Gauhati High Court
Babul Boro @ Babulal Boro 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. 94(J) OF 2005
Babul Boro @ Babulal Boro.
................. Appellant.
-Versus-
The State of Assam.
................ Respondent.
For the appellant : Mr. Binod Kr. Singh,
Amicus Curiae.
For the respondent : Mr. K. M. Majumder,
Addl. Public Prosecutor,
Assam.
PRESENT
THE HON'BLE MR. JUSTICE I.A. ANSARI
THE HON'BLE MR. JUSTICE C.R. SARMA
Date of hearing : 19.04.2011 & 21.04.2011
Date of Judgment : 28.07.2011
and Order
JUDGMENT AND ORDER (CAV)
(C. R. Sarma, J)
By the judgment and order, dated 26.07.2005, passed in Sessions Case No.90 of 2004, learned Addl. Sessions Judge (Ad-hoc), Borpeta, has convicted the accused Shri Babul Boro alias Babulal Boro, under Section 302 of the Indian Penal Crl. Appeal 94(J)/2005.
Page 1 of 25 2Code (hereinafter called the „IPC‟) and sentenced him, for his conviction, under Section 302 IPC to undergo rigorous imprisonment for life and pay fine of Rs.5000/-, in default suffer rigorous imprisonment for another period of six months
2. The prosecution case, as unfolded during the trial, in brief, may be stated as follows:-
3. On 31.03.2004, at about 8.30 a.m., when the informant‟s father Ramani Mohan Das (hereinafter called the „deceased‟) was proceeding to his daughter‟s house, at Gati village, by riding a bicycle, the appellant, who was armed with a dao, finding him on the road, assaulted the deceased causing injuries on his neck, face and head. Though the deceased was shifted to hospital he succumbed to the said injuries. The informant, who is the son of the deceased, was in the market, at the relevant point of time, and on being informed about the incident, he rushed to the place of occurrence and found the deceased, being carried by Shri Gapen Boro and another boy in a handcart. According to the informant, he was informed by the said two persons that the appellant had killed his father. On being so informed, the informant i.e. the PW-2 lodged an FIR (Exbt.2), with the Officer-in-Charge, Patacharkuchi Police Station and accordingly police, after registering a case as Patacharkuchi PS Case No.63/04, under Section 302 IPC, launched investigation into the matter. During the course of investigation, police arrested the accused person, who was handed over by the villagers, seized a khamti dao produced by Shri Jatin Boro (PW-3), who is the brother of the accused and Crl. Appeal 94(J)/2005.
Page 2 of 25 3a bicycle, belonging to the deceased, prepared the inquest report, got the autopsy of the dead body of the deceased done and examined the witnesses.
4. At the close of the investigation, police laid charge sheet under Section 302 IPC against the accused. The offence, being exclusively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate, Bajali, Pathsala committed the case to the Court of Sessions and the learned Sessions Judge framed the charge under Section 302 IPC. The charge being read over and explained to the accused, he pleaded not guilty and claimed to be tried.
5. In support of their case, the prosecution examined as many as 9 witnesses including the investigating officer and the medical officer. After examination of the prosecution witnesses, the learned Sessions Judge examined the accused, under Section 313 Cr.P.C. and in his examination aforesaid, the accused admitted that he had killed the deceased, because the deceased used to disturb him in his works. The following evidence, given by PW-8, was also put to the accused:- "PW-8 has stated, in his evidence that coming out to the road he saw you loitering on the road, taking a dao in hand; that on seeing him you charged at him; that he ran away; that in the market he heard that you had cut a man and that coming from the market he took the injured man to Jalah medical. What do you say?" In reply to the said question, the accused answered "I would cut him too."
Crl. Appeal 94(J)/2005.
Page 3 of 25 46. The learned counsel, appearing for the accused, before trial court, submitted that, at the time of occurrence, the accused was of unsound mind and therefore, he was entitled to the benefit, extended by Section 84 IPC. The learned trial Judge, refused to accept the said contention on the ground that no evidence was adduced by the defence to show that at the time of occurrence or prior to the occurrence, the accused was suffering from insanity. The learned Sessions Judge convicted the accused on the basis of circumstantial evidence that the deceased died at the time of occurrence, sustaining cut injury on the left side of his neck, caused by means of a sharp cutting weapon and that the accused was found loitering with a dao, in his hand, at the place of occurrence, that is on the road, that, immediately after the occurrence, the prosecution witnesses came to know that the accused had stabbed the deceased, that the villagers had tied the accused and that the police had seized the dao, used by the accused. The learned Sessions Judge also relied on the admission, made by the accused person, during his examination under Section 313 Cr.P.C.
7. Aggrieved by his conviction and the sentence aforesaid, the accused, as appellant, has come up with this appeal, challenging the correctness of the impugned judgment and order.
8. We have heard Mr. B. K. Singh, learned Amicus Curiae, appearing for appellant and Mr. K. A. Majumder, learned Addl. Public Prosecutor. The learned Amicus Curiae, Crl. Appeal 94(J)/2005.
Page 4 of 25 5taking this Court through the evidence on record as well as the impugned judgment and order, has submitted that the prosecution witnesses, more particularly PW 3, PW 4, PW 6 & PW 7 stated that the appellant was suffering from mental disorder and as such the learned trial Judge committed error by proceeding with the trial and thereafter convicting and sentencing the accused appellant, without making any inquiry regarding the insanity of the appellant.
It is also submitted, on behalf of the appellant, that in view of the evidence given by the prosecution witnesses regarding mental illness of the appellant, the learned trial Judge, before proceeding any further with the trial, and also before examining the accused, under Section 313 Cr.P.C., should have ascertained as to whether the accused was mentally fit to enter into the defence and answer the questions, put to him, fully understanding the legal implications and the consequence thereof. The learned Amicus Curiae has also submitted that, as the accused was suffering from mental illness, i.e. schizophrenia, he was not capable of taking any defence and as such the answers given by him, during his examination, under Section 313 Cr.P.C., cannot be used against him. The learned Amicus Curiae has further submitted that, there being no eye witness to the occurrence, the alleged circumstances that the appellant was found loitering, with a dao in his hand, in the place of occurrence followed by his detention by the villagers and the production of a dao by the brother of the appellant cannot be substantive circumstantial evidence pointing to the guilt of the appellant, inconsistent Crl. Appeal 94(J)/2005.
Page 5 of 25 6with his innocence. With the above submission, the learned Amicus Curiae has contended that the appellant is entitled to be acquitted and that this is a fit case requiring interference by this Court.
9. Controverting the said argument, advanced by the learned Amicus Curiae, Mr. Majumder, learned Addl. Public Prosecutor, has submitted that the defence failed to establish, by adducing any evidence that the appellant i.e. the accused was suffering from any mental illness and as such the appellant was not entitled to the benefit, provided by Section 84 IPC.
The learned Addl. Public Prosecutor has also submitted that the admission made by the accused, during his examination, under Section 313 Cr.P.C. coupled with the circumstantial evidence, as indicated above, was sufficient to base the conviction and as such the learned trial Judge committed no error by recording the conviction and the sentence aforesaid.
10. In order to appreciate the rival submissions, made by the learned Counsel for the parties and examine the correctness of the impugned judgment and order, we feel it appropriate to, briefly, scan the evidence on record.
11. There is no dispute that the deceased died, on 31.03.2004, due to the injuries sustained by him. On the same day the autopsy, in respect of the dead body of the deceased, was done by Dr. Kumudeswar Sarma (PW-1). The Medical Crl. Appeal 94(J)/2005.
Page 6 of 25 7Officer, in his evidence stated that, he found the following injuries in respect of the dead body of the deceased. (i) Cut injury over the left side of the neck, size-24 X 4 cms. with gapping, (ii) Cut injury over the left cheek, 10 X 4 cms. The cut injuries, over the left side of the neck and left cheek were wide open with bleeding, caused by sharp cutting instrument. He exhibited the postmortem report as Exbt.1 and his signature thereon as Exbt.1(i). The Medical Officer opined that the injuries were ante mortem in nature and that the death of the deceased was caused due to haemorrhage and shock, as a result of ante mortem cut injury. In his cross-examination, the Medical Officer stated that the injuries, sustained by the deceased, might have been caused within 48 hours of his death and that the injuries could not have been caused due to falling on C.I. sheets.
Despite cross-examination of the Medical Officer, by the defence, no contradiction could be elicited to demolish his evidence regarding the injuries, sustained by the deceased and the cause of his death. Therefore, it stands established that the deceased died due to sharp cut injuries, sustained by him. Now, the question is whether the said fatal injuries were caused by the appellant.
12. PW-2, Shri Bhabesh Das, who lodged the FIR, is the son of the deceased. He lodged the FIR. Admittedly he was not present at the time of occurrence. Rather, he rushed to the place of occurrence, on being informed about the same and found that his father was being carried in a handcart by Crl. Appeal 94(J)/2005.
Page 7 of 25 8Gapen Boro and another boy, who told him that his father was killed by the appellant. Accordingly, he lodged the FIR with the police. He has exhibited the FIR as Exbt.2 and his signature thereon as Exbt.2(1). He was a witness to the inquest report, prepared by the police. He has exhibited the inquest report as Exbt.3 and his signature thereon as Exbt.3(1). From his evidence it is found that the informant came to know about the involvement of the appellant from Shri Gapen Boro and another boy. The said Gapen Boro has not been examined by the prosecution as a witness. Therefore, there is no corroboration in the evidence of PW-2 regarding the information received by PW 2. Hence his evidence does not inspire confidence to believe that accused had assaulted the deceased.
13. Shri Jatin Boro, who deposed as PW-3, stated that, while he was ploughing in his field, the villagers had informed him that Babul „Pagal‟ (mad) had cut a man. According to this witness, during the investigation, police recovered a "khamti dao" from the house of the accused and he put his signature in the seizure list. He has exhibited the said seizure list as Exbt.4 and his signature, thereon, as Exbt.4(1). In his cross- examination, this witness stated that he did not see the occurrence and that he did not enter the house, with the police, at the time of recovery of the said seized dao. He stated that the seized dao was not available in the court, at the time of giving evidence. The PW-3 further stated that the accused was suffering from mental disorder since his youth and that, Crl. Appeal 94(J)/2005.
Page 8 of 25 9at the time of occurrence, his condition had deteriorated. He further stated that, sometime, the accused used to roam alone in the cremation ground, that he did not aware what he was doing, where he was and that, sometimes, he escaped his meals also. The said evidence, given by this prosecution witness, regarding the mental illness of the appellant, more particularly his evidence that at the time of occurrence his mental condition had deteriorated, remained uncontroverted. Therefore, as disclosed by the prosecution, through the PW-3, at the time of occurrence, the mental illness of the deceased had deteriorated and the deceased was not aware of what he was doing. The said uncontroverted evidence of PW 3, regarding mental condition of the accused, lead to believe that the appellant was suffering from schizophrenia. We will shortly discuss regarding schizophrenia.
14. Shri Guneswar Boro, who deposed as PW-4, stated that, he heard from the people that the accused had cut a man. He was a witness to the seizure of the bicycle, which was seized vide Exbt.5. This prosecution witness also, in his cross- examination, clearly stated that the appellant i.e. the accused was suffering from mental disorder since prior to the occurrence. He further clarified that the appellant did not know what he was doing and where he was.
15. PW-5, Shri Har Gobinda Das, is the cousin of the deceased. He was informed about the occurrence by a fellow villager and he was present at the time of preparing the inquest report by the police. In cross-examination, the said Crl. Appeal 94(J)/2005.
Page 9 of 25 10cousin of the deceased also stated that he got the information that one mad man had cut his elder brother i.e. the deceased. He stated that the accused was not known to him. So, from the evidence of PW.5, it is revealed that the assailant of the deceased was known to be a mad man (mentally unsound person).
16. Shri Suresh Nath, who deposed as PW-6, stated that he also heard that the appellant had cut the deceased. In his cross-examination, he stated that he heard from Sri Tapan Boro that the deceased was killed by the appellant. According to this witness the appellant was known to him and he heard that the appellant was a mentally imbalanced person. Sri Tapan Boro has not been examined by the prosecution. Therefore, the evidence of PW.6 is a hearsay evidence. There is no corroboration in respect of his evidence that Sri Tapan Boro informed that the appellant had committed the alleged offence.
17. Shri Suren Boro, who was the younger brother of the appellant, has been examined as PW-7. He stated that the villagers had told him that his brother Babul Boro i.e. the appellant had killed a person, while the latter was riding a bicycle. In his cross-examination, this witness stated that the appellant was a patient of insanity. He also stated that his brother regained from insanity and that his said brother was not aware of all the activities, what he was doing.
Crl. Appeal 94(J)/2005.
Page 10 of 25 1118. As discussed above, it has already been found, from the evidence of PW-3, that at the time of occurrence, the mental condition of the appellant had deteriorated.
19. In view of the above evidence, rendered by the prosecution witnesses, it has been established that the appellant was suffering from some form of insanity and that he was not aware of what he was doing. The evidence given by Shri Mathura Boro i.e. PW-8, lends sufficient support in favour of the plea regarding mental illness of the appellant. According to PW-8, the accused was his paternal uncle and he found the accused loitering, on the road, with a dao in his hand. He stated that, the accused, finding him on the road, had charged towards him for which he had to run away. He further stated that, in the market, he had heard that the accused had cut a man and he, returning from the market, took the injured to Jalah medical. In his cross-examination, this witness stated that he did not see, who had killed the man. A careful scrutiny of the evidence of PW-8 lead to find that the accused had chased PW-8 without any reason. This conduct, on the part of the accused, cannot be expected from a person with sound mental health. Therefore, the fact that the appellant had chased his paternal uncle, without any reason, leads to believe that the appellant was not keeping a normal health, thereby indicating that he was suffering from some sort of mental illness and this is fortified by the evidence given by the prosecution witnesses i.e. PW 3, PW 4, PW 6 & PW 7 aforesaid.
Crl. Appeal 94(J)/2005.
Page 11 of 25 1220. PW-9, Shri Naba Kr. Borkakati, was the In-charge of the Jalah police station. He received the FIR, registered the case and took charge of the investigation.
21. From the above discussed evidence, it is found that, none of the prosecution witnesses had either seen the appellant, committing the offence, or they found the appellant near the dead body, with a dao. Though a dao was recovered from the house of the accused, the same was not sent for forensic examination for ascertaining if the same had contained human blood. Therefore, mere seizure of the dao from the house of the accused, without any evidence that the same was used for causing the injuries, sustained by the deceased, that too in the absence of any eye witness to the alleged crime, cannot lead to hold that the accused had used the said dao and committed the alleged offence. From the evidence of PW-8, it transpires that the accused was loitering on the road, with a dao and the PW-8 had run away, on being chased by the accused and that he heard about the occurrence, in the market. He has not stated that, when he came back from the market to carry the deceased to the medical, he saw the accused on the road, loitering with a dao. Therefore, at best, according to PW-8, accused was found loitering on the road, with the dao, prior to the occurrence. None of the said prosecution witnesses stated that they had apprehended the accused person in the place of occurrence, or near the dead body of the deceased, immediately after the occurrence. The investigating police officer i.e. PW-9, stated that he found the accused being tied by the villagers, but none Crl. Appeal 94(J)/2005.
Page 12 of 25 13of the non-official witnesses i.e. PW Nos. 2 to 8 stated that they had apprehended the accused person. Rather PW.3 stated that later police had arrested the appellant. Therefore, there is nothing on record to find that the accused was found, with a dao near the place of occurrence, suggesting his involvement with the occurrence.
22. In view of absence of any direct evidence regarding commission of the alleged offence and failure of the prosecution to prove that the seized dao was used by the accused in assaulting the accused, the evidence of PW-8 that he found the accused person loitering in the place of occurrence with a dao in his hand, prior to the incident, cannot be a strong circumstantial evidence, indicating that none other than the accused had committed the alleged offence. Therefore, we have no hesitation in holding that the learned trial Judge, committed error by holding that the accused was found loitering with a dao at the time of occurrence. Except the evidence of PW-8 that the accused, with a dao in his hand, had chased him, there is no other evidence to indicate the involvement of the accused with the death of the deceased. Though PW-2, i.e. the informant, stated that Shri Gapen Boro and another boy had told him that the accused had killed the deceased, the prosecution failed to establish the said version, by examining Shri Gapen Boro and the boy as indicated by PW-2. The evidence of the prosecution witness, that they came to know from others that the accused had cut the deceased, remained unsubstantiated due to failure of the said witness to disclose the source from whom the Crl. Appeal 94(J)/2005.
Page 13 of 25 14prosecution witnesses came to know about the involvement of the appellant.
23. The learned Sessions Judge while holding the accused guilty of the alleged offence observed:
"Admittedly Ramani Mohan Das died at the time of occurrence, but nobody had seen the accused stabbing Ramani Mohan Das. But from the circumstances, it is found that the accused Babulal was loitering with a Dao in his hand at the time of occurrence at the road and just after the occurrence the prosecution witnesses came to know that accused had stabbed Ramani Mohan Das. The villagers also tied the accused and the police also seized the dao used by the accused. Therefore the circumstances prove that none but the accused had stabbed Ramani with the Dao. Further more the accused in his statement U/S.313 Cr.P.C. has stated that as the deceased prevented him from doing some works, on the day of occurrence while Ramani was going by his bicycle he stabbed him with a Dao and as a result he died. The villagers tied him and the police took him from that place."
24. In view of the above discussed evidence, we find that none but PW-8 found the accused loitering on the road, with a dao, in his hand, and on being chased by the accused, PW-8 had run away there from. Subsequently in the market he Crl. Appeal 94(J)/2005.
Page 14 of 25 15heard that the accused had cut a man and accordingly he came back and took the injured to the medical. From the said evidence of PW-8, it cannot be concluded that the accused was found loitering, with a dao, either at the time of occurrence or immediately thereafter. What PW-8, stated is that he found the accused on the road prior to the occurrence. The evidence of PW-8 does not indicate that the accused was found loitering, with a dao in the place of occurrence or the accused was found loitering near the dead body. Therefore, the said evidence of PW-8 cannot conclusively lead to believe that none other than the accused had committed the alleged offence. That apart, according to the prosecution version, the seized dao was recovered from the house of the deceased, but the same was not sent for forensic examination to ascertain if the weapon had contained any human blood, not to speak of the blood of the deceased. In the absence of any such forensic examination, the seizure of a dao, from the house of the accused person, cannot be sufficient evidence to implicate his involvement with the alleged offence.
25. None of the prosecution witnesses stated that they had apprehended the accused person at the place of occurrence. Therefore, it cannot be held that the accused was found by the villagers, immediately after the occurrence, near the place of occurrence. Though, most of the prosecution witnesses stated that they came to know, from the villagers, that the accused had committed the alleged crime, but the person, who saw the appellant in committing the alleged crime, Crl. Appeal 94(J)/2005.
Page 15 of 25 16has not been examined to substantiate the involvement of the appellant with the crime, alleged to be committed by him.
26. To base conviction on the basis of circumstantial evidence, the events of circumstances, revealed by the prosecution witnesses, must be cogent, reliable and conclusive in nature, forming a complete chain, pointing the guilt of the accused and inconsistent with his innocence.
27. From the above discussed evidence, we find that the prosecution failed to establish that there existed such circumstantial evidence, conclusively indicating the guilt to the accused, without any room for doubt. Therefore, we are inclined to hold that the learned trial Judge committed error by holding the accused guilty, on the basis of the said circumstantial evidence.
28. The learned trial Judge has also relied on the admission made by the accused at the time of his examination under Section 313 Cr.P.C. It is settled law that the admission made by an accused can be used against him.
29. 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:
Crl. Appeal 94(J)/2005.Page 16 of 25 17
"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."
30. 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 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 Crl. Appeal 94(J)/2005.
Page 17 of 25 18evidence/materials, brought against him and the questions put to him, seeking his response thereto. Unless he properly understands the legal implications and the consequence thereof, it will not be proper to use the answer/admissions given by him. Admittedly, all the independent prosecution witnesses, including PW-5, who was a cousin of the deceased, stated that the accused was suffering from mental disorder. PW-3 very clearly stated that at the time of occurrence the mental condition of the accused had deteriorated. Therefore, from the evidence of prosecution witnesses, it has been established that, at the relevant time, the accused was suffering from mental illness. The learned trial Judge, though took note of the said fact, observed that there was evidence that, subsequently the accused had recovered from such illness. The relevant part of the evidence of PW-2, who said about the recovery of the appellant from his insanity, reads as follows:
"The accused Babulal was a patient of insanity. Later he regained. He is not aware about his activities."
31. This evidence does not conclusively indicate that the accused was not suffering from insanity, at the time of occurrence. There is no dispute that at the time giving evidence, PW-3 clearly stated that the mental condition of the deceased deteriorated at the time of occurrence. This evidence of PW-3 remained unchallenged. Taking into consideration, the evidence, given by the prosecution witnesses, there is no difficulty in understanding that the said prosecution witnesses were aware of the fact that the accused was suffering from Crl. Appeal 94(J)/2005.
Page 18 of 25 19mental disorder and that he committed the alleged offence during the period, when he was suffering from such mental disorder. They clarified that the accused was not aware of what he did. The learned Amicus Curiae, appearing for the appellant, has submitted that the appellant was suffering from schizophrenia, which is a mental disease and that the evidence, given by the said prosecution witnesses, supports his contention, inasmuch as the accused was not aware of as to what he was doing, which is a symptom of schizophrenia.
32. 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.
Crl. Appeal 94(J)/2005.Page 19 of 25 20
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 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 Crl. Appeal 94(J)/2005.Page 20 of 25 21
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."
33. According to the Butterworths Medical Dictionary 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.]
34. 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 Crl. Appeal 94(J)/2005.
Page 21 of 25 22problems. The thought process associated with schizophrenia is described as psychosis, wherein 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, or 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 behaviours 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).
35. The statement of the accused, made u/S.313 Cr.P.C., that he had killed the deceased because the deceased used to disturb him in his works. There is nothing on record to find that, in fact, the deceased had disturbed the accused in his work. Hence, the accused committed the offence, if at all, under the impression of false feeling, thinking that the deceased had disturbed him. The statement, that the deceased had disturbed him indicates that there were delusions, hallucinations, on the part of the appellant. Therefore, it is found that the appellant took as real what was unreal, or not in existence. The said statement of the accused, coupled with the fact, that he had chased his uncle, without any reason, leads us to believe that the appellant was suffering from schizophrenia, which is a form of mental illness. Therefore, he is entitled to the benefit extended by the statute. Section 84 Crl. Appeal 94(J)/2005.
Page 22 of 25 23IPC, which deals with persons with unsound mind reads as follows :-
"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."
36. Therefore, the appellant, who has been alleged to have committed the offence aforesaid, during the period, when he was suffering from schizophrenia, is entitled to the benefit of Section 84 IPC.
37. That apart, during the course of trial it came to the notice of the learned trial Judge that the appellant was suffering from mental disorder. Therefore, in order to ascertain, whether the appellant was fit to face the trial and give appropriate answers, at the time of his examination, under Section 313 Cr.P.C., the learned trial Judge should have taken resort to the provisions, provided by Section 329 Cr.P.C., which reads as follows:-
"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.
Crl. Appeal 94(J)/2005.Page 23 of 25 24
(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."
38. 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.
39. 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 charge, 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.
40. 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.
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Page 24 of 25 2541. In view of what has been discussed above, we find sufficient merit in this appeal, which deserves to be allowed. Accordingly, we allow the appeal. Consequently the impugned conviction and the sentence are set aside. The appellant is acquitted and he be set at liberty forthwith, if not required in any other case.
42. Before we part with this judgment, we record, with appreciation, the assistance rendered by Mr. B. K. Singh, learned Amicus Curiae. We direct that, the State shall pay remuneration to the learned Amicus Curiae @ Rs.3,500/- (rupees three thousand five hundred) only per day for two days.
Return the Lower Court Records.
JUDGE JUDGE
MB
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