JUDGMENT Bhawani Singh, J.—By this appeal, the accused has challenged his conviction under section 302, Indian Penal Code for causing the death of his father, Tara Chand in the middle of March, 1987 at Jagna, Tehsil Sarka ghat, District Mandi. He has been sentenced to imprisonment for life and to pay a fine of Rs. 1,000 by the Sessions Judge, Mandi on June 20, 1988. 2. Briefly, the facts are that after working as driver at Amritsar for couple of months, the accused came back to live with his father in the village. He was married to Smt. Parmilla. whom he used to give beatings and on such occasions, his father, Tara Chand used to abuse him and chastise him for his behaviour. The incident took place on 18-3-1987, when at about 9 30 p.m. the deceased, after taking his meals in kitchen on the upper storey of the house, came down to his room alongwith his grand daughter, Kumari Meera. Thereafter, Kumari Meera went to her room and soon after the accused came with stone (Ext. P-2) from outside and hit his father on the head. On hearing the cries of the deceased, Kumari Meera came there from her room and saw the accused giving two more blows with the said stone on the head of the deceased. She went up-stairs to inform her mother, Smt. Jaiwanti and aunt, Smt. Parmilla, wife of Shri Biri Singh, who came down to the place of occurrence and saw the deceased lying unconscious in a pool of blood. At the scene, they started crying and on hearing the same, number of villagers came there. They encircled the accused to prevent his escape and on being asked, the accused told them that it was in a fit of anger that he killed his father with the stone and in the presence of Smt. Jaiwanti, Smt. Parmilla and Kumari Meera, he also said that he had committed a mistake so he may be saved. 3. The incident was reported to the police, Police Station, Sarkaghat telephonically and a case under section 302, Indian Penal Code, vide First Information Report No. 49/87 was registered on 19-3-1987. The Station House Officer, Kehar Singh came to the spot, prepared the Inquest Report (Ext. PD), sent the dead-body for post-mortem examination, prepared the site plant (Ext. PW-17/B) and took into possession the stone (Ext. P-2) vide recovery memo. The Station House Officer, Kehar Singh came to the spot, prepared the Inquest Report (Ext. PD), sent the dead-body for post-mortem examination, prepared the site plant (Ext. PW-17/B) and took into possession the stone (Ext. P-2) vide recovery memo. (Ext. PE). During this investigation, blood-stained earth from nearby the dead-body was taken in a Dibba which was sealed on the spot. The beddings of the deceased, namely, pillow (Ext. P-3), gunny bag (Ext. P-4) and Khandolu (Ext. P-5) were also taken in addition to other necessary articles like blood-stained pant (Ext. P-l). After completing the investigation and collecting the necessary documents in the case, challan for the trial of the accused was preferred in the court. Number of witnesses were examined by the prosecution in support of its case. 4. In his explanation under section 313 of the Code of Criminal Procedure, the accused has admitted almost all the incriminating circumstances against him although he had denied the same at the stage when the charge was read out to him on 22-8-1987. The trial, finally, ended in the aforesaid conviction and sentence of the accused. This shows the matter has come before this Court. Since the accused was not represented by a Counsel, Shri Harish Behl, Advocate, was appointed amicus curiae to defend him. 5. During the course of arguments, Shri Behl raised a fundamental question as to the legality of the trial. His contention was that the trial Court committed gross error in not following the mandatory provisions of section 329 of the Code of Criminal Procedure and as a consequence thereof, the trial is vitiated and the judgment is liable to be set-aside. Since we saw substance in this submission of the learned Counsel, for the reasons to be recorded hereinafter, it was considered unnecessary to go into the merits of the case. 6. On 3-10-1987, Shri G. D. Saini, learned Counsel for the accused, moved an application to the trial Judge pointing out that the accused did not appear to be mentally fit. The matter was fixed on 7-10-1987 for reply and consideration of plea, by the Court. On 7-10-1987, the Court looked into the merits of the application moved on behalf of the accused. The matter was fixed on 7-10-1987 for reply and consideration of plea, by the Court. On 7-10-1987, the Court looked into the merits of the application moved on behalf of the accused. The Counsel for the accused also submitted to the Court that the wife of the accused had told him that the accused was admitted in Mental Hospital, Amritsar earlier to the occurrence in question and had not been cured fully when he was brought back from the hospital by his father and the brother. The Court ordered: "In order to ascertain as to whether the accused is having any mental disease, it is essential to get him medically examined from the Chief Medical Officer, Mandi. Accordingly the application is allowed and a reference be made to the Chief Medical Officer, Mandi that the accused be examined and the report be submitted as to whether the accused is suffering from mental disorder or not." 7. In pursuance of this order, the accused was examined and the Chief Medical Officer, Mandi reported that the accused was not suffering from any mental disorder. In the meantime, the learned Counsel for the accused had moved another application for collecting information from Mental Hospital, Amritsar with regard to the treatment of the accused as according to the Counsel, the accused had been an in-door patient in Mental Hospital, Amritsar. This application came before the Court, on 13-11-1987 on which date, this application appears to have been withdrawn. However, the Court permitted the accused to examine the concerned doctor from the Mental Hospital, Amritsar in his defence and to produce the relevant record of his treatment He was also allowed to summon the said doctor at the relevant stage at Government expense alongwith the record. In this order, the Court also said that: "Since the local Chief Medical Officer has certified that the accused is not suffering from any mental disease, the trial shall proceed further. Necessary requisition be sent on Government expenses to Superintendent of Mental Hospital, Amritsar to produce the record of treatment on the next date of hearing. The accused is at liberty to summon the doctor at the relevant stage The case be now put up on 1-12-1987 for receipt of record where after it will be fixed for prosecution evidence." 8. The record was not received on 1-12-1987 and 1142-1987 and the case appeared before the Court on 2-1-1988. The accused is at liberty to summon the doctor at the relevant stage The case be now put up on 1-12-1987 for receipt of record where after it will be fixed for prosecution evidence." 8. The record was not received on 1-12-1987 and 1142-1987 and the case appeared before the Court on 2-1-1988. It appears from the Courts order of this date that as per the communication received from the Mental Hospital, Amritsar, no record pertaining to the treatment of the accused was available and the accused stated in the Court that he had not been admitted in the hospital but had been examined as an out-door patient. He also stated that the doctor told him after the examination that he was not suffering from mental disorder and it was just because of mental worry that he was upset. The Court ordered for the recording of the evidence and summoned witnesses for 11-2-1988 and 12-2-1988. 9. It is in the light of the aforesaid circumstances that the contention raised by the learned Counsel for the accused has to be examined. Therefore, it is relevant, at this stage, to quote section 329 of the Code of Criminal Procedure which reads: "329. Procedure in case of person of unsound mind tried before Court. — (1) If at the trial of any person before a Magistrate or 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." 10. It is clear from the language of this provision that in case it appears to the Magistrate or the 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. It is clear from the language of this provision that in case it appears to the Magistrate or the 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 procedure envisaged under section 329 of the Code of Criminal Procedure. In case it appears necessary to move on to 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 suffers from such a disqualification, further proceedings in the case have to be postponed. The legislative intent behind such a course is that it forbids the trial of a person, who is incapable of making his defence on account of unsoundness of mind at the time of the trial. The Court has to comply with such procedure strictly without committing any deviation since the same is neither envisaged under section 329 of the Code of Criminal Procedure nor conducive to the just and fair trial of the accused. 11. In AIR 1971 SC 1638, /. V. Shivaswamy v. The State of Mysore, the Supreme Court had an occasion to examine this provision and while doing so, the Court 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 no appear tp him so it is not necessary that be 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. 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 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 the matter the Sessions Judge should hold a proper enquiry." 12. Then, in AIR 1972 SC 2267, Jai Shanker v. State ofH. P., it was held that the Magistrate cannot proceed with the committal proceeding 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 medical infirmity ot the kind envisaged by section 464 (corresponding to section 329 of the new Code). 13. Further, in a Division Bench judgment of this Court reported in 1982 Criminal Law Journal 1346, Dhani Ram v. State of H. P., this Court also 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 of the Code of Criminal Procedure. 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 non-compliance with the mandatory provisions of section 329 of the Code of Criminal Procedure. 14. Again, this Court considered a similar situation in Criminal Appeal No. 87 of 1986, Dhani Ram v. State of H. P, decided on June 8, 1989 and came to the same conclusion, while examining this provision. 15. 14. Again, this Court considered a similar situation in Criminal Appeal No. 87 of 1986, Dhani Ram v. State of H. P, decided on June 8, 1989 and came to the same conclusion, while examining this provision. 15. Shri Behl also placed reliance on decisions like 1983 Cr LJ 1769, Babu Ganpat Kishore v. State of Maharashtra, and 1980 Cr LJ 1505, Gut fit Singh v. State of Punjab, in support of his submission. 16. Examined in the light of the legal position noticed above, we feel that the trial in the present case stands vitiated for the failure of the trial Judge to comply with the mandatory provisions of section 329 of the Code of Criminal Procedure. The Court having once come to the conclusion that the accused deserved to be examined by the Medical Expert, could not avoid the consequences of treading into the second stage of the proceedings by allowing the parties to lead evidence to support their respective contentions since the accused had raised the plea of unsoundness of mind and the Counsel for him was submitting that the mother of the accused had also stated about the health of the accused in addition to the record available with Mental Hospital, Amritsar. The trial Judge also committed an error in just depending upon the medical report without even examining the Medical Specialist, who had examined the accused. The Medical report needed to be explained by the doctor and since it was against the accused, the Court ought to have given him opportunity to cross-examine the doctor and challenge the correctness of his opinion. Further, the direction of the Court allowing the accused to bring the Medical Expert and the record from Amritsar in his defence at State expense at a later stage is again faulty since such a course is rather prohibited by the provisions of section 329 of the Code of Criminal Procedure. The trial Court, should have collected every kind of evidence while examining the plea of the accused and given a clear-cut finding before deciding to move further in the matter. Consequently, the trial as well as the conviction of the appellant is illegal and is liable to be quashed. 17. In view of the above discussion, we allow this appeal and set-aside the impugned order of conviction and sentence. Consequently, the trial as well as the conviction of the appellant is illegal and is liable to be quashed. 17. In view of the above discussion, we allow 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, therefore, incapable of making his defence. The learned Sessions Judge would record his findings in the light of the observations made above. We direct that the accused may be referred to Mental Hospital, Amritsar for keeping him under observation for a reasonable time as may be advised by the Medical Expert there, who will send his opinion to the trial Judge dealing with the matter. All proceedings which have taken place before the learned Sessions Judge after 5-10-1987 are hereby quashed. The trial of the accused is directed to be held from that stage onwards de nova. Appeal allowed.