JUDGMENT : J. B. Pardiwala, J. As the captioned criminal confirmation case as well as the criminal appeal arise from a selfsame judgment and order of conviction and sentence of capital punishment, those were heard analogously and are being disposed of by this common judgment and order. 2. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounder duty of the Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied, but for that mistake. This is aptly summed up in the maxim "Actus curiae neminem gravabit." (Jang Sing vs. Brij Lal & Ors., (1966) AIR SC 1631) CRIMINAL APPEAL NO.74 OF 2017 3. This appeal is at the instance of a convict-accused and is directed against the judgment and order of conviction and death sentence passed by the 3rd Addl. Sessions Judge, Mehsana at Vishnagar dated 29th September, 2016 in the Sessions Case No.48 of 2015. 4. The appellant was put on trial in the court of the 3rd Addl. Sessions Judge, Mehsana at Vishnagar for the offences punishable under sections 302, 307, 333, 353, 324, 504 and 506(2) of the IPC and section 135 of the Gujarat Police Act. At the conclusion of the trial, the Trial Court held the appellant guilty of the offences punishable under sections 302, 324, 307, 353, 332 and 333 of the IPC and section 135 of the Gujarat Police Act. The appellant, however, came to be acquitted by the Trial Court of the offences punishable under sections 504 and 506(2) of the IPC. The Trial Court, having regard to the serious nature of the offence being one of triple murder, sentenced the appellant to death. The appellant also came to be sentenced to rigorous imprisonment for a term of 10 years with fine of Rs. 1,000/- for the offence punishable under section 307 of the IPC. For the offence punishable under section 324 of the IPC, the Trial Court imposed sentence of three years of simple imprisonment with fine of Rs. 500/- For the offence punishable under section 332 of the IPC, the appellant came to be sentenced to undergo two years of simple imprisonment with fine of Rs. 500/-. For the offence punishable under section 324 of the IPC, the Trial Court imposed sentence of three years of simple imprisonment with fine of Rs. 500/- For the offence punishable under section 332 of the IPC, the appellant came to be sentenced to undergo two years of simple imprisonment with fine of Rs. 500/-. For the offence punishable under section 333 of the IPC, the Trial Court sentenced the appellant to undergo 10 years of rigorous imprisonment with fine of Rs. 500/-. For the offence under section 353 of the IPC, the Trial Court sentenced the appellant to undergo one year of simple imprisonment with fine of Rs. 100/- and for the offence punishable under section 135 of the Gujarat Police Act, the appellant came to be sentenced to undergo six months of simple imprisonment with fine of Rs. 100/-. The case of the prosecution 5. One Dashrathji Punjaji Thakore, a resident of Malarura, Tal: Kheralu examined by the prosecution as the P.W. No.6, Exh.43, lodged a first information report dated 15th April, 2015 at the Kheda Police Station as regards the incident. The first information report, Exh.44, reads as under; "I, Dashrathji Punjaji Thakore, Aged: 45, Occupation: Agriculturist, Resident of Malarpura, Thakore Vas, Tal: Kheralu, District: Mehsana, Mobile No.9726030765. Having come personally I hereby give my complaint that I am residing at the above mentioned addressed with the members of my family. I am having 2 Vigha land in the sim of village Malarpur. By doing agricultural work, I am earning my livelihood. I am residing behind my cousin brother Babuji Nathuji. Today, at around 6:30 in the morning, I woke up and when I saw towards the house of my cousin brother Babuji, nobody was there outside the house. At that time, the wife of my nephew Nagjiji, namely, Dakshaben came outside the house. As she was bleeding from the head, I asked her as to what had happened. However, she did not tell anything. I took Dakshaben to my house and called 108 ambulance so as to take her to the hospital. Thereafter, when I inquired about my cousin brother Babuji Nathuji and my Bhabhi Mansiben, I found my cousin brother Babuji lying in the water butt. However, she did not tell anything. I took Dakshaben to my house and called 108 ambulance so as to take her to the hospital. Thereafter, when I inquired about my cousin brother Babuji Nathuji and my Bhabhi Mansiben, I found my cousin brother Babuji lying in the water butt. There was bleeding on his head Hence, I started shouting, due to which, our cousin brother Arjanji Nathuji, Thakore Jivanji Gambhirji, Thakore Laxmanji Valmaji, Thakore Seghaji Motiji, Thakore Prahladji Seghaji and Thakore Shambhuji Suraji etc. came there. When we saw inside the room, we found Mansiben lying there in a bleeding condition. We also found Dharti, daughter of Nagjiji lying on the cot in a bleeding condition. As 108 ambulance came, Dakshaben was taken in the same and started giving treatment to Dakshaben. In the meantime, Police also came there. At that time, Thakore Nagjiji opened the door and came outside the house by dragging his son Akash, aged about five years and started abusing. He got further instigated when he saw the police. He made an attack on the police, in which, two police persons were injured. When my brother Thakore Ghemarji Punjaji intervened, he gave a blow on his head by an Axe. As he was wildly abusing and giving threat of death consequences, the other village people also gathered and caught him. They sent injured Dakshaben, Thakore Ghemarji Punjaji and the police person in the 108 ambulance for treatment. This Thakore Nagjiji Babuji, Resident of Malarpura, Taluka: Kheralu is a short tampered person. He, on account of some mysterious reasons got instigated and today, on 15.04.2015, before 6:30, at any time, one by one, made an assault with the Axe on my cousin brother Thakore Babuji Nathuji, aged 55, Thakore Mansiben W/o. Babuji Nathuji, aged 50 and Dharti D/o. Nagjiji Babuji aged 3 year, all residents of Malarpura, Tal: Kheralu. They succumbed to the injuries and died. He also inflicted injuries on the witnesses and abused them and gave threat of death consequences. He also made an assault and tried to kill the police person while they were on duty. He also tried to kill the witnesses. He has not inflicted any injuries to his son Akash, aged 5 years. While the village people tried to catch hold him, he resisted, due to which, Nagjiji also received some minor injuries. He also made an assault and tried to kill the police person while they were on duty. He also tried to kill the witnesses. He has not inflicted any injuries to his son Akash, aged 5 years. While the village people tried to catch hold him, he resisted, due to which, Nagjiji also received some minor injuries. Hence, it is my complaint to take legal action against Nagjiji Babuji. The facts narrated by me, hereinabove, is true and correct to the best of my knowledge." 6. Thus, it appears that the appellant herein, on the date of the incident, behaved like a man possessed and laid an indiscriminate assault on the members of his family with an Axe in his hand. The appellant first inflicted serious injuries on his wife Dakshaben. Thereafter, he laid an assault on his father, mother and in the last, he did not even spared his three year old daughter. All the three, i.e., the father, mother and the three year old daughter succumbed to the injuries and died. Dakshaben, the wife of the appellant was fortunate enough to survive although she had suffered serious injuries. The appellant did not stop after the assault on his family members, but also laid an assault on the police officers who reached the place of occurrence and the police officers also came to be seriously injured. 7. The appellant was arrested, and at the end of the investigation, charge-sheet was filed for the offences enumerated above. As the case was exclusively sessions triable, the same came to be committed to the Court of Sessions under the provisions of section 209 of the Cr.P.C, and upon committal, the same came to be registered as the Sessions Case No.48 of 2015. The Trial Court, vide order, Exh.5 dated 19th November, 2015, framed the following charge; "I, K. M. Dave, 2nd Addl. Sessions Judge, Mehsana at Vishnagar, frame the following charge against You, the accused-Nagjiji Babuji Nathuji, Aged 32, Resident of Malarpur, Tal: Kheralu, District: Mehsana that; (1) You are residing at Malarpura, Thakore Vas, Taluka: Kheralu, Dist: Mehsana with your family consisting of your father Thakore Babuji Nathuji, mother Thakore Manchiben, wife Dakshaben, daughter Dharti Aged 3 an son Akash, aged 5. You are working at Palanpur and come to stay with your family in the weekend, i.e. on Saturday-Sunday. You are working at Palanpur and come to stay with your family in the weekend, i.e. on Saturday-Sunday. You had a doubt on your wife, particularly, about the relations between your father and wife. You were at home with your family on 14.04.2015 including your children and wife Dakshaben. While your mother Manchiben went to sleep in the room and your father Babuji in the Vada, at that time, you, the accused, keeping doubt on your wife, started quarreling with her. Hence, your mother Manchiben knocked the door of your house at about 12:00 to 12:30 and chide your wife Dakshaben. However, as you have a doubt in your mine, you thought that your father had knocked the door. You got instigated and went outside the house with an Axe and used an abusing language. You found your mother Manchiben outside the house and gave consecutive Axe blows to her. At that time, when your father intervened, you also gave consecutive Axe blows him. When your wife Dakshaben, and daughter Dharti, aged 5, tried to went outside the house, you gave consecutive Axe blows to them also. Your inflicted injuries to your daughter Dharti on her head. Therefore, between the night of 14.04.2015 and morning of 15.04.2015, you made an assault on your mother Manchiben Babuji Thakore, Babuji Nathuji Thakore and daughter Dharti and committed an offence of murder punishable under section 302 of the IPC. (2) At the time and place mentioned in the issue No.1, you, the accused, committed the above mentioned offence. You inflicted injuries on the head of your wife Dakshaben with an intention to kill her. On 15.04.2015, at about 7:30, you committed the offence as mentioned in the issue No.1. In anger, you were moving around here and there outside your house with an Axe in your hand, keeping you son Akash with you. When Bhemarji Punjaji and other police persons tried to caught hold of you, you gave consecutive Axe blows to Bhemarji on his spine, head near his right ear and on both hands and tried to kill him. Hence, you inflicted the above mentioned injuries on your wife Dakshaben and witness Ghemarji with an intention to kill them and committed the offence punishable under sections 324, 307 and 353 of the IPC. (3) At the place mentioned in the Issues Nos. Hence, you inflicted the above mentioned injuries on your wife Dakshaben and witness Ghemarji with an intention to kill them and committed the offence punishable under sections 324, 307 and 353 of the IPC. (3) At the place mentioned in the Issues Nos. 1 and 2, on 15.04.2015, in the morning hours, when the village people and the police persons, who were on duty, tried to caught hold of you, you inflicted injuries with an Axe to an unarmed head constable Gulabsinh Nathusinh and on the head of A.S.I Bababhai Mansangbhai with an intention to kill them and committed the offence punishable under sections 332, 333, 307 and 353 of the IPC, under sections 504 and 506(2) of the IPC for giving threat of death consequences to the injured persons and the people of the village and under section 135 of the GP Act by inflicting injuries with an Axe to the witnesses, thereby breached the notification of the prohibition of Arms. In view of the above, it is ordered that an appropriate legal proceeding be conducted against you in this Court. " 8. The prosecution, in the course of the trial, examined, in all, 22 witnesses and also led documentary evidence in support of its case. 9. The Trial Court framed the following points of determination in its judgment to determine the guilt of the accused; "(1) Whether the complainant, without any doubt, proves that the injuries received by the injured witnesses were inflicted with an Axe used at the time of the incident and they are serious in nature, and whether the deceased Mansiben Babuji Thakore, Babuji Nathuji Thakore and Dharti Nagjiji Thakore were died on account of the deadly injuries received by them and their death is unnatural? (2) Whether the complainant, without any doubt, proves that on 15.04.2015, the accused made an assault and inflicted injuries with an Axe on the head of the on duty police persons/witnesses, namely, unarmed head constable Gulabsinh Nathusinh and A.S.I Bababhai Mansangbhai Chaudhari of the Kheralu Police Station with an intention to kill them when they tried to caught hold of the accused, thereby committed the offence punishable under sections 332, 333, 353, 307 and 324 of the IPC. (3) Whether the complainant, without any doubt, proves that the accused was residing with his mother Manchiben Babuji, father Babuji Nathuji, wife Dakshaben, daughter Dharti aged 3 and son Akash, aged 5, at Malarpura, Thakore Vas and was working at Palanpur and came to stay with his family on Saturday and Sunday, and that the accused doubted his wife, particularly, in respect of the relation between his wife and father, and that on 14.04.2015, the accused was present in his house with his family and that the wife of the accused was present with their child and his mother Manchiben went to sleep in the room and his father Babuji went to sleep in the Vada and at that time, as he had a doubt on his wife, started quarreling with her, due to which, the mother of the accused knocked the door of the house at about 12:00 to 12:30 and called Dakshaben outside the house and chide her and that as he had a doubt in his mind, he though that his father Babuji had knocked the door whereupon he got instigated and opened the door and went outside the house with an Axe in his hand and started abusing and when he saw his mother Manchiben outside the house, he gave consecutive Axe blows to her and at that time, when the father of the accused Babuji Thakore, near the water butt, tried to talk to the accused, he gave consecutive Axe blows to him also and that when the wife of the accused and his daughter Dharti, aged 5, tried to went outside the house, he gave consecutive blows to them also, due to which, Dharti received injuries on her head and, therefore, between the night of 14.04.2015 and the morning of 15.04.2015, the accused has committed the murder of his mother Manchiben Babuji, father Babuji Nathuji Thakore and daughter Dharti punishable under section 302 of the IPC.? (4) Whether the complainant, without any doubt, proves that at the time, place and date of the incident, the accused committed the offence and that the accused gave an Axe blow to his wife with an intention to kill her and that the accused was moving around his house here and there with an Axe in an anger keeping his son Akash with him and that when Ghemarji Punjaji Thakore and the police persons tried to caught hold of him, the accused tried to kill Ghemarji by giving consecutive Axe blows on his spine, on his head near the right ear and on his both hands and that the accused inflicted injuries on his wife Dakshaben and Ghemarji with an intention to kill them, thereby committed the offence punishable under sections 324, 307 and 353 of the IPC? (5) Whether the complainant, without any doubt, proves that at the time, place and date of the incident, the accused abused the injured persons and the people of the village and also gave threat of death consequences to them, thereby committed the offence punishable under sections 504 and 506(2) of the IPC? (6) Whether the complainant, without any doubt, proves that at the time, place and date of the incident, despite there being existence of the notification of the District Magistrate regarding prohibition to keep arms, the accused came with a weapon in public thereby committed the offence punishable under section 135 of the GP Act.? (7) What order?" 10. The points of determination framed by the Trial Court came to be answered as under; "(1) In the affirmative. (2) In the affirmative (3) In the affirmative (4) In the affirmative (5) In the negative. (6) In the affirmative. (7) As per the final order." 11. Ultimately, upon appreciation of the oral as well as the documentary evidenced on record, the Trial Court held the appellant herein guilty of the offence of murder of his father, mother and three year old daughter and also for the offence of an attempt to commit the murder of his wife, namely, Dakshaben and also for causing injuries to the police officers, held the appellant guilty of the offences enumerated above and sentenced him to death. 12. 12. As the Trial Court thought fit to impose death penalty, it forwarded the record and proceedings of the Sessions Case No.48 of 2015 to this Court under the provisions of section 366 of the Cr.P.C for confirmation of the death sentence. The appellant, being dissatisfied with the judgment and order of conviction, preferred the Criminal Appeal No.74 of 2017. 13. We started going through the oral evidence on record. After going through the oral evidence of the eye witnesses to the incident, more particularly, the evidence of the P.W. No.6, Dashrathji Punjaji Thakore, Exh.43 (original first informant) and the evidence of the P.W. No.8 Dakshaben, Exh.47 (wife of the accused and injured witness) and the evidence of few other witnesses, we were left wondering about the mental state of mind of the accused at the time of the commission of the offence. However, we noticed that in the course of the trial, the appellant had not raised any plea of insanity in accordance with the provisions of section 84 of the IPC. We also noticed that no evidence in this regard was led by the defence. Even in the section 313 statement of the accused recorded by the Trial Court, no such plea of insanity was raised by the accused. 14. However, while going through the original record, we noticed something very glaring and important. The first thing that came to our notice is one letter dated 21.04.2015 addressed by the Jailor of the Sub-Jail, Kheralu to the Judicial Magistrate, First Class, Kheralu as regards the transfer of the accused from the Kheralu Sub-jail to the Central Jail, Mehsana. The letter reads thus; "No.Sub-Jail/Vashi/Aaropi/Transfer/15 Sub-Jail, Kheralu, Ta. Kheralu Date:21/04/2015 To, The Judicial Magistrate First Class, Kheralu. Sub.: To transfer the accused: Thakor Nagjiji Babuji, Residing at: Malarpura, Ta. Kheralu. It is to state that the accused: Thakor Nagjiji Babuji, Residing at: Malarpura, Ta. Kheralu is sent in this Sub-jail for the offence u/s. 302, 307, 333, 353, 324, 504, 506(2) of the IPC and Section-135 of the G.P. Act registered at Kheralu Police Station vide C.R. No.35/2015. The said accused is a fanatic having a strong physique and it is not possible to keep him in this jail. He is a strong headed person and can cause harm to the other accused. The said accused is a fanatic having a strong physique and it is not possible to keep him in this jail. He is a strong headed person and can cause harm to the other accused. It is also possible that he may escape at anytime, therefore, you are requested to transfer the said accused to the Central Jail, Mahesana. Moreover, presently there are four accused in this jail and there is a probability of increase. The other accused are scared of this accused and they live under a constant threat. He creates tumult in the night and it can't be presumed as to when he will try to escape. Moreover, this jail has been declared as unsuitable by the Police Housing Corporation, Mahesana. Therefore, you are requested to transfer the said accused immediately. Sd/- (Illegible) Sub-Jail, Kheralu" 15. The record further reveals that one letter dated 3rd September, 2015 was addressed by the In-charge Superintendent, Mehsana District Jail to the JMFC, which reads as under; "Outward No. UTP/6078/2015 Office of Superintendent, Mehsana Mehsana District Jail, Mehsana. Phone No. (O) 2762- 251103 (F) 02762-232253 Email- spl-jail-mehsub@gujarat.gov.in Date:- 03/09/2015 To, The Judicial Magistrate, JMFC Court, Kheralu, Mehsana. Subject:- To forward treatment report of Under Trial Prisoner No. 575/2015, namely Nagajiji Babuji Thakor Ref.:- (1) This Jail' letter outward no. UTP/3038/2015 dated 10/08/2015 (2) This Court' letter outward no. 254/2015 dated 24/07/2018 under order Respected Sir, With reference to the aforesaid subject, this is to inform you that the Under Trial Prisoner No. 575/2015, namely Nagajiji Babuji Thakor, who is accused in the case registered vide I C.R. No. 35/2015 for the offences u/s 302, 307, 333, 353, 324, 504, 506(2) and u/s 135 of GPA, at Kheralu Police Station, has been lodged in Mehsana District Jail from Kheralu Sub Jail on 11/05/2015. Further, this is to inform you that the aforesaid Under Trial Prisoner Nagajiji Babuji Thakor was sent to the expert of Mental Disease at the General Hospital, Mehsana for the treatment of mental disease when he was lodged in this jail. The expert at General Hospital, Mehsana advised the aforesaid accused for hospitalization at hospital for Mental Health, Ahmedabad for further management & treatment. Therefore, proposal was sent to your court vide letter at sr. no. 1 under reference for keeping him in observation and counseling and for giving treatment at the Hospital for Mental Health, Delhi Darwaja, Ahmedabad. The expert at General Hospital, Mehsana advised the aforesaid accused for hospitalization at hospital for Mental Health, Ahmedabad for further management & treatment. Therefore, proposal was sent to your court vide letter at sr. no. 1 under reference for keeping him in observation and counseling and for giving treatment at the Hospital for Mental Health, Delhi Darwaja, Ahmedabad. As approval was granted vide order at sr. no. 2 under reference in this regard, the aforesaid accused was referred on 17/07/2015, 24/07/2015 and 07/08/2015, where the aforesaid accused was examined. As he was sent for follow up treatment on 21/08/2015, he was admitted at the Hospital for Mental Health, Delhi Darwaja and given treatment. As the treatment was over, he was discharged on 02/09/2015 and sent to this jail along with the treatment report. The said treatment report is enclosed and sent to the court, which may be conveyed to you. Yours Faithfully, Sd/-(illegible) Acting Superintendent Mehsana District Jail Encl. :- As Above" 16. There are two more letters on record. The letter dated 9th September, 2015, Exh.57 is a letter addressed by the Principal Civil Judge, Kheralu to the Addl. Sessions Judge, Vishnagar, which reads as under; "Outward No. 295/15 Principal Civil Court, Kheralu, Date:- 09/09/2015 Exhibit No. 57 To, The Additional Sessions Judge, Additional Sessions Court, Visnagar. Subject:- To forward report in respect of mental treatment of the accused of the case registered vide I C.R. No. 35/15 at Kheralu Police Station Respected Sir, With reference to the aforesaid subject, this is to inform you that as the report in respect of mental treatment given to Thakor Nagajiji Babuji, who is accused in the case registered vide I C.R. No. 35/15 at Kheralu Police Station, vide criminal case no. 314/15 at this court and vide Sessions Case No. 48/15, has been received by this court and the aforesaid case has been committed, the said report is being forwarded to you, which may be collected. Yours Faithfully, (Y.I. Shekh) Principal Civil Judge, Kheralu" 17. Another letter dated 2nd September, 2015 addressed by the Superintendent, Mental Health Hospital, Ahmedabad to the Principal Judge, Kheralu reads as under; "Under police Surveillance O.No.D.S.S./Observance Report/4977-78/15 The office of Superintendent, Mental Hospital, Outside Delhi Darwaja, Shahibaug Road, Ahmedabad Date: 02/09/2015 To, The Principal Judge, Civil Court, Kheralu. Subject:- Sending the report of the Mental condition of the under trial prisoner Nagjiji Babuji Thakor. Subject:- Sending the report of the Mental condition of the under trial prisoner Nagjiji Babuji Thakor. Respected Sir, With reference to the subject noted, it is respectfully submitted to the Hon'ble court that, the aforesaid patient was admitted in this hospital since 21/08/2015 for the observance of his mental sickness. He is discharged from the hospital today under police surveillance. The report of the mental condition of this patient is hereby sent in the sealed cover to Mehsana, District Jail for submitting the same before Your Honor's court. Thanking You. Sd/-(Illegible) Superintendent, Mental Hospital, Ahmedabad." 18. Thereafter, our attention was drawn to the deposition of the P.W. No.22-Dr. Diptiben Bhatt, Exh.122. The P.W. No.22, in her evidence, has deposed as under; "Sessions Case No.48/2015 Exhibit – 122 Deposition of P.W.No. 22 I do hereby on solemn affirmation state that, My name : Dr. Diptiben Father's name : Mehulbhai Bhatt Religion : Hindu Age about : 39 Years, Occupation : Service Mental Hospital, Ahmedabad. Res. at : At- Ahmedabad District : Ahmedabad Oath Administered. Examination-In-Chief by the Ld. Addl..P.P. Mr.P.K.Dave for the Prosecution I have been serving as a Psychiatrist in the Mental Hospital, Ahmedabad for the last eleven years. I have studied the course of M.B.Psychiatric. Thakor Nagjiji Babuji was sent to our hospital for the mental treatment by J.M.F.C., Kheralu vide letter dated: 02/09/15. The treatment of this patient was started on 21/08/15 and he was kept under observation till 02/09/15. In this observation, following symptoms were found. Upon obtaining the information of the past activity of this person when this person was admitted, it was not found that, he had been mentally ill in the past or he had taken treatment thereof. When this person was admitted, he was not wearing proper clothes and was found engaged in the imaginary thoughts in the loud voice and was found in the state of excessive thinking and always remained in state of high temper. The symptoms found in this person were possible by occurrence of any incident and such symptoms were possible to take place occasionally. In this regard, I have issued the Observation Report in my handwriting. I am shown the original report sent in the court. There is my signature in it which I identify. The report is produced and given Exhibit No.123. In this regard, I have issued the Observation Report in my handwriting. I am shown the original report sent in the court. There is my signature in it which I identify. The report is produced and given Exhibit No.123. When this person was brought to the observation, he was not in the state to understand the good and bad condition or the situation. Examination Chief Over Cross Examination by the Ld. Advocate Shri A.S.Barot for the Accused. It is true that, when the person suffers such occasional mental attack, he is not able to realize what he is doing and what is good or bad. In such cases, the patient naturally gets cured by taking medicine or without taking medicine in a natural course. It is true that, in such cases the attack may come even if the medicine has been taken. It is not true that, when the patient suffers such attack, he is in such a state of mind that he can not identify his relatives. It is true that, at the time of attack, this person is not able to realize as to what he is doing with his relatives or any other persons. It is not true that, the patient was suffering from schizophrenia. It is true that, the patient was in such a condition that he could harm himself. It is true that, when this person receives attack, he behaves like a normal person and it would not appear that he is suffering from any illness. " 19. Our attention was, thereafter, drawn to the observation report on record, Exh.123. It reads as under; "Hospital for Mental Health, Ahmedabad O/s Delhi Gate, Shahibaug Road, Ahmedabad, 380004 Observation Report Submitted to Hon'ble Principle Judge, Kheralu. Name:- Nagjiji Babuji Thakor, Age: 30 year, Sex: male Observation period- 21st August to 2nd September, 2015Nagjiji Babuji Thakor was examined by team of Psychiatrist, Clinical Psychologist, Medical Officer, Psychiatrist Social Worker, Occupational therapist and Staff Nurse of Hospital for Mental Health, Ahmedabad from 21.8.15 to till date. During the observation period following finding noted On detail mental statues examination at the time of admission- * He is conscious, co-operative, poorly dressed, groomed and fairly nourished with poor self care. * His speech was relevant and coherent but had pressured speech. * His mood was irritable and affect was appropriate to the mood. * He had delusion of grandiosity. * His speech was relevant and coherent but had pressured speech. * His mood was irritable and affect was appropriate to the mood. * He had delusion of grandiosity. During hospitalization he has been treated with medicine and counseling. His mental status has now improved. At present his mental status is as follow: * he is conscious, co-operative, well dressed, groomed and fairly nourished with adequate self care. * His speech is relevant and coherent. * His mood is euthymic and affect is appropriate to the mood. * he has no ideas of grandiosity. * On thought examination no sign or symptoms suggestive of delusion, obsession fantasy or death wishes or suicidal ideation. * No perceptual abnormality observed during his observation period, * he is oriented to time place and person. * Attention and concentration is adequate. * Registration and recall up to 5 digits is normal. * Remote past memory intake. * he has average intelligence and having good test and social judgment. During hospitalization he has been diagnosed as having Bipolar Mood Disorder presently in manic phase. He is being treated with medicines and counseling. His mental status has now improved. His behavior and thoughts are appropriate to the situation, he can be treated on Outpatient bases. Date:-02.09.2015 Dr. Deepti M. Bhatt Psychiatrist Hospital for Mental Health." 20. Thus, it appears that much before the criminal case came to be committed to the Sessions Court vide order dated 11th August, 2015, the fact of the accused being mentally disturbed and suffered from psychiatric problems had come on record. The accused was kept under observation between 21st August, 2015 and 2nd September, 2015. The charge came to be framed by the Trial Court on 19th November, 2015. Even, at the time when the charge came to be framed, the Trial Court remained oblivious of the mental condition of the accused. 21. Having regard to the materials on record, referred to above, we thought fit to request the learned APP to call for the report of the Medical Officer, Ahmedabad Central Jail, Ahmedabad so as to ascertain the condition of the accused as on date. 21. Having regard to the materials on record, referred to above, we thought fit to request the learned APP to call for the report of the Medical Officer, Ahmedabad Central Jail, Ahmedabad so as to ascertain the condition of the accused as on date. The report dated 11th February, 2019 of the Medical Officer as produced by the learned APP reads as under; "CERTIFICATE The details of the convict-prisoner No.D/15400 who is undergoing sentence in the Central Jail, Ahmedabad, as sought by the Gujarat High Court, is as under; (1) The treatment of the disease, named, Bipolar Mood Disorder has not been given and there has not been any examination by the psychiatrist between 02.09.2015 and 29.09.2015. But advised to take treatment as an outdoor patient. (2) From 29.09.2016 till date, the accused has not suffered from any kind of Bipolar Disorder but the medicine of the Bipolar Mood Disorder is being regularly given to the prisoner. (3) For the purpose of treatment of the Bipolar Mood Disorder, the convict-prisoner is being regularly taken to the psychiatrist at the Mental Hospital, Delhi Darwaja, Ahmedbad for follow up as and when called by the doctor and the medicines as prescribed by the doctor is being regularly given to the prisoner by the jail authority. Date: 11.02.2019 Place: Ahmedabad Central jail Sd/- Medical Officer, Ahmedabad Central jail, Ahmedabad." 22. Thus, it appears more than prima facie that the accused is a patient of Bipolar Disorder. The Bipolar Disorder is a serious brain illness. It is also called manic-depressive illness or manic depression. The report of the Medical Officer dated 11th February, 2019 would further indicate that even as on date the medicines in this regard are being regularly given to the accused as advised by the doctor at the Mental Health Hospital, Delhi Darwaja, Ahmedabad. 23. In view of the aforesaid materials, we stopped going further into the oral evidence on record. 24. The question that falls for our consideration is whether the trial could have been commenced and continued in the circumstances, referred to above. 25. Section 329 of Code of Criminal Procedure, 1973 pertains to the procedure in case of person of unsound mind tried before a court and reads thus: 329. 24. The question that falls for our consideration is whether the trial could have been commenced and continued in the circumstances, referred to above. 25. Section 329 of Code of Criminal Procedure, 1973 pertains to the procedure in case of person of unsound mind tried before a court and reads thus: 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 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 psychiatrist 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; and (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 (1A) 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.] 26. Section 330 of Code of Criminal Procedure, 1973 pertains to release of person of unsound mind pending investigation or trial and reads as under: 330. Release of person of unsound mind pending investigation or trial.- (1) Whenever a person if found under section 328 or section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall, whether the case is one in which bail may be taken or not, order release of such person on bail: Provided that the accused is suffering from 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 from doing injury to himself or to any other person. (2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government: Provided 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 (14 of 1987). (3) 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 Magistrate or Court, as the case may be, 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: Provided that- (a) if on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide 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; (b) if the Magistrate or Court, as the case may be, if 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.] 27. From the above, it can be seen that in terms of the sub-section (1) of section 329 of Cr.P.C, 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. Sub-section (1) of section 329 thus would apply when it appears to the Magistrate or Court that a person is of unsound mind and is consequently incapable of making his defence. In such circumstances, the duty of the Court is to try such fact of unsoundness of mind and incapacity of the accused to defend himself. If on the basis of the materials brought on record the Court is so satisfied, it should record the finding accordingly and in such case the trial shall have to be postponed. 28. The provisions contained in Section 329 serve an important purpose of not proceeding a trial against a person, who on account of his unsoundness of mind, is unable to defend himself. It is not difficult to appreciate that such requirement would be mandatory in nature. The Proceeding against a person of unsound mind and holding him guilty of criminal offence would be clearly violative of the guarantee contained under Article 21 of the Constitution that no person shall be deprived of his life or liberty without following the procedure established by law. 29. We take notice of the fact that the Trial Court ignored or overlooked something very important and the omission on the part of the Trial Court has rendered the judgment and order of conviction and sentence susceptible to the complaint that the same is illegal and deserves to be quashed and set aside. 30. We have perused Chapter-XXV of the Cr.P.C pointed out to us by Mr. Pratik Barot, the learned counsel appearing for the accused. This chapter starts from section 328 and ends at section 339. 30. We have perused Chapter-XXV of the Cr.P.C pointed out to us by Mr. Pratik Barot, the learned counsel appearing for the accused. This chapter starts from section 328 and ends at section 339. We are also conscious of the distinction of the defence raised under section 84 of the Penal Code and Chapter-XXV of the Cr.P.C. If a plea of insanity is raised by the accused, it is the duty of the prosecution to subject the accused to a medical examination immediately. This is important because if it is revealed, during the course of the investigation or even at the time of committal of the case or the framing of the charge that the accused was suffering from a mental disease, the prosecution is further duty bound to place before the Court, all the evidence that could be available to show that the accused was in a proper state of mind when he committed the alleged offence. 31. Mr. Patel, the learned APP appearing for the State vehemently submitted that there was no scope or any occasion for the Trial Court to determine the issue with regard to the capacity of the accused of making his defense having regard to the mental ailment, because at no stage, the accused raised such a plea. According to Mr. Patel, even at the time of framing of the charge the accused did not show any signs of mental ailment on the basis of which the Trial Court could have undertaken some inquiry. 32. We are afraid, we are not in a position to accept such submission. Even if the accused had not raised such a plea and even if the defence counsel had not bothered to look into it, still if the materials on record in the form of the documents disclose something about the mental condition of the accused, then it is the duty of the Trial Court to look into the materials and ascertain the capacity of the accused to enter the defence in accordance with the provisions of section 329 of the Cr.P.C. The satisfaction of the Trial Court should be recorded in so many words. The provisions of Section 329 do not embrace an idle formality but are calculated to ensure to an accused person a fair trial which cannot obviously be afforded to an insane person and the non-observance of those provisions must be held to convert a trial into a farce. The Courts must therefore, guard against dealing with the matter of suspected sanity of an accused person in a perfunctory manner as such a course is bound to result in the trial Judge, more often than not, coming to an incorrect conclusion about the sanity of the accused before him. 33. The case of the State before the Trial Court is being represented by the public prosecutor. The Public Prosecutor is not supposed to seek conviction by hook or crook. Howsoever heinous or gruesome the crime may be, but that has nothing to do with the mandatory compliance of the provisions of section 329 of the Cr.P.C. It goes without saying and it is a settled position of law that section 329 of the Cr.P.C is mandatory. Needless to say that the Public Prosecutor is the officer of the Court. His first and foremost duty to the Court is to place the entire material before the Court on behalf of the prosecution. He must be truthful and honest. We fail to understand why all these materials, referred to above, were not brought by the Public Prosecutor to the notice of the Trial Court even while the Public Prosecutor opened his case as envisaged under section 226 of the Cr.P.C. 34. Why talk about the Public Prosecutor only. It was also the duty of the Investigating Officer to bring all the materials to the notice of the Trial Court, through the Public Prosecutor, as regards the mental condition of the accused and the treatment he was undergoing at the relevant point of time. The Investigating Officer also failed in his duty. Even the defence counsel appointed by the Legal Services Authority failed in his duty. 35. In the case of I. V. Shivaswamy v. the State of Mysore reported in, (1971) AIR SC 1638, the Supreme Court observed that whenever a counsel raises a point before the Sessions Judge regarding the unsoundness of mind, he does not always have to hold an elaborate inquiry into the matter. 35. In the case of I. V. Shivaswamy v. the State of Mysore reported in, (1971) AIR SC 1638, the Supreme Court observed that whenever a counsel raises a point before the Sessions Judge regarding the unsoundness of mind, he does not always have to hold an elaborate inquiry into the matter. If on examining the accused it does not appear to him that the accused is insane it is not necessary that he should go further and send for and examine medical witnesses and other relevant evidence. Of course if he has any serious doubt in the matter the Sessions Judge should hold a proper enquiry. 36. In the case of the State of Maharashtra v. Sindhi alias Raman reported in, (1975) AIR SC 1665, the Supreme Court held that such provision would apply even to the confirmation proceedings. It was observed that so far as the accused sentenced to death is concerned, his trial does not conclude with the termination of the proceedings in the Court of Sessions for the reasons that the death sentence passed by the Court of Sessions is subject to confirmation by the High Court. Viewed from that stand point, the confirmation proceedings are in substance continuation of the trial. 37. In the case of the State of Karnataka v. Doragal Kanakappa reported in, (1996) CriLJ 599, a Division Bench of the Karnataka High Court held that the mere receipt of a letter by the Court from the Superintendent of Hospital that the accused was capable of understanding evidence was not sufficient compliance of Section 329 of Cr.P.C. and that the failure of the Court to arrive at a finding in this respect would vitiate the trial. It was observed as under: "But mere production of Exh.P-18 and its proof through P.W.13 cannot be held to be the compliance with the requirement of Section 329, Cr.P.C. what is required is that the Court should record a finding as to whether the accused is of sound mind or unsound mind and as to whether the is capable of or not capable of defending himself. Though Ex.P-18 is on record, the trial Judge has not recorded any such finding. The provisions of Section 329, Cr.P.C. are mandatory provisions. Though Ex.P-18 is on record, the trial Judge has not recorded any such finding. The provisions of Section 329, Cr.P.C. are mandatory provisions. This Court in (Pajappa v. State of Karnataka, (1990) 3 KarLJ 213 (Supp)) has held that the provisions of Section 329, Cr.P.C. are mandatory and it is mandatory on the part of the Court to first consider the fact of unsoundness of mind and incapacity of the accused to make defence after taking such evidence including medical evidence that may be necessary for the purpose. Failure to comply with such mandatory requirement will vitiate the trial. In this case also the order sheet dated 11.06.1993 mentions only receipt of the letter from the Superintendent of the Hospital, Dharwar, on 30.4.93 to the effect that the accused is capable of understanding evidence. We have seen that ordersheet. The Judge does not seem to have written the portion relating to that letter in his handwriting but he has signed the order-sheet. We do not find anything in the record whether the Judge has considered and given the finding about the mental condition of the accused and his capacity to defend himself. Mere receiving of Ex.P-18 by Court is not the compliance with the mandatory requirements of Section 329, Cr.P.C. After Exh.P-18 was received and exhibited through the evidence of P.W.13, the Court was required to consider all the material including Exh.P- 18 and record a finding about the mental condition and the capability of the accused to defend the case. The non-compliance of the mandatory provisions of Section 329, Cr.P.C. by the Additional Sessions Judge who tried the accused in this case has vitiated the trial and the judgment rendered by him is liable to be set aside. Since we have to order for de novo trial, we do not want to comment on the merits of the contention raised by both sides in this appeal. " 38. In the case of Gurjit Singh v. State of Punjab reported in, (1986) CriLJ 1505, a Division Bench of the Punjab & Haryana High Court held that where the trial Judge without recording the medical evidence and without recording any finding one way or the other regarding the mental condition of the accused framed the charge and commenced the trial, the trial was vitiated being violative of the mandatory provisions of section 329. It was observed that the mandate of section 329 of the Code is that when the plea of insanity is raised before a Court, it shall try the fact of unsoundness of mind and incapacity of the accused in the first instance. 39. We may also refer to a Division Bench decision of this Court in the case of Salim Abhu Juneja vs. State of Gujarat, Criminal Appeal No.681 of 2010, decided on 19.09.2013. In the said case, the very same issue fell for the consideration of the Division Bench, and while answering the said issue, the Division Bench observed as under; "18. From the above judgments, it clearly emerges that the requirements of Section 329 of Code of Criminal Procedure are mandatory in nature. It pertains to unsoundness of mind and resultant incapacity of the accused to defend himself at any stage of the trial. It is quite distinct from the defence of insanity which can be raised under Section 84 of IPC, which must have relevance to the point of insanity when the offence is committed. Provisions of Section 329 would apply irrespective of whether such a plea has been raised or not. The Legislature has advisedly used the expression, it appears to the Magistrate or the Court. Thus, even though no such plea is raised, but it appears to the Court that a person is of unsound mind and consequently incapable of making his defence, the further procedure in this regard must be followed. In the present case, even before the trial commenced before the Sessions Court, the material came on record to suggest that the accused was suffering from serious mental instability. He had to be shifted to hospital when the treatment given to him in jail did not result in any improvement. We may record that the accused was too poor to defend himself and therefore was represented by the legal aid counsel. If he was as seriously mentally ill as the medical opinion of 29th December 2008 suggested, the whole trial was a sham. Almost all stages of the trial were conducted without verifying whether the accused was capable of understanding what was going on and thus capable of defending himself. If he was as seriously mentally ill as the medical opinion of 29th December 2008 suggested, the whole trial was a sham. Almost all stages of the trial were conducted without verifying whether the accused was capable of understanding what was going on and thus capable of defending himself. If a person of unsound mind is proceeded against in a criminal trial for a serious charge of murder, it is at least expected that the system ascertains that he is able to comprehend what he is charged with and the nature of evidence which is adverse to him, which is brought on record. If a person is unable to comprehend any of these aspects, we fail to see how he could instruct his advocate about his defence. 19. To reiterate, it is true that the fact of accuseds discharge from the mental hospital was pointed out to the Magistrate on 9th March 2008. The medical papers supposed to have been accompanied, did not form part of the record. Neither the Magistrate nor the trial Court, who was in-charge of the sessions trial, thus had any idea about the recovery of the accused. The previous medical opinions were more than sufficient to trigger an inquiry into the soundness or otherwise of the mental condition of the accused. The term it appears to the Magistrate or the Court is sufficiently wide to cover a situation of the present kind. It is not only a visual appearance which the Court must go by. When the medical papers suggested that the accused was at least for an extended period in recent past so mentally unsound as to be unable to defend himself, it was the duty of the trial Court to try such fact and come to a definite conclusion whether he had recovered enough to face the trial. In absence of any such exercise, in our opinion, the entire trial would be vitiated. 20. The result of such finding would be that the judgment would have to be set aside. We would have to order re-trial. This can be done only after verifying presently whether the accused is of sound mind and consequently capable of making his defence. Such inquiry shall have to be done as provided under Section 329 of the Code of Criminal Procedure. On the basis of the outcome thereof the trial Court shall have to proceed further." 40. This can be done only after verifying presently whether the accused is of sound mind and consequently capable of making his defence. Such inquiry shall have to be done as provided under Section 329 of the Code of Criminal Procedure. On the basis of the outcome thereof the trial Court shall have to proceed further." 40. We may also refer to few old decisions of the different High Courts on the issue. 41. In Jhabbu v. Emperor, (1920) AIR Allahabad 354, the Counsel who represented the accused had prayed to the Sessions Judge that evidence might be taken on the question of the sanity or otherwise of the accused in view of certain materials indicating that the accused had been in custody before the commission of the alleged offence as a lunatic. It was held that the provisions of Section 465 were obligatory on the Court and that as a preliminary to the hearing of evidence on the charge, the learned Sessions Judge should first of all have tried the plain issue whether or not the accused person as he stood before the Court was of unsound mind and consequently incapable of making his defence. The entire proceedings were regarded as vitiated because the question of soundness or un- soundness of the mind of the accused had not been tried as a preliminary issue. 42. In Pala Singh v. King Emperor of India, 54 Pun Re 1905, the Magistrate, by whom the confession of the accused was taken, recorded a note to the effect that either the accused was mischievous or was under the influence of some drug or under the influence of some narcotic or was unwell. The learned Sessions Judge remarked that the accused, without being actually insane so as not to be aware of what he was doing, appeared to be decidedly a man of weak intellect. It was held that it was incumbent on the Sessions Judge to make an enquiry under section 465 of the Code of Criminal Procedure before the commencement of the trial, which not having been done, the trial was found to be vitiated and a retrial was ordered. 43. It was held that it was incumbent on the Sessions Judge to make an enquiry under section 465 of the Code of Criminal Procedure before the commencement of the trial, which not having been done, the trial was found to be vitiated and a retrial was ordered. 43. In Santokh Singh v. Emperor, (1926) AIR Lahore 498, the Committing Magistrate had reason to think that the appellant might have been incapable of making his defence by reason of unsoundness of mind and, after examining the Civil Surgeon, recorded an order that the medical evidence showed the accused to be sane. While convicting the accused, the learned Sessions Judge made the following observations with regard to this aspect of the matter : "In this Court the accused has refused to plead at all assuming an appearance of imbecility. He would only roll his eyes about and gaze at the ceiling and refuse to answer any question that was put to him. I, therefore, recorded a plea of not guilty and also recorded all the evidence in the case * * * * The Civil Surgeon who had the accused under observation for some time has found that though of peculiar temperament he knew the nature of the deed he was committing. Before the Committing Magistrate the accused made a perfectly intelligent statement and I am of opinion that his imbecility in this Court was largely assumed." 44. It was held by Campbell and Addison, JJ. that it was nevertheless incumbent on the learned Sessions Judge himself to hold another enquiry on the question whether the accused was capable of making his defence at the trial and to come to a decision before proceeding further. The neglect of the learned Sessions Judge was held to have vitiated the trial and a retrial was ordered with a direction that the same should commence with the proceedings required by Section 465 of the Code of Criminal Procedure to be followed by a formal finding as to the capacity of the accused for making his defence. 45. The neglect of the learned Sessions Judge was held to have vitiated the trial and a retrial was ordered with a direction that the same should commence with the proceedings required by Section 465 of the Code of Criminal Procedure to be followed by a formal finding as to the capacity of the accused for making his defence. 45. In Ramnath v. Emperor, (1930) AIR Allahabad 450, it was held that when there was something in the demeanour of an accused which would raise a doubt in the mind of the trial Judge about the accused being of sound mind, the trial Court could not be proceeded with unless an enquiry under Section 465 was held and a finding arrived at that the accused was of sound mind and, therefore, capable of making his defence. 46. In State v. Kochan Chellayyan, (1954) AIR Travancore 435, the Jailor, who had charge of the accused, reported on the 7th of June, 1952, to the Sessions Judge that the accused was showing signs of insanity and requested for orders that the accused be hospitalised. The request was granted but it was directed at the same time that the accused be produced in Court on the 9th of June, 1952, which was the date fixed for the commencement of the trial. On that date the Sessions Judge made a memorandum to the following effect : "The accused was brought before the Court. The charge against him was read and explained. The accused was asked by me as to whether he had understood the same. He was giving repeated replies (P.W. 1 must be examined). Apparently, he was pretending to be devoid of understanding. Then a series of questions was put to him. He was able to understand every question put to him and gave relevant answers. But when he was questioned about the charge, he would again give the above answer. As I was convinced that he was not mentally affected, I again questioned him about the charge when he gave the answers and the same were recorded." The deposition of one witness for the prosecution was then recorded and thereafter the case was adjourned with a direction to the Medical Officer, Incharge of the hospital from where the accused had been brought for trial, to examine him and to report on his mental condition. The Medical Officer certified on the 10th of June, 1952, that the accused was not a lunatic and the trial was proceeded with and concluded. It was held in these circumstances that the Sessions Judge was not absolutely certain of the sanity of the accused and that the trial was vitiated by reason of the Sessions Judge not following the procedure envisaged by the second stage mentioned in Section 465. A retrial was ordered. 47. In Chetu Mushar v. State, (1954) AIR Patna 129, it transpired during the cross-examination of the first witness for the prosecution that the accused had been insane and that his insanity continued up to the date of the trial. The learned Sessions Judge observed that the trial could not proceed and further noted in the order-sheet that after having put certain questions to the accused, he was not able to understand fully as to whether the accused was insane or sane. He, therefore, directed that the accuse! should be placed under medical observation and that the Civil Surgeon should report about his mental condition. The trial was adjourned for a week. Later on, however, the learned Sessions Judge rejected the plea of insanity raised on behalf of the accused even without examining the Civil Surgeon and without his report being placed on the record as legal evidence. Narayan, J., who delivered the judgment of the Division Bench deciding the case in appeal, referred to AIR 1920 All 354 (supra), and then observed : "This, in my opinion, is a much stronger case in which the procedure laid down by Section 465 should have been carried out, inasmuch as, as I have already pointed out, both the witnesses on whose evidence the prosecution relies for bringing home to the accused the charge under Section 302, Indian Penal Code, have stated that the accused had been insane ever since the death of his son about two years back and that he is Insane even now, It is difficult to conceive of a stronger case in which the procedure laid down by Section 465 should be carried out, and it is regrettable that the learned Sessions Judge has rejected the plea of insanity raised by the accused even without examining the Civil Surgeon and without his report being placed on the record as a legal evidence in the case. This trial, therefore, stands vitiated, and the case has to be sent back for a retrial." 48. One of us J.B.Pardiwala, J. siting as a Single Judge had the occasion to look into the provisions of Chapter XXV of the Cr.P.C in the case of Sunil Tejbahadur Singh Through Anil Singh S/o. Tejbahadur Singh vs. State of Gujarat, (2018) 1 GLR 473 . We may quote the relevant observations. "22 The chapter XXV begins with Section 328 of the Cr.P.C., which provides the procedure for enquiry by a Magistrate in regard to the fact of unsoundness of mind. A Magistrate holding an enquiry, if has reason to believe that the person before him is of unsound mind and consequently incapable of making his defence, then he is enjoined upon to enquire into such unsoundness of mind and shall cause such person to be examined by a Civil Surgeon of the District or such other medical officer as the State Government may direct. Such Civil Surgeon or Medical Officer is thereafter to be examined as a witness. Pending this enquiry, the Magistrate may deal with such a person in accordance with the provisions of Section 330 of the Cr.P.C, which talks of release of lunatic pending investigation or trial. If the Magistrate is of the opinion that the person is of unsound mind, he is to record his finding to that effect and then postpone the proceedings in the case. This Section has been so amended from the old Section so as to provide for the procedure to be followed in any inquiry where person against whom inquiry is being held appears to be of unsound mind. 23 Section 329 of the Cr.P.C, on the other hand, provides for a procedure in case of a person of unsound mind tried before the Court. Section makes it clear that in a trial before the Magistrate or Court of Sessions, if the accused appears to be of unsound mind and consequently incapable of making his defence, then the Court shall, in the first instance, try the fact of such unsoundness of mind and incapacity and if satisfied in this regard, shall record a finding to that effect and shall postpone the further proceedings. This Section is similar to Section 328 of the Cr.P.C., with this difference that the latter relates to an enquiry before a Magistrate, while this Section relates to the trial before the Magistrate or Court of Sessions. However, both the Sections relate to unsoundness of mind at the time of inquiry or trial and not at the time of commission of offence. The distinction between incapacity at the time of doing the act charged and incapacity at the time of trial is, therefore, appreciable. The incapacity at the time of the commission of offence is dealt under Section 84 of the I.P.C. Section 84 of the I.P.C. is a substantive provision which excuses the offence whereas Sections 328 and 329 of the Cr.P.C. affects the procedure and postpone the trial. The condition essential for applicability of the Sections is that it must appear to the Court that the accused brought before it is of unsound mind. If it does so appear, then the fact has to be tried and decided first before calling upon the accused to stand trial for the offence charged. The word 'appears' imports lessor degree of probability than proof. These provisions are mandatory and ought to be strictly complied with. The issue of insanity is to be tried only where the accused appears to be incapable of making his defence due to mental infirmity. The Magistrate is not to order inquiry on mere defence of insanity, he must have 'reasons to believe' that the accused is of unsound mind. A Magistrate cannot act on his own opinion. He must have before him a statement of medical officer, who must be examined. Where the Court decides that the accused is of unsound mind and consequently incapable of making his defence, the trial is to be postponed. As provided in Section 330 of the Cr.P.C., such a person may be released on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person or for his appearance when required before the Magistrate or the Court. The Court or the Magistrate is also entitled to direct the accused to be detained in safe custody in such a place and manner as it may think fit if it is of the view that the bail should not be taken or sufficient security is not given. The Court or the Magistrate is also entitled to direct the accused to be detained in safe custody in such a place and manner as it may think fit if it is of the view that the bail should not be taken or sufficient security is not given. Section 331 of the Cr.P.C thereafter talks of resumption of enquiry or trial, when the concerned persons ceases to be of unsound mind. Section 332 of the Cr.P.C prescribes a procedure to proceed with the trial or enquiry as the case may be. 24 Since the requirement under these Sections is mandatory and the Court is to try the fact of unsoundness of mind and capacity of the accused at the first instance, the commencement of trial without recording the medical evidence or satisfying himself or recording a finding on the material placed before him, will vitiate the trial. Needless to mention that the conclusion of the Court that the person is or is not of unsound mind has to be on the materials placed on record and any decision without holding the enquiry or without recording reasons would be unsustainable. When the medical report is to the effect that the accused is of unsound mind, it would be reasonable to infer that he is incapable of making his defence. In such circumstances, the Court would almost be bound to afford the protection to him as he is entitled to under the law, being of unsound mind at the time of trial. 25 Unlike Sections 328 and 329 of the Cr.P.C., the Section 333 of the Cr.P.C, prescribe procedure, when the accused person appears to be of sound mind at the time of enquiry and trial but the Court finds that he was incapable of knowing the nature of the act or that it was wrong or contrary to law at the time when he committed the act by reasons of unsoundness of mind. Thus, Sections 333 of the Cr.P.C and 334 of the Cr.P.C. regulates the procedure, when the accused person is found capable of making a defence but pleads that the act was committed at the time when he, on account of reasons of unsoundness of mind, was incapable of knowing the nature thereof. In such a case, he is required to be acquitted on the ground of unsoundness of mind. In such a case, he is required to be acquitted on the ground of unsoundness of mind. This is so provided by Section 334 of the Cr.P.C. At the time of recording this finding, the Court is also to record a finding and state specifically whether the accused person had committed the act or not. Section 333, when read with Section 334 of the Cr.P.C, would provide for acquittal of an accused where the Court is satisfied from the evidence given before it that the accused was, at the time of commission of crime by reasons of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law. While acquitting the accused on the ground of he being insane, the Court is to give a specific finding whether the accused had committed the act charged. A provision has also been made for detaining a person acquitted on such grounds in safe custody in the form of Section 335 of the Cr.P.C. 26 As would be borne out from a bare perusal of the provisions reproduced above, before a Magistrate or Court proceeds to "try" to the fact of unsoundness and incapacity it must "appear" to the Magistrate or Court that the person is of unsound mind and consequently incapable of making his defence. The word "appears" surely imports a lesser degree of probability than "proof' but then this would not mean that the Magistrate or Court must proceed to "try" the question on mere asking. There must be something either in the form of medical record or other material to raise a reasonable doubt in the mind of the Magistrate or Court that the accused is of unsound mind. Even the demeanour of the accused may sufficiently lead to such a doubt. It is only on the crossing of this hurdle that it becomes obligatory on the Magistrate or Court to "try" the fact of such unsoundness of mind and incapacity of the accused. 34 Section 84, Indian Penal Code, one of the provisions contained in Chapter IV of the Indian Penal Code, which deals with the General Exceptions provides as under: 84. Act of a person of unsound mind. 34 Section 84, Indian Penal Code, one of the provisions contained in Chapter IV of the Indian Penal Code, which deals with the General Exceptions provides as under: 84. Act of a person of unsound mind. - 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. 35 Section 105, Evidence Act, 1872, which deals with the burden of proving the existence of circumstances bringing the case within any of the exceptions specified in the Indian Penal Code, provides: 105. Burden of proving that case of accused conies within exceptions When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, 1860 (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any Jaw defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. 36 There are four kinds of persons who may be said to be non compos mentis (not of sound mind) i.e. (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a mad man; and (4) one who is drunk. An idiot is one who is of non-sane memory from his birth, by a perpetual infirmity, without lucid intervals; and those are said to be idiots who cannot count twenty, or tell the days of the week, or who do not know their fathers or mothers, or the like, (See Archbold's Criminal Pleadings, Evidence and Practice, 35th Edn., pp. 31-32; Russell on Crimes and Misdemeanors; 12th Edn., Vol.1, p. 105; 1 Hale's Pleas of the Crown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder, (See 1 Hale PC 30). 31-32; Russell on Crimes and Misdemeanors; 12th Edn., Vol.1, p. 105; 1 Hale's Pleas of the Crown 34). A person made non compos mentis by illness is excused in criminal cases from such acts as are committed while under the influence of his disorder, (See 1 Hale PC 30). A lunatic is one who is afflicted by mental disorder only at certain periods and vicissitudes, having intervals of reason, (See Russell, 12th Edn., Vol. 1, p. 103; Hale PC 31). Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and idiocy as natural insanity. 37 Section 84 of the I.P.C. embodies the fundamental maxim of criminal law i.e. actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). 38 The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, p. 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. II, p. 166 has observed that if a person cuts off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognises nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties or rationcination are sufficiently dim to apprehended what he is doing, he must always be presumed to intend the consequence of the action he takes. Mere absence of motive for a crime, howsoever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section. [See: Harisingh vs. State of Madhya Pradesh, (2008) 16 SCC 109 ] 39 The Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, (1964) AIR SC 1563 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 rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 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. 40 Dealing with the passage quoted above, the Supreme Court in Bhikari vs. the State of Uttar Pradesh, (1966) AIR SC 1 observed as under: This passage does not say anything different from what we have said earlier. Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in Section 105 of the Evidence Act. 41 I would like to make it clear being a neat question of law that the evidence which is recorded during the course of an inquiry contemplated by Section 329 of the Cr.P.C. cannot be looked into for the purpose of a decision as regards the applicability of Section 84 of the Indian Penal Code. 42 It is significant to note that the enquiry as to the unsoundness of mind and incapacity of the accused under Section 329, Code of Criminal Procedure, relates only to the unsoundness of mind of the accused at the time of enquiry or trial, and not at the time of commission of the offence. [See: State of Maharashtra vs. Sindhi v. alias Raman, (1975) AIR SC 1665] 43 To earn an exemption under Section 84 of the Indian Penal Code, the accused has to prove insanity at the time of commission of the offending act. The behaviour antecedent, attendant and subsequent to the event may be relevant in finding the mental condition at the time of the event but not those remote in time. The behaviour antecedent, attendant and subsequent to the event may be relevant in finding the mental condition at the time of the event but not those remote in time. 44 The Supreme Court in State of M. P. vs. Ahmadulla, (1961) AIR SC 998 has cited and followed the following observations of Reading C.J.: "Every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. To establish insanity it must be clearly proved that at the time of committing the act the party is labouring under such defect of reason as not to know the nature and quality of the act which he is committing - that is, the physical nature and quality as distinguished from the moral - or, if he does know the nature and quality of the act he is committing, that he does not know that he is doing wrong.. 45 To the similar effect are the observations in Dahyabhai vs. State of Gujart, (1964) AIR SC 1563 and in Bhikari vs. State of U. P., (1966) AIR SC 1." 49. Even if we assume for the moment that the Trial Court, bona fide, had no occasion or chance to look into this issue, still, it could be said to be a serius on the part of the Trial Court.. We may quote two paras from the decision of the Supreme Court in the case of A.R. Antulay vs. R. S. Nayak & Anr., (1988) AIR SC 1531. We would like to quote the observations made in paras 84 and 85; "84. Lord Cairns in Alexander Rodger v. The Comptoir D'escompte De Paris, (Law Reports Vol. III 1869-71 page 465 at page 475) observed thus: "Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court." 85. This passage was quoted in the Gujarat High Court by D.A. Desai, J. speaking for the Gujarat High Court in Vrajlal v. Jadavji (supra) as mentioned before. It appears that in giving directions on 16th February, 1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar's case (supra) which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the hand-maids of justice and not the mistress of the justice. Ex debite justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis." 50. Thus, the basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. 51. At this stage, we may also refer to one Division Bench decision of the Kerala High Court in the case of Dhora vs. State of Kerala, (1991) 2 KerLT 775. We may refer to and rely upon the following observations; "[9] It is also unfortunate that the Additional Public Prosecutor, who conducted the trial, did not address the trial court regarding the possibility of impairment of the mental condition of the appellant. Instead, he assiduously built up the argument for giving him death penalty. A counsel was appointed in the trial court to defend the appellant on state brief, but we are told that the said counsel was not an experienced advocate. Instead, he assiduously built up the argument for giving him death penalty. A counsel was appointed in the trial court to defend the appellant on state brief, but we are told that the said counsel was not an experienced advocate. We do not know why the learned Sessions Judge did not appoint an experienced counsel in this case to defend the accused particularly when this is a double murder case (this would have been a quadruple murder case but for the miraculous survival of P. Ws. 2 and 3). [10] When the story gives a grotesque picture of the events, when the acts alleged have unusual brutality human mind tends to react with prejudice against the person indicted for the acts. Safety of such accused is that his case is tried in a Sessions Court presided over by a judicially trained personage who would decide uninfluenced by prejudices and predilections. The graver are the facts or greater is the brutal nature of the case, greater must be the degree of concern and care in judicial forums. [11] When learned Sessions Judge entertained doubt in this case that appellant might have been prompted by some mental derangement, we are at a loss to understand why it did not strike to him that he should adopt the procedure prescribed in section 329 of the Code of Criminal Procedure (Code for short). The section reads thus: 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 pan of his trial before the Magistrate or Court. Thus, law enjoins on the Sessions Judge to hold a trial regarding the soundness of the accused's mind when it appears to him that the person brought to the trial is of unsound mind and consequently incapable of making his defence. According to the requirement, he shall in the first instance, try the fact of such unsoundness and incapacity. He can proceed only if he is satisfied that the accused is of sound mind and is capable of making his defence. The word appears in section 329 is of lesser degree of probabilities than the word proof. The corresponding section in the old Code of Criminal Procedure (section 465) received such an interpretation from Supreme Court in I. V. Sivaswami v. State of Mysore. If there is something in the demeanour of accused or in facts of the case which raise a doubt in the mind of court that the accused is of unsound mind and consequently incapable of making his defence, it is obligatory on the court to try the said fact before proceeding with trial into the charge. Failure to follow the procedure laid down in section 329 would vitiate the trial as the provision is mandatory Supdt. and Rem. of L. A. v. Durga Charan, Satya Devi v. State." 52. The case on hand is quite unusual. As noted above, neither the Public Prosecutor nor the Investigating Officer including the defence counsel invited the attention of the Trial Court to the materials on record as regards the mental ailment of the accused. However, as it has come to our notice, as an Appellate Court, it is our duty to rectify the error so that no doubt remains of any nature in our mind. 53. Mr. Barot, the learned counsel appearing for the accused- appellant placed reliance on one article on Bipolar Disorder as published by the National Institute of Mental Health, US Department of Health and Human Services. We deem fit to reproduce certain paras from the said article. "What is Bipolar Disorder? Bipolar disorder is a serious brain illness. It is also called manic-depressive illness or manic depression. People with bipolar disorder go through unusual mood changes. Sometimes, they fell very happy, and "up" and are much more energetic and active than usual. This is called a manic episode. "What is Bipolar Disorder? Bipolar disorder is a serious brain illness. It is also called manic-depressive illness or manic depression. People with bipolar disorder go through unusual mood changes. Sometimes, they fell very happy, and "up" and are much more energetic and active than usual. This is called a manic episode. Sometimes people with bipolar disorder feel very sad and 'down", have low energy, and are much less active. This is called depression or a depressive episode. Bipolar disorder is not the same as the normal ups and downs everyone goes through. The mood swings are more extreme than that and are accompanied by changes in sleep, energy level, and the ability to think clearly, Bipolar symptoms are so strong that they can damage relationships and make it hard to go to school or keep a job. They can also be dangerous. Some people with bipolar disorder try to hurt themselves or attempt suicide. People with bipolar disorder can get treatment. With help, they can get better and lead successful lives. Who develops Bipolar disorder? Anyone can develop bipolar disorder. It often starts in a person's late teen or early adult years. But children and older adults can have bipolar disorder too. The illness usually lasts a lifetime. Why does someone develop bipolar disorder? Doctors do not know what causes bipolar disorder, but several things may contribute to the illness. Family genes may be one factor because bipolar disorder sometimes runs in families. However, it is important to know that just because someone in your family has bipolar disorder, it does not mean other members of the family will have it as well. Another factor that may lead to bipolar disorder is the brain structure or the brain function of the person with the disorder. Scientists are finding out more about the disorder by studying it. This research may help doctors do a better job of treating people. Also, this research may help doctors to predict whether a person will get bipolar disorder. One day, doctors may be able to prevent the illness in some people. What are the symptoms of bipolar disorder? Bipolar "mood episodes" include unusual mood changes along with unusual sleep habits, activity levels, thoughts, or behavior. People may have manic episodes, depressive episodes, or "mixed" episodes A mixed episode has both manic and depressive symptoms. One day, doctors may be able to prevent the illness in some people. What are the symptoms of bipolar disorder? Bipolar "mood episodes" include unusual mood changes along with unusual sleep habits, activity levels, thoughts, or behavior. People may have manic episodes, depressive episodes, or "mixed" episodes A mixed episode has both manic and depressive symptoms. These mood episodes cause symptoms that last a week or two or sometimes longer. During an episode, the symptoms last every day for most of the day. Mood episodes are intense. The feelings are strong and happen along with extreme changes in behavior and energy levels. People having a manic episode may: * Feel very "up" or "high" * Feel "jumpy" or "wired" * Have trouble sleeping * Become more active than usual * Talk really fast about a lot of different things * Be agitated, irritable, or "touchy" * Feel like their thoughts are going very fast * Think they can do a lot of things at once * Do risky things, like spend a lot of money or have reckless sex People having a depressive episode may: * Feel very "down" or sad * Sleep too much or too little. * Feel like they can't enjoy anything * Feel worried and empty * Have trouble concentrating * Forget things a lot * Eat too much or too little * Feel tired or "slowed down" * Have trouble sleeping * Think about death or suicide Can someone have bipolar disorder along with other problems? Yes, Sometimes people having very strong mood episode may have psychotic symptoms. Psychosis affects thoughts and emotions as well as a person's ability to know what is real and what is not. People with mania and psychotic symptoms may believe they are rich and famous, or have special powers. People with depression and psychotic symptoms may believe they have committed a crime, they have lost all of their money, or that their lives are ruined in some other way. Sometimes, behavior problems go along with mood episodes. A person may drink too much or take drugs. Some people take a lot of risks, like spending too much money or having reckless sex. These problems can damage lives and hurt relationships. Some people with bipolar disorder have trouble keeping a job or doing well in school." 54. Sometimes, behavior problems go along with mood episodes. A person may drink too much or take drugs. Some people take a lot of risks, like spending too much money or having reckless sex. These problems can damage lives and hurt relationships. Some people with bipolar disorder have trouble keeping a job or doing well in school." 54. In view of the aforesaid discussion, we are left with no other option but to quash and set aside the judgment and order of conviction and death sentence. We would have to order re-trial. This can be done only after verifying presently whether the accused is of sound mind and consequently capable of making his defence. Such inquiry shall have to be done as provided under section 329 of the Cr.P.C. On the basis of the outcome thereof, the Trial Court shall have to proceed further. 55. The question of application of section 330 of the Code would arise only when the Trial Court comes to the conclusion that the accused is of unsound mind and, therefore, incapable of making his defence. It is not necessary for us to hazard any guess on what would be the outcome of such an inquiry. 56. It is needless to clarify that at the end of the inquiry under Section 329 of the Code, if the trial court is convinced that the accused is capable of making his defence, then he shall resume with the trial by framing the charge afresh. 57. In the result, the criminal appeal filed by the appellant- convict is hereby partly allowed. The conviction and death sentence recorded by the 3rd Addl. Sessions Judge, Mehsana at Vishnagar dated 29th September, 2016 in the Sessions Case No.48 of 2015 are hereby quashed and set aside. The Criminal Confirmation Case also stands disposed of accordingly. The case is remitted to the Sessions Court for fresh trial from the stage of framing of the charge again, after verifying the mental condition of the accused. The record and proceedings be transmitted to the Trial Court. 58. The Criminal Confirmation Case also stands disposed of accordingly. The case is remitted to the Sessions Court for fresh trial from the stage of framing of the charge again, after verifying the mental condition of the accused. The record and proceedings be transmitted to the Trial Court. 58. It is clarified that if the accused is not in a position to engage his own lawyer to defend himself, then having regard to the fact that this is a triple murder case (this could have been a quadruple murder case but for the miraculous survival of the wife of the accused), the Trial Court shall appoint an experienced counsel in this case by way of legal aid to defend the accused.