Honble SHARMA, J.–We have heard learned counsel for the parties. Since matter relates to interpretation of Section 329 Cr.P.C., we proceed to finally dispose of the instant appeal at this stage.

(2). The appellant in the instant appeal has impugned the judgment dated May 12, 2006 of the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Jhunjhunu, whereby the appellant was convicted u/s. 302 I.P.C. and sentenced to suffer imprisonment for life and fine of Rs. 200/-, in default, to further suffer one months rigorous imprisonment.

(3). It is contended by learned counsel for the appellant that the appellant was of unsound mind and incapable of defending himself, therefore, in view of Section 84 I.P.C., he did not commit any offence.

The question that requires consideration is whether the appellant at the time of commission of offence was suffering from insanity or not and whether it was legal insanity so as to give appellant the benefit of Section 84 I.P.C.?

(4). A look at the order sheet dated March 7, 2003 demonstrates that on February 11th, 2003, an application was filed on behalf of the appellant, wherein it was stated that the appellant was mentally sick. Copy of the application was forwarded by the learned trial Judge to Dy. Superintendent, District Jail, Jhunjhunu to provide proper treatment to the appellant. Thereafter on November 29th, 2003, another application u/s. 328 and 329 of the Code of Criminal Procedure was filed by the appellant. Disposing the application, learned trial judge vide order dated March 4th, 2005 directed the Dy. Superintendent, District Jail, Jhunjhunu to get the appellant examined by Medical Officer and to submit the report. The Dy. Superintendent, District Jail, Jhunjhunu alongwith his report appended Medical Certificate of the appellant dated March 17, 2005 issued by Government B.D.K. Hospital, Jhunjhunu wherein Psychiatrist of B.D.K. Hospital opined as under:

"Patient is a case of schizophrenia since July, 2000. He is taking treatment on & off from Psychiatrist. He was under treatment of Dr. K.G. Lakhera since July 2002 to May 2003. At present he is suffering from chronic schizophrenia and taking treatment."

(5). It appears that despite the fact that the appellant was of unsound mind, learned trial judge did not act in accordance with the provisions contained in Section 329 of the Code of Criminal Procedure.

(6). Section 329 of Cr.P.C. lays down the procedure in case of person of unsound mind tried before court. It provides that if at the trial it appears to the court that the accused is of unsound mind and incapable of making his defence, the court in the first instance, shall try the fact of such unsoundness and incapacity and if after considering the medical and other evidence the court is satisfied that accused is of unsound mind and incapable of making his defence, it shall record a finding to that effect and shall postpone further proceedings in the case. The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the court.

(7). It is mandatory that where the court decides that the accused is of unsound mind and consequently incapable of making his defence the trial should be postponed. Flouting the mandate of section 329 will vitiate the trial. In the case of hand learned trial judge completely overlooked the mandate of Section 329. Despite the fact that the appellant was of unsound mind and was under treatment, the learned trial judge proceeded with the trial. There is no material on record, which could establish that the appellant was cured. Learned trial Judge was required to follow the provisions contained in Section 329 Cr.P.C. Non compliance of the mandatory provisions has vitiated the trial and the impugned judgment rendered by the learned trial judge is liable to be set aside on this ground alone.

(8). For the reasons aforementioned, the appeal is allowed. The judgment dated 12.5.2006 passed by the learned Speci

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