JUDGMENT : Mr. Mohammad Rafiq, J. 1. This appeal has been preferred by accused-appellant Muslim son of Habib, challenging judgment dated 31.07.2012 passed by the Additional Sessions Judge (Fast Track) No.1, Jhunjhunu, in Sessions Case No.3/2011 (162/2009) (157/09), where under he has been convicted for offence under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.2000/- (Rupees two thousand). 2. Briefly stated the facts of the case are that a written report was submitted by one Iqbal S/o Ibrahim at Police Station Kotwali, Jhunjhunu, on 02.09.2009 alleging therein that on 02.09.2009 at about 8:30 PM upon hearing hue and cry, his mother Ajijan W/o Ibrahim, aged 70 years, came out of her house and found that the accused had caught hold of a girl. He was having a broken bottle of glass in his hands. She ran towards him and tried to free the girl from his clutches, but accused-appellant Muslim S/o Habib attacked her with the broken bottle with an intention to kill and stabbed her 5-7 times. On hearing the noise, other residents of the colony came there and over powered the accused Muslim and also informed the police. An ambulance was called and she was taken to the hospital. Her condition was quite critical. She was still unconscious. It was alleged that accused-appellant Muslim had also caused injury to one more person, who ran away for fear of his life. 3. The police on receipt of aforesaid written report, lodged regular First Information Report No.320/2009 for offence under Section 307 of the IPC and commenced investigation. During treatment, Ajijan succumbed to injuries on 06.09.2009 and the case was converted into one for offence under Section 302 IPC and body of the deceased Ajijan was subjected to postmortem. On the conclusion of the investigation, the police filed a charge-sheet against the accused-appellant. The trial court, vide order dated 03.03.2011, framed charge against the accused-appellant for offence under Section 302 IPC. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 14 witnesses and exhibited 18 documents. On the conclusion of the investigation, the police filed a charge-sheet against the accused-appellant. The trial court, vide order dated 03.03.2011, framed charge against the accused-appellant for offence under Section 302 IPC. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 14 witnesses and exhibited 18 documents. The accused appellant, in his examination under Section 313 of the Code of Criminal Procedure, denied the allegations that he had committed any offence and took a defence that he was suffering from mental disorder for the last 10-15 years and therefore was unable to comprehend the consequences of his action. Learned trial court, however, by the impugned judgment and order, convicted and sentenced the accused-appellant as indicated above. 4. Heard learned counsel for the accused-appellant as also learned Public Prosecutor for the State. 5. Mr. A.N. Khan, learned counsel for accused-appellant, argued that the trial court has committed serious error of law in holding that the guilt of the accused-appellant was proved beyond reasonable doubt. The trial court failed to consider that the Deputy Superintendent, District Jail, Jhunjhunu, on 11.11.2009 moved an application for reception order regarding the appellant for admitting him to the Psychiatric Center, Jaipur. The trial court passed the reception order and the appellant was thus admitted there. The appellant was not produced before the trial court on 15.12.2009 and thereafter on 27.01.2010, as he was still under treatment. The appellant was produced before the trial court on 05.03.2010. The trial court on that date, again directed the jail authorities to make a report whether the appellant was fit to understand the implication of legal proceedings. The appellant was then subjected to medical examination and it was opined that he was not in a position to understand the implications of the judicial proceedings. The trial court therefore directed the prosecution to produce a fortnightly medical report regarding the medical condition of the accused-appellant. It is submitted that on 23.04.2010 when the matter was taken up by the trial court, the medical report of the accused-appellant was not received, therefore, the trial court again reiterated the earlier direction. When, however, the matter was listed on 05.06.2010 the report was yet not received. It is submitted that on 23.04.2010 when the matter was taken up by the trial court, the medical report of the accused-appellant was not received, therefore, the trial court again reiterated the earlier direction. When, however, the matter was listed on 05.06.2010 the report was yet not received. However, after writing the order-sheet the trial court received the report, in which it was opined that the appellant was not in a fit state of mind to understand the implication of the judicial proceedings. When the matter was fixed on 07.07.2010, the trial court noted that the report dated 22.06.2010 was received and the matter was fixed on 30.07.2010 for considering the same. In the meantime, another report dated 22.07.2010 was received by the trial court, in which it was opined that the appellant was not fit to understand the judicial proceedings. The trial court, however keeping in view the mental condition of the appellant, referred him to S.K. Hospital, Sikar, and for this reason the appellant could not be produced before the trial court on 03.09.2010. In the meantime, yet another report dated 04.08.2010 was received by the trial court in which it was opined that the appellant was not capable of understanding the judicial proceedings. 6. Mr. A.N. Khan, learned counsel for the accused-appellant, argued that when the evidence amply proved that the accused appellant was not in a good mental condition, the police moved an application for seeking permission to handcuff the accused appellant. The trial court, vide order dated 03.09.2010, permitted the police to handcuff the accused-appellant, which again proved that the accused-appellant was not in a good mental condition and therefore the court had to pass the order of handcuffing him. Learned counsel for the accused-appellant argued that it was well proved before the trial court that the accused-appellant was suffering from a mental disease and was not in a position to understand the judicial proceedings. The accused-appellant was suffering from schizophrenia and required further medical treatment, yet the trial court held that in the opinion of the medical board the accused-appellant was in a position to understand the judicial proceedings and proceeded to frame the charges against him by an order dated 03.03.2011. Even during this time and subsequent to framing of the charge, the accused appellant continued to remain under treatment in the hospital as indore patient. 7. Even during this time and subsequent to framing of the charge, the accused appellant continued to remain under treatment in the hospital as indore patient. 7. Learned counsel referred to Section 328 of the Code of Criminal Procedure, especially sub-section (1) thereof, to argue that the learned trial court could have directed examination of the accused-appellant by a civil surgeon of the district or such medical officer as the State Government may direct. In the present case the reports were continuously being received by the trial court from the Psychiatrist of the Government Hospital at Jhunjhunu, who opined that the accused-appellant was not in a position to understand the implications of the judicial proceedings. But then the learned trial court illegally referred the accused-appellant to S.K. Hospital, Sikar, whereas, according to sub-section (1) of Section 328 of the Cr.P.C., the accused-appellant could be examined only by the civil surgeon of District Jhunjhunu or any other medical officer as per the direction of the State Government. Sending the accused-appellant to S.K. Hospital, Sikar, for procuring the report of the medical board of that hospital declaring the accused-appellant as mentally fit to understand the implications of judicial proceedings, was wholly illegal. Learned counsel submitted that the trial court failed to appreciate various documents produced on behalf of the accused-appellant in defence, which proved his continuous treatment right from 2007 till the date of incident and even thereafter during trial. Learned counsel, in this connection, referred to documents Exhibit D-4 to Exhibit D-11, especially the document Exhibit D-11 dated 11.06.2007. All these documents have been proved by Dr. Lal Chand Dhaka (DW-1), who was holding the degree of M.D. (Psychiatry) and was a Junior Specialist & Head of the Department (Psychiatry) in the Government B.D.K. Hospital, Jhunjhunu, from August, 1996 till he took voluntary retirement in August, 2011. 8. Mr. R.S. Raghav and Mr. Sudesh Saini, learned Public Prosecutors, opposed the appeal and supported the impugned judgment of the learned trial court. They argued that learned trial court has rightly referred the accused-appellant for medical examination to Government S.K. Hospital, Sikar, and that hospital formed a Medical Board consisting of Dr. Mahesh Kumar, Junior Specialist (Psychiatrist) as Chairman and Member Dr. G.D. Natani, Junior Specialist (Psychiatrist) as Member. They argued that learned trial court has rightly referred the accused-appellant for medical examination to Government S.K. Hospital, Sikar, and that hospital formed a Medical Board consisting of Dr. Mahesh Kumar, Junior Specialist (Psychiatrist) as Chairman and Member Dr. G.D. Natani, Junior Specialist (Psychiatrist) as Member. The Medical Board in its unanimous opinion dated 26.02.2011 opined that the appellant remained hospitalized therein as an indoor patient from 21.01.2011 to 25.02.2011 under police custody. During that period, the Medical Board continuously examined him and supervised his treatment. The Medical Board eventually in its report opined that the accused-appellant was capable of understanding the legal proceedings. He was suffering from schizophrenia and was treated for this ailment in hospital. The trial court therefore was perfectly justified in framing the charges against the accused-appellant and proceedings with the trial, and eventually convicting and sentencing him as indicated above. 9. Learned Public Prosecutor has referred to statement of Mohammad Iqbal (PW-1) S/o deceased, who is eyewitness of the incident, who has proved that accused-appellant committed the murder of his mother by causing repeated stab wounds in her stomach with the broken glass bottle when she was trying to save the minor girl from his clutches. Yusuf (PW-2) and Inayat Ali (PW- 3) are other eyewitnesses, who have given similar statement. Dr. Narendra Singh Naruka (PW-9) has proved the postmortem report (Exhibit P-11), according to which deceased Ajijan sustained three incised wounds. He has also proved the injury report (Exhibit P-7) of the deceased as also injury report of Yusuf (Exhibit P-8) dated 23.09.2009, who also received injuries. Dr. Ram Lakhan Meena (PW-14) has proved the postmortem report of the deceased (Exhibit P-11), according to which the deceased died due to septicemia on account of ante mortem injuries leading to infection. Injury no.9 was opined to be sufficient in the ordinary course of nature to cause death. 10. We have given our thoughtful consideration to rival submissions and minutely scanned the evidence available on record. 11. Perusal of the record of the learned trial court clearly shows that not only before the incident but also after the incident and during the trial, the accused-appellant had been continuously suffering from serious ailment of chronic schizophrenia and was not capable of understanding the implications of judicial proceedings. Dr. 11. Perusal of the record of the learned trial court clearly shows that not only before the incident but also after the incident and during the trial, the accused-appellant had been continuously suffering from serious ailment of chronic schizophrenia and was not capable of understanding the implications of judicial proceedings. Dr. Lal Chand Dhaka (DW-1) has stated that he treated the appellant from 11.06.2007 to 04.08.2010 and has proved the documents pertaining to his treatment Exhibit D-4 to Exhibit D-11. 12. This witness has proved that the accused-appellant was under his treatment for the serious ailment of schizophrenia since 2007. He stated that he examined the accused-appellant on 11.06.2007 as also on 19.06.2007 and the prescription of his treatment is Exhibit D-11. He has also proved that he was Member of the Medical Board, which examined the accused-appellant on 14.03.2010. According to the report of the medical board, the accused-appellant was not mentally fit as he was suffering from schizophrenia and was not capable of understanding the judicial proceedings. The report of the medical board is Exhibit D-4. The accused-appellant was again examined by him on 18.05.2010, report of which is Exhibit D-5, which contained his signature. The accused-appellant was then examined on 02.06.2010, report of which is Exhibit D-6. In his opinion then expressed, the accused appellant was not mentally fit and not capable of understanding the judicial proceedings and he required continuous treatment. The accused-appellant was then examined on 06.07.2010, prescription of which is Exhibit D-7. He was then examined on 21.07.2010, the report of which is Exhibit D-8. The accused appellant also examined by this witness on 21.06.2010, the report of which is Exhibit D-6. In that report, the medical officer Dr. Lal Chand Dhaka proved that in fact the mental health of the accused appellant deteriorated because he was not being given a proper medication. Such a patient requires care and an attendant, who can regularly give him medicines but in jail this facility may not be available. The accused-appellant was then examined by him on 04.08.2010, the report of which is Exhibit D-10. This witness has stated that the accused-appellant was suffering from schizophrenia for a long time. Such patient remains under a delusion of hearing strange sounds and believes that everyone is against him and in that state of mind, he might harm himself as also others. This witness has stated that the accused-appellant was suffering from schizophrenia for a long time. Such patient remains under a delusion of hearing strange sounds and believes that everyone is against him and in that state of mind, he might harm himself as also others. Such patients require continuous treatment and if the treatment is stopped, they may come back to the same position. In cross-examination, this witness has stated that ailment of schizophrenia is of two kinds; one is acute schizophrenia, which can be cured by treatment, and another is of chronic schizophrenia, which is unlikely to get treated. In the opinion of Dr. Lal Chand Dhaka (DW-1), the accused-appellant was certainly not capable of understanding the implications of judicial proceedings. 13. There are other reports also available on record to substantiate that the mental condition of the accused-appellant was throughout unstable. Pursuant to order no.1039 dated 12.11.2009 of the Additional District & Sessions Judge (Fast Track) No.2, Jhunjhunu, Dr. Anil Tambi, the then M.L.C. Incharge, Unit-I, II, III, Psychiatrist Center, Jaipur, addressed a letter dated 19.11.2009 to that court informing that the accused-appellant was admitted in the hospital on 13.11.2009. The said doctor sent his medical opinion after treating the appellant as an indoor patient, vide communication dated 19.12.2011 stating that though there was improvement in the mental condition of the appellant and for the present, he would not cause any danger to himself and to others and was capable of looking after himself, but it is necessary to provide him treatment from time to time while being lodged in jail from Government Hospital, Jhunjhunu. However, he was not capable of understanding the legal proceedings. When all the reports were received from the Psychiatrist, learned trial court, vide order dated 05.06.2010, again directed that the appellant be examined by the Psychiatrist. In fact, an application was filed by one Prahlad Rai, A.S.I., Police Line, Jhunjhunu Camp, Sikar, on 03.09.2010, and the trial court directed the production of fortnightly medical reports of the accused-appellant. However, since Dr. Lal Chand Dhaka (DW-1), Junior Specialist & Head of the Department (Psychiatry) in the Government B.D.K. Hospital, Jhunjhunu, took voluntary retirement in August, 2011, learned trial court directed that the appellant be sent for medical examination by the Psychiatrist of Government S.K. Hospital, Sikar. However, since Dr. Lal Chand Dhaka (DW-1), Junior Specialist & Head of the Department (Psychiatry) in the Government B.D.K. Hospital, Jhunjhunu, took voluntary retirement in August, 2011, learned trial court directed that the appellant be sent for medical examination by the Psychiatrist of Government S.K. Hospital, Sikar. At this stage, Prahlad Rai, A.S.I., Police Line, Jhunjhunu Camp, Sikar, who was deputed with the appellant to move to Jhunjhunu for his treatment, submitted an application to the trial court that a permission be granted to handcuff the appellant because he was behaving like a mad and insane person and was also a very strong person by his built. Therefore, the trial court allowed that application and permitted handcuffing of the accused appellant and directed that periodical medical report regarding his mental health be submitted. The trial court by order dated 22.10.2010 directed the Incharge, District Jail, Jhunjhunu, to get specific medical report of the accused-appellant whether he was capable of understanding the judicial proceedings. On 18.11.2010 again the trial court noted that no such report had been received and thereafter reiterated the same order and the matter was posted on 18.12.2010, on which date again the same order was reiterated. Similar order was passed on 11.01.2011 and 08.02.2011. Record reveals that the trial court thereafter received the report of the medical board dated 26.02.2011 consisting of Chairman Dr. Mahesh Kumar, Junior Specialist (Psychiatrist) and Member Dr. G.D. Natani, Junior Specialist (Psychiatrist), which, stated that appellant remained hospitalized therein as an indoor patient from 21.01.2011 to 25.02.2011 under police custody. During that period, the Medical Board continuously examined him and supervised his treatment. The Medical Board eventually in its report opined that the accused-appellant was capable of understanding the legal proceedings. The trial court on that basis, by an order dated 03.03.2011 decided to proceed in the matter and on that same day, taking note of the fact that no counsel was appearing for the accused-appellant, appointed Mr. Sanjay Saini, Advocate, as amicus curiae, with a direction to the District Legal Service Authority to endorse his engagement and also allowed Mr. Sanjay Saini to file a 'vakalatnama'. Sanjay Saini, Advocate, as amicus curiae, with a direction to the District Legal Service Authority to endorse his engagement and also allowed Mr. Sanjay Saini to file a 'vakalatnama'. That court on that very day framed the charge against the accused-appellant for offence under Section 302 of the IPC and also summoned three witnesses, namely, PW-1 to PW-3 to be examined on 16.03.2011, and PW-4 to PW-6 on 17.03.2011 and PW-7 to PW-9 on 18.03.2011. The trial court thus proceeded in terms of the aforesaid directions. 14. Here, it would be of great significance to note that even during the proceedings of the trial, the condition of the appellant deteriorated. And when the Deputy Superintendent, District Jail, sent a communication to the court of Additional District & Sessions Judge (Fast Track) No.1, Jhunjhunu, on 21.10.2011 stating that the appellant was referred to Government B.D.K. Hospital, Jhunjhunu, for his treatment, but the doctors of that hospital have referred the accused-appellant to the Psychiatric Center attached to S.M.S. Hospital, Jaipur, which required reception order of the court for his admission there. The matter was listed before the trial court on 31.10.2011. Mr. Rakesh Sharma, the Superintendent, District Jail, Jhunjhunu, himself appeared to press the said request. The learned trial court therefore directed him to get the appellant treated in the said hospital and issued an appropriate reception order addressed to the Superintendent, Psychiatric Center, Jaipur, for treatment of the appellant and for sending fortnightly medical reports. The matter was thereafter next listed before the trial court on 09.11.2011, 08.12.2011, 11.01.2012, 16.02.2012, 23.03.2012 and 27.04.2012. On 27.04.2012 it was deferred because the appellant continued to remain hospitalized for his treatment at Jaipur. 15. Curiously, the appellant was then discharged from the Psychiatric Centre attached to the S.M.S. Hospital, Jaipur and was produced before the court on 01.06.2012, on which date the court again issued the warrant summoning the remaining witnesses, without recording any satisfaction as to whether the experts treating the appellant had certified that he was in fit state of mind and was capable of arranging his defence and understanding implications of judicial proceedings. We have carefully scanned all the above referred reports and do not find any such report either of individual Psychiatrist or a Medical Board of Psychiatric Centre, Jaipur, to that effect. We have carefully scanned all the above referred reports and do not find any such report either of individual Psychiatrist or a Medical Board of Psychiatric Centre, Jaipur, to that effect. Even then, the trial court proceeded with the trial and concluded the prosecution evidence on 09.07.2012 with a direction to fix the matter on 13.07.2012 for the examination of the accused under Section 313 Cr.P.C. On this date an application was again moved by the Amicus Curiae appearing for the accused that he was not capable of understanding the implications of judicial proceedings and thus was not in a position to give statement under Section 313 Cr.P.C. The application was opposed by learned Public Prosecutor. The trial court rejected the application by order dated 13.07.2012. It was thereafter that when the matter was fixed on 24.07.2012 for examination of the accused under Section 313 Cr.P.C., two applications were moved by the Amicus Curiae on behalf of the accused-appellant; one under Section 294 Cr.P.C. seeking to place on record various documents with regard to treatment of the accused-appellant prior to and subsequent to date of incident, and another application under Section 311 Cr.P.C. praying for summoning Dr. Lal Chand Dhaka (DW-1), Psychiatrist, who continuously treated the accused-appellant. Both the applications were allowed by the trial court vide order dated 24.07.2012. The important documents with regard to the treatment of the accused-appellant, which otherwise ought to have been produced by the prosecution, were brought on record by the defence and statement of Dr. Lal Chand Dhaka, who was the specialist for psychiatry and remained posted for a pretty long time with the Government Hospital, Jhunjhunu and was the one who treated the appellant continuously, was recorded as a defence witness. Yet the learned trial court when it finally pronounced the judgment on 31.07.2012 convicted and sentenced the accused-appellant in the manner indicated above. 16. The manner in which the proceedings in the present case were conducted leaves much to be desired. The approach of the learned trial Judge towards the conduct of the proceedings in the present case has throughout been oblivious of the legal position with regard to those suffering from mental ailment and arrayed as accused before it. 16. The manner in which the proceedings in the present case were conducted leaves much to be desired. The approach of the learned trial Judge towards the conduct of the proceedings in the present case has throughout been oblivious of the legal position with regard to those suffering from mental ailment and arrayed as accused before it. This is despite the fact that the chronic medical condition of the accused suffering from chronic schizophrenia prior to the incident, at the time of incident and even subsequent thereto, was substantially documented on record. It is also proved by Dr. Lal Chand Dhaka, the treating doctor. What is more surprising is the fact that the prosecution, which ought to have produced the documents with regard to the treatment of the accused-appellant in Government Hospital, Jhunjhunu, withheld all such documents and it is owing to the timely steps taken by learned Amicus Curiae, who filed application under Section 294 of the Cr.P.C., that the documents Exhibit D-4 to Exhibit D-11 were taken on record and it is pursuant to his another application under Section 311 of the Cr.P.C. that the trial court could be persuaded to examine Dr. Lal Chand Dhaka, treating psychiatrist of the accused-appellant, as DW-1. One wonders why the prosecution would not produce all these documents when some of these pertained to the treatment of the accused-appellant during the time he was facing the trial and was being sent to the psychiatry expert for treatment under the order of the trial court itself. Evidence in this case thus clearly bear it out that the accused was suffering from chronic schizophrenia and this mental ailment was active not only prior to incident but also on the date of the incident and even subsequent to it. 17. It is quite painful to note that even during the pendency of the appeal the accused-appellant, who remained lodged in Central Jail, Bikaner, was not being provided regular treatment. This court, vide order dated 09.03.2017, directed learned Public Prosecutor to inform the court about the present mental status of the appellant as also his conduct during lodgment in jail. Learned Public Prosecutor has produced the report dated 20.03.2017 sent by the Superintendent, Central Jail, Bikaner, with which the report of Superintendent, Psychiatric Center, Jaipur, dated 13.03.2017, is enclosed. This court, vide order dated 09.03.2017, directed learned Public Prosecutor to inform the court about the present mental status of the appellant as also his conduct during lodgment in jail. Learned Public Prosecutor has produced the report dated 20.03.2017 sent by the Superintendent, Central Jail, Bikaner, with which the report of Superintendent, Psychiatric Center, Jaipur, dated 13.03.2017, is enclosed. The accused-appellant, while he was serving out the sentence in Central Jail, Bikaner, due to active chronic schizophrenia, committed murder of three fellow prisoners on 28.06.2013, who are named (1) Karnel Singh S/o Sher Singh (convict), (2) Moolaram S/o Bhaira Ram (convict) and (3) Pawan S/o Ramchandra (under trial prison), by hitting their heads with a brick. Learned Public Prosecutor has produced a latest medical report dated 27.03.2017 obtained from the Psychiatric Center, Jaipur, according to which the ailment of the accused-appellant is still in active state, which is now being described as "Treatment Resistant Schizophrenia", in whose opinion the appellant is not capable of understanding the implications of judicial process. 18. Section 84 of the IPC is one of the provisions in Chapter IV IPC, which deals with "general exceptions". That section provides that nothing is an offence, which is done by a person who, at the time of doing it, by the 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. The burden of proving the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused under Section 105 of the Indian Evidence Act. When this question is examined in totality of circumstances and the nature of evidence available in the present case, it is evident that the accused was indeed suffering from schizophrenia. Schizophrenia is a serious mental illness that interferes with a person's ability to think clearly, manage emotions, make decisions and relate to others. It impairs a person's ability to function to their potential when it is not treated. People with schizophrenia are far more likely to harm themselves than being violent toward the public. When violence does occur, it is most frequently targeted at family members and friends, and more often takes place at home. It impairs a person's ability to function to their potential when it is not treated. People with schizophrenia are far more likely to harm themselves than being violent toward the public. When violence does occur, it is most frequently targeted at family members and friends, and more often takes place at home. Therefore, in the facts of present case, we have no hesitation in holding that the trial was vitiated for noncompliance of the mandatory provisions of Chapter XXV of the Code of Criminal Procedure. 19. Chapter XXV of the Cr.P.C. contains the provisions with regard to such situation where the accused produced before the court for trial, appears to be of unsound mind or suffering from any mental disease. Section 329 (1) of the Cr.P.C. is relevant provision, which is attracted when at the trial of any person before a Magistrate or Court of Sessions, it appears to the Magistrate or Court of Sessions that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or the Court shall, in the first instance, try to find 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. Sub-section (1A) of Section 329 of the Cr.P.C. mandates that if during trial, the Magistrate or Court of Sessions, finds that 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. According to subsection (2) of Section 329 of the Cr.P.C. if the court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the court shall further determine whether the 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 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 of the Cr.P.C. Proviso to subsection (2) of Section 329 Cr.P.C., however, stipulates that if the 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. Sub-section (3) of Section 329 of the Cr.P.C. however emphatically provides that if the court finds that a prima facie case is made out against the accused and he is incapable of entering defence by the reason of mental retardation, he shall not hold the trial and order the accused to be dealt with in accordance with Section 330. 20. Special provision has been engrafted in Section 330 of the Cr.P.C., which provides that whenever a person is found under Section 328 or Section 329, to be incapable of entering defence due to unsoundness of mind or mental retardation, the court shall, whether the case is one in which bail may be taken or not, order release of such person on bail, provided that the unsoundness of mind or mental retardation, which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent him from inflicting injury to himself or to any other person. Sub-section (2) of Section 330 of the Cr.P.C., however, provides that if the case is one in which, in the opinion of the court, bail cannot be granted or if an appropriate undertaking is not given, he shall order the accused to be kept in such a place where a regular psychiatric treatment can be provided, and shall report the action taken to the State Government. This provision is subject to proviso that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987. Sub-section (3) of Section 330 of the Cr.P.C. further provides that whenever a person is found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the court shall, keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered. This action is subject to two provisos, namely, (a) if on the basis of medical opinion or opinion of a specialist, the Court decides to order discharge of the accused, as provided under Section 328 or Section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person, and (b) if the Court is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training. 21. Analysis of the above referred provisions, which provide for special safeguards, would show that upon the compliance of provisions of Sections 328, 329 and 330 of the Cr.P.C., if the court is later informed that the person concerned has ceased to be of unsound mind, then and then only it can, in accordance with Section 331 of the Cr.P.C., resume the trial and require the accused to appear or be brought before it. Here also there is a rider in sub-section (2) of Section 331 of the Cr.P.C. that if the accused is released under Section 330 of the Cr.P.C., and the sureties for his appearance produce him to the officer whom the court appoints in this behalf, the certificate of such officer that the accused is capable of making his defence shall be receivable in evidence. 22. The Supreme Court in Dr. Jai Shanker (Lunatic) through Vijay Shanker Brother Guardian v. State of Himachal Pradesh - (1973) 3 SCC 83 , dealt with a case where the Magistrate failed to make the inquiry envisaged in Section 464 of the Cr.P.C., 1898 (old Code), as to the incapacity of the accused in making his defence, and held that the committal proceedings as also his order committing the appellant to the Sessions Court for trial, were both vitiated. 23. A Division Bench of Karnataka High Court in Pujappa v. The State - 1991 Cri.L.J. 1189, dealt with a case wherein after-medical examination, the trial court did not try the fact of the purported unsoundness and incapacity of the accused. It did not record finding as to his mental condition and defending capacity and without fulfilling this initial obligation forthwith resumed and concluded the trial on the main charge itself. The High Court observed that the resulting lacuna was not innocuous but vital and held that this vital lacuna would vitiate the trial. 24. A Division Bench of Andhra Pradesh High Court in Chittmalla Krishna Murthy v. State of A.P. - 2001 Cri.L.J. 2457, dealt with a case where a letter was sent by doctor to court showing that accused was not in a position to optimally and meaningfully participate and instruct his counsel for the conduct of trial but the trial court without recording any finding thereon whether the accused had recovered from his illness at the time of commencement of trial and was able to formulate his defence, proceeded with the trial. The High Court held such irregularity to have vitiated the entire trial and set aside the conviction. 25. The High Court held such irregularity to have vitiated the entire trial and set aside the conviction. 25. The Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. The burden of proof on the accused to prove insanity is no higher than that rests upon a party to civil proceedings which, in other words, means preponderance of probabilities. The Supreme Court in that case held as under: "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebut table presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged." 26. As to crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 IPC, the Supreme Court in Dahyabhai Chhaganbhai Thakkar, (supra) further held as under: "When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime." 27. The Supreme Court in the aforesaid case has stated the legal position regarding the burden of proof in the context of plea of insanity in the following propositions: "(i) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests upon the prosecution from the beginning to the end of the trial; (ii) There is a rebut table presumption that the accused was not insane, when he committed the crime, in the sense laid down in Section 84; the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings, that is, to prove his defence by a preponderance of probability; (iii) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case of the Court would be entitled to acquit the accused on the ground that the general burden resting on the prosecution was not discharged." 28. The Supreme Court in Shrikant Anandrao Bhosale v. State of Maharashtra, (2002) 7 SCC 748 while dealing with a question what is paranoid schizophrenia, when it starts, what are its characteristics, in para 10 and 11 of the judgment held as under: "10. What is paranoid schizophrenia, when it starts, what are its characteristics and dangers flowing from this ailment? Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develops into delusions of persecution. Auditory hallucinations follow, which in the beginning, start as sounds or noises in the ears, but are afterwards changes into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room, and people are plotting against him to ruin him. Disturbances of general sensation gives rise to hallucinations, which are attributed to the effects of hypnotism, electricity wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions. Since so many people are against him and are interested in his ruin, he comes to believe that he must be a very important man. The nature of delusions thus may change from prosecutory to the grandiose type. He entertains delusions of grandeur, power and wealth, and generally conducts himself in a haughty and overbearing manner. The patient usually retains his money and orientation and does not show signs of insanity, until the conversations is directed to the particular type of delusion from which he is suffering. When delusions affect his behaviour, he is often a source of danger to himself and to others. (Modi's Medical Jurisprudence and Toxicology 22nd Edn.) 11. Further, according to Modi, the cause of schizophrenia is still not known but hereditary plays a part. The irritation and excitement are effects of illness. On delusion affecting behaviour of patient, he is source of danger to himself and to others." 29. (Modi's Medical Jurisprudence and Toxicology 22nd Edn.) 11. Further, according to Modi, the cause of schizophrenia is still not known but hereditary plays a part. The irritation and excitement are effects of illness. On delusion affecting behaviour of patient, he is source of danger to himself and to others." 29. The Supreme Court in State of Punjab v. Mohinder Singh, (1983) 2 SCC 274 was dealing with a case wherein the accused was examined before as well as after the occurrence by two doctor and was found to be schizophrenic. Evidence of both the doctors was corroborated by each other. Abnormal behaviour of the accused therein was also apparent from the evidence on record. The Supreme Court held that acquittal of the accused by the High Court was just and proper. 30. The Supreme Court in State of Rajasthan v. Shera Ram alias Vishnu Dutta, (2012) 1 SCC 602 held that thinking of the faculty of accused was impaired to such an extent that the intention/knowledge requisite to constitute an offence cannot be imputed to him, which would consequently absolve him of culpability. It was further held that the respondent therein killed deceased while in a state of insanity induced by epileptic fit and was, therefore, rightly acquitted. The Supreme Court in para 17 of the judgment held as under: "17. To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosus nulla voluntuas est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behaviour." 31. Jharkhand High Court in Saraswati Rani v. State of Jharkhand, 2016 CRI.L.J. 4877 was dealing with a case wherein the accused-appellant had allegedly committed the murder of her son. Plea of insanity with reference to Section 84 IPC was set up by the defence. Jharkhand High Court in Saraswati Rani v. State of Jharkhand, 2016 CRI.L.J. 4877 was dealing with a case wherein the accused-appellant had allegedly committed the murder of her son. Plea of insanity with reference to Section 84 IPC was set up by the defence. It was held by the Supreme Court that benefit of Section 84 IPC was available to a person who, at the time when the act was done was incapable of knowing the nature of his/her act or that what he/she was doing was wrong or contrary to law. The implication of this provision is that the offender must be of such mental condition at the time when the act was committed and the fact that he/she was of unsound mind earlier or later are relevant only to the extent that they, along with other evidence, may be circumstances in determining the mental condition of an accused on the day of incident. In that case, a mention was made about the mental condition of the accused in the FIR itself and then subsequently, she was admitted to the hospital for treatment and was referred to a higher centre for further treatment and remained hospitalised for quite some time. All these aspects were held to be relevant factors while deciding the question of her mental condition at the time of incident. 32. The Division Bench of this Court at Principal Seat at Jodhpur in Vidhya Devi v. State of Rajasthan, 2004 (2) R.C.C. 583 was dealing with a case where the accused-appellant was also suffering from schizophrenia and was convicted under Section 302 IPC on an allegation of the murder of her own husband by inflicting multiple injuries with an axe. It was held by the Division Bench of this Court that the appellant therein proved the existence of circumstances bringing her case within the purview of Section 84 IPC namely (i) furious and violent at the time of committing murder, controlled with difficulty, labouring under the defect of reason; (ii) further developments, clearly reveal that she was a patient of schizophrenia (one of the forms of insanity); (iii) Hospitalisation for treatment continuously for three years, twice sent back to hospital by the court after it found her abnormal; (iv) Schizophrenia existed before and after the occurrence, therefore, defence of insanity proved. In view of above discussion, the appellant must be held to have been suffering from disease of Schizophrenia not only before the incident, but also at the time of incident as also subsequent to incident and thus, entitling him to the benefit of exception is carved out in Section 84 IPC. Adverting now to the present case, this court finds that entire proceedings before the trial court was vitiated for the reason that no satisfaction was recorded by the experts to the subject of psychiatric of Psychiatric Center, Jaipur, whether the appellant was capable of understanding the implications of the judicial proceedings and arranging his defence, even then the trial court resumed the proceedings from 03.03.2011, but considering that the appellant had taken the defence of insanity, which has amply been proved, this court does not find any justification in remanding the matter as the appellant deserves to be acquitted. 33. In the result, the present appeal deserves to succeed and is accordingly allowed. The impugned judgment and order dated 31.07.2012 passed by the trial court is set aside. Accused-appellant Muslim S/o Habib is acquitted of the charge for offence under Sections 302 IPC. 34. Considering, however, that the appellant is still hospitalized in Psychiatric Center attached to the S.M.S. Hospital, Jaipur, and is undergoing treatment, this court directs that the appellant may be continued to be hospitalized in the said Center for his further treatment at the State expenses in accordance with the provisions of the Mental Health Act, 1987 and that of the State Mental Health Rules, 1990, under the supervision of the Superintendent of that Center. A monthly report with regard to his treatment shall be forwarded to the trial court, which shall pass appropriate order as may be deemed necessary in accordance with the law and take necessary decision as to whether the custody of the appellant can be handed over to his near relative as per the provisions of Section 335 of the Cr.P.C. on his furnishing security to the satisfaction of the trial court that he shall be properly taken care of and prevented from causing any injury to himself or to any other person; and shall be produced for inspection of such officer, and at such times and places, as the trial court may direct. 35. 35. A copy of this judgment be sent to the Principal Secretary, Department of Medical and Health, Government of Rajasthan, Jaipur, for further necessary action.