Himachal Pradesh High Court
Ajay Kumar vs State Of Himachal Pradesh on 17 December, 2018
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 547 of 2017.
Reserved on: September 17, 2018.
Decided on: December 17, 2018.
Ajay Kumar ......Appellant.
.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. H.S.Rana, Advocate.
For the respondent : Mr. Vikas Rathore and Mr.
Narinder Guleria, Addl. AGs.
Dharam Chand Chaudhary, J.
rConvict Ajay Kumar is in appeal before this Court. He has been convicted for the commission of offence punishable under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and also to pay Rs. 10,000/- as fine vide impugned judgment dated 28.8.2017.
Grounds of Challenge:
2. Aggrieved by the impugned judgment, Ajay Kumar, convict has preferred the present appeal on the grounds inter alia that the findings of conviction recorded by learned trial Court are wrong and illegal. The same are based on surmises and conjectures.
The contradictions, embellishments and paddings as emerge from the perusal of the evidence available on record render the prosecution 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 2 story highly doubtful. The convict allegedly had no intention or knowledge of causing injuries to his mother. There being no animosity or motive to cause injuries to her is also not taken into .
consideration. The testimony of PW-1 and PW-2 has completely been misread, misconstrued and mis-interpreted. The plea raised by the convict in his defence that he is of unsound mind has erroneously been ignored irrespective of duly proved on record from the statement of DW-1 Dr. R.S.Dhatwalia and DW-2 Ravinder Kumar as well DW-7 Dr. R.C.Sharma and documentary evidence i.e. Ext. DW-1/A1 to Ext. DW-1/A4 and Ext. DB-1-DB-10. Learned trial Court on having come to know about the mental status of the accused during the course of trial erred legally and factually in not resorting to the procedure prescribed under Section 329 Cr.P.C. which prescribes for holding an enquiry to determine as to whether the accused at the time of occurrence was of unsound mind or not or that able to understand the nature of his defence and the evidence collected against him by the police. The failure on the part of learned trial Court to resort to such procedure has vitiated the trial as a whole. The impugned judgment, as such, has been sought to be quashed and set aside and accused acquitted of the charge framed against him. Facts of the case:
3. The complainant herein is PW-1 Jaswant Singh. Accused is his son. He has one daughter also. Accused is married to PW-2 ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 3 Madhu Bala. The complainant and his son, the accused were living together. The accused was running a shop of footwear at Ladrour bazaar in District Hamirpur. On 26.6.2015, he however, had not .
gone to the shop and remained on that day throughout in the house. The family had dinner at 9:30 PM and thereafter each and everyone went to their respective rooms for sleeping, however, accused came out of his room and went to that of his mother Sunita Devi, the deceased. He asked her as to whether they will purchase car for him or not. On the issue of car, he got enraged and started arguing with his mother. Each and everyone made him to understand that they will speak on the issue later and for the time being he must go and sleep but of no avail as he flared up and picked up a Darat (Sickle) lying there and assaulted the deceased thereby on her face, neck, chest and also other parts of her body. In the sudden attack, she sustained multiple injuries on her person. These acts were revealed by PW-1 Jaswant Singh to the doctor on duty in Community Health Centre Bharari, District Bilaspur where the deceased was brought in injured condition for treatment.
4. On the disclosure so made by PW-1 Jaswant Singh, the doctor on duty informed Police Station Bharari, District Bilaspur about the deceased brought to the hospital in injured condition for treatment. The police was asked to come to the hospital. The information so received was entered in daily diary vide rapat No. 46(A) ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 4 dated 26.6.2015 at 22:35 hours/10:35 PM. Immediately thereafter, HC Pyare Lal (PW-21) accompanied by Constable Mukesh Kumar (PW-17) rushed to the Community Health Centre in official vehicle.
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The police party noticed Sunita Devi, the deceased brought there with injuries on her person for her medical treatment. In the opinion of the Medical Officer, she was not fit to make any statement. Her MLC is Ext. PW-14/B. PW-1 Jaswant Singh, the husband of the deceased was there, therefore, the I.O. HC Pyare Lal (PW-21) recorded his statement under Section 154 Cr.P.C. On the basis thereof, FIR No. 63/15 Ext. PW-17/A was recorded against the accused initially under Section 324 IPC. The deceased was shifted by HC Pyare Lal (PW-21) to District Hospital, Hamirpur for further treatment. The police officials i.e. HC Kewal Singh and lady Constable Sheetal were deputed with the deceased to District Hospital Hamirpur. The rapat rojnamcha in this regard is Ext. PW-12/C. The deceased, however, passed away on the way to I.G.M.C and Hospital. The rapat in this regard is Ext. PW-12/A. FIR initially recorded under Section 324 IPC was thereafter converted into under Section 302 IPC. The spot map Ext. PW-20/A was prepared. The wife of accused Madhu Bala had produced the Scythe Ext. P-6 used by her husband in assaulting the deceased. The same was taken in possession. The clothes of the accused he had worn at the time of occurrence were also taken into possession vide memo Ext. PW-17/C. The autopsy on the dead body ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 5 of the deceased was got conducted in IGMC Shimla. The doctor PW- 16 Dr. A.K. Sharma, conducted autopsy on the body of deceased vide report Ext. PW-16/B. The viscera of the deceased preserved by the .
doctor who conducted autopsy along with other samples lifted from the spot were sent to RFSL Mandi. The report Ext. PW-16/B reveals that blood of group "O" was available on the bed sheet and shirt of deceased Sunita Devi. The same matched with her blood sample. Human blood was also detected on the shirt of the accused, however, no blood could be detected on the trousers worn by him. Similarly, no traces of alcohol or narcotic drugs were also found present in the viscera nor in the blood and urine sample of the accused. In the opinion of the Medical Officer, the injuries on the person of the deceased could have been caused with the help of an object with sharp edges. In the opinion of the doctor, the injuries on the person of the deceased were cumulatively dangerous to life. Crux of the Investigation Conducted:-
5. As per the further prosecution case, during the course of investigation, it transpired that accused Ajay Kumar had been insisting his parents to buy a car for him. They, however, bought a new Scooter for him. After some time, the accused again started insisting upon for providing him a Car. His mother, the deceased refused for the same. As per the prosecution story, since the accused had been considering his mother the deceased an impediment in the ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 6 matter of having a Car from his father, he therefore, had not even been attending to his business in the shop at Ladrour for the last two days prior to the incident. On the fateful day i.e. 26.6.2015 also, the .
accused again floated his demand strongly. The deceased having been fed up with arguing continuously with the accused on this issue had retired to her bed room. The accused who had already enraged due to neglecting his demand of buying a car, ultimately lost his temper all of a sudden and as a result thereof inflicted blows with a darat on her person which he had picked up from the verandah of the house. The deceased was lying in her bed at that time. The accused had been caught hold by PW-1 Jaswant Singh, his father with the help of his daughter-in-law Madhu Bala (PW-2). The darat which had been thrown by the accused in the nearby fields was picked up by PW-2 Madhu Bala and kept in the verandah which she lateron handed over to the police.
6. On filing of the police report with such material collected by the Investigating Agency, charge under Section 302 IPC was framed against the accused. He, however, pleaded not guilty to the charge and claimed trial.
Prosecution Evidence:-
7. The prosecution in turn has examined 21 witnesses in all and also produced the documentary evidence. The material prosecution witnesses are PW-1 Jaswant Singh, father of the accused, ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 7 his wife Smt. Madhu Bala (PW-2), Subhash Kumar, a neighbor (PW-
3), Jagar Nath (PW-5) brother of PW-1, the complainant (Uncle of the accused), PW-7 Bishan Dass, the then Pradhan Gram Panchayat .
Barota, PW-8 Rattan Lal, another neighbourer, PW-9 Kirpal Singh, brother of the deceased and maternal Uncle of accused, PW-11 Sanjeev Kumar, again from neighbourhood of the accused, PW-14 Dr. Garima Thapa who had examined the deceased and given first medical aid as well as issued MLC Ext. PW-14/B. PW-15 Dr. Pankaj who had examined the accused brought there by the police vide MLC Ext. PW-15/B, r PW-16 Dr. A.K. Sharma, Professor & Head, Department of Forensic Medicine, IGMC, Shimla who had conducted the post mortem vide report Ext. PW-16/B, PW-17 Const. Mukesh Kumar who went to the hospital along with IO PW-21 HC Pyare Lal on receipt of the information in the Police Station, PW-20 SI Surender Singh who had partly investigated the case and PW-21 HC Pyare Lal who is also the I.O.
8. The remaining prosecution witnesses are formal because PW-4 Manohar Lal, Jr. Engineer H.P. PWD Sub Division Bharari had prepared spot map Ext. PW-4/B on the request of the police. PW-6 HC Naresh Kumar was one of the members of the police party headed by PW-20 SI Surender Singh, the Station House Officer. PW-10 Prem Lal Patwari, Patwar Circle Barota prepared the jamabandi Ext. PW- 10/B and tatima Ext. PW-10/C which were handed over to the police, ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 8 PW-12 Const. Dinesh Kumar had proved the daily diary reports Ext. PW-12/A, PW-12/C and PW-12/D. Similarly, PW-13 HHC Baldev Raj had deposited the case property in RFSL Mandi vide RC No. 64/2015.
.
PW-18 Dr. H.R. Rahi along with Dr. Sanjay had examined the deceased in the casualty department of IGMC, Shimla and declared her dead and PW-19 is HC Amar Singh who was posted as MHC at the relevant time.
The defence of the accused:-
9.
Cr.P.C. has
r to
The accused in his statement recorded under Section 313 expressed his ignorance to the incriminating circumstances which were put to him because the answer to all the questions he has given is "I do not know".
10. The defence witnesses DW-1 Dr. R.S.Dhatwalia, DW-2 Ravinder Kumar, DW-3 Bainshu Ram, Superintendent Open Air Jail, Bilaspur, DW-7 Dr. R.C.Sharma, all have stated about the mental ailment of the accused and his abnormal behavior. DW-4 Ashok Kumar and DW-5 Naveen Kumar have also deposed about the mental ailment of the accused and the treatment he had been undertaking. DW-2 Ravinder Kumar has again appeared in the witness-box as DW- 6 and produced the record of this case. He has proved the copies of such record which are Ext. DB-1 to DB-10.
::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 9 The conclusion drawn by the trial Court:-
11. Learned trial Court on appreciation of the prosecution .
evidence and also the evidence produced by the defence and holding that the plea of insanity in his defence taken by the accused is not proved on record has convicted him while holding that in a gruesome and brutal attack the accused had brutally killed his own mother and thereby committed the offence punishable under Section 302 IPC. The convict-appellant has therefore been convicted and sentenced as pointed out at the outset.
Rival Submissions:-
12. Sh. H.S. Rana, Advocate, learned counsel representing the appellant-convict has vehemently argued that on having filed an application under Section 328 Cr.P.C. at the very initial stage of the proceedings in the trial i.e. on 1.12.2015, learned trial Judge had no option except to resort to the procedure prescribed thereunder and also under Section 329 of the Code i.e. to have got the accused examined by the doctor/Psychiatrist and obtained report qua soundness of his mind or mental retardation. According to Mr. Rana, it is after obtaining such medical report, a decision as to whether the trial had to proceed further or not was required to be taken. In the event of the accused being found to be of unsound mind/mentally retarded as well as not in a position to understood his defence, would ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 10 have been referred to the hospital for treatment and while closing the proceedings, dealt with in accordance with the provisions contained under Section 330 of the Code. Learned trial Judge has, however, not .
resorted to such procedure prescribed under the Code on filing the application under Section 328 Cr.P.C. by the accused. The withdrawal of the said application at a stage when listed for pronouncement of order, according to Mr. Rana, is not fatal to the defence because the accused at that time was of unsound mind. The withdrawal thereof, as such, is of no consequence. It was rather for the trial Court to have held enquiry to satisfy itself as to whether the accused was of unsound mind or not. The evidence, as has come on record by way of the testimony of prosecution witnesses, including PW-17 Mukesh Kumar and PW-21 HC Pyare Lal, I.O. who have deposed about the abnormal behavior of the accused when reached on the spot has been ignored intentionally and deliberately by learned trial Judge. The abnormal behavior of the accused noticed by DW-3 Bainshu Ram, Superintendent, Open Air Jail, Bilaspur and DW-2 Ravinder Kumar posted as Pharmacist in the said Jail is also erroneously ignored. Mr. Rana, has also pointed out from the statements of the father of the accused PW-1 Jaswant Singh and PW- 2 Madhu Bala, wife of the accused and also other neighbours who in so many words deposed about the un-natural and abnormal behavior of the accused. The statement of DW-4 Ashok Kumar who happens ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 11 to be the cousin of accused (Bua's son) has also been erroneously ignored. According to Mr. Rana, DW-1 Dr. R.S. Dhatwalia and DW-7 Dr. R.C. Sharma, Head of Department of Psychiatry, IGMC Shimla .
both had examined the accused, however, the evidence as has come on record by way of their respective statements is also not taken into consideration. The findings to the contrary recorded by learned trial Court are stated to be based upon hypothesis, conjectures and surmises. Mr. Rana has further pointed out that the question as to whether the defence of insanity under Section 84 IPC was available to the accused or not would have arisen had the enquiry been got conducted immediately after filing the application under Section 328 Cr.P.C. and before proceeding further in the trial, the opinion qua the mental ailment of the accused obtained from the experts/ Psychiatrists. Mr. Rana, has further urged that the provisions contained under Section 328 and 329 Cr.P.C. are mandatory in nature. Also that, on having brought to its notice that the accused was of unsound mind, learned trial Court should have proceeded to hold enquiry as per the procedure prescribed under the Sections ibid and could have proceeded further in the trial only after the receipt of the expert opinion.
13. It has, therefore, been urged that due to non-compliance of the procedure prescribed under Section 328 and 329 of the Code of Criminal Procedure, the entire proceedings have vitiated and as such, ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 12 no findings of conviction could have been recorded against the accused. The impugned judgment, as such, has been sought to be quashed and set aside.
.
14. On the other hand, Mr. Vikas Rathour and Mr. Narender Guleira, Addl. Advocate Generals, while inviting our attention to the findings recorded by learned trial Court have contended that the same being well reasoned and there being no evidence suggesting that at the time of occurrence, the accused was not sane and rather mentally disturbed call for no interference in the present appeal. Our Findings:-
15. Since during the course of arguments, a legal question that without determining the controversy as to whether the accused was of unsound mind and suffering from mental disorder and as such, without resorting to the procedure prescribed under Sections 328 & 329 Cr.P.C. further proceedings in the trial could have not continued, therefore, before coming to the merits of the case, it is the legal question so raised deserves to be decided first.
16. Admittedly, the trial when came to be listed in the Court below on 1.12.2015, on behalf of accused learned counsel representing him had filed an application under Section 328 Cr.P.C. The said application was adjourned to 15.12.2015 for reply and consideration. Perhaps, here learned trial Judge went wrong. True it is that as per the language employed under Section 329 Cr. P.C. if it ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 13 appears to the Court that the accused is of unsound mind and may also be incapable of making his defence, the factum of innocence and incapacity to make his defence is required to be tried first by way of .
forwarding the accused to the hospital for his medical examination and seeking the expert opinion. On consideration of the medical evidence or any other evidence as would have been produced by the prosecution and also the defence, if learned trial Judge is satisfied that the accused is of unsound mind, a finding to that effect is required to be recorded and further proceedings in the case postponed as well as to refer him to Psychiatrist or Psychologist for further treatment.
17. In case, in view of the report of the Psychiatrist, the accused is found to be of unsound mind and prima-facie no case is made out from the material available on record, the trial Court may either to discharge him or deal in the manner as provided under Section 329 Cr.P.C.
18. In such a case, the trial Court is required to postpone the trial for such period as in the opinion of the Psychiatrist or clinical Psychologist is required for the treatment of the accused. Section 329 Cr.P.C. is reproduced hereunder for the sake of convenience:
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 ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 14 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.
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1A. If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:
Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of -
1. head of psychiatry unit in the nearest government hospital; and
2. a faculty member in psychiatry in the nearest medical college;
2. If such Magistrate or Court is informed that the person referred to in sub-
section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 330:
Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 15
3. If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330"
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19. As noticed supra, the submissions in the application under Section 328/329 Cr.P.C. filed on behalf of the accused were sufficient for learned trial Court to have recorded its satisfaction qua the necessity of seeking the expert opinion as to whether the accused was of unsound mind or not for the reason that as recorded in the zimni order dated 15.12.2015, the prosecution had not opted for filing reply to the application as per the statement made by learned Public Prosecutor at Bar and recorded so in the above zimni order. We fail to understand as to what had remained there to learned trial Judge for further consideration in the said application. We rather feel that the genesis of occurrence i.e. assaulting of mother by a son repeatedly with lethal weapon like darat and causing multiple injuries, grievous in nature on her person itself was prima-facie sufficient to hold the enquiry as envisaged under Section 328/329 Cr.P.C. On filing the application hereinabove on behalf of the accused, learned trial Court should have ordered the enquiry to be conducted to ascertain the insanity and unsoundness of mind of the accused by resorting to the procedure which is mandatory in nature prescribed under Section 328/329 Cr.P.C. In order to ensure the fair trial, such procedure ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 16 even needs to be resorted to, on oral submissions itself in order to ensure the fair trial and the accused may not be condemned unheard.
20. True it is that after hearing arguments in the application, .
the same was fixed for pronouncement of order on 15.3.2016 when learned defence counsel has withdrawn the same. His statement was recorded and placed on record. The withdrawal of the application, in view of the reasons recorded hereinabove, is of no consequence nor has to be construed to conclude that the accused has now no legal right to assail the impugned judgment on this count. A Division Bench of this Court in Dhani Ram vs. The State, 1982 Sim. L.C. 194, in similar circumstances as the charge against the accused was under Section 302 and 309 IPC and a similar application under Section 329 Cr.P.C. filed with a prayer to hold enquiry as to whether the accused is of unsound mind or not forwarded the accused to Chief Medical Officer, Dharamshala for examination and report, and as for want of facilities for examination of such patient in the hospital at Dharamshala, the Chief Medical Officer expressed his inability to get the accused examined and submit the report, rather while apprising the trial Court that the accused had been taking treatment from Punjab Mental Hospital, Amritsar and obtained the report from mental hospital Amritsar that the accused was sane proceeded further with the trial, has held as under:
"12. The various orders which have been passed in the case from time to time clearly suggest that the Judicial ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 17 Magistrate, Palampur, as well as the learned Sessions Judge were of the view that provisions of Section 329 Cr. P.C. had to be invoked. The order dated 20th June, 1978, of Sessions Judge clearly states that the report of the .
C.M.O. Dharamsala be called as to whether the appellant Is sane and capable of defending himself. The prior order of the Sessions Judge or the Additional Session Judge also indicate that proceedings under Section 329 Cr. P.C. were being taken. There can be no manner of doubt that the mistake in writing the word 'normal' instead of the word 'abnormal' in the order dated 20.6.1978 is a typographical mistake. Recording of the statement of the appellant after the passing of this order is immaterial because, according to the opinion of the learned Session Judge, the appellant appeared to be abnormal. If this is the position then under Section 329 Cr. P.C. the Session Judge had to try the fact with respect to the unsoundness and incapacity of the appellant. The Session Judge was further proceedings in the case. As we have taken the view that on 26.6.1978 it appeared to the Sessions Judge that the appellant was of unsound mind, therefore, it was the bounden duty of the Session Judge to have decide this issue after considering the medical evidence and other evidence as is required under Section 329 Cr. P.C. in the present case the Sessions Judge had failed to do so. The Session Judge has not even recorded the statement of the doctor who had examined the appellant. The order of the Session Judge dated 3.5.1979 is thus illegal and proceeding after this order are vitiated. The provisions of Section 329 Cr. P.C. are mandatory and an omission to decide the preliminary issue shall vitiate ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 18 the whole trial. A similar view was taken by a Division Bench of Punjab and Haryana High Court in Mst. Satya Devi V. The State,[1969 Cri LJ 1424] wherein it was held that-
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"The provisions of Section 465 do not embrace an idle formality but are calculated to ensure to an accused person a fair trial which cannot obviously be afforded to an insane person and the nonobservance of those provisions must be held to convert a trial into a force. Courts must, therefore, guard against dealing with the matter of suspected sanity of an accused person in a perfunctory manner as such a course is bound to result in the trial Judge, more often than not r coming to an incorrect conclusion about the sanity of the accused before him."
13. Thus, we are of the view that the trial in the present case is vitiated for the reasons that proper enquiry under Section 329 Cr. P.C. has not been held by the learned Session Judge and the learned Sessions Judge has failed to record a finding with respect to the insanity of the appellant. As the trial is vitiated, therefore, the present conviction and sentence cannot be maintained and this appeal has to be accepted.
14. The result of the above discussion is that the present appeal is accepted, the judgment of the learned Session Judge, Dharamsala, for re-trial in accordance with law. The appellant is directed to be produced before the learned Session Judge on 3rd May, 1982 and the Session Judge shall produced in the case and try to decide the case within a month."
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21. It is seen that this case is on better footing as compared to Dhani Ram's case cited supra for the reason that here learned .
trial Court has not made any effort to go into the question of unsoundness of mind or otherwise of the accused after filing of the application under Section 328/329 Cr.P.C. and rather lingered on the same that too when no reply thereto was intended to be filed by the prosecution for a period over one year, being finally disposed of on 15.3.2016.
22. The testimony of PW-1 Jaswant Singh, the father of the accused, PW-2 Madhu Bala, the wife of the accused, PW-3 subhash Kumar, his neighbor having his house at a distance of 150 meters from that of the accused, PW-7, the Pradhan Gram Panchayat Barota, PW-8 Rattan Lal, again neighbor of the accused and PW-11 Sanjeev Kumar, again a neighbor having his house at a distance of about 200 meters from that of the accused, shows that the accused was suffering from mental ailment, hence not in a fit state of mind on the day of occurrence. He, as per the version of PW-1 Jaswant Singh and PW-2 Madhu Bala had not been attended to his business in the shop at Ladrour for the last two days. On the day of occurrence, he remained present throughout in the house. He, as per such evidence even had been undergoing Psychiatric treatment in Karmi Devi Mental Hospital, Hamirpur and IGMC Shimla for the last 10 years. According to Const. Mukesh Kumar (PW-17) who went to the place of ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 20 occurrence accompanied by the I.O HC Pyare Lal (PW-21), the accused was in fury (ferocious mood) at his home and it is the people of the area who had controlled him. Also that, his behavior was .
violent and non-cooperative. Therefore, he had to be arrested during the same night in a case under Section 107/151, most probably to tackle the law and order situation and breach of peace on account of being in violent mood. HC Pyare Lal (PW-21) who firstly visited the place of occurrence and conducted the investigation has also stated that the accused was arrested by him in the proceedings initiated against him under Section 107/151 Cr.P.C. on that very day. He had recorded the proceedings under Section 107/151 Cr. P.C. and submitted the same to the Executive Magistrate concerned. The record of the said case was also available in the Police Station. As per HC Pyare Lal (PW-21) also, he noticed that the conduct of the accused was furious. Though the suggestion that the father of the accused PW-1 Jaswant Singh had told him that the accused was suffering from mental ailment (insanity) has been denied by HC Pyare Lal (PW-
21) as wrong. However, his admission that the accused was in ferocious mood and had to be arrested in the proceedings under Section 107/151 Cr. P.C. itself speaks in plenty about the actual and factual position. Even if such evidence having come on record after the dismissal of the application under Section 329 Cr.P.C. i.e. during the course of trial is not taken into consideration, ample material was ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 21 on record by that time when the application moved showing prima- facie the abnormal behavior and conduct of the accused at the time of occurrence. Therefore, the possibility of the accused was not in a fit .
state of mind at the time of occurrence cannot be ruled out.
23. Interestingly enough, DW-3 Bainshu Ram, Superintendent, Open Air Jail, Bilaspur on noticing abnormal conduct and behavior of the accused continuously right from 29.6.2015, the date when he was lodged there had informed the S.H.O., Police Station Bharari vide letter dated 11.8.2015 Ext. DW- 3/A about such behavior and conduct of the accused. Also that, he was sent to District Hospital, Bilaspur and IGMC, Shimla for treatment. The copy of letter Ext. DW-3/A was also sent to the father of the accused. He in turn had handed over the prescription slips Ext. DW-1/A1 to Ext. DW-1/A4 to this witness. These OPD slips pertains to Karmi Devi Mental Hospital, Hamirpur as has come in the statement of DW-1 Dr. R.S. Dhatwalia, Psychiatrist in the said hospital. Although DW-1 Dr. R.S.Dhatwalia could not recognize the accused in the Court, however, stated that the person to whom the OPD slips Ext. DW-1/A1 to Ext. DW-1/A4 pertain was likely to suffer from a major mental disorder. Since the OPD slips pertain to the ailment of the accused himself, being produced by his family members before DW-3 Bainshu Ram, Superintendent Open Air Jail, Bilaspur, therefore, such record coupled with the testimony of DW-1 ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 22 Dr. R.S.Dhatwalia and DW-3 Bainshu Ram reveals that the accused was not of sound mind. Even if the statement of DW-1 Dr. R.S. Dhatwalia is ignored at this stage, in that event also, the letter Ext.
.
DW-3/A written by DW-3 Bainshu Ram to Station House Officer, PS Bharari and to the parents of the accused leads to the only conclusion that prima-facie material qua the accused being of unsound mind had come on record well before filing of the application under Section 329 Cr. P.C. It appears that the prosecution has intentionally and deliberately withheld such material from the Court and not opted for filing reply to the application. Such illegal approach on the part of the prosecution is not at all appreciated nor is it in the interest of fair trial, a Constitutional right of the accused.
24. DW-2 is Ravinder Kumar. As a matter of fact, he was posted as Pharmacist in Open Air Jail, Bilaspur. On noticing abnormal behavior and conduct of the accused in Jail, coupled with the factum that he got himself involved in physical brawl with other inmates, he was taken to IGMC and Hospital Shimla for treatment in Psychiatric Department. It is thereafter his treatment in the said hospital, the accused came to his normal routine. The accused as to whether was taking medicine in routine manner or not at the time of occurrence would have surfaced had the enquiry been ordered to be conducted in the application under Section 329 Cr.P.C. DW-2 Ravinder Kumar has testified that the OPD slips Ext. DW-1/A1 to ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 23 Ext. DW-1/A4 were supplied to the Jail authorities by the family members of the accused. The same according to him was part of record he had brought to the Court. The letter Ext. DW-3/A was sent .
to the SHO by the Jail authorities. The same in all probabilities, might have been received in the Police Station because the father of the accused had also received the same. Therefore, the factum of the receipt of letter Ext. DW-3/A would have also surfaced had the enquiry been ordered by learned trial Judge under Section 329 Cr.P.C.
25. DW-4 Ashok Kumar is cousin of the accused being his Aunt's son (Bua's son). On the day of occurrence itself, he had received the message of his maternal Uncle PW-1 Jaswant Singh about the necessity to take the accused to the Clinic of Dr. Dhatwalia at Hamirpur as he had broken the idols of Gods and Godesses hanging on the walls of the house on that day. According to DW-4 Ashok Kumar, the accused was under treatment of the said Hospital at Hamirpur. He, therefore, on the call received from his maternal uncle went to his house, however, noticed that his Aunt (Mami) was killed by that time. According to him, though he was present on the spot, however, not associated with the investigation of the case. DW-5 Naveen Kumar has also stated that on two occasions he accompanied the accused and his father to the hospital of Dr. Dhatwalia at Hamirpur for his check up. The mental condition of the accused ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 24 allegedly had deteriorated after few days of his marriage. DW-7 Dr. R.C. Sharma is the Head of the Department of Psychiatric, IGMC & Hospital, Shimla. The accused was examined vide OPD slip Ext. DB-
.
1 under his supervision by Dr. Ramesh his associate. The other OPD slips i.e. Ext. DB-2 to 4 and 6 to 9 according to him also pertain to the days when he was in OPD on duty. This record was also available on the day when the application under Section 329 Cr.P.C. was filed.
26. The accused was of unsound mind or not at the relevant time would have surfaced from the enquiry, had it been ordered to be conducted by learned trial Court. The procedure adopted by learned trial Court to consider and decide such application is, therefore, not as per law.
27. In view of the reasons hereinabove on filing of the application under Section 329 Cr.P.C. by the accused, the only option available to the trial Court was to have held the enquiry in accordance with the procedure prescribed thereunder for the reason that the manner in which the occurrence took place and the accused had brutally murdered his own mother prima facie shows that he was not in a fit state of mind. Otherwise also, the procedure prescribed under Section 329 Cr.P.C. is mandatory. Therefore, before proceeding further in the trial, learned trial Judge should have obtained the expert opinion qua the mental/psychological disorder, if any, of the accused by forwarding him to Psychiatrist, more ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 25 particularly, when the prosecution did not opt for filing reply to the application. It is also not understandable as to what prompted learned defence counsel to have withdrawn the application. Anyhow, .
as noticed supra, the dismissal of the application as withdrawn cannot be construed to form an opinion that the accused is now not entitled to take such ground in the appeal. Nothing has been brought to the notice of this Court on behalf of the respondent-State that the accused never remained under treatment in Psychiatry Department of IGMC and Hospital Shimla and that he was never suffering from any mental ailment nor ever took any treatment.
28. We, therefore, find the present a fit case where from the date i.e. 1.12.2015 (the day when the application under Section 328/329 Cr.P.C. filed) onward the entire proceedings in the trial have vitiated. As a matter of fact, learned trial Judge should have first determined the question of unsoundness of mind of the accused and thereafter to proceed further in the trial. The impugned judgment which has been passed on the evidence recorded in contravention of the law is not legally sustainable. As a matter of fact, without ascertaining as to whether the accused was in a fit state of mind and in a position to make and understand his defence, no findings of conviction could have been recorded against him. The plea of insanity under Section 84 IPC if raised on behalf of the accused after determining the question ibid could have been considered during the ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 26 course of further trial by the learned trial Court. The approach adopted by learned trial Judge has not only vitiated the proceedings in the trial but has taken away the legal and Constitutional right of .
the accused qua fair trial besides condemning him unheard.
29. For all the reasons hereinabove, this appeal succeeds on this score alone and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside. The case, however, is remanded to learned trial Court for re-trial from the stage of holding enquiry into the facts that on the day of occurrence the accused was of unsound mind or not and thereafter to proceed further in the matter in accordance with law as per the procedure prescribed under Section 329 Cr.P.C. and in case learned trial Court ultimately arrives at a conclusion that the accused is not of unsound mind and has committed the offence while in his full senses, to proceed further against him and decide the case afresh by taking into consideration the evidence already available on record and also the evidence if any, produced by the prosecution and also the defence.
Before parting, we leave it open to learned trial Court to decide the question of release of the accused on bail during the course of enquiry to be conducted in accordance with the procedure prescribed under Section 329 Cr.P.C. and in case he is held to be of unsound mind, till his recovery from his ailment and during the period when on account of his mental disorder/ailment the ::: Downloaded on - 20/12/2018 22:55:16 :::HCHP 27 proceedings in the trial are to be ordered to be suspended and resumed as and when he is cured from the ailment or otherwise, as the case may be.
.
(Dharam Chand Chaudhary), Judge.
December 17, 2018. (Vivek Singh Thakur),
(karan-) Judge.
r to
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