Gauhati High Court
Sri Bangla Bagti vs The State Of Assam on 28 July, 2011
Author: I.A. Ansari
Bench: I.A. Ansari
1
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram
and Arunachal Pradesh)
Criminal Appeal No.64(J) of 2007
Sri Bangla Bagti
..................... Appellant.
- Vs -
The State of Assam.
................ Respondent.
BEFORE HON'BLE MR. JUSTICE I.A. ANSARI HON'BLE MR. JUSTICE C. R. SARMA For the appellant : Mr. P.N. Choudhury, Amicus Curiae.
For the respondent : Mr. D. Das, Additional Public Prosecutor.
Date of hearing : 21.04.2011.
Date of delivery of
judgment & order : 28.07.2011
JUDGMENT & ORDER (CAV)
(C.R. Sarma J.)
This appeal from jail, is directed against the judgment and order, dated 05.01.2007, passed by the learned Addl. Sessions Judge (Fast Track Court), Cachar, Silchar, in Sessions Case No.85/2001, under Section 302 of the Indian Penal Code (for short 'IPC'). By the impugned judgment and order, the learned Addl. Sessions Judge, convicted the accused person, under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs.5,000/-, in default, undergo rigorous imprisonment for another period of two years.
Crl. Appl. No.64(J) of 2007 Page 1 of 19 2
2. The prosecution case, in brief, may be stated as follows :-
On 15.06.2001, at about 8.00 p.m., Smti Sabitri Bagti (PW.2), while sleeping with her daughter, Smti. Maya Bagti (PW.3), in her house, situated near the house of Ananta Bagti (hereinafter called 'the deceased'), heard cries coming from the house of the deceased and she, along with her said daughter, went out and saw the accused sitting near the dead body of his father i.e. the deceased, after killing the latter with a dao. Sri Jyoti Bagti (PW.1), who is the nephew of the deceased, on his return from market, came to know from his mother (PW.2) that the accused had killed his father. PW.1 also found the dead body of the deceased, lying in the courtyard and saw the appellant at the place of occurrence. After coming to know about the occurrence, PW.1 informed the members of their society and the Manager(Sahab) of the Tea Garden, who informed police regarding the occurrence. A formal FIR was also lodged with the police by PW.1. On receipt of the FIR, police registered a case, launched investigation into the matter. During the course of investigation, police visited the place of occurrence and seized a dao from the possession of the accused, in presence of the witnesses. The accused was arrested and the dead body of the deceased was forwarded for post mortem examination, after preparation of the inquest report. At the close of investigation, police laid charge sheet, against the accused person, for the offence under Section 302 IPC.
3. The offence being exclusively triable by the Court of Sessions, the learned Sessions Judge framed charge under Section 302 IPC and explained the same to the accused, to which the accused pleaded not guilty and claimed to be tried.
4. In support of their case, the prosecution examined as many as 10 witnesses, including the Medical Officer and the Investigating Police Officer.
5. After the examination of the prosecution witnesses, the accused person was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short Crl. Appl. No.64(J) of 2007 Page 2 of 19 3 'Cr.P.C.'). In his statement under Section 313 Cr.P.C., the accused person admitted the allegations brought against him and stated that, after taking liquor, he picked up a quarrel with his father, and out of anger, he dealt dao blow on the head of the deceased.
6. Considering the evidence on record, more particularly, the circumstantial evidence that the accused was found sitting near the dead body of his father, with a dao in his hand and the admission, made by the accused person, in his statement, made under Section 313 Cr.P.C., the learned trial Judge convicted the accused person, under Section 302 IPC and sentenced him, as indicated above. Aggrieved by the said conviction and sentence, the accused-convict, as appellant, has come up with this appeal.
7. We have heard Mr. P.N. Choudhury, learned Amicus Curiae, appearing for the appellant. Also heard Mr. D. Das, learned Addl. Public Prosecutor, representing the State of Assam.
8. Mr. P.N. Choudhury, learned Amicus Curiae, appearing for the appellant, taking us through the evidence on record and the impugned judgment and order, has submitted that the accused person, at the time of the alleged offence, was suffering from 'schizophrenia' and, as such, he being mentally unsound, was entitled for the benefit, extended by Section 84 IPC. The learned Amicus Curiae, has further submitted that, as there is no eye witness regarding the commission of the alleged offence by the accused person, the presence of the accused person, who is the son of the deceased, near the dead body of his father, can't conclusively lead to hold that he was the perpetrator of the crime. It is also submitted that, there being no evidence regarding serological test/forensic examination in respect of the said dao, the prosecution has failed to substantiate that the said dao was used by the appellant for committing the alleged offence. The learned Amicus Curiae, referring to the evidence of the star Crl. Appl. No.64(J) of 2007 Page 3 of 19 4 witness i.e. PW.2, who was the first person to appear in the place of occurrence, immediately after the occurrence, has pointed out that the said prosecution witness clearly stated, in her cross examination that the accused person was suffering from mental disorder and that she did not see the occurrence.
9. In view of above, referring to the observations made by the learned trial judge, at paragraph Nos. 18, 19 and 20 of the impugned judgment, the learned Amicus Curiae has submitted that, it is on record that the appellant suffered from mental illness, requiring his treatment in the Lokapriya Gopinath Bordoloi Regional Institute of Mental Health, (for short, 'LGBRIMH'), Tezpur, and that the report submitted by LGBRIMH, confirmed that, he was suffering from mental disorder. Therefore, it is submitted that, as the learned trial judge, during the trial, came to know about the mental illness of the accused person, he ought to have tried into the question of mental illness, as provided by Section 329 Cr.P.C. The learned Amicus Curiae, further submitted that, failure of the learned trial judge to ascertain as to whether the petitioner was fit to make statement under Section 313 Cr.P.C., fully knowing about the implication and the consequence of admission of the guilt, caused prejudice to the appellant and the admission, made by the accused person, can't be used against him to base the conviction, that too, in the absence of any substantive evidence. The learned Amicus Curiae, has further submitted that, there is nothing on record as to what prompted the accused person, who denied the charge, brought against him, at the time of framing the charge, to admit the guilt at the time of recording his statement under Section 313 Cr.P.C. The learned Amicus Curiae, has submitted that, considering the evidence of PW.2, regarding mental illness of the accused person and the fact that he was suffering from schizophrenia, requiring treatment at the LGBRIMH, Tezpur, the admission made by the accused person, under Section 313 Cr.P.C, which was contrary to the stand taken by him at the time of framing the charge, indicates that, he was not mentally fit to properly understand the Crl. Appl. No.64(J) of 2007 Page 4 of 19 5 implications and legal consequences of making the admissions. In view of above, it is submitted that, the learned trial judge committed error by recording the conviction, solely on the basis of the statement made under Section 313 Cr.P.C and by proceeding with the trial, without trying the mental fitness of the accused.
10. Mr. D. Das, learned Addl. Public Prosecutor, controverting the said argument, advanced by the learned Amicus Curiae, has submitted, that the presence of the accused person near the dead body, with a dao in his hand, and the death of the deceased due to the cut injury, sufficiently indicate that, none other than the accused-appellant had committed the said offence. It is also submitted that, as the defence failed to establish, by adducing evidence, the mental illness of the accused person, the learned trial judge committed no error by relying on the admissions made by the accused person, under Section 313 Cr.P.C.
11. For appreciating the counter arguments, advanced by the learned counsel for both the parties and to examine the correctness of the evidence on record, we feel it proper to, briefly, scan the evidence on record.
12. There is no dispute regarding the death of the deceased. PW.10 Sri Sanuar Ali Barbhuiya, Inspector of Police, who deposed on behalf of the Investigating Officer, (I.O.) due to incapacity of the I.O. to appear in the Court, stated that, inquest report in respect of the dead body of the deceased was prepared and that the dead body was sent for post mortem examination.
13. Dr. Monoj Kr. Sinha, Asstt. Professor, Department of Forensic Medicine, Silchar Medical College & Hospital, who deposed as PW.9, in his evidence, stated that, he performed the post mortem examination in respect of the dead body of the deceased and found the following injuries :-
"Injuries - Incised injury with gapping over the oxipital scalp horizontally placed 16x4 cm. cutting all structures including Crl. Appl. No.64(J) of 2007 Page 5 of 19 6 scalp and oxipital bone with depth upto cranial cavity. Oxipita bone is cut completely with bevelling to superior to inferior side. Decomposed brain matter seen coming out from the wound. Anti-mortem blood clot seen firmly adherent over the hole margin."
The Medical Officer also opined that, the cause of death was due to the injuries sustained by the deceased on his head, which was ante mortem and homicidal in nature.
14. From the above medical evidence, it is found that, the deceased died due to the incised injury, sustained by him, on his scalp. Now, the question is as to who had caused the said fatal injury. The prosecution version is that the appellant, who is the son of the deceased, had caused the said injury, resulting death of the deceased.
15. Sri Jyoti Bagti i.e. the son of PW.2, deposing as PW.1, stated that, after his return from market, he came to know from his mother that, the appellant had killed the deceased and that he saw the dead body of the deceased, lying in his courtyard. He also found the accused at the place of occurrence. According to this witness, he informed the members of the society and the Manager/Sahab of the Tea Garden, who informed police regarding the occurrence. PW.1 also stated that, he submitted the FIR with the police and upon arrival of police, at the place of occurrence, the accused was handed over to the police, by the neighbouring people, who had apprehended him. He further stated that, police seized a dao from the possession of the accused. Though this witness stated about the presence of the accused person near the dead body, he did not state that he saw any dao in the hand of the accused. However, he stated that, police had seized a dao from the possession of the accused. The seizure of dao from the possession of the accused does not mean that the accused was sitting near the dead body with a dao in his hand. He also did not state anything regarding existence of blood stain in the dao aforesaid. From the evidence of PW.1, it is found that, he Crl. Appl. No.64(J) of 2007 Page 6 of 19 7 came to know about the involvement of the accused from his mother. But he contradicted his said evidence, by saying, in his cross-examination, that nobody saw the occurrence. This evidence of PW-1 negates the evidence of PW-2, who claimed, in her chief examination, that she had seen the accused committing the offence. Of course, PW-2 also contradicted her said evidence by saying, in her cross examination, that she did not see the occurrence.
16. Smti Sabitri Bagti i.e. the mother of PW.1, deposed as PW.2. She stated that, when she was sleeping in her house with her daughter, (PW-3), hearing cries, she came out from her room along with her said daughter and saw the accused person to have killed his father. According to this witness, the accused was sitting near the deceased with a dao in his hand. She also stated that, she informed the other members of the garden and her son (PW.2), who returned from market. She further stated that, till the arrival of police, the villagers detained the accused and the police had taken the dao from the accused. In her cross-examination, she stated that, her house was situated at a distance of 40/50 cubits from the house of the deceased and that there being no electric light, they could not see things from distance. She denied the suggestion that, she did not state before the police that hearing hulla, she went to the place of occurrence. This omission, which the PW.2 denied, has been proved by the defence through the Investigating Officer i.e. PW.10.
17. The Investigating Officer also stated that, PW.2 i.e. Smti Sabitri Bagti, did not state, in her examination u/S.161 Cr.P.C., that she rushed to the place of occurrence, after hearing the hulla. In our considered opinion, the said omission on the part of PW.2 was material and vital one and as such it is doubtful as to whether, hearing hue and cry, she had went out from her house and saw the accused person committing the alleged offence. This doubt has been fortified by the evidence, elicited from her cross examination. She stated that, at the relevant time it was raining and that she had closed the door. Therefore, as she had closed the door, it is hardly Crl. Appl. No.64(J) of 2007 Page 7 of 19 8 believable that she had come out to see the accused person committing the alleged offence. That apart, according to her own evidence, there was no electricity or no source of light. There is, therefore, no evidence to throw light as to how she, despite darkness, could see the accused committing the alleged offence. PW.2 aforesaid, contradicted her evidence by saying that, she did not see the occurrence. This statement of PW.2, negates her evidence, given in chief, that she had seen the accused to have killed his father. This contradiction, on the part of PW-2, absence of any source of light coupled with evidence of PW-1 that no body could see the occurrence, makes it doubtful if the said PW-2 had seen the accused committing the alleged offence.
18. However, this witness clearly stated that the accused was suffering from mental disorder. A close scrutiny of the evidence of PW-2 leads to find that due to heavy rain she remained confined inside her house and therefore, she did not see the accused committing the offence.
19. PW.3 Smti Maya Bagti i.e. the daughter of PW.2, stated that, she came out of their house along with her mother and saw the accused cutting his father. She further stated that, seeing the blood she became senseless and did not know anything thereafter. But, her mother, i.e. PW.2 did not support the evidence of PW.3 that she became unconscious after seeing the blood. Rather, as noted above, the evidence of PW.2 that they closed the door due to the rain and that she did not see the occurrence, indicate that PW-2 and PW-3 did not come out from their house to see the occurrence. PW-3, also in tune with the evidence of PW-2, in her cross-examination, stated that due to heavy rain, it was not possible to come out from the house. Her mother also stated that due to rain she had closed the door. Therefore, due to the rain it was not possible to come out and as such, it is hardly believable that PW-2 and PW- 3 went out to see the accused committing the alleged offence. Crl. Appl. No.64(J) of 2007 Page 8 of 19 9
20. PW.4 Sri Bati Lal Goala, PW.5 Sri Radheswam Sheel, PW.6 Sri Binod Karmakar, PW.7 Sri Manoranjan Nath and PW.8 Sri Mantu Bagti, all assembled in the place of occurrence, after coming to know about the occurrence. They did not see as to who had committed the offence.
21. PW.4 stated that, the accused was found sitting on the ground. He did not state anything regarding availability of any dao in the hand of the accused person.
22. PW.5 stated that, he was informed by PW.2 about the occurrence. He did not state anything about presence of the accused near the dead body of the deceased.
23. PW.6 stated that, knowing about the occurrence, he visited the place of occurrence and came to know that the accused had killed his father. He found police at the place of occurrence.
24. PW.7 stated that, after his arrival, in the place of occurrence, he found the accused person, being tied by some boys of the area. He stated that, police had seized a dao in his presence. He did not state as to from where the police had seized the said dao.
25. PW.8 stated that, on his arrival in the place of occurrence, PWs. 1 and 2 informed him that, the accused had killed his father. He further stated that, he saw the accused standing in the courtyard. He did not state that the accused was found with a dao in his hand.
26. PW.10 i.e. the Police Officer, stated that, one blood stained dao was seized vide Ext.No.1. Ext.No.1 reveals that the dao, which was lying near the deceased, was seized from the place of occurrence.
Crl. Appl. No.64(J) of 2007 Page 9 of 19 10
27. The above-discussed evidence does not inspire confidence to believe that the dao was seized from the possession of the accused person. Hence, it is not believable that the accused was holding the dao until the same was seized from him.
28. None of the independent witnesses aforesaid, stated that, the dao was stained with blood. That apart, the police officer i.e. PW.10, clearly stated that the blood stained dao was not sent for chemical examination for ascertaining whether the same contained human blood or not. In view of above, as there was no examination regarding existence of human blood in the seized dao, it can't be held that the dao contained human blood, far less the blood of the deceased. Therefore, it cannot be held that the said weapon was used by the accused in killing the deceased. As discussed above, none of the witnesses saw the accused person committing the alleged offence. Therefore, there is no direct evidence, on record, to hold that the accused person had caused the injuries, sustained by the deceased. Mere presence of the accused, who is the son of the deceased and who is stated by PW-2 to be of mentally unsound mind, near the dead body of his father, cannot be substantive evidence to conclusively lead to believe that he had killed his father.
29. In view of above, we find sufficient force in the contention of the learned Amicus Curiae, that the prosecution failed to establish, beyond all reasonable doubt, by adducing cogent and reliable evidence, that none other than the accused person had caused the death of the deceased.
30. From the above discussion, what surfaces is that there is no reliable independent evidence, except the admission made by the accused person, in his statement, made under Section 313 Cr.P.C., to substantiate that the appellant had killed the deceased.
31. The learned Amicus Curiae has submitted that the accused was suffering from schizophrenia and as such due to such mental illness he, in fact, did not Crl. Appl. No.64(J) of 2007 Page 10 of 19 11 know what he was doing or what he was saying. Therefore, it is submitted that as the accused, due to his mental illness, could not realise the implication and legal consequence of making statement u/S. 313 Cr.P.C., his statement/admission, made u/S.313 Cr.P.C., cannot be used against him.
32. Admittedly, the PW-2 clearly stated that the accused was suffering from mental disorder. The order sheets (order dated 11.12.2001) maintained by the learned trial Judge, reveals that the learned Chief Judicial Magistrate, on 18.08.2001, directed to send the accused to the LGBRIMH, Tezpur for proper treatment. Though he was sent to the said institute on 19.08.2001, the authority returned him, for want of seat, with instruction to send him again after 3 months. Thereafter, the accused was sent to LGBRIMH, Tezpur on 23.11.2002 and order dated 04.09.2003 reveals that he was returned with the certificate that he recovered considerably. The said certificate has not been proved and the learned Sessions Judge fixed the case, on 30.09.2003, for framing of charge.
On the said date the accused was not produced before the Court, on the ground that he was sick. From the order dated 07.10.03 it is found that he was required to be taken to the psychiatry OPD, Silchar Medical College Hospital for check up. The said order indicates that he was a mental patient. Thereafter, till 22.12.2003 he was not produced in the Court, as he was sick. However, he was produced in Court on 03.01.2004. Though, on 07.10.2003, order was passed to take him to the psychiatry OPD, at Silchar Medical College the said order was not complied with and the accused, on being produced before the Court from the jail, was remanded from time to time. On 18.01.2003, the learned Sessions Judge, referring to the order, dated 20.12.2001, recorded that the accused was not sent to the said Institute at Tezpur. The learned trial Judge recorded:- On interview it is seen that the UTP is mentally fit now, so, the jail authority is directed to examine the UTP by a psychiatrist and to Crl. Appl. No.64(J) of 2007 Page 11 of 19 12 submit report in the Court and fixed the case on 01.02.2005. On 01.02.2005 the accused was hospitalized, in the Silchar Medical College as he was sick.
On 24.03.2005, the learned Sessions Judge, on production of the accused from the jail, noted that as per the report submitted by the Registrar, Department of Psychiatry, Silchar Medical College, the accused was fit for trial. Thereafter, the learned trial Judge, on 07.04.2005, framed charges and proceeded with the trial.
From the above, it is clear that as per the order dated 18.08.2001 passed by the learned CJM, the accused was required to be taken to the LGBRIMH at Tezpur but he was sent to Tezpur on 19.08.2001. On 04.09.2003, he was produced in the Court along with the report that he recovered considerably. This implies that he did not recover fully. Again he was required to be sent to the psychiatry Department, Silchar Medical College. On 24.03.2005, from the report of the Psychiatry Department, the learned Sessions Judge found that the accused was fit to face the trial. Therefore, admittedly, the accused was found to be a mental patient as on 18.08.2001 and the trial could not be proceeded with till 07.04.2005 i.e. the date on which charge was framed. Therefore, considering the fact that the accused was required to be sent to LGBRIMH, Tezpur as well as in the Silchar Medical College Hospital, due to his mental disorder, and the evidence of PW-2, we don't find it safe to brush aside the contention, raised by the learned Amicus Curiae, that the accused, at the time of occurrence, was suffering from mental illness.
33. Section 84 of IPC, which reads as follows, provides the benefit to a person of unsound mind.
"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."Crl. Appl. No.64(J) of 2007 Page 12 of 19 13
34. Therefore, as the alleged offence appears to have been committed by a person (accused) of unsound mind, the accused is entitled to the exemption, provided by Section 84 IPC.
35. As discussed above, from the order sheet of the record it transpires that, during the pendency of the case, the accused was found to be of unsound mind. Fact remains that he was treated in the LGBRIMH, Tezpur and the Silchar Medical College Hospital for quite long period.
36. Section 329 Cr.P.C., which reads as follows, provides the procedure to be followed in trying a person of unsound mind:-
"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.
(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Magistrate or Court."
37. As provided by Section 329 Cr.P.C., the trial Court, dealing with a person of unsound mind, in the first stance, is required to try the fact of such unsoundness and incapacity. In the present case, as per the report issued by the LGBRIMH, Tezpur the accused had recovered considerably, thereby meaning that he did not recover fully. That apart, subsequently, he was required to be sent to the Psychiatry Department, Silchar. The trial Court, on the basis of the report (not proved) issued by the petitioner, Psychiatry Department, Silchar Medical College Hospital concluded that the accused was fit to face trial. In fact, the learned Judge neither recorded as to what were the findings regarding mental health of the accused, nor Crl. Appl. No.64(J) of 2007 Page 13 of 19 14 examined the Medical Officers, who examined/treated the accused and submitted the reports. Therefore, it is found that the learned trial Judge did not try the fact regarding unsoundness and incapacity of the accused.
38. What is schizophrenia and what are its symptoms have been outlined by the National Center for Bio-Technology Information, U.S. National Library of Medicine 8600 Rockville Pike, Bethesda MD, 20894 USA as follows:-
"Schizophrenia.
Last reviewed : February 7,2010.
Schizophrenia is a mental disorder that makes it difficult to tell the difference between real and unreal experiences, to think logically, to have normal emotional responses, and to behave normally in social situations.
Causes, incidence, and risk factors.
Schizophrenia is a complex illness. Even experts in the field are not sure what causes it.
Genetic factors appear to play a role. People who have family members with schizophrenia may be more likely to get the illness themselves.
Some researchers believe that environmental events my trigger schizophrenia in people who are already genetically at risk for the disorder. For example, infection during development in the mother's womb or stressful psychological experiences may increase the risk for developing schizophrenia later in life. Social and family support appears to improve the illness.
Schizophrenia affects about 1% of people worldwide. It occurs equally among men and women, but in women it tends to begin later and be milder. For this reason, males tend to account for more than half of patients in services with high numbers of young adults. Although schizophrenia usually begins in young adulthood, there are cases in which the disorder begins later (over age 45).
Childhood-onset schizophrenia begins after age 5 and, in most cases, after normal development. Childhood schizophrenia is rare and can be difficult to tell apart from other developmental disorders of childhood, such as autism.
Symptoms.
Schizophrenia may have a variety of symptoms. Usually the illness develops slowly over months or years. Like other chronic Crl. Appl. No.64(J) of 2007 Page 14 of 19 15 illness, schizophrenia cycles between periods of fewer symptoms and periods of more symptoms.
At first, you may feel tense, or have trouble sleeping or concentrating. You can become isolated and withdrawn, and have trouble making or keeping friends.
As the illness continues, psychotic symptoms develop:
. Appearance or mood that shows no emotion (flat affect) . Bizarre movements that show less of a reaction to the environment (catatonic behavior) . False beliefs or thoughts that are not based in reality (delusions).
. Hearing, seeing, or feeling things that are not there
(hallucinations)
Problems with thinking often occur :
. Problems paying attention
. Thoughts "jump" between unrelated topics (disordered
thinking)
Symptoms can be different depending on the type of
schizophrenia:
. Paranoid types often feel anxious, are more often angry
or argumentative, and falsely believe that others are trying to harm them or their loved ones.
. Disorganized types have problems thinking and expressing their ideas clearly, often exhibit childlike behaviour, and frequently show little emotion.
. Catatonic types may be in a constant state of unrest, or they may not move or be underactive. Their muscles and posture may be rigid. They may grimace or have other odd facial expressions, and they may be less responsive to others.
. Undifferentiated types may have symptoms of more than one other type of schizophrenia.
. Residual types experience some symptoms, but not as
many as those who are in a full-blown episode of
schizophrenia.
People with any type of schizophrenia may have difficulty keeping friends and working. They may also have problems with anxiety, depression, and suicidal thoughts or behaviors."Crl. Appl. No.64(J) of 2007 Page 15 of 19 16
39. According to the Butterworths Medical Distionary the meaning of the term schizophrenia means :-
"Schizophrenia (ski.zo.fre.ne.ah). A mental disorder characterized by a special type of disintegration of the personality: thought processes are directed by apparently random personal associations rather than logically to a goal, there is incongruity between the content of thought and the corresponding emotion, and an impaired relation to reality. Delusions, hallucinations and catanoia may be predominant features. [Gk schizen to split, phren mind.]
40. Schizophrenia, also sometimes called split personality disorder, is a chronic, severe, debilitating mental illness. It is one of the psychotic mental disorders and is characterized by symptoms of thought, behaviour, and social problems. The thought problems associated with schizophrenia are described as psychosis, in that the person's thinking is completely out of touch with reality at times. For example, the sufferer may hear voices or see people that are in no way present of feel like bugs are crawling on their skin when there are none. The individual with this disorder may also have disorganized speech, disorganized behaviour, physically rigid or lax behavior (catanoia), significantly decreased themselves or feelings, as well as delusions, which are ideas about themselves or feelings, as well as delusions, which are ideas about themselves or others that have no basis in reality (for example, experience the paranoa of thinking others are plotting against them when they are not).
41. Considering entire aspect of the matter, we have no hesitation to hold that the accused was suffering from mental disorder. The examination of the accused person under Section 313 Cr.P.C. is a statutory obligation and not a mere formality. The purpose of such examination is to provide sufficient opportunity to the accused person to explain the circumstances and the incriminating evidence, brought against him. During such examination the attention of the accused is required to be invited to the incriminating evidence and the circumstantial evidence relating to the offence for Crl. Appl. No.64(J) of 2007 Page 16 of 19 17 which he has been charged. It provides the opportunity to the accused to state before the Court as to what is the truth and what is his defence in accordance with the law. Therefore, before an accused person is examined under Section 313 Cr.P.C. the Court must ascertain that the accused person is mentally fit to properly understand the legal implications of the incriminating evidence/materials, brought against him and the questions put to him. Unless he properly understands the legal implications and the consequence thereof, it will not be proper to use the answer/admissions given by him.
42. In the case of Deepak Panyang vs. State of Arunachal Pradesh reported in (2011) 1 GLR 160, a Division Bench of this Court referring to a catena of decisions, rendered by the Supreme Court, regarding the applicability of the admissions made by an accused in his examination under Section 313 Cr.P.C. observed as follows:
"77. From what have been observed and laid down in Sukhdev Singh (supra), it becomes transparent that if an accused person, in his examination under section 313, Cr.P.C, confesses to the commission of the offence(s) charged with, the court may, relying upon such confession, proceed to convict the accused and it is only when the accused does not confess and/or the accused chooses to explain the circumstances appearing in the evidence against him or sets ups his own version of the occurrence claiming to the effect that he had committed no offence, the statement of the accused, made during the course of examination under section 313, Cr.P.C., can be considered in its entirety along with other pieces of evidence on record. To put it a little differently, there is no impediment in law for a court to found conviction of an accused on his confession made by him during his examination under section 313, Cr.P.C., and/or to rely upon an admission of facts made by an accused during his examination under section 313, Cr.P.C."
43. In view of above, it was the duty of the learned trial Judge to come to a definite finding, on the basis of the medical evidence, regarding the mental health of the accused and the learned trial Judge should have taken resort to the provisions, provided by Section 329 Cr.P.C.
Crl. Appl. No.64(J) of 2007 Page 17 of 19 18
44. Therefore, as the learned trial Judge failed to ascertain the fact regarding unsoundness and incapacity of the appellant, the answers given by him cannot be accepted as admission, inasmuch as, it was doubtful as to whether he could properly understand the implications and legal consequence of giving such answers to the questions, put to him.
45. Fact remains that at the time of framing the charge, the accused person categorically denied the charge, brought against him and he claimed to be tried. There is no explanation as to what prompted the accused person to admit the allegations, brought against him, at the time of his examination under Section 313 Cr.P.C. Considering the mental condition of the accused, as indicated above, it is doubtful if he understood the implication and legal consequences of giving the answers in the said way.
46. Considering entire aspect of the matter and the evidence regarding mental illness of the accused person it is not safe to hold that the accused had made the admissions voluntarily, fully knowing the legal consequence of such admission. Therefore, in our considered opinion, the learned trial Judge committed error by recording the conviction on the basis of admission aforesaid, made by the accused person.
47. In view of what has been discussed above, we find sufficient merit in this appeal, requiring interference with the impugned conviction and sentence. Accordingly, we allow the appeal. Consequently the impugned conviction and the sentence are set aside. The accused person/appellant is acquitted. He be set at liberty forthwith, if not required in any other case.
48. Before we part with this judgment, we record, with appreciation, the assistance rendered by Mr. P. N. Choudhury, learned Amicus Curiae. We direct that, Crl. Appl. No.64(J) of 2007 Page 18 of 19 19 the State shall pay remuneration of Rs.3,500/- (Rupees three thousand five hundred) only to the learned Amicus Curiae.
Return the Lower Court Records.
JUDGE JUDGE
ROY/MB
Crl. Appl. No.64(J) of 2007 Page 19 of 19