordinate court. The occurrence which gave rise to the case (Sessions case No. 7 of 1952) took place on 25.4.1951 ie., after the Indian Penal Code was extended to this State under the Part B States (Laws) Act, 1951. S. 302, Indian Penal Code, enacts that whoever commits murder shall be punished with death, or transportation for life, and shall also be liable to fine. The learned judge found that the accused before him "had committed an offence of murder punishable under S. 302 IPC" and in recording that finding he said:

"As for the charge of murder under S. 302, IPC, I have already found in para 10 supra that the accused inflicted the fatal multiple injuries on Meenakshi with the intention of causing her death, without any justification what so ever. I have also found that there were practically no mitigating circumstances made out. Therefore the accused had committed an offence of murder punishable under S. 302, IPC, as the case does not fall within the exceptions specified under S. 300, IPC. The assessors also are unanimously of the same opinion. I therefore find him guilty of an offence of murder punishable under S. 302, IPC and convict him accordingly".

Notwithstanding the above finding the sentence that has been passed is rigorous imprisonment for life. In passing that sentence the learned judge observed:

"I have already convicted the accused under S. 302, IPC for having murdered Meenakshi. As no mitigating circumstances are made out, the accused has to be given the maximum sentence as provided for in the section. I therefore sentence him to undergo rigorous imprisonment for life."

2. It is clear that the learned judge is in error in passing a sentence of rigorous imprisonment for life where he ought to have imposed a sentence of death or one of transportation for life. Under the Travancore Penal Code as it stood amended by a Proclamation dated 11.11.1944 rigorous imprisonment for life was the only sentence that could have been passed against a person convicted of murder. Evidently the learned judge overlooked the fact that under the Indian Penal Code the punishment prescribed for the offence of murder was not the same as that the Travancore Penal Code as amended by the Proclamation referred to provided. On the finding that there were no mitigating circumstances the learned judge ought to have sentenced the accused to death. This is the position which the State takes in the revision.

3. However in showing cause against enhancement, Shri. K.Nilakanta Menon advocate, who held a "dock-brief" sought to avail of the provision in sub-s. (6) of S. 439, Criminal Procedure and attempted to show that on the facts established in the case, the conviction for murder was bad and that, in any event, the trial was vitiated by non-compliance with a mandatory provision of the Code, to wit, S. 465. This Section prescribes the procedure to be followed when a person committed for trial before a Court of Session or a High Court appears to be of unsound mind and consequently incapable of making his defence. As the arguments before us on this aspect showed that there was merit in the point we did not hear Counsel as to whether there were grounds for the mitigation of the offence. When the arguments concluded we made it clear that we will set aside the conviction and sentence and order or a retrial.

4. S. 465 of the Criminal Procedure Code (Act V of 1898) is in these terms:

"If any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury, or the Court with the aid of assessors, shall, in the first instance, try the fact of such unsoun