The trial and conviction of an accused claiming insanity are invalid if the necessary inquiry under Section 328 of the Code of Criminal Procedure is not conducted prior to committal.

JUDGMENT :

K. V. Jayakumar, J.

This Criminal Appeal is preferred against the judgment of the Special Additional Sessions Judge (Marad Cases), Kozhikode dated 09.11.2017 in S.C. No.849/2016. The appellant stood for trial for the offences punishable under Sections 302 and 323 of the Indian Penal Code.

2. The learned Special Additional Sessions Judge convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.50,000/- under Section 302 IPC, with a default clause. He was also sentenced to pay a fine of Rs.1,000/- under Section 323 IPC, with a default clause.

Prosecution case

3. The prosecution allegation is that the accused committed the murder of his mother-in-law, Sarasu, on 09.08.2015 at about 06:30 p.m. by inflicting repeated stab injuries on her chest. The incident occurred in a shed where the accused and his wife, Anisha (PW1), were residing, which was situated at Manassery near Mecherry Shiva Temple, Kozhikode.

Registration of Crime and Investigation:

4. PW1 (Anisha) lodged Ext.P1 FIS to Mukkom Police Station. On the basis of Ext.P1, FIS, PW15 (Roy Joseph)), ASI of Police registered Ext.P1(a), FIR. PW18 (A. Premjith) took up the investigation and laid the final report. After completing the preliminary steps, the learned Judicial First Class Magistrate – II, Thamarassery committed the case to the Court of Sessions, Kozhikode. The learned Sessions Judge made over the case to the Special Additional Sessions Court (Marad cases) for trial and disposal.

Evidence Tendered

5. To prove the case of the prosecution, 18 witnesses were examined as PWs.1 to 18, and through them, Exts.P1 to P26 were exhibited and marked. MOs.1 to 9 were also identified and marked. From the side of defence, DW1 was examined. Ext.X-1 was marked. The accused denied the incriminating materials put to him under Section 313(1)(b) of the Code of Criminal Procedure (‘the Code’, for the sake of brevity) and maintained his innocence and prayed for leniency as the accused was suffering from a mental disorder.

6. The learned Sessions Judge, after a full-fledged trial, convicted and sentenced the accused as aforesaid.

7. When the matter was taken up for final hearing before this Court on 02.08.2024, this Court directed the learned Sessions Judge to permit the appellant to lead additional evidence to prove his plea of legal insanity, invoking the power of Section 391 of the Code. The records of the case were sent back to the trial court with a direction to take additional evidence within three months from the date of receipt of the case records. In order to facilitate the recording of additional evidence, the sentence of the appellant was suspended for four months from the date of the order.

8. The learned Sessions Judge has recorded the additional evidence as per the direction of this Court and resubmitted the entire records to this Court along with the additional evidence.

The submissions of the learned counsel for the appellant

9. Sri. Nandagopal S. Kurup, and Sri.Abhiram T.K., the learned counsel for the appellants contended that the trial of the accused stands vitiated as the procedure prescribed under Section 328 of the Code with respect to the inquiry and trial of an unsound mind person is not followed. It is pointed out that at the time of the alleged commission of the offence, the accused was insane and he was not aware of the nature and quality of the act, whether it was wrong or contra