P. K. SEN,J. ( 1 ) THIS appeal is at the instance of a convict and is directed against a judgment and order of conviction passed by Sri B. B. Chatterjee, Additional District Judge, 3rd Court, Midnapore. ( 2 ) THE facts which are relevant for the purpose of this case are that on 29. 3. 87 one Nimai Mahato lodged an information with Jambani P. S. in the District of Midnapore stating that on the same day at 12 noon while he was inside his house, he heard a halla coming from the field to the east of his house. On hearing such, the informant (P. W. 1) came out and noticed the convict appellant Bibhuti Mahato being armed with a shovel standing in front of the door of the informant. The convict that is the accused made an attempt to assault the informant on head with such weapon as soon as he came out, but the informant somehow managed to save himself. But, in the meantime, he received injury on his hand. The convict then ran towards the forest with shovel in his hand and threw the shovel in the tank. When the informant went to the field, he noticed Radhanath Mahato that is his cousin brother aged about 45 yrs lying injured on the field. The informant further noticed that Radhanath was then bleeding and witnesses Moloy Mahato, Kishore Mahato and Tapan Mahato who were then fishing in the nearby tank were giving water on the face of injured Radhanath. But Radhanath died on the spot. The informant came to know from Moloy, Kishore and Tapan that accused Bibhuti who was then armed with the shovel, pushed the shovel on the belly of Radhanath and Radhanath fell down and died instantaneously. The information further gathered that accused appellant also assaulted his father Mahesh Mahato, step mother Janaki Mhahto with the help of shovel. The informant then rushed to the Police Station, and thus FIR was recorded. The informant also stated in the FIR that prior to the incident, the convict appellant Bibhuti used to remain silent and perform puja of goddess Kali and he suspected that the convict was suffering from insanity and because of such insanity, he perhaps assaulted his father, step mother, Radhanath and also the informant, Nimai Mahato. Thus, a police case (being G. R. Case No. 129 of 87) commenced. Thus, a police case (being G. R. Case No. 129 of 87) commenced. After completion of investigation, charge sheet was submitted under section 302 by 324 IPC against this convict, Bibhuti Mahato. ( 3 ) AFTER completion of charge sheet, the learned SDJM Jhargram committed the case to the Court of sessions and ultimately came up for trial before the 3rd Additional Sessions Judge at Midnapore, charges under section 302/324 IPC were framed. The prosecution examined 20 witnesses in all, besides exhibited some documents. The defence plea as appeared from the judgment under appeal was that the accused was then suffering from insanity and the incident, if there be any, was the result of such insanity and accordingly the appellant cannot be held liable for the alleged occurrence. The learned Trial Judge disbelieved the case of insanity and upon consideration of the materials and evidence on record, found the accused guilty under section 302/324/323 IPC and convicted the appellant to imprisonment for life under section 302 IPC and R. I. for one year under section 324 IPC No separate sentence under section 323 was awarded. Sentences were directed to run concurrently. On being aggrieved by such judgment and order of conviction, the instant appeal was preferred which came up for final hearing before us. Therefore, the only point for consideration is whether the judgment and order of conviction under appeal can be sustained before this Court. It appears from the records that the trial of the case, out of which this appeal has arisen, commenced on 3. 4. 89 and 4. 4. 89, eight witnesses were examined from the side of the prosecution. At that stage, the learned P. P. filed an application for holding an enquiry under section 329 of the Code of Criminal Procedure with the view to ascertain the mental condition of the accused. On the basis of that application, the learned Trial Judge directed that the accused should be produced before CMOH, Midnapore for his examination by a psychiatrist with a view to ascertain the accused has been suffering from any sort of insanity and whether the unsoundness of the mind of the accused is still existing. The Trial Court further directed that the report should be submitted by 5. 5. 89 on which date a report was submitted, which runs as : 1. The accused is schizophrenic (lunatic ). 2. The Trial Court further directed that the report should be submitted by 5. 5. 89 on which date a report was submitted, which runs as : 1. The accused is schizophrenic (lunatic ). 2. It cannot be ascertained whether the lunacy developed after the commission of the offence. 3. His lunacy is not a temporary phenomenon due to being induced by drinking of alcohol or ganja etc. 4. No evidence of addiction detected at present. ( 4 ) IT appears at that time that is when he was examined some time in April 1989 he was found to be a lunatic and the doctor (psychiatrist) further observed that his lunacy is not temporary phenomenon. This medical report was exhibited as exhibit 4 before the Trial Court. This piece of medical evidence coupled with oral evidence given by P. W. 1 Nimai Mahato, who stated before the Court on oath, should be read along with the statement of the informant made in the FIR that is exhibit 3 wherein the informant specifically stated the accused used to remain silent and performed the puja of goddess Kali and he (informant) suspected that the accused was suffering from insanity and because of such instant he perhaps assaulted his father, step mother, Radhanath and informant. It further appears that when on 4. 4. 89, the prosecution made a prayer before the Court or conducting an enquiry under section 329 of the Code of Criminal Procedure, it was the duty of the Court to conduct such enquiry and to ascertain as to whether the accused was mentally competent to make a defence of his own case and to face the trial. But, we find that the learned Judge simply called for a report from the medical officer and on receipt of such report, he proceeded with the observation that the accused is mentally fit. The provisions of 329 of the Code of Criminal Procedure casts a duty upon the Court to get itself satisfied about the unsoundness of mind of the accused. The Sessions Judge who after considering the answers given by the accused to the questions put by him as well as his calm and quiet behavior at the dock and submission of the defence counsel that his client was mentally fit should have come into conclusion that there was no necessity of any further step and should then commence the trial. But in the instant case, the enquiry as contemplated under section 329 of the Code of Criminal Procedure was not properly made. It transpires from the evidence that the accused was behaving abnormally inasmuch as he used to keep silent and used to perform the pujas of goddess Kali for hours together and before the alleged assault on Radhanath, he assaulted his father, his step mother and the informant. We find from the report of the medical examination as conducted by PW 18 who is a psychiatrist that the lunacy of the accused was not temporary phenomenon. The doctor found the accused to be a lunatic on the date of examination that was sometime in April 1989. ( 5 ) THE P. W. 1 that is the informant state that the assault on Radhanath, the parents of the accused Bibhuti and also on Nimai, may be the result of insanity as the informant was not sure as to whether the accused was a sound mind or whether those assaults, as referred to above, were the result of insanity. The informant Nimai Mahato who figured as P. W. 1 before the Trial Court stated in the cross-examination that he did not know if accused Bibhuti started behaving like a insane person a few days before the date of the incident. But, according to P. W. 1 it was a fact that prior to the incident he used to worship goddess Kali inside his house for several hours. A question was put to him during cross-examination which runs as "is it a fact that Bibhuti tried to assault you, Radhanath, Mahesh and Janaki because of insanity?" P. W. 1 remained silent. This indicates that he could not deny the fact of insanity of the convict appellant Bibhuti. P. W. 4 Moloy Mahato admitted in his cross-examination that he heard about the insanity of Bibhuti. P. W. 5 Kishore Mahato was cross-examined and the contradiction was taken in this way, "i did not state before the I. O. that signs of insanity was noticed in talk of Bibhuti". Similarly, with regard to P. W. 6 Tapan Mahato's contradiction was taken which runs as "i did not state to Police that Bibhuti started worship goddess Kali and he exhibited symptoms of insanity by his talk and that I heard it". ( 6 ) WE have already referred to evidence of Dr. Similarly, with regard to P. W. 6 Tapan Mahato's contradiction was taken which runs as "i did not state to Police that Bibhuti started worship goddess Kali and he exhibited symptoms of insanity by his talk and that I heard it". ( 6 ) WE have already referred to evidence of Dr. S. P. Mukherjee that is the psychiatrist. Therefore, from evidence, we find that there were signs of insanity in the behavior of Bibhuti at the time of the incident. The Trial Court found that there is no dispute that the accused had no enmity or ill-feeling either with his parents or any of his co-villagers immediately before the incident. Therefore, there seems no reason for his sudden assault on his parents, step brother, the informant and Radhanath that is the deceased. It is in evidence that prior to the incident, the accused confined himself in a room for two or three days and when on worshiping goddess Kali and on the fateful day, he suddenly came out of his room with sharp cutting weapon and began to assault one after another that is the informant, his parents and lastly Radhanath that is the deceased. This is a circumstance which goes to indicate that the accused was not then normal because the behavior showed by him cannot be consistent that of a normal human being. From the medical report, we have already found that convict was then suffering from insanity and the psychiatrist observed that it was not a temporary phenomenon which further shows that the insanity was not temporary. ( 7 ) A ground was taken in the memorandum of appeal that the accused was then insane and, therefore, he cannot be held liable of any offence. In this connection, we may refer to the provision as laid down in section 84 of the Indian Penal Code which runs as "nothing is an offence which is done by a person who, at the time of doing it by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law". ( 8 ) THEREFORE, the accused cannot be held liable for the accused as has been alleged by the prosecution. ( 8 ) THEREFORE, the accused cannot be held liable for the accused as has been alleged by the prosecution. The learned Court below should have appreciated this fact, but the learned Court did not make any sincere endeavor to ascertain as to whether the accused was insane on the date of the incident. We find that he was insane on the date of incident and, therefore, he cannot be held liable for the offence as alleged. In that view of the matter, we find that the convict appellant was unable to make any defence and also legally incompetent to answer any charge for less to speak of any trial. In that view of the matter, we find the appellant not guilty and should be acquitted. ( 9 ) BUT, before we part with this matter, we want to put it on record that since the appellant was insane on the date of the incident and also on the date of the medical examination it should be ascertained as to whether he is mentally alert now so as to maintain a normal life. We, therefore, direct the learned Trial Judge to obtain a further report from the superintendent of the concerned jail where the convict appellant has been lodged as to the present state of health both mental and physical of the appellant. If on receipt of such report, the learned Trial Judge finds that the appellant is still suffering from insanity, he should take up the matter with the appropriate department of the Government for proper treatment of the convict lest the appellant, on being released may be a danger to peace and tranquility of the society. If the learned Judge finds such medical report in the negative that is the convict is physically fit and mentally alert, fully competent to shoulder the responsibility of a social life, the learned Judge shall make an order of his release. Thus, the appeal is allowed. The judgment and order of conviction are struck down. Let a copy of the judgment be sent down to the Trial Court. N. A. Chowdhury, J.-I agree. Appeal allowed.