JUDGMENT : A. SELVAM, J. 1. This Criminal Appeal has been directed against the convictions and sentences passed in Sessions Case No.67 of 2011 by the Second Additional District and Sessions Court, Tiruchirapalli. 2. The case of the prosecution is that on 30.05.2010 at about 10.00 am, the witness by name Noorjahan has put up a compound wall. At that time, the accused 1 to 3 have hurled invectives against her by using filthy words. During the course of occurrence, the first accused has stated that he would kill the said Noorjahan. The first accused has tried to attack the said Noorjahan by using a bamboo stick. But he attacked the father of Noorjahan by name Baba Sahib and due to his attack, he passed away. After occurrence, the wife of the deceased by name Safiya Bi as defacto complainant has given a complaint and the same has been registered in Crime No.157 of 2010. 3. On receipt of the complaint, the Investigating Officer (PW11) has taken up investigation, examined connected witnesses and also made arrangements to conduct autopsy on the body of the deceased and accordingly, Dr.Renuka Devi (PW8) has conducted post-mortem and she found the following external and internal injuries: “Wounds:- (1) Left eye – black eye. (2) A curved sutured wound, 31 cm in length, on the left frontal, temporal and parietal regions of scalp. On removal of the sutures, edges are regular, 10 cm in breadth and brain deep. 13 cm X 11 cm size of left frontal, temporal and parietal bone is missing. Brain is changed into red colour semi solid mass. Fracture base of skull – left anterior and middle cranial fossae present. The above mentioned wounds are antemortem. No other external, internal or body wound. 13 cm X 11 cm size of left frontal, temporal and parietal bone is missing. Brain is changed into red colour semi solid mass. Fracture base of skull – left anterior and middle cranial fossae present. The above mentioned wounds are antemortem. No other external, internal or body wound. Other findings:- Peritoneum – intact, cavity – empty, pleura – intact, cavity – empty; pericardium – intact, cavity – straw colour fluid; heart – normal in size, myocardium – normal, chambers – fluid blood; valves – normal, coronary vessels – patent, great vessels – normal; lungs – right – c/s congested; larynx, trachea – intact, mucosa – pale; hyoid bone – intact; stomach – green colour thick fluid, no specific smell, mucosa – congested; oesophagus – intact, mucosa – pale; pancreas – pale; gall bladder – full no stone; omentum and mesentery – intact, normal; liver, spleen and kidneys – c/s congested; small intestine – yellowish chyme, no specific smell, mucosa – congested; appendix – intact, normal; large intestine – filled with gas; urinary bladder – intact, empty; pelvis – intact, scalp, skull bones, membranes, sinuses, brain vessels and brain – vide wound column; vertebral column and cord – intact; all other internal organs on c/s pale.” 4. The post-mortem certificate has been marked as Ex.P5. After transfer of PW11, his successor-in-office (PW12) has continued investigation and after completing the same, laid a final report on the file of the Principal District Munsif – cum – Judicial Magistrate, Lalgudi and the same has been taken on file in PRC No.5 of 2011. 5. The Principal District Munsif – cum – Judicial Magistrate, Lalgudi after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Tiruchirapalli Division and the same has been taken on file in Sessions Case No.67 of 2011 and subsequently made over to the trial Court. 6. The trial Court after hearing arguments of both sides and after perusing the relevant records, has framed first charge against all the accused under Section 294(b); second charge against the first accused under Section 506(i); third charge against him under Section 302 of the Indian Penal Code and fourth charge against the accused 2 and 3 under Section 3(1) of P.P.D. Act and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried. 7. On the side of the prosecution PWs.1 to 12 have been examined and Exs.P1 to P10 and M.O.1 have been marked. 8. When the accused have been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. On the side of the accused, DWs.1 to 4 have been examined and Exs.D1 to D6 have been marked. 9. The trial Court after hearing arguments of both sides and after perusing the relevant evidence available on record, has acquitted the accused 2 and 3 from the charges framed against them. The trial Court has found the first accused guilty under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and also imposed a fine of Rs.5,000/- with usual default clause. Further, he has been found guilty under Section 506(ii) of the Indian Penal Code and sentenced to undergo one year rigorous imprisonment and also imposed a fine of Rs. 1,000/- with usual default clause. Against the convictions and sentences passed by the trial Court, the present Criminal Appeal has been preferred at the instance of the first accused as appellant. 10. The sum and substance of the case of the prosecution is that on 30.05.2010 at about 10.00 am, the witness Noorjahan has put up a wall and at that time, the accused 1 to 3 have hurled invectives against her by using filthy words. The first accused has threatened her by way of saying that he would kill her and with an intention to murder, he tried to attack her by using a bamboo stick. But unfortunately, the deceased has sustained the attack made by the first accused and due to his overtacts, the deceased has sustained fatal injuries and subsequently passed away. 11. The complaint given by the defacto complainant has been marked as Ex.P1. The author of the same, wife of the deceased by name Safiya Bi has been examined as PW1. The daughter of PW1 and deceased viz., Noorjahan has been examined as PW2. The other eye witnesses namely Chellamani, Selvam and Chelladurai have been examined as PWs.3, 4 and 6. The Doctor, who conducted autopsy has been examined as PW8 and she marked Ex.P5. The daughter of PW1 and deceased viz., Noorjahan has been examined as PW2. The other eye witnesses namely Chellamani, Selvam and Chelladurai have been examined as PWs.3, 4 and 6. The Doctor, who conducted autopsy has been examined as PW8 and she marked Ex.P5. The trial Court after considering the evidence adduced by the witnesses mentioned supra coupled with relevant documents, has found the first accused guilty under Sections 302 and 506(ii) of the Indian Penal Code. 12. The learned counsel appearing for the appellant/first accused has advanced two limbs of arguments. 13. The first and foremost limb of argument is that the occurrence has taken place on 30.05.2010 and even prior to occurrence, the first accused has been suffering from chronic mental disease and he is nothing but an insane person and in fact, an attempt has been made to prove the same before the trial Court, but the trial Court without invoking mandatory provision of section 329 of the Code of Criminal Procedure, 1973, has erroneously proceeded trial against the first accused and since even on the date of occurrence the first accused is nothing but an insane person, he is entitled to get benefit of Section 84 of the Indian Penal Code, 1860 and therefore, the convictions and sentences passed by the trial Court against the first accused are liable to be set aside. 14. The second limb of argument is that even as per the evidence given by the prosecution witnesses, the first accused has not aimed to attack the deceased and in fact he aimed to attack the witness by name Noorjahan by using a bamboo stick. But accidently, the deceased has sustained head injury. Under the said circumstances, the first accused cannot be mulcted with liability under Section 302 of the Indian Penal Code. 15. To controvert the contentions put forth on the side of the appellant/first accused, the learned Additional Public Prosecutor has also equally contended that in the trial Court an abortive attempt has been made so as to prove that the occurrence has taken place during alleged insanity of the first accused. 15. To controvert the contentions put forth on the side of the appellant/first accused, the learned Additional Public Prosecutor has also equally contended that in the trial Court an abortive attempt has been made so as to prove that the occurrence has taken place during alleged insanity of the first accused. But the trial Court has rightly rejected the claim of the first accused and against the order passed by the trial Court, no Appeal or Revision has been preferred and in fact, the first accused is not an insane person and for the purpose of proving the offences punishable under Sections 302 and 506(ii) of the Indian Penal Code, PWs.1 to 4 and 6 have given clear evidence and further, the doctor who conducted autopsy on the body of the deceased has clearly opined that the death has occurred due to head injury and the trial Court after considering the overall evidence available on record has rightly found the first accused guilty under Sections 302 and 506(ii) of the Indian Penal Code and therefore, the convictions and sentences passed by the trial Court do not require interference. 16. For the purpose of analysing the first and foremost contention raised on the side of the appellant/first accused, the Court has to look into Section 329 of the Code of Criminal Procedure, 1973 and the same reads as follows:- 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 Session, 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. [(1-A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind: Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of (a) head of psychiatry unit in the nearest Government hospital; (b) a faculty member in psychiatry in the nearest medical college.] (2) If such Magistrate or Court is informed that the person referred to in sub-section (1-A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 330: Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused. (3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.] Amendment Act, 2008.-Clauses 25 and 26 amend sections 328 and 329 related to procedure of enquiry and trial in case of person of unsound mind. The clauses provide that if the Magistrate finds that the accused is incapable of making his defence due to unsoundness of mind, to refer such a person for appropriate medical treatment in accordance with section 330. 17. Even from a cursory look of the said provision, it is made clear that the concerned Magistrate or Court of Session has to form an opinion to the effect that such person is of unsound mind and subsequently the concerned Magistrate or Court of Sessions has to follow the remaining provisions of the said Section. To put it in short, simply because an accused claims to the effect that he is an insane person, the concerned Magistrate or the Court of Sessions need not follow the remaining directions given in the said section. But on the other hand, the concerned Magistrate or Court of Sessions has to form a considered opinion to the effect that he is a person of unsound mind. 18. In the instant case, as rightly pointed out on the side of the prosecution, an inert attempt has been made before the trial Court, even before trial of the case. The trial Court after considering the materials placed before it, has found that the first accused is not an insane person and against the finding or order passed by the trial Court, no Appeal or Revision has been filed on the side of the first accused. Therefore, the finding given by the trial Court to the effect that the first accused is not an insane person has become final and the first accused is totally precluded from raising the alleged insanity before this Court. 19. It is true that on the side of the accused DWs.1 to 4 have been examined and Exs.D1 to D6 have been filed for the purpose of proving the alleged insanity of the first accused. One Dr.Chandrasekar has been examined as DW2 and his specific evidence is that the first accused himself has reported that he is suffering from mental disease. Further he would say in his evidence that even at the time of giving treatment, the first accused has acted as a normal man. Therefore, the evidence adduced on the side of the first accused (both oral and documentary) for proving his alleged insanity cannot be accepted. 20. Further he would say in his evidence that even at the time of giving treatment, the first accused has acted as a normal man. Therefore, the evidence adduced on the side of the first accused (both oral and documentary) for proving his alleged insanity cannot be accepted. 20. At this juncture, it is pertinent to note that even at the time of remand of the first accused by the concerned Magistrate, he has not raised any plea with regard to alleged insanity. It is an admitted fact that the trial Court has found him guilty under Sections 302 and 506(ii) of the Indian Penal Code. If really even prior to occurrence, the first accused has been suffering from mental disease or disorder and even today the same position continues after Judgment of the trial Court, definitely he would have followed the correct procedure for filing the present Criminal Appeal. The present Criminal Appeal has been filed by the first accused himself as appellant without representing either by his relatives or by his friend. Therefore, it goes without saying that the alleged insanity of the first accused at the time of occurrence is nothing but a concocted story and the first accused is nothing but a “feigned insane person”. 21. The learned counsel appearing for the appellant/first accused has drawn the attention of the Court to the decision reported in (2012) 1 SCC (Cri) 406 (State of Rajasthan V. Shera Ram alias Vishnu Dutta), wherein the Hon'ble Supreme Court has relied upon Section 84 of the Indian Penal Code, 1860 and observed to the effect that from a bare reading of the provision of the said Section, if it is established that the accused is insane at the time of occurrence, he is entitled to get benefit of the said section. 22. Further in paragraph – 23, it is observed as follows: “The respondent examined Dr.Vimal Kumar Razdan, DW2, who deposed that he had examined the respondent and had given him treatment. He also produced the examination report in regard to the treatment of the respondent, Ex.D5, which was prepared in his clinic. According to the statement of the doctor and the prescription, the respondent was suffering from epilepsy and while describing post-epileptic insanity, this witness stated that after the epileptic attack, a patient behaves like an insane person and he is unable to recognise even the known persons and relatives. According to the statement of the doctor and the prescription, the respondent was suffering from epilepsy and while describing post-epileptic insanity, this witness stated that after the epileptic attack, a patient behaves like an insane person and he is unable to recognise even the known persons and relatives. During this time, there is a memory loss and the patient can commit any offence.” 23. It has already been pointed out that the appellant/first accused is nothing but a “feigned insane person”. Further the order passed by the trial Court before trial has not been challenged and virtually it has become final. The evidence adduced on the side of the appellant/first accused are not at all sufficient for coming to a conclusion that the first accused has committed the offence punishable under Sections 302 and 506(ii) of the Indian Penal Code during his insanity. Therefore, viewing from any angle, the first and foremost contention put forth on the side of the appellant/first accused is sans merit. 24. Now the Court has to analyse the second limb of argument advanced on the side of the appellant/first accused. The second limb of argument is that even from the evidence adduced on the side of the prosecution, the first accused has not aimed to murder the deceased and he tried to attack the daughter of the deceased by name Noorjahan by using a bamboo stick. But unfortunately, the attack hit on the head of the deceased and thereby caused fatal injuries. 25. As rightly pointed out on the side of the appellant/first accused, PWs.1 to 3 have given clear evidence to the effect that in the place of occurrence the first accused has tried to attack PW2, viz., Noorjahan by using a bamboo stick. But unfortunately the attack hit on the head of the deceased. 26. Considering the evidence given by the prosecution witnesses it is easily discernible that the first accused cannot be mulcted with punishment under Section 302 of the Indian Penal Code. On the basis of evidence given by prosecution witnesses and also the fact that only due to attack made by the first accused the deceased has passed away, the act of the accused would come within the purview of 304(ii) of the Indian Penal Code. 27. On the basis of evidence given by prosecution witnesses and also the fact that only due to attack made by the first accused the deceased has passed away, the act of the accused would come within the purview of 304(ii) of the Indian Penal Code. 27. At this juncture, a faint attempt has been made on the side of the appellant/first accused to the effect that the deceased has passed away after six days from the date of occurrence and therefore, he can be punished under section 323 of the Indian Penal Code. 28. The specific evidence given by PW8, post-mortem doctor is that the deceased died of head injury. Therefore, the Court cannot come to a conclusion that the act of the first accused would come within the purview of Section 323 of the Indian Penal Code. 29. As stated in many places, the first accused has also been found guilty under Section 506(ii) of the Indian Penal Code by the trial Court. With regard to that aspect, replete evidence is available on the side of the prosecution to the effect that the first accused has threatened to kill PW2, Noorjahan and therefore the offence punishable under Section 506(ii) of the Indian Penal Code has been clearly proved on the side of the prosecution. 30. It has already been pointed that the attack made by the first accused on the person of the deceased would come within the purview of Section 304(ii) of the Indian Penal Code and to that extent, this Criminal Appeal is liable to be allowed in part. 31. In fine, this Criminal Appeal is allowed in part. The conviction and sentence passed by the trial Court under Section 302 of the Indian Penal Code against the appellant/first accused are modified to the effect that the appellant/first accused is found guilty under Section 304(ii) of the Indian Penal Code and sentenced to undergo ten years rigorous imprisonment. No modification in respect of fine amount. The conviction and sentence passed by the trial Court against the appellant/first accused under Section 506(ii) of the Indian Penal Code are confirmed. The trial Court is directed to take appropriate steps so as to incarcerate the appellant/first accused in prison.