Gauhati High Court
Nandeswar Das vs State Of Assam on 4 February, 2004
Equivalent citations: 2004CRILJ4723, (2004)3GLR482, 2004 CRI. L. J. 4723, (2004) 24 ALLINDCAS 105 (GAU), (2004) 3 GAU LR 482, 2004 (24) ALLINDCAS 105, (2004) 3 GAU LT 117
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. Heard Mr. B.K. Bhattacharjee, learned counsel for the appellant. Also heard Mr. P.C. Gayan, learned P. P. Assam.
2. The appellant herein was convicted under Section 304, Part I, IPC by the learned Sessions Judge in Sessions Case No. 50(N-2) 93 by his judgment and order dated 14.9.95 and accordingly sentenced to undergo RI for six years and to pay a fine of Rs. 1000 in default further imprisonment for 15 days.
3. Challenging such conviction and sentence of the appellant, Mr. Bhattacharjee, learned counsel for the appellant has forcefully argued that at the time of the commission of the offence appellant was a person of unsound mind and that aspect of the mental position of the appellant was not considered by the trial court as required under Section 329 Cr.P.C. and accordingly he has raised two questions before this court to be answered in this appeal :
(i) Whether at the time of occurrence of the offence, the appellant was by reason of unsoundness of mind incapable of knowing the nature of the act or that was doing what was either wrong or contrary to law.
(ii) Whether the violation, of Section 329 Cr.PC vitiated the commitment of live appellant and the trial.
4. Before we delve upon the issues raised, as aforesaid, it would be necessary to notice the factual matrix of the case in short compass. On 30.6.92 at about 7 a.m. one Ghanashyam Das the deceased, a Sarkari Gaon Bura alongwith with P.W 3, Joydhan Das went to the house of P.W. 5, Gambhir Das to discuss about some village matter. While they were returning from the house of P.W. 5, the appellant, Nandeswar Day suddenly attacked the deceased, Ghanashyam Das with a bamboo lathi (lakhuti) and as a result of such blow, the deceased fell down and P.W. 3 tried to intervene but as he was about to be assaulted by the accused, he raised hue and cry. In the meantime, the son and daughter of P.W. 5 rushed to the place of occurrence and forcibly took away the bamboo lathi, from the hands of the appellant who thereafter fled away from the scene. The decease, Ghanashyam Das, in an injured condition was then brought to his residence by those persons and the Doctor was called on and as per advice of the Doctor, the injured, Ghanashyam Das was shifted to the hospital where he succumbed to his injuries on the same day evening.
5. An Ejahar, Exbt. 1 was lodged with the police by P.W. 1, Smti. Sonemai Das @ Fulmai Das, wife of the deceased and the police registered a case. Consequently, investigation was initiated and after completion of the investigation, the police submitted charge sheet against the accused person under Section 302/307 IPC. Since the case was triable by the Sessions Court the same was committed, to the learned Sessions Judge, Nagaon who framed charge against the appellant under Section 302 IPC.
6. As many as 8 witnesses including the Doctor and the Investigating officer were examined by the prosecution when defence examined only one witness. The learned Sessions Judge on consideration of the materials available on record including testimony of the witnesses and upon hearing learned counsel for the parties found the appellant to be guilty of offence under Section 304, Part I, IPC instead of 302 IPC and accordingly convicted him under the said Section and sentenced as indicated above.
7. P.W. 3, Joydhan Das, being the sole eye witness, deposed that while he was returning from home of Gambhir Das alongwith the deceased, he saw the appellant standing near fencing of village road at a distance of two 'Nals' and suddenly the appellant hit Ghanashym Das from left side with bamboo lathi on his head twice as a result of which the deceased fell down on the ground and thereafter in an injured condition he was brought back to his house from where he was shitted to hospital by them and he died on the same day evening. In medical evidence, P.W.2, the Doctor, stated that there were three external injuries and one injury which were as follows :
External injuries.
1. One hacmatoma 2" x 2" left temporal region.
2. One hacmatoma 1" x 1" on left facial region.
3. One hacmatoma 2" x 2" on right axillary region.
No other external injury detected.
Internal injuries.
One heamatoma 2" x 2" left cerebral hemasphere."
8. As per Doctor's evidence, it appears that there were as many as three external injuries but from the deposition of P.W.3, the sole eye witness, it appears that Nandeswar gave two blows by bamboo lathi. It has come on the evidence that the deceased was given blow from his left side but one of the injuries shows that there was one Haematoma 2" x 2" on right axillary region. Viewed from there angles of medical evidence and the testimony of the P.W. 3, a doubt cast on the prosecution case as regards injury inflicted on the person of the deceased by the appellant.
9. Be that as it may keeping in view the question raised, now let us look at the evidence of the witnesses as regards the insanity of the appellant P.W. 5 and P.W.6, Gambhir Das and Fuleswari Devi respectively, though declared hostile by the prosecution, deposed in their cross-examination that the appellant was not mentally sound and always he kept shouting and staring blankly at people and such illness of the appellant had continued for 5 years prior to the date of incident. P.W. 5, being first cousin of the appellant, kept the appellant treated by the Doctors at hospital and even the appellant was kept in jail for his mental unsoundness. He had not yet been cured, DW 1, Dimbo Bora also deposed that mental state of appellant was weak as he was suffering from such ailment for the last five years. About two years before the date of the incident, he lost senses and he used to move around about naked and used to beat people in the street. He used to move on the road and jungles. From the evidence of those witnesses, i.e., P.W. 5, P.W. 6 and D.W.I, it appears that the appellant, at the time of commission of the offence, was mentally unsound and the same was brought to the notice of the Court during the trial and at the time of recording the evidence.
10. Though P.W. 5 and P.W. 6 were declared hostile by the prosecution, their evidence cannot be brushed aside merely on the ground that they were declared hostile inasmuch as the portion of evidence which has gone in favour of the defence, would have to the taken being advantageous to the defence, It is settled law that that declaration of a witness to be hostile does not ipso facto reject the evidence and the portion of the evidence being advantageous to the parties may be taken, advantage of, but the court should be extremely cautious and circumspect in such acceptance see the case of Balu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543, Though, it is seen, during the trial itself, the mental condition of the appellant was brought to the notice of the trial court, the fact of such unsoundness of mind of the appellant ought to have been considered by the trial court at the trial stage in compliance of the provisions laid down under Section 329 Cr.P.C. In the instant case, the learned Judge while dealing with the issue of unsoundness of mind of the appellant, discarded the evidence of those witnesses observing that on being resisted by P.W.3, the appellant tried to assault him but when the assault was resisted by his own kith and kin, P.W. 4 and P.W.7, the appellant fled away. That went to show that the accused could differentiate between the village and the blood relations. It was also observed that after commission of the crime, the accused absconded and did not return home on that date and also on the following date till his apprehension by the police. Therefore it showed the guilt conscious of the appellant which was relevant under Section 8 of the Evidence Act. But unfortunately, there is no whisper as regards the application of Section 329 Cr. P.C. in this regard by trial court. Once the question as regards the unsoundness of the mind of the appellant was raised, the learned Judge ought have consider such factual position falling upon the provisions of the said Section.
11. For better appreciation of the issue raised, it would be apt and apposite to refer to Section 329 Cr.P.C. which, runs as under :
"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."
12. From a perusal of the above provision, it explicit this Section relates to unsoundness of mind at the time of inquiry or trial and not at the time of commission of the offence. But it is mandatory that when the plea of insanity is raised before the court, it shall try the fact of unsoundness of mind and incapacity of the accused at the first instance. Hence, commencement of trial without satisfying itself or recording medical evidence or recording a finding on the material placed before the Court, will vitiate the trial. But in the instant case, the record does not indicate the compliance of this provision. The learned Judge ought to have satisfied himself as regards the mental health of the accused/ appellant in compliance of Section 329 Cr. P.C.
13. That apart, the testimony of the witnesses, i.e., P.W.5, P.W.6 and D.W. 1 who testified that the appellant was mentally ill, ought to have been considered in proper perspective and in totality, though they were declared to be hostile in order to get the considerable assistance in reaching at a fair and just finding as regards the mental condition of the appellant inasmuch as by virtue of their close and frequent contact with the accused, they were in a much better position to prove the insanity of the appellant.
14. Given the fact situation as well as the legal position, two questions raised by the learned counsel for the appellant, are accordingly answered as follows:-
(a) As regards question No. (i), from the evidence of on record especially relying on the deposition of P.W. 5 and P.W. 6 and D.W. 1, it can be safely held the appellant was mentally at the time of commission of the offence and as such he is entitled to the exemption contemplated in Section 84 IPC and
(b) In so far as question No. (ii) is concerned, non consideration of the factual position of health of the appellant by the trial court in terms of Section 329 Cr.P.C. resulted in vitiation of the trial.
15. For the foregoing discussions and observations, the impugned conviction and sentence cannot be sustained and accordingly the same is set aside and quashed. It is stated at the Bar that after the impugned conviction the appellant was already enlarged on bail. Hence the bail bond so furnished shall also stand discharged.
16. In the result, the appeal succeeds and stands allowed.