Mohammad Rafiq, J.

1. This is an unusual case where the lack of application of correct law has resulted in grave miscarriage of justice. We shall discuss the reasons thereof in greater details in the later part of this judgment.

2. The facts giving rise to the present case are that one Surendra Kumar son of Dhumi Ram by caste Chamar, aged 32 years, resident of Khundroth, Tehsil Behror, District Alwar submitted a written report at 10.00 A.M. on 02.09.2008 to S.H.O., Police Station Mandhan, District Alwar alleging that on 01.09.2008, he had gone to Behror for appearing in the examination for appointment on the post of Teacher in Bharti Foundation Institute. It was further stated that he stayed in the house of his relative during night. In the morning around 9.00 A.M. on 02.09.2008, he received a telephonic call from his cousin Suresh that his mother has been murdered by someone. He immediately started for home. On reaching there, he found that her mother was lying dead on the cot in the chowk of their house. She had an injury on her throat. Someone had murdered his mother. On the basis of that written report (Exhibit P-1), FIR No. 160/2008 was registered at Police Station Mandhan, Alwar for offence under Section 302 IPC and investigation commenced. The police, after completion of investigation, filed charge sheet against accused-appellant Ratanlal in the Court of Additional Chief Judicial Magistrate No. 1, Behror, which Court committed the case to the Court Additional Sessions Judge, Behror and thereafter, in pursuance of the order of District and Sessions Judge, Alwar, the case was made over to the Court of Additional Sessions Judge (Fast Track), Behror, District Alwar (for short ‘the trial court’). Charges for offence under Sections 302 IPC and Section 4/25 of Arms Act were framed against the accused-appellant. Accused-appellant denied the same and claimed to be tried. The prosecution in support of its case produced 18 witnesses and exhibited 22 documents. The accused denied allegation during his examination under Section 313 Cr.P.C. and alleged false implication. In defence, no evidence was produced. Upon completion of trial, learned trial court vide its judgment and order dated 17.12.2009 though acquitted accused-appellant of the charge under Section 4/25 of the Arms Act, but convicted him for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 1,000/-, in default of payment of fine, he was to further undergo rigorous imprisonment of one month.

3. Mr. Ajay Raj Tantia, learned counsel for the accused-appellant rather than arguing on merits of the case contended that there are enough circumstances to held that the accused-appellant had been having active mental ailment at the time of incident and he was an old patient of Schizophrenia and was hospitalised at Jaipur for quite some time in 1995-96 and was under continuous treatment in Vyas Hospital, Jaipur. Learned counsel for the accused-appellant submitted that the accused-appellant was not capable to make/arrange his defence due to mental infirmity and in such a situation, the trial court could not have proceeded unless certificate of fitness was obtained by the Court in accordance with law. To prove his contentions, learned counsel referred to statements of various witnesses and documents, which we shall deal with at a later stage in this judgment.

4. Mrs. Sonia Shandilya, learned Public Prosecutor opposed the appeal and supported the impugned judgment passed by the learned trial court. Learned Public Prosecutor submitted that the accused-appellant has not set up a plea of insanity in his defence under Section 313 Cr.P.C. Therefore, this argument cannot be allowed to be developed by him for the first time at the stage of appeal.

5. We have given our anxious consideration to rival submissions and perused the material on record.

6. Surendra (P.W.1), informant himself has stated that his brother has murdered his mother. Accused Ratanlal used to