The mandatory provisions of section 329 of the CrPC must be followed when it appears that the accused is of unsound mind and consequently incapable of making his defense.

V. P. Bhatnagar, J.—This appeal is directed against the judgment dated September 5, 1986 of the learned Additional Sessions Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi convicting accused Dhani Ram under section 302 of the Indian Penal Code for having committed the murder of his wife Kunta Devi. The accused was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000. In the event of non-payment of fine it was ordered that the accused would undergo rigorous imprisonment for another period of three months.

2. The prosecution case, briefly stated, is that accused Dhani Ram married two sisters Kala Devi and Kunta Devi. His relations with the second wife Kunta Devi were quite strained and he had told some of his children that he would kill Kunta Devi. On July 12, 1985, both the wives had gone outside to collect grass whereas accused Dhani Ram and minor children Meera Devi, Chameli, Maya Devi and Ram Lai stayed back at home. The accused is then stated to have sharpened his darat. Kunta Devi returned from the fields with a grass load at about 10 or 11 a.m. She placed the grass in the courtyard of the house and asked her daughter Meera Devi for a glass of water. Accused Dhani Ram then appeared with the darat and gave three darat blows on Kunta Devis neck. At that time the left arm of Kunta Devi was resting against her head. The left arm, therefore, also got substantial cut. Due to the injuries she received on her neck, she died instantaneously.

3. The prosecution examined 14 witnesses in all, we do not consider it necessary to deal with that evidence because we are of the opinion that this appeal will have to be accepted and the case remanded to the learned trial court for de novo trial after due compliance with the mandatory provisions of section 329 of the Code of Criminal Procedure.

4. Before we take up the point at issue, a brief reference may be made to the stand taken by the accused in his statement recorded under section 313 d. P. C. Although he pleaded not guilty at the stage of charge-sheet, he had this to say in answer to question 27 of the statement aforesaid which was to the effect if he wanted to say anything else: "Kunta Devi deceased was a quarrelsome lady. Sometimes she used to beat the children and then to abuse me without any rhyme or reason. I had asked her to go to her parents house and serve her old father if she could not pull on with me. But she had not gone to her parents house. Therefore, out of rage and anger I killed her."

5. While answering question No. 8, accused categorically stated that he had given three darat blows on the person of Kunta Devi and killed her.

6. The charge-sheet against the accused was framed on February 1, 1986. The case came to be listed on 26th and 27th May 1986, for recording prosecution evidence. However, Shri V. N. Sharma who had been appointed by the learned trial court to defend the accused moved an application on May 19, 1986 stating that he had met the accused and that it appeared to him that the accused was of unsound mind and, therefore, incapable of making his defence. Alongwith the application, an affidavit of the mother of the accused was attached. It was to the effect that accused Dhani Ram had been of unsound mind for the last 6 to 7 years although he behaved normally only at certain intervals. This application was moved under the provisions of section 329, Cr. P. C. which reads: "329. Procedure in case of person of unsound mind tried before Court.—(I) If at the trial of any person before a Magistrate of Court of Sessions, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it is satisfied of the fact, he or it shall record a finding to that effect and s