In view of the discussion of law and facts made above, we are satisfied that learned trial court erred in law in resuming full-fledged trial despite receiving categorical opinion of the medical board comprising of experts, conveyed to it by the Superintendent, Mental Hospital, Jaipur, vide letter dated 25.03.2009 that though there was partial improvement in the condition of accused and that he was capable of taking care of himself and would not cause any threat to himself and others, but "he was not capable of understanding the judicial process." This communication was specifically taken note of by the trial court in its order dated 08.04.2009, even then it proceeded with the trial further and did not rectify the mistake despite some of the witnesses, who were examined subsequently, stating about mental unsoundness of the accused at the time of crime. This was a serious lacunae which vitiated the entire trial.
22. In the result, present appeal succeeds and is allowed. The impugned judgment and order dated 17.07.2013 of the trial court is set aside. The matter is remanded back to the trial court for fresh medical examination of the accused-appellant from a Medical Board consisting of three expert psychiatrists to determine whether the accused-appellant was capable of making his defence during trial or otherwise, and then proceed in accordance with the provisions contained in Chapter XXV of the Code of Criminal Procedure, especially Sections 329 to 331 thereof, including about his right to be released on bail on fulfillment of the condition envisaged in Section 330 of the Cr.P.C.
IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
D.B. Criminal (Jail) Appeal No. 848/2013
Decided On: 26.05.2016
Ramswaroop
Vs.
State of Rajasthan
Coram:
Mohammad Rafiq and Vijay Kumar Vyas, JJ.
1. This appeal has been preferred by accused-appellant Ramswaroop by post through Superintendent, Central Jail, Kota, assailing judgment dated 17.07.2013 passed by the Additional Sessions Judge, Ramganjmandi, District Kota, whereby he was convicted for offence under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment with fine of Rs. 5000/-. In default of payment of fine, he was to further undergo simple imprisonment for three months.
2. Facts of the case, in brief, are that a written report was submitted by Rajendra Kumar (PW-2) on 20.01.2008, inter alia, alleging that his sister Krishna was married to accused Ramswaroop, who was resident of Pipakhedi, about 12-13 years ago. Two children were born out of their wedlock. He received a telephonic call on that day at around 6.00 PMfrom one Vinod, son of elder brother of Ramswaroop, to the effect that Ramswaroop has caused several injuries on the person of Krishna by 'kulhari', and thereby she sustained grievous injuries on head and left eyebrow and that he (Vinod), Rajendra, Ghanshyam and Prahlad took her in a Jeep to Government Hospital, Jhalawar for treatment, where she succumbed to injuries during treatment. Ramswaroop subjected Krishna to beating in his agriculture field near Kuntkya. On receiving this information, informant and his mother Mohan Bai immediately came to Government Hospital, Jhalawar, where they learnt that Krishna had died. It was alleged that Ramswaroop, with intention to commit murder of his sister Krishna, subjected her to beating by use of 'kulhari' and thereby caused grievous hurts, as a result of which she died.
3. On receipt of aforesaid written report, regular F.I.R. No. 22/2008 was registered for offence under Section 302 of the Indian Penal Code, and investigation commenced. Ramswaroop was arrested during investigation. Police filed charge-sheet against him in the court of Additional Chief Judicial Magistrate, Ramganjmandi, wherefrom the matter was committed to the court of Additional Sessions Judge, Ramganjmandi, District Kota, for trial. Charge for offence under Section 302 IPC was framed against accused Ramswaroop, who denied the same and claimed trial.
4. Prosecution produced 17 witnesses and got 16 documents exhibited. The trial court, by impugned judgment, has convicted and sentenced the accused-appellant, as indicated above.
5. Mr. Rajesh Choudhary, learned Amicus Curiae, has submitted that as per the testimony of several prosecution witnesses, the accused-appellant was not in a fit state of mind. Guddi Bai (PW-4) has stated that accused-appellant was suffering from mental disorder for last two years from the date of death of Krishna and that the accused and his wife had been having cordial relations. But the accused was suffering from mental disorder for last two years, and owing to that reason, he used to behave abnormally. The family had also taken him to local deity for treatment but did not get him treated from a government hospital. Learned counsel also referred to statement of Laxminarain (PW-6), father of deceased, who, in cross-examination, admitted that prior to the incident in question, the accused-appellant never subjected his daughter to beating and that at the time of incident, the accused was mentally imbalanced. Rajendra (PW-9), who is an independent witness, has also admitted in cross-examination that accused was suffering from mental disorder for last one-and-a-half-year.
6. Learned Amicus Curiae submitted that in fact, the counsel for the defence submitted an application on 11.11.2008 before learned trial court, which, by an order passed on the same day, directed that the accused-appellant be referred to the competent medical officer for assessment of his mental status. The trial court then, by order dated 17.12.2008, directed the Jailer, District Jail, Jhalawar to detain the accused-appellant in an authorized mental hospital in accordance with the Indian Lunacy Act, 1912. Accused-appellant then remained hospitalized in the Mental Hospital, Jaipur, for quite some time and thereafter, when he was discharged, the Superintendent, Mental Hospital, Jaipur, sent a communication dated 25.03.2009 to the Additional Sessions Judge informing that there is partial improvement in the condition of the accused after treatment and that he will not prove a danger to himself and others but he is not capable of understanding implications of judicial proceedings. The Medical Board has recommended his further treatment in MBS Hospital, Kota, from a psychiatrist and that his treatment should be continued in consultation with psychiatrist in the outdoor at that hospital. His future condition can be assessed by the doctors of that hospital. Even though, this report did not declare accused-appellant as completely fit, when the matter was thereafter taken up on 08.04.2009, the trial court only directed that request be sent to the Superintendent, M.B.S. Government Hospital, Kota, for treatment of the accused from a psychiatrist in its outdoor. Even then, the trial court by the same order, ordered to summon Guddi Bai (PW-4) by bailable warrant in the sum of Rs. 1000/- and proceeded further with the trial.
7. Learned counsel submitted that the accused was not capable of making his defence due to mental infirmity and in such a situation the trial court could not proceed further. The fact of his mental disorder was borne out from the medical examination report, evidence of the prosecution witnesses and also from the defence of the accused, in that he took the plea that his wife died due to blood pressure. So long the medical officer did not certify that accused was mentally fit to defend himself, the trial could not proceed further. Trial from that stage onwards thus stood vitiated. Recording of statements of the prosecution witnesses by the trial court was a nullity. It is prayed that impugned judgment be set aside and the matter be remanded to the trial court for fresh medical examination of the accused whether he is mentally fit and capable of defending himself. Learned counsel, in support of the argument, has relied on judgments in Dr. Jai Shanker (Lunatic) through Vijay Shanker Brother Guardian v. State of Himachal Pradesh - MANU/SC/0114/1972 : (1973) 3 SCC 83; Miss Veena Sethi v. State of Bihar and Others - MANU/SC/0089/1982 : (1982) 2 SCC 583; Pujappa v. The State - MANU/KA/0110/1990 : 1991 Cri.L.J. 1189; Chittmalla Krishna Murthy v. State of A.P. - MANU/AP/1543/2001 : 2001 Cri.L.J. 2457.
8. Mr. Aladeen Khan, learned Public Prosecutor, submitted that learned trial court was perfectly justified in proceeding with the trial. Learned Public Prosecutor submitted that in the communication dated 25.03.2009 the Superintendent, Mental Hospital, Jaipur, himself mentioned that there was partial improvement in the condition of the accused after the treatment and he would not prove any danger to himself or others. This kind of observation was based on opinion of the Medical Board. Therefore, there was no illegality committed by the trial court in proceeding with the trial and convicting the accused-appellant.
9. We have given our anxious consideration to rival submissions and perused the material on record.
10. Record of the case reveals that immediately after statement of Rajendra Kumar (PW-2) was recorded, learned counsel for accused submitted an application on 11.11.2008 before the trial court that according to his statement the accused suffered from mental disorder and therefore he should be got treated by qualified doctor. The trial court on 11.11.2008 directed that letter be issued to the Jailer, District Jail, Jhalawar, directing him to get the accused-appellant examined from the competent medical officer and submit the report on 17.12.2008. When the matter was taken up on 17.12.2008, the report of the medical board was submitted before the trial court, according to which the accused was suffering from Schizophrenia, a type of mental illness. The report of the Medical Board dated 27.11.2008 is on record. The Medical Board consisting of three senior doctors of Department of Psychiatry, Medical College & M.B.S. Hospital, Kota, in the said report opined that - "On the basis of behavioral observation, mental status examination and psycho diagnostic testings, the medical board is of the opinion that Mr. RAMSWAROOP S/o Mr. AMAR LAL is at present suffering from "SCHIZOPHRENIA" - a type of major mental illness." The trial court on that basis recorded its satisfaction that the accused was suffering from mental disorder. It therefore directed the Jailer, District Jail, Jhalawar, to lodge the accused in authorized mental hospital approved by the State Government in accordance with the provisions of the Indian Lunacy Act, 1912. It further directed that the trial shall resume in accordance with the provisions of Section 331 of the Code of Criminal Procedure after accused was free from the mental disorder.
11. The Additional Sessions Judge, Ramganjmandi, vide letter dated 17.12.2008 accordingly sent a requisition to Assistant Jailer, Sub Jail, Ramganjmandi, to take necessary steps in this regard, and in compliance whereof, the Assistant Jailer, Sub Jail, Ramganjmandi, vide letter dated 17.12.2008, requested the Deputy Superintendent, District Jail, Jhalawar, to take necessary steps to lodge the accused in authorized mental hospital approved by the State Government. It was thereafter that the Assistant Jailer, Sub Jail, Ramganjmandi, sent a letter dated 19.12.2008, to the Superintendent, Central Jail, Jaipur, that the accused was being sent to the Central Jail, Jaipur, along-with the guard and that necessary action for his treatment in the Mental Hospital, Jaipur, be taken. All these documents are on record. It appears that the accused-appellant was admitted to Mental Hospital, Jaipur on 19.12.2008 as indoor patient No. 380 for treatment of schizophrenia and remained hospitalized till he was discharged on 25.03.2009 when the Superintendent, Medical Hospital, Jaipur, addressed a letter dated 25.03.2009 to the Additional Sessions Judge, Ramganjmandi, stating that condition of the accused has been partially improved after treatment. He was found capable of taking care of himself and would not prove danger to himself and others. Yet however, a categorical opinion was given that he was not capable of understanding the judicial process. The medical board has suggested that he should be subjected to further treatment from a psychiatrist in outdoor of M.B.S. Hospital, Kota. His further condition may be assessed by the doctors of that hospital.
12. Perusal of the order-sheet of the trial court dated 08.04.2009 indicates that the letter of the Superintendent, Mental Hospital, Jaipur, dated 25.03.2009 was received by the trial court. The order dated 08.04.2009 further indicates that the trial court issued a direction to Jailer, Sub Jail, Ramganjmandi, for further treatment of the accused as outdoor patient in M.B.S. Hospital, Kota, from a psychiatrist till he did not become normal. Even then, the trial court has proceeded with the trial and simultaneously by the same order summoned Guddi Bai (PW-4) by bailable warrant of Rs. 1000/-. The trial court has then proceeded further and concluded the trial, which ultimately ended in conviction of the accused-appellant.
13. Obviously, the proceedings of the trial court from inception were vitiated by non-application of mind inasmuch as non-compliance of mandatory provisions contained in Chapter XXV of the Cr.P.C., especially Sections 328, 329 and 331. It is surprising to note that the trial court did not care to follow the mandatory provisions contained therein even when many of the prosecution witnesses, including father of deceased, who were examined thereafter, admitted the fact of mental disorder of the accused at the time of incident. Guddi Bai (PW-4) has stated that accused was suffering from mental disorder. There were always cordial relations between the accused and his wife. For last two years, however, he had been having mental infirmity owing to which fact his behaviour became quite abnormal. This witness even went to the extent of stating that accused was taken to several local deities for treatment but not to any government hospital. Laxminarain (PW-6), father of deceased, has also, in cross-examination, admitted that mental condition of the accused was earlier not such and that he never used to subject his daughter to beating and always treated her quite well. However, at the time of incident, he was suffering from mental disorder. Rajendra (PW-9), an independent witness, has also stated that the accused was suffering from mental imbalance for last one-and-a-half-year.
14. Indisputably, deceased died due to injuries caused by 'kulhari', which fact is proved by the medical officer Dr. Sanjeev Gupta (PW-10), who stated that deceased had suffered six incised wounds mostly on the head. This fact is also evident from the postmortem report (Exhibit P-10), which is proved by Dr. Sanjeev Gupta (PW-10). Accused took a very strange defence that his wife died due to blood pressure. What appears from the record is that had the accused-appellant been in fit state of mind, he could have taken defence of Section 84 of the Indian Evidence Act, but he took a very strange defence that his wife died due to blood pressure. Schizophrenia is a serious mental illness that interferes with a person's ability to think clearly, manage emotions, make decisions and relate to others. It impairs a person's ability to function to their potential when it is not treated. People with schizophrenia are far more likely to harm themselves than be violent toward the public. When violence does occur, it is most frequently targeted at family members and friends, and more often takes place at home. Therefore, in the facts of present case, we have no hesitation in holding that the trial was vitiated for non-compliance of the mandatory provisions of Chapter XXV of the Code of Criminal Procedure.
15. Chapter XXV of the Cr.P.C. contains the provisions with regard to such situation where the accused produced before the court for trial, appears to be of unsound mind or suffering from any mental disease. Section 329 (1) of the Cr.P.C. is relevant provision, which is attracted when at the trial of any person before a Magistrate or Court of Sessions, it appears to the Magistrate or Court of Sessions that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or the Court shall, in the first instance, try to find the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence, as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case. Sub-section (1A) of Section 329 of the Cr.P.C. mandates that if during trial, the Magistrate or Court of Sessions, finds that the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be, shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind. According to sub-section (2) of Section 329 of the Cr.P.C. if the court is informed that the person referred to in Sub-section (1A) is a person of unsound mind, the court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under Section 330 of the Cr.P.C. Proviso to sub-section (2) of Section 329 Cr.P.C., however, stipulates that if the court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused. Sub-section (3) of Section 329 of the Cr.P.C. however emphatically provides that if the court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he shall not hold the trial and order the accused to be dealt with in accordance with Section 330.
16. Special provision has been engrafted in Section 330 of the Cr.P.C., which provides that whenever a person is found under Section 328 or Section 329, to be incapable of entering defence due to unsoundness of mind or mental retardation, the court shall, whether the case is one in which bail may be taken or not, order release of such person on bail, provided that 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. Sub-section (2) of Section 330 of the Cr.P.C., however, provides that if the case is one in which, in the opinion of the court, bail cannot be granted or if an appropriate undertaking is not given, he shall order the accused to be kept in such a place where regular psychiatric treatment can be provided, and shall report the action taken to the State Government. This provision is subject to proviso that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987. Subsection (3) of Section 330 of the Cr.P.C. further provides that whenever a person is found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the court shall, keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered. This action is subject to two provisos, namely, (a) if on the basis of medical opinion or opinion of a specialist, the Court decides to order discharge of the accused, as provided under Section 328 or Section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person, and (b) if the Court is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training.
17. Analysis of the above referred provisions, which provide for special safeguards, would show that it is upon compliance of provisions of Sections 328, 329 and 330 of the Cr.P.C., if the court is later informed that the person concerned has ceased to be of unsound mind, then and then only it can, in accordance with Section 331 of the Cr.P.C., resume the trial and require the accused to appear or be brought before it. Here also there is a rider in sub-section (2) of Section 331 of the Cr.P.C. that if the accused is released under Section 330 of the Cr.P.C., and the sureties for his appearance produce him to the officer whom the court appoints in this behalf, the certificate of such officer that the accused is capable of making his defence shall be receivable in evidence.
18. The Supreme Court in Dr. Jai Shanker (supra), dealt with a case where the Magistrate failed to make the inquiry envisaged in Section 464 of the Cr.P.C., 1898 (old Code), as to incapacity of the accused in making his defence, and held that the committal proceedings as also his order committing the appellant to the Sessions Court for trial, were both vitiated.
19. A Division Bench of Karnataka High Court in Pujappa, supra, dealt with a case wherein after-medical examination, the trial court did not try the fact of purported unsoundness and incapacity of the accused. It did not record finding as to his mental condition and defending capacity and without fulfilling this initial obligation forthwith resumed and concluded the trial on the main charge itself. The High Court observed that the resulting lacuna was not innocuous but vital and held that this vital lacuna would vitiate the trial.
20. A Division Bench of Andhra Pradesh High Court in Chittmalla Krishna Murthy, supra, dealt with a case where a letter was sent by doctor to court showing that accused was not in a position to optimally and meaningfully participate and instruct his counsel for conduct of trial but the trial court without recording any finding thereon whether the accused had recovered from his illness at the time of commencement of trial and able to formulate his defence, proceeded with trial. The High Court held such irregularity to have vitiated the entire trial and set aside the conviction.
21. In view of the discussion of law and facts made above, we are satisfied that learned trial court erred in law in resuming full-fledged trial despite receiving categorical opinion of the medical board comprising of experts, conveyed to it by the Superintendent, Mental Hospital, Jaipur, vide letter dated 25.03.2009 that though there was partial improvement in the condition of accused and that he was capable of taking care of himself and would not cause any threat to himself and others, but "he was not capable of understanding the judicial process." This communication was specifically taken note of by the trial court in its order dated 08.04.2009, even then it proceeded with the trial further and did not rectify the mistake despite some of the witnesses, who were examined subsequently, stating about mental unsoundness of the accused at the time of crime. This was a serious lacunae which vitiated the entire trial.
22. In the result, present appeal succeeds and is allowed. The impugned judgment and order dated 17.07.2013 of the trial court is set aside. The matter is remanded back to the trial court for fresh medical examination of the accused-appellant from a Medical Board consisting of three expert psychiatrists to determine whether the accused-appellant was capable of making his defence during trial or otherwise, and then proceed in accordance with the provisions contained in Chapter XXV of the Code of Criminal Procedure, especially Sections 329 to 331 thereof, including about his right to be released on bail on fulfillment of the condition envisaged in Section 330 of the Cr.P.C.
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