JUDGMENT 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. 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. 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 shall postpone further proceedings in the case. (2) 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 Magistrate or Court. 7. The bare language of section 329, Cr. P. C. makes it abundantly clear that if it appears to a Magistrate or court of Sessions at the trial of any person that such person is of unsound mind and consequently incapable of making his defence, the fact of such unsoundness and incapacity has to be tried in the first instance. Forming such an opinion one way or the other constitutes the first stage of proceedings under section 329. If it necessitates embarking upon the next stage, the Court has to record such medical and other evidence as may be produced before it. It is then required to apply its mind to the evidence produced before it and record its findings as to whether the person in question is of unsound mind and consequently incapable of making his defence or not. In case the person is found to suffer from unsound mind and incapacity referred to above, further proceedings in the case have to be postponed. The intention of the legislature is plain. It forbids the trial of a person who is incapable of making his defence for reason of being of unsound mind at the time of the trial. In case the person is found to suffer from unsound mind and incapacity referred to above, further proceedings in the case have to be postponed. The intention of the legislature is plain. It forbids the trial of a person who is incapable of making his defence for reason of being of unsound mind at the time of the trial. Obviously, the above provisions are not merely an empty formality but go to the very root of the correctness and validity of a trial. 8. The case law on the point before us may be noticed here. 9. The scope of section 465 Cr. P. C. (the corresponding section in old Cr. P. C.) was examined in I, V. Shivaswamy v. The State of Mysore, AIR 1971 SC 1638. The Supreme Court therein said: ".........Section 465, Cr. P. C. requires that there should be an enquiry within the second limb of the section if it appears to the Sessions Judge that the accused was insane, but if it does not appear to him so it is not necessary that he should conduct a regular enquiry under the second limb of the section. It is true that the word "appears" in section 465 imports a lesser degree of probability than "proof", but this does not mean that whenever a counsel raises a point before a Sessions Judge he has to straightway hold an elaborate enquiry into the matter. If on examining the accused it does not appear to him that the accused is insane it is not necessary that he should go further and send for and examine medical witnesses and other relevant evidence. Of course if he has any serious doubt in t he matter the Sessions Judge should hold a proper enquiry." 10. Jai Shankar v. State of Himachal Pradesh, AIR 1972 SC 2267, is an authority for the proposition that the Magistrate cannot "proceed with the committal proceedings without first determining whether on the allegations made by the accused, the data produced by him and the conduct and behaviour of the appellant in his Court, the Magistrate had reasons or not to believe that the appellant was suffering from mental infirmity of the kind envisaged by section 464". The words "reason to believe" in section 464 were held to mean "a belief which a reasonable person would entertain on facts before him". 11. The words "reason to believe" in section 464 were held to mean "a belief which a reasonable person would entertain on facts before him". 11. A Division Bench of this Court in Dhani Ram v. State of Himachal Pradesh, 1982 Cr LJ 1546, took the view that the Sessions Judge having recorded that it appeared to him that the appellant was of unsound mind, it was his bounden duty to have decided the fact with respect to the unsoundness and incapacity of the appellant after considering the medical evidence and other evidence as required under section 329, Cr. P. C. The failure of the Sessions Judge in not having even recorded the statement of the doctor who had examined the appellant was noticed and it was held that the entire trial stood vitiated for want of compliance with the mandatory provisions of section 329, Cr. P. C. 12. It is in the background of the above law that we shall now proceed to examine the correctness of the procedure adopted by the learned Additional Sessions Judge with respect to the application which came up for consideration before him on May 20, 1986. Here it would be useful to reproduce per verbatim the orders made by the learned Additional Sessions Judge on 20th and 26th May, 1986, and the report of the Chief Medical Officer, Mandi. Order dated May 20, 1986 made by the learned Additional Sessions Judge, Mandi: "20-5-86 : Present :—Shri D. N. Gautam P. P. for the State. Accused Dhani Ram in custody of constables S/Shri Jit Singh No. 98 and Sh. Bhan Singh No. 134 of P. Lines, Mandi with Sh. V. N. Sharma, learned defence counsel. Case taken up today on the application of the Id. defence Counsel under section 329, Cr. P. C. alleging that the accused is of unsound mind and the proceedings be stayed till he is cured from the disease. Reply filed. Since the matter has crept up it would be in the interest of justice that the medical opinion about the unsoundness of mind or otherwise normal condition of the accused is taken from the medical experts. Thus, the accused is referred to C. M. O. Mandi on 21-5-86 for deputing some suitable medical officer to issue a certificate about the unsound-ness or otherwise normal condition of the accused after proper examination and observations. Thus, the accused is referred to C. M. O. Mandi on 21-5-86 for deputing some suitable medical officer to issue a certificate about the unsound-ness or otherwise normal condition of the accused after proper examination and observations. To come up for further proceedings on 26-5-86. The witnesses summoned for 26/27-5-86 are dropped for the time being and necessary intimation be sent to them immediately. Sd/- Addl. Sessions Judge, Mandi" The report dated May 21, 1986 received from the Chief Medical Officer, Mandi: "Shri Dhani Ram prisoner under trial was examined today on 21st May, 1986 at 10.30 a.m. by Dr. R.S. Chandel Medical Specialist. His report is as under: The said person was examined by me today on 21-5-86 at 10.30 a.m. and found him suffering from depressive mood with vague aches and pains. However he does not appear to suffer from lunacy/ " Order dated May 26, 1986 made by the Court: "26-5-86 : Present: Shri D. N. Gautam P. P. for the State. Accused in custody of constable Kishan Singh No. 110 of Police Lines? Mandi with Sh. V. N- Sharma, Advocate. From the report of Chief Medical Officer, Mandi dated 21-5-86 it is clear that the accused is not a person of unsound mind. Otherwise also whenever the accused appeared before me in all these proceedings. I have not found him talking irrelevant. However he keeps silent and does not speak much. His replies to engage the Senior most lawyer of Sundernagar and thereafter accepting Shri V. N. Sharma as his defence counsel also does sot show if he is of unsound mind. Therefore, I am satisfied that the accused is not a person or unsound mind and he can be tried far the offence charged against him. Since, the witnesses summoned for today were asked not to attend the Court, no witness has appeared today. Thus, the case is adjourned to tomorrow i.e. 27-5-86 already fixed. Sd/- Addl. Sessions Judge, Mandi." 13. When the court made order dated May 20, 1986, all it had before itself was the application dated May 19, 1986 moved by the learned defence counsel on behalf of the accused. As stated above, this application was duly supported by an affidavit filed on behalf of the mother of the accused. Sd/- Addl. Sessions Judge, Mandi." 13. When the court made order dated May 20, 1986, all it had before itself was the application dated May 19, 1986 moved by the learned defence counsel on behalf of the accused. As stated above, this application was duly supported by an affidavit filed on behalf of the mother of the accused. At that stage of proceedings, the court could have taken into consideration the above material as also the past behaviour and conduct of the accused and further could have examined the accused, if it so desired, to find out whether the accused appeared to be a person of unsound mind and consequently incapable of making his defence within the ambit of first limb of section 329, Cr. P. C. The learned Additional Sessions Judge, however, made by specific observations in that behalf and proceeded straightway by referring the accused to the Chief Medical Officer, Mandi to obtain his expert opinion about the unsoundness of his mind or otherwise Thus, the Court manifestly embarked upon the second limb of section 329, Cr. P. C. meaning thereby that it went ahead with putting on trial the fact of the accused being of unsound mind or otherwise. For the aforesaid purpose, the court undoubtedly could obtain the expert opinion of the Chief Medical Officer, Mandi but it was incumbent upon the court to also afford full opportunity to both the parties viz. the prosecution and the accused to adduce before the court such evidence on the fact under trial as the parties so desired. The learned Additional Sessions Judge also committed an error in acting upon the ipse dexit of the medical report so furnished by the Chief Medical Officer, Mandi without even examining. Dr. R. S. Chandel, Medical Specialist who had examined the accused. The report of Dr. Chandel has been reproduced above per verbatim. It contains no reasons in support of the opinion that the accused did not suffer from lunacy. In other words, no opportunity was given to the learned counsel for the accused to cross-examine Dr. Chandel and challenge the veracity and correctness of his opinion aforesaid. As stated above, no opportunity whatsoever was given to the accused to even examine his mother who had filed an affidavit alongwith the application dated May 19, 1986 stating on oath that the accused had been of unsound mind for the last 6-7 years. Chandel and challenge the veracity and correctness of his opinion aforesaid. As stated above, no opportunity whatsoever was given to the accused to even examine his mother who had filed an affidavit alongwith the application dated May 19, 1986 stating on oath that the accused had been of unsound mind for the last 6-7 years. Thus, the fact of unsoundness of mind had not been put to trial by May 26, 1986 when the learned Additional Sessions Judge recorded his satisfaction that the accused was not a person of unsound mind, In this view of the matter, we cannot but hold the entire trial held on and after May 26, 1986 as wholly vitiated as the mandatory provisions of section 329, Cr. P, C. had not been complied with, 14. Our attention has been drawn to the fact that a criminal revision bearing No. 63 of 1986 was preferred by the accused from jail in the High Court challenging the proceedings before the learned Additional Sessions Judge holding him to be a person of sound mind and directing the trial to proceed. This petition came to be listed before a learned Single Judge of this Court on July 3, 1986 when none put in his appearance on behalf of the petitioner-accused. Holding that the petition was prima facie frivolous, it was ordered that the same be dismissed and the petitioner be informed accordingly. It appears the fact that the petitioner was lodged in jail and that the Counsel who was representing him at Mandi had been appointed by the Court at State expense under the provisions of section 304, Cr. P. C. was probably not brought to the notice of the learned Single Judge. An argument can be built up that the accused is bound by the order of t his Court made on July 3, 1986. We regret our inability to uphold it for the reason that the validity of the proceedings under section 329, Cr. P. C , as already observed by us, go to the very root of the case. To reiterate, no trial is valid if held against a person who is incapable of making his defence. The question of accused being of sound mind or otherwise having arisen at the trial had to be determined in the first instance in accordance with law. It was not done. To reiterate, no trial is valid if held against a person who is incapable of making his defence. The question of accused being of sound mind or otherwise having arisen at the trial had to be determined in the first instance in accordance with law. It was not done. The trial is, therefore, bad and liable to be struck down notwithstanding the order dated July 3, 1986. 15. No further reasons are required in justification of the order we propose to make. All the same, there are two other application moved on behalf of the accused which require mentioning. After the accused had been examined under section 313 Cr.P C, an application was moved by his counsel on July 3, 1986 praying that the accused be referred to two medical experts in Indira Gandhi Medical College, Simla and Post Graduate Institute of Medical Sciences and Research, Chandigarh for being kept under observation and submitting a report if he was suffering from unsoundness of mind. Strangely enough, this application was allowed and the accused was referred to Indira Gandhi Medical College, Simla for check up and opinion, after due observations, if he was of unsound mind or not. It means that the fact regarding the accused being of sound mind or not was treated as an open fact even on July 3, 1986. The report received from the Medical College, mentioned above, was to the effect that the accused was quite normal in psychological functions. This was once again taken as a gospel truth and the author of this report was not examined in the Court. And then, a specific request was made that Dr. R.S. Chandel, whose opinion was the basis of the first report sent by the Chief Medical Officer, Mandi, be allowed to be examined as a defence witness. The learned Additional Sessions Judge, for reasons which are totally untenable in law, turned down this request and did not allow him to be summoned as witness for the accused in defence. 16. In view of the above discussion, we accept this appeal and set aside the impugned order of conviction and sentence. We direct that this case be taken on the file of the learned Sessions Judge, Mandi who would, in the first instance, try the fact as to whether the accused is of unsound mind and consequently incapable of making his defence. We direct that this case be taken on the file of the learned Sessions Judge, Mandi who would, in the first instance, try the fact as to whether the accused is of unsound mind and consequently incapable of making his defence. The learned Sessions Judge would record his findings in light of the observations made above. While doing so, we direct that the accused may also be referred to the Mental Hospital, Amritsar for keeping him under observation for a reasonable time and then giving opinion on the above fact. All proceedings which have taken place before the learned Sessions Judge after May 20, 1986 are hereby quashed. The trial of the accused is directed to be held from that stage onwards de novo. Appeal allowed.