Karnataka High Court
Mounesh vs The State Of Karnataka on 21 December, 2020
Bench: G.Narendar, M.Nagaprasanna
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE G. NARENDAR
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL APPEAL No.200117/2017
BETWEEN:
MOUNESH S/O HANUMANTH BOMMANDODDI,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O HIREBADARADINNI, TQ: MANVI,
DIST. RAICHUR - 585 401.
... APPELLANT
(BY SRI SHIVASHARANA REDDY, ADV.)
AND:
THE STATE OF KARNATAKA
THROUGH KAVITAL POLICE STATION.
(BY ADDL.SPP HIGH COURT BUILDING).
... RESPONDENT
(BY SRI PRAKASH YELI, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER PASSED BY II ADDL. DISTRICT AND
SESSIONS JUDGE AT RAICHUR IN S.C. NO.1/2015 DATED
08.10.2015 BY CONVICTING APPELLANT FOR THE OFFENCES
PUNISHABLE UNDER SECTONS 498(A) AND 302 OF IPC ACT ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 24.02.2020, COMING ON THIS
DAY, NARENDAR J, PRONOUNCED THE FOLLOWING:
2
JUDGMENT
Aggrieved by the order dated 8.10.2015 passed by the II Additional District and Sessions Judge at Raichur (hereinafter referred to as 'trial Court' for short) in S.C. No.1/2015, the accused has filed the subject criminal appeal against the judgment of conviction and order of sentence directing him to undergo rigorous imprisonment for life for the offence punishable under Section 302 of IPC.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. The case of the prosecution is that one Smt. Durgamma gave a statement before the Assistant Sub- Inspector of Kavithal police on 27.9.2014 at RIMS Teaching Hospital, Raichur, alleging that she is the wife of one Shivarayappa Paikeri, who is working as a coolie. She has two children, one of whom by name Hanumanthi (hereinafter referred to as 'deceased' for short) was given in marriage to accused and the marriage was performed six years ago. The contents of the complaint were that after marriage, her 3 daughter Hanumanthi had been to the house of her husband, accused herein, and resided along with him only for a period of one year. It is alleged that the accused thereafter cultivated the habit of consuming alcohol which became unbearable to her daughter and on that ground had separated the accused and her daughter. That the accused had turned an alcoholic. It is further alleged that the accused did not stop consumption of alcohol and was demanding money from his wife to support his habits. When the deceased refused to pay money, the accused assaulted her mercilessly. When this came to the knowledge of the complainant, she and her husband visited the house of accused and brought back her deceased daughter Hanumanthi and from then on, the deceased resided along with the complainant.
4. After about six months, all the elders of the village and relatives of the accused came to the house of the complainant and told that they have set up a separate house for the accused and he assured them that, in future, he 4 would not consume alcohol and he was ready to live along with his wife, i.e. daughter of the complainant, and lead the future life happily. On such assurance of the elders of the village, the complainant sent her deceased daughter along with them and it is thereafter, the complainant became grand mother and at the relevant point of time, the child was four years.
5. It is the further allegation that the complainant and her husband used to visit the house of the accused only to realize that nothing had changed between their daughter and the accused, namely, demanding money for chronic alcoholism. It is the version of the prosecution that the complainant and her husband always advised the accused to live happily along with his wife.
6. On 26.9.2014 at about 5.00 p.m., one Ayyanna called the complainant over telephone alleging that the accused demanded money from her daughter for the purpose of consuming alcohol and as she did not pay the amount, the same resulted in a quarrel between the husband and wife 5 and at about 1.30 p.m., the accused murdered his wife by inserting a tailoring scissor and also gave a blow on her forehead, chest, parietal region and left hand forearm causing grievous bleeding injuries. The deceased was shifted to RIMS Teaching hospital, Raichur, and breathed her last at about 7.00 pm.
7. It is the case of the prosecution that the complainant questioned the mother-in-law, i.e. the mother of the accused and she informed her that at about 1.30 p.m., the accused demanded money from his deceased-wife, to consume alcohol and when she did not pay the amount, a quarrel started between them, during which the accused took a tailoring scissor and pierced it into the neck of his deceased wife. That one Mallaiah and Shanthamma were eye witnesses to the incident. While taking treatment, the victim breathed her last on 27.9.2014 at 7.00 p.m. The complainant gave a statement that the accused, who was her son-in-law, alone caused the murder of her daughter 6 Hanumanthi, and requested the police to take necessary action.
8. After recording the statement of the complainant and on the basis of the allegations made in the complaint, a case came to be registered against the accused in Crime No.104/2014 for the offence punishable under Section 302 of IPC.
9. Investigation was further handed over to CPI of Manvi as the offence was heinous in nature. Charge sheet came to be filed against the accused. The trial Court on the basis of the allegations and materials available, framed issues and recorded evidence and came to conclude that the prosecution has proven the guilt of the accused beyond all reasonable doubt and by its judgment dated 8.10.2015, held that the accused is guilty of the offences punishable under Sections 498A and 302 of IPC.
7
10. Questioning the said judgment and order of the trial Court dated 8.10.2015 passed in S.C. No.1/2015, the accused has filed the subject criminal appeal.
11. We have heard the learned Advocates appearing for the parties.
12. Learned Counsel for the appellant-accused would contend that the trial Court has failed to exercise power under Sections 328 and 339 of Cr.P.C. to determine the stability and mental condition of the accused as to whether he could stand the trial as a normal person and consequently, to discharge the accused under Section 330 of Cr.P.C. It is further contended that the learned Magistrate has erred in committing the case to the Court of Session, which is in violation of Section 333 of Cr.P.C. It is his submission that this factor alone is enough to hold that the impugned judgment and order convicting the accused is vitiated.
12.1. The learned Counsel for the appellant contends that the trial Court has failed to consider and 8 appreciate its own act whereby the trial Court on seeing the unstable mental condition of the accused had ordered he be sent for treatment at NIMHANS, Bangalore. That he underwent treatment for about 50 days. This order came to be passed after seeing the ostensible weakness and mental condition of the accused. All other independent and important witnesses to the prosecution have turned hostile and there was no credible evidence against the accused to sustain an order of conviction. That the accused ought to have been given the benefit of Section 84 of IPC by passing an order of acquittal.
12.2. It is the further contention of the learned Counsel that the trial Court has failed to consider that the complainant (P.W.9), in her cross-examination, has stated that none of the witnesses, as alleged in the complaint, told her about the assault by the accused to her deceased daughter and further admits that the accused and the deceased were residing separately in the same house. In such a situation, the learned Counsel would contend that the prosecution without proving its case had shifted the burden 9 of proof on the accused to prove his innocence which is contrary to Section 106 of Evidence Act.
12.3. The learned Counsel would further contend that all important and independent witnesses of the prosecution - P.Ws.5, 8 and eye witnesses - P.Ws.1, 2 and others, have turned hostile and the conviction based on inconsistent evidence of hearsay witnesses i.e., P.Ws.9, 10 and 15 is totally illegal and cannot be sustained in the eye of law.
13. Learned Additional SPP appearing for the respondent-State would, however, support the impugned judgment of conviction and order of sentence of the trial Court contending that it is no doubt true that the accused was suffering from mental illness which had necessitated the trial Court to send him to NIMHANS for a period of 50 days for assessment and treatment of his mental condition. But the trial commenced only after NIMHANS certified that he was fit to withstand trial. There is no illegality whatsoever in the judgment and order passed by the trial Court and none of the grounds urged by the learned Counsel for the accused 10 would hold water in the light of the clear evidence of the prosecution witnesses that the accused had committed a heinous offence of murder of his wife.
14. We have given our anxious consideration to the contentions advanced by the learned counsel for the respective parties and perused the appeal papers.
15. The following points would arise for our consideration:
(i) Whether the trial is vitiated on account of unstable mental condition of the accused?
ii) Whether the prosecution has proved the
guilt of the accused beyond all
reasonable doubt ?
iii) Whether the judgment and order of the
trial Court requires interference?
16. Re. Point No.1:
Certain facts that have preceded the incident of murder of the deceased Hanumanthi i.e., wife of the accused, are 11 that the accused and deceased, who was the daughter of complainant and Shivarayappa Paikeri, were married to each other in the year 2009. It transpires that the life of the accused and deceased was peaceful for a period of one year and thereafter, the accused cultivated the habit of consuming excessive alcohol. It further transpires that apart from consuming alcohol, in terms of the version of the prosecution, the accused also started to demand money from the deceased to support his drinking sprees. After about a year, the marriage between the accused and deceased, got strained and she was taken back by her mother to her parental home. On reconciliation and efforts by the elders of the village, the deceased went back to the house of the accused and again started to live with him. But it is the version of the mother of the accused that the relationship between accused and the deceased again got strained due to chronic alcoholism of the accused and she, time and again, advised the couple to lead a life peacefully.12
17. The allegation is that, on the fateful day, the accused and his deceased wife entered into quarrel with regard to money for the purpose of buying alcohol and on refusal of the deceased to part with money, the accused pierced a tailoring scissor into the neck of the deceased and also gave her several blows on the chest and other parts of the body, due to which the deceased was hospitalised and succumbed to such injuries at RIMS Teaching Hospital, Raichur.
18. The complainant lodged a complaint before the jurisdictional police alleging gruesome murder by the accused, which led to the registration of a case in crime No.104/2014, which was later transferred to the Sessions Court and registered as S.C.No.1/2015. The trial Court after hearing the parties and considering the oral and documentary evidence, framed the following charges for its consideration:
1. Whether the prosecution proves beyond all reasonable doubts that on 23.09.2014 at about 1.30 p.m., when the deceased 13 Hanumanti was alone in the house, accused being the husband subjected deceased Hanumanthi to cruelty by wilful conduct which is of such a nature as is likely to drive her to cause grave injury or danger to life, limb or health and harassed mentally and physically so as to coerce her and thereby committed an offence punishable u/sec. 498 - A of IPC?
2. Whether the prosecution has proven beyond reasonable doubt that on 23.09.2014 at about 1.30 PM accused asked money to his own wife for consuming alcohol, for that she refused to give the money for consuming alcohol and hence the accused committed her murder by piercing tailoring scissor on her fore-head, backside's head, left hand, neck etc., thereby committed an offence punishable U/Sec. 302 IPC?
3. What order?"
19. In order to prove its case, the prosecution, in all, examined 20 witnesses as P.Ws.1 to 20 and got marked documents as Exs.P.1 to P.25 and material objects as M.Os.1 to 8. On behalf of the accused, neither witnesses were examined nor were documents got marked.
14
20. The trial Court on the basis of the evidence before it, by its judgment, convicted the accused and ordered the following sentence:
"Acting under Section 235(2) of Cr.P.C., the accused is hereby sentenced to undergo R.I. for a period of three years and also to pay fine of Rs.5,000/- and in default to pay the fine to undergo R.I. for a further period of three months for the offence punishable under Section 498(A) of IPC.
Acting under Section 235(2) of Cr.P.C., the accused is hereby sentenced to undergo R.I. for life and also to pay fine of Rs.10,000/- and in default to pay the fine to undergo R.I. for a further period of six months for the offence punishable under Section 302 of IPC. Both the sentences run consecutively. The accused is entitled for set off of the period of custody already undergone during the trial of this case under section 428 of Cr.P.C.
A free copy of the judgment shall be furnished to the accused forthwith.15
Office is directed to issue conviction warrant."
Challenging this judgment of conviction and order of sentence, the accused has filed the subject appeal.
21. P.W.1 is a panch witness for the spot panchanama (Ex.P.1) where M.Os.4 & 5 were seized. P.W.2 is co-panch for Spot panchanama (Ex.P.1). P.W.3 is Panch for Inquest panchanama (Ex.P.4). P.W.4 is co-panch for Ex.P.2 and Ex.P.4. P.Ws.5 to 8, 11, 12 are arrayed as eyewitnesses to the incident. P.W.9 is the complainant and mother of the deceased Hanumanthi. P.W.10 is brother of the deceased. P.W.13 is the auto driver in which the deceased was shifted to the Hospital. P.W.14 is ASI, who after receipt of MLC, visited the Hospital, recorded the statement of PW.9 and forwarded to the police station to register the case. P.W.15 is Medical Officer, who conducted the post mortem examination as per Ex.P.15. P.W.16 is CPI-Investigating Officer. P.W.17 is Junior Engineer who prepared the sketch of scene of offence as per Ex.P.23. P.W.18 is PDO, who 16 issued house extract as per Ex.P.22. P.W.19 is Head Constable (SHO), who on receiving the statement of the P.W.9 and P.W.14, registered the case in crime No.104/2014. P.W.20 is Tahsildar, who conducted inquest panchanama as per Ex.P.4.
22. After thorough perusal of the records, certain doubts arose in the mind of this Court, more particularly, in the light of the fact that the last session of treatment undergone by the under trial/accused, was immediately prior to the commencement of the trial. On perusal of the ordersheet, it reflected that the trial commenced shortly after the accused returned from treatment at National Institute of Mental Health and Neuro Sciences, Bengaluru. As a doubt arose with regard to the fact as to whether the trial had been fairly conducted, we requested the presence of the counsel who had been appointed by the District Legal Services Authority to represent the accused before the trial.
23. Pursuant to the request of the Court, Smt.Mary Daniel, learned counsel appeared before us and we asked the 17 counsel to place on record in writing a short synopsis of her interaction and the way the trial was conducted from the day she entered appearance. In response to the same, learned counsel filed her say by way of memorandum of facts dated 24.02.2020 which reads as under:
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH CRIMINAL APPEAL NO.200117/2017 BETWEEN:
MOUNESH APPELLANT
AND
THE STATE OF KARNATAKA RESPONDENT
MEMO OF FACTS
I, Smt. Mary Daniel, counsel for the
accused/appellant before the trial court in S.C No.1/2015 before the 11 Addl. District and Sessions Judge, Raichur being appointed by District Legal Services Authority, Raichur submits as under.
1. That, I was pleading and defending the appellant/accused in S.C No.1/2015. Hence, I know the facts of the case.
2. That, I was requested to be present before this Hon'ble Court on 24.02.2020 without fail the information was furnished to me by the Secretary High Court Legal Services Committee, Kalaburagi Bench the same was intimated to me by the Member Secretary District Legal Services Authority District Court Complex Raichur.18
Accordingly I am present before this Hon'ble Court and submits as under:
26.09.2014 Date of offence 27.09.2014 Date of report of offence 27.09.2014 Date of arrest of accused/ appellant 10.02.2015 The appellant/accused was referred to NIMHANS hospital Bangalore for his necessary mental treatment by the order of the trial court.
30.04.2015 The appellant accused was sent back from the NIMHANS hospital Bangalore to trial court.
19.05.2015 The Hon'ble Trial Court sought legal assistance for the accused/ appellant from DLSA Raichur.
10.06.2015 That upon the instructions of DLSA the vakalat was filed on behalf of the accused/appellant by the undersigned.
07.07.2015 One set of charge sheet papers were given to the counsel and charge was also framed on the same day. The accused informed that he had not committed the offence and he is innocent.
08.10.2015 The counsel for the accused/ appellant was Not furnished with any medical mental ailments records of the accused/ appellant for having been treated and referred to 19 NIMHANS Bangalore on 10.02.2015 and also was not intimated about the return of the accused/appellant on 30.04.2015 after treatment from NIMHANS Bangalore when he was produced before the Hon'ble trial Court and after the return on 19.05.2015 sought for legal assistance for the accused/appellant from DLSA Raichur and accordingly on 10.06.2015 the undersigned counsel filed vakalat and during the course of trial the above said mental treatment records of accused/appellant was not furnished to the defence counsel and this defense could not be taken on the non-
availability of the medical records and information and court also has not considered the medical records and mental illness of accused in judgment and accused/appellant was convicted.
Hence this memo of facts."
(emphasis by this Court)
24. On perusal of the memorandum of facts, we found that there was no narration about any interaction between the accused and his counsel. On a specific query from the Court as to whether the accused had imparted instructions with regard to the merits of the case, she 20 categorically said that there was no interaction between the accused and herself and when queried further, as to how she carried out the cross-examination of the witnesses, she submitted that as most of the witnesses including the alleged eye witnesses had turned hostile, she carried on the cross- examination on the basis of records furnished to her and not on the instructions of the accused. She further clarified that she was not aware of the illness or the treatment given to the accused and that neither was she made known about the said fact. When further queried about the conduct of the accused during the trial, she stated that he remained a mute spectator and never ventured to give any instructions to her and nor had he requested any interaction. On a further query as to whether the accused was aware that she was representing the case, she submitted that she could not state with authority as to whether the accused was aware or not.
25. It is pertinent to state that the cause for our anxiety and endeavour to unravel the truth are the orders preceding the hearing of the appeal namely which are as 21 under. When the matter came up before this Court on 17.7.2018, this Court passed the following order:
"The learned Additional State Public Prosecutor submitted a report of the Chief Superintendent, Central Prison, Kalaburagi, wherein it is clarified that the appellant has already been transferred to Bengaluru for the purpose of sending him for further treatment at NIMHANS Hospital.
In view of the above said report submitted, I.A.1/2018 does not survive for consideration, as the prayer sought for in I.A.1/2018 has been accomplished. Therefore, I.A.1/2018 is dismissed as having become infructuous.
Learned counsel for the appellant is
permitted to inform this Court after the
treatment is being given to the appellant, for early hearing.
26. Again when the matter was listed on 30.5.2019, this Court passed the following order:
"The learned Addl. S.P.P. is hereby directed to furnish the latest status of the accused in the 22 jail with regard to the mental and physical health along with the opinion of the doctor.
List this case after two weeks."
27. The case was again re-listed on 29.7.2019 on interlocutory application for early hearing and suspension of sentence. This Court passed the following order:
" ORDER ON I.A.1/2019 & 2/2019 The appellant has preferred this appeal being aggrieved by the judgment and order dated 08.10.2015 passed in S.C.No.1/2015 by the learned II Additional District and Sessions Judge, Raichur, wherein he was found guilty and convicted for the offences punishable under Sections 498-A and 302 IPC.
He was sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- and in default to pay fine to undergo rigorous imprisonment for a further period of three months for the offence punishable under Section 498-A of IPC. He was also sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- and in default to pay fine to undergo rigorous imprisonment for 23 further period of six months for the offence punishable under Section 302 of IPC.
I.A.1/2019 is for suspension of sentence and for grant of bail.
Heard.
The learned counsel for the appellant would submit that the appellant requires proper attendance and his physical and mental health is getting deteriorated due to his stay in jail.
The learned Additional SPP would submit that earlier similar application filed by the appellant/accused came to be dismissed by this Court on 15.03.2018. He further submits that the reasons shown for suspension of sentence on medical grounds does not a ground to grant the relief sought.
The appellant has not presented any changed circumstance to enable the Court to grant bail. Moreover, it is submitted that the appellant was in custody on the date of pronouncement of the judgment. Thus, during the trial itself he is stated to be in judicial custody.24
There are no grounds to allow the application for suspension of sentence and the same is dismissed.
Insofar as I.A.2/2019 is concerned, the learned counsel for the appellant seeks early disposal of the appeal. Having considered the circumstances and the matter is of the year 2017 and that the appellant is in custody, we find it is just and proper to fix the date of hearing. The matter to be listed for final hearing in the first week of December, 2019.
Registry is directed to prepare the paper books within eight weeks."
28. The appeal was taken up and heard on 03.02.2020 and we made the following order:
" Having heard the appeal and perused the records.
We find certain records indicating that the accused was diagnosed with Severe Depression coupled with Psychosis in the opinion expressed in Senior Medical Officer, Central Prison Hospital, Kalaburagi in his letter dated 29.01.2018, addressed to the Chief Superintendent, Central 25 Prison, Kalaburagi. This was during the period of trial which almost went on for eight months.
The learned Additional S.P.P. would submit that, initially the appellant was lodged in Central Prison, Raichur from where he was referred to the hospital. On the first occasion, the hospital authorities treated him for fever and he was sent back and when, he was again brought to the hospital for the second time, the hospital authorities at Raichur referred him to the National Institute of Medical Health and Neuro Sciences, Bangalore.
The learned counsel for the appellant would submit that when the appellant was produced before the court on 10.02.2015, the trial court noticing his abnormal behaviour directed for examination by medical experts. The memo and documents produced reflects that the trial had been conducted during this period, when it was alleged that he was suffering from the ailment of Severe Depression with Psychosis.
The Senior Medical Officer Dr.Basawaraj is present before the court. He would submit that such medical condition is an abnormality and prima-facie a person suffering with such ailment 26 cannot be said to be a normal person. He cannot understand a normal human conduct.
The Senior Medical Officer shall examine the complete medical records relating to the appellant including the records maintained by NIMHANS, Bangalore and the records available in the Hospital at Raichur, and thereafter submit a detailed report as to whether the appellant would be termed as a 'normal person'. He could not have understood the trial proceedings and accordingly instructed his counsel to canvas his defense.
Report shall be submitted within two weeks.
A copy of this order shall be furnished to the Senior Medical Officer, Central Prison Hospital, Kalaburagi.
For the preparation of report, the Senior Medical Officer is also permitted to take the opinion or assistance of a qualified Psychiatrist and if such assistance is taken, the report of the Psychiatrist shall also be enclosed.
The Senior Medical Officer Dr. Basavaraj would submit that he desires to take the 27 assistance of Dr.Vijayandra or Dr. Chandrashekhar of the District Government Hospital, Kalaburagi.
List on 17.02.2020."
29. Pursuant to the order, the following medical records came to light.
The Medical Officer of the Central Prison Hospital, Kalaburagi, had communicated the health of the accused to Chief Superintendent of Central Prison, Kalaburagi on 16.7.2018, which reads as follows:
"Office of the Medical Officer Central Prison Hospital Kalaburagi Date: 16.07.2018 To Chief Superintendent Central Prison - Kalaburagi Sub: Submission of Health of CTP - Mounesh S/o Hanumanth aged about 28 years.
Mounesh S/o Hanumanth CTP -19764 aged about 28 years was suffering from severe Depression with Psychosis in the year 2015, for which he was treated in NIMHANS 28 Bengaluru for eight months since March - 2015. He was referred to NIMHANS from Raichur Jail.
Follow up treatment is given in this central Prison Hospital, as advised by the Visiting Psychiatrist He is on following drugs since March - 2018. Cap - Fluoxetine 20mgX2 in the morning and Tab - Clonazepam - 0.5mg ½ in the Morning and One Tab let in the night.
As there is no improvement, he is referred to NIMHANS - Bengaluru and he is in Bengaluru now for treatment.
Submitting the information for needful action.
Sd/-16/7/18 Medical Officer Central Prison Hospital Kalaburagi."
The above communication indicates that there is no improvement in the mental health of the accused and he was referred to NIMHANS again for treatment. 29
30. Pursuant to our interaction with the Prison Officials and their Doctor and upon the direction of this Court as afore-extracted, the medical opinion in the case of the accused was placed before the Court along with certain enclosures pertaining to the treatment of the accused at NIMHANS during the period of trial. The gist of the opinion reads as follows:
"Medical Opinion of the Convict Prisoner Mounesh S/o Hanumanth R/o BommandoddiTq. Manvi Dist. Raichur in relation to CRL A NO-200117/2017 In The High Court of Karnataka, Kalaburagi Bench Having gone through the contents of the order and records of "Mounesh Hanumanth CTP-19764, I DR Basavaraj Kiranagi Sr. Medical Officer, working in Central Prison Hospital Kalaburagi submitting the said report. The accused Mounesh S/o Hanumanth M - 28 years was admitted in District Jail Raichur on 27.09.2014.
Enclosure - 1 His health check up in Prison Hospital Raichur was done on 28.09.2014. His health status was normal Enclosure - 2 30 During Judicial Custody he fell sick on 23.01.2015, he has onset of his depressive symptoms and was referred to RIMS Hospital Raichur Medical & Psychiatry OPD, for treatment.
Enclosure - 3 On 10.02.2015 he was produced before the court for trial. As he was unable to talk, not answering to the court questions, Honourable Judge of II Addl. District and Session Court, directed to Jail Superintendent of Raichur to send him to NIMHANS for proper treatment and produce him on 24.02.2015 Enclosure - 4 He was in Bengaluru Jail and referred to NIMHANS for Investigations and Treatment on 13.02.2015. He was put on ant depressive drugs, followed that depressive symptoms improved. Hence his symptoms of depression decreased before the trial period Accused Monesh was under
treatment advised by the specialist in NIMHANS since 15.02.2015.
As his condition improved treating specialist discharged the patient on 25.03.2015. in his discharge summery he has mentioned that he is doing well and fit for trial, as he has insight and adequate judgement.31
Enclosure - 5 Accused was transferred from Parappanaagrahara Central Prison Bengaluru to Raichur District Jail o 05.04.2015, and was under continuous treatment with periodic supervision of Psychiatrist in RIMS Hospital Raichur - and he was doing well, till he was sent to Central Prison Kalaburagi on 10.10.2015. STATEMENT OF Medical Officer in Raichur District Jail enclosed as Enclosure - 6 As he was doing well, He was produced before the trial Court on 30.04.2015 and on following dates for case decision.
19.05.2015 10.06.2015 22.06.2015 07.07.2015 01.08.2015 03.08.2015 04.08.2015 12.08.2015 07.09.2015 19.09.2015 26.09.2015 01.10.2015 And lastly on 18.08.2015 (Judgment Day).
Court Produced note Sheets Enclosure - 7 32 During this trial period 30.04.2015 to 08.10.2015 he was asymptomatic as per the records.
Judgment given on 08.10.2015.
Enclosure - 8 After conviction he was transferred to Central Prison Kalaburagi, and he is in Kalaburagi Central Prison since 10.10.2015 and he is on medication. He is getting treatment as advised by the Visiting Psychiatrists from District Hospital Kalaburagi. Since disease recurred in August 2018 he was referred to NIMHANS and got registered for treatment on 16.08.2018 Enclosure -9 Follow up done on 25.09.2018 and 27.09.2018. and advised retransfer to Kalaburagi on 27.0.2018. Actual retransferred on 07.10.2018. Reached Kalaburagi on 08.10.2018 He is on regular Medications advised by the Specialist in NIMHANS Bengaluru and followed up, in this Central Prison Hospital Kalaburagi, by the visiting Psychiatrist of District Hospital. 33
Latest follow up was on 11.01.2020 &
08.02.2020
Enclosure -10
Now he is keeping Good Health
Date: 14.02.2020.
Sd/-
Dr.BasavarajKiranagi
Sr. Medical Officer
Central Prison Hospital
Kalaburagi.
31. From the above, it is seen that the doctors at NIMHANS on 25.03.2015 had opined that he has insight and adequate judgment and fit to stand trial and the trial came to be completed between 30.04.2015 and judgment was pronounced on 18.08.2015 but the subsequent medical records more pertinently Enclosures- 8, 9 and 10 as extracted above clearly indicate otherwise. On interaction of the doctor, it was made known to the Court that patients suffering from a chronic depression if not maintained on medication on a daily basis, there is all likelihood of a relapse of the medical condition leading to or bordering on insanity. 34
32. At this juncture, we are constrained to note the failing on the part of the trial Court. It appears that the trial Court has blindly proceeded on the information dated 25.03.2015 without even endeavouring or even attempting to satisfy itself as to whether the accused was 'legally fit' to stand trial. It was incumbent upon the trial Court to satisfy itself that the accused was capable of comprehending the various stages of trial, more particularly, the evidence that was put against him and as to whether he had understood the same and further as to whether he has accordingly instructed his counsel to defend his rights. The trial Court has miserably failed in complying with this requirement. It is sad to note that the trial Court has acted in a mechanical manner without even being alive to the consequence that would follow in the absence of an effective defence. The right to defence is not an illusory right and the duty cast on the Court to ensure fair trial is not optional but mandatory. The conduct of the trial, to state the least, shocks our judicial conscious. Even a simple attempt by the trial Court to cross 35 check with the defence counsel would have been suffice to alert the Court to the circumstances surrounding the trial.
33. As stated supra, it has been categorically admitted by the defence counsel that she was neither alerted nor were any instructions given by the accused and that the accused was a mute witness reducing the trial proceedings to virtually a dumb charade to him. As oft repeated and reiterated by the Hon'ble Apex Court, the concept of a fair trial is not an empty formality and the endeavour by the Court and as is the object of a trial, is the unravelling of the truth. The various stages of a trial are nothing but a pursuit in the search of the truth. In this direction, we are of the firm opinion that the trial Court has miserably failed. The trial Court being well aware of the mental condition of the accused immediately prior to the commencement of the trial, it was incumbent on the trial Court to ascertain as to whether the accused was capable or incapable of making his defence.
34. We are constrained to observe so in view of the categorical assertion by the defence counsel before this 36 Court, who has put it in black and white, stating that no records relating to the mental condition of the accused was made available to her and in that view of the matter, she was unable to raise a defence with regard to legal insanity of the accused. In our considered opinion, this is nothing but a travesty justice, that not only the prosecution has failed but even the Court failed in its duty to intimate the defence counsel (in this case appointed by the District Legal Services Authority) about the treatment undergone by the accused for his mental condition.
35. As held by the Hon'ble Apex Court, it is not mere insanity, but legal insanity that would constitute a defence. If the said ground of defence was available and if the accused has been deprived of the said defence, it certainly constitutes a glaring case of miscarriage of justice and a failure of fair trial. The Hon'ble Apex Court in the case of VIVIAN RODRICK VS. STATE OF WEST BENGAL reported in (1969) 3 SCC 176 was pleased to observed in paragraphs 21, 28, 29, 30, 32 and 35 as under:
37
"21. We are not inclined to accept the contention of Mr. Rana that the trial proceedings are illegal and void for the reasons stated by him. Section 465, Cr. P. C., which appears in Chapter XXXIV dealing with 'lunatics', is as follows:
"465. (1) If any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable, of making his defence, the jury, or the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied of the fact, the Judge shall record a finding to that effect, and shall postpone further proceedings in the case and the jury, if any, shall be discharged.
(2) The trial of the fact of unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court." Section 467, in the same Chapter, relates to resumption of inquiry or trial and Section 468 provides for the inquiry or trial being proceeded with, if the Magistrate or the Court, as the case may be, considers the accused capable of making his defence, and for postponing the trial or inquiry if the accused is still incapable of making his defence. To adopt the procedure indicated in Section 465, it is necessary that the person committed for trial before a Court of Session or a High Court must appear to the Court to be of unsound mind and incapable of making his defence. The emphasis is : (1) that the person must appear to the Court to be of unsound mind; and (2) in consequence of such unsound mind he must be 38 incapable of making his defence. There must be something in the demeanour of the accused who is brought up for trial which would raise a doubt in the mind of the Court that he is of unsound mind and consequently incapable of making his defence. If such a doubt had been raised in the mind of the Court, it was obligatory on the Court, or the jury, in the first instance, to try the fact of such unsoundness of mind and incapacity of the accused. If the jury, or the Court, as the case may be, is satisfied of the said fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case. Without attempting to be exhaustive, we may indicate that a doubt may arise in the mind of the Court because of the manner in which an accused behaves or answers questions.
28. Whatever may be the legal position regarding the applicability of Section 465, Cr. P. C., to appeals, we are not inclined to agree with the proposition enunciated by the learned Judges that there is no bar to 'hearing and disposing of an appeal, even if the accused- appellant is of unsound mind or even insane at the time when the appeal is taken up for hearing'. It must be remembered that in this case the appellate Bench had passed an order on January 11, 1965 that the Criminal Appeal No. 5 of 1964 would be heard under Section 411-A (a), (b) and (c), Cr. P. C. That means that the appellant was entitled to challenge his conviction not only on any ground of appeal which involves, a matter of law only, but also to challenge his conviction on any ground which involves a matter of fact. Under those circumstances, it is clear that the appellant's appeal 39 before the High Court involves also the determination of questions of fact and instructions which the appellant might give to his lawyer as to the hearing of the appeal, might well prove to be vital; but by reason of his unsoundness of mind and the consequent inability on his part to instruct his lawyer in the conduct of his appeal, it must be held that no effective opportunity in the matter of hearing the appeal had been provided to the appellant. When the medical report was that the mental condition of the appellant was worse and that he was of unsound mind and it was in the face of that report that the appeal was directed to be taken up for hearing, it is difficult to hold that a proper and reasonable opportunity had been provided to the appellant with respect to his appeal, because it is impossible for the appellant to make himself heard either in person or through a lawyer when he is of unsound mind.
29. In out opinion, when the report is that an accused-appellant is of unsound mind, it is reasonable to infer that he is incapable of making his defence. The Court, in the circumstances, is bound to afford him the same protection to which he would have been entitled had he been of unsound mind at the time of the trial.
30. We may refer, in this connection, to the decision of the Calcutta High Court in Sundaram v. State which lays down that even if Chapter XXXIV of the Code of Criminal Procedure may not apply to an appeal, nevertheless the Court has inherent power to postpone the hearing of the appeal until such time as the appellant should be fond to be of sound mind again and thus capable of making his defence. We are of opinion 40 that the distinction sought to be made of this decision, in the order of the appellate Bench, dated July 19, 1967 in the present case, is not justified, whatever may be the position regarding the applicability or otherwise of Chapter XXXVI to appeals.
32 The hearing of the appeal, in which sentence of death is challenged, when admittedly the accused appellant was of unsound mind, must be considered to have caused serious prejudice to the accused resulting in failure of justice. For instance an accused appellant may have received information, in consequence of which it may be open to him to give suitable instructions to his lawyer or make an application himself to the Court for adducing additional evidence. If an accused appellant is of unsound mind, how is it possible for him to convey this information to his counsel or for him to make the necessary request to the Court? Similarly, the Court may, during the hearing of an appeal, think it necessary to take additional evidence under Section, 428 Cr.P.C. and under sub-section (3) of Section 428, unless there is a direction to the contrary, by the appellate court, the accused or his pleader is entitled to be present when such additional evidence is being taken. It may become necessary, when such additional evidence is being taken, for the accused appellant to give suitable instructions to his lawyer if he is represented by one, or himself put the necessary questions to the witness. How is it possible for an accused appellant to do either of these things if he is of unsound mind?
35.The exercise of powers by the High Court, under Section 375 (1) Cr.P.C., may in a given case arise 41 and if the reference and the appeal are heard and disposed of by the High Court when an accused appellant is of unsound mind, the consequence will be the denial of an opportunity to the accused to contest his appeal, resulting in gross miscarriage of justice. The circumstances indicated above will clearly show the propriety of postponing the hearing of an appeal involving a sentence of death, when the accused is of unsound mind."
36. As noted by the Hon'ble Apex Court, in the instant case, there has been denial of fair trial as admittedly the defence counsel has never been in receipt of any instructions nor was any effort made by the defence counsel to secure instructions from the accused who was both in the hospital and in the prison. The prosecution has been unfair in not furnishing the records pertaining to the mental health of the accused/appellant and the Court has miserably failed in its duties.
37. The Hon'ble Apex Court in the case of JAI SHANKER Vs. STATE OF H.P. reported in (1973) 3 SCC 83 in similar circumstances while dealing with the question of duty of a Magistrate dealing with an accused with mental 42 infirmity or unsoundness of mind was pleased to observe in paragraphs 7 and 12 as under:
7. The situation arising in this case is governed by Section 464 of the Code which lays down the procedure which a Magistrate is enjoined upon to follow when an accused person alleges that he is suffering from such mental infirmity as to render him incapable of making his defence. The unsoundness of mind dealt with in this section is the one which such an accused person alleges to be suffering from at the time of the inquiry before the Magistrate and not one at the time of the incident during which he is said to have committed the offence in question. The section in plain terms provides that if the Magistrate holding the inquiry (in the present case the committal proceedings) has reason to believe that the accused at that point of time is suffering from unsoundness of mind, and consequently, is incapable of making his defence, he shall institute an inquiry into the fact of such unsoundness and shall cause the accused to be examined by a civil surgeon of the district or such other medical officer as the State Government directs. It is clear from the mandatory language of the section that the first thing that the Magistrate has to do is to decide, when an accused person is brought before him who is suspected or alleged to be a person of unsound 43 mind and before he proceeds with the inquiry, whether such person appears to him to be of unsound mind. The words "reason to believe"
indicate that when an accused person is presented before a Magistrate for inquiry, who, it is alleged, is suffering from unsoundness of mind, the Magistrate has, on such materials, as are brought before him, to inquire before he proceeds with the inquiry whether there are reasons to believe that the accused before him is suffering from any such infirmity. The next step is that if he has such reasons to believe, he is to institute an inquiry into the fact of unsoundness of mind and cause him to be examined by the civil surgeon or such other medical officer as the State Government directs. Therefore, when a question is raised as to the unsoundness of mind of an accused person, the Magistrate is bound to inquire before he proceeds with the inquiry before him whether the accused is or not incapacitated by the unsoundness of mind from making his defence. Such a provision clearly is in consonance with the principles of fair administration or justice.
12. In this view, the High Court was not correct when it held that the Magistrate has held an inquiry, that he had held in that inquiry that he had no reason to believe that the appellant was suffering from any unsoundness of mind, and that therefore, he could straight 44 away proceed with the committal proceedings. In our view, the Magistrate failed to make such an inquiry which it was incumbent upon him to make at the very threshold, and that having not been done, the committal proceedings, as also his order committing the appellant to the Sessions Court for trial were both vitiated. Consequently, the appeal must be allowed and the High Court's order and also the committal order passed by the committing Magistrate must be set aside and a de novo committal proceeding directed. We further direct the Magistrate to hold those proceedings in compliance with the requirements of Section 464 and give an opportunity to the appellant to produce evidence, if he so desires, to satisfy the Magistrate that there are reasons to believe that he is suffering from such unsoundness of mind as would incapacitate him from making his defence."
38. In the case on hand, the reference to the Institute of Mental Health has been made by the trial Court after observing that the accused acted strangely and answered irrelevantly or remained mute, when produced during the trial. The trial Court having itself ventured to forward the accused for treatment could not thereafter have 45 lapsed into and committed the fault that it did i.e., ascertaining as to whether the accused was legally capable of making a defence or in other words whether the accused suffered from any incapacity to defend himself. In this regard, we place reliance on one more ruling of the Hon'ble Apex Court in the case of STATE OF MAHARASHTRA VS. SINDHI ALIAS RAMAN reported in AIR 1975 SC 1665 while dealing with the unsound mind of the accused and his consequence incapacity to defend himself has been pleased to observed in paragraphs 13, 14, 15 and 19 as under:
"13. From the above conspectus, it emerges clear that so far as an accused person sentenced to death is concerned, his trial does not conclude with the termination of the proceedings in the Court of session. The reason is that the death sentence passed by the Court of Session is subject to confirmation by the High Court. A trial cannot be deemed to have concluded till an executable sentence is ,passed by the competent court. Viewed from that stand-point, the confirmation proceedings under ss. 374, 375 and 376, Chapter XXVII of the Code of 1898, are, in substance, a continuation of the trial.
14. Nor is it correct to say that in such confirmation proceedings the High Court can arbitrarily 46 refuse to hear the accused either in person or through Counsel or other agent.
15. In Vivian Rodrick's case (supra), the appellant was convicted under S. 302, Penal Code by the Court of Session and sentenced to death. The Sessions Judge made a reference under s. 374 for confirmation of the death sentence. The convict 'appealed against the order of his conviction and sentence. The High Court dismissed the appeal, accepted the reference and confirmed the conviction and the sentence. In an appeal by special leave brought before this Court, it was inter alia contended that the proceedings taken in the appeal before the High Court were void for non-compliance of s.
465. What this Court said in repelling that contention, being equally applicable to what has been canvassed before us on behalf of the appellant. may usefully be extracted :
"We. are of the view that it is not necessary for us, in this case, to express any opinion on the applicability, or otherwise, of the provisions of s. 465, Cr. P.C. to appeals. For, on the facts of the case, we are inclined to accent the alternative contention of Mr. Rana that in the face of the medical evidence and in view of the fact that the appellant was contesting his conviction for murder and the sentence of death imposed on him it would have been proper if the Division Bench which heard his appeal had postponed the hearing of the appeal till such time as the appellant was declared fit to contest his appeal........ Whatever may be the legal position-regarding the applicability of Section 465 Cr.47
P.C. to appeals, we are not inclined to agree with the proposition enunciated by the learned Judges that there is no bar to hearing and disposing of an appeal, even if the accused-appellant is of unsound mind or even insane at the time when the appeal is taken up for hearing. In our opinion, when the report is that an accused appellant is of unsound mind, it is reasonable to infer that he is incapable of making his defence. The Court, in the circumstances is bound to afford him the same protection to which he would be entitled had he been of unsound mind at the time of the trial."
19. It is true that the High Court had by its order dated 14-1- 1970, referred both the issues in regard to the mental capacity of the accused to the Medical Board, and has given due weight to their opinion. But it is not correct to say that the High Court accepted the ipse dixit of the medical experts. It examined Dr. Marfatia and Dr. Chandorkar as court witnesses. These experts gave detailed and cogent reasons in support of their opinion. The High Court meticulously considered their evidence and thereafter recorded its own findings on the crucial issues. We have ourselves examined the evidence rendered by these two mental experts in the High Court. We are satisfied that the conclusion arrived at by the High Court in regard to the mental capacity of the accused on the basis of this evidence is correct'.
39. A detailed perusal of the medical opinion and the correspondences and the behaviour of the accused during the 48 trial / pre-conviction and post-conviction, would fringe on the borders of mental instability. As contended by the learned Counsel for the accused, it is to be noticed as to whether the examination and cross examination of the witnesses during the trial and the behavioral imbalances of the accused would enable this Court to conclude as to whether the trial of the accused can be held to be a Fair Trial having regard to mental condition of the accused during the trial. It is apposite to refer to Section 84 of IPC, which 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."
40. In the above background, the short question that arises for determination is: whether there has been failure to conduct a fair trial resulting in miscarriage or failure of justice?
49
41. In this regard, we place reliance on the ruling of the Hon'ble Apex Court rendered in the case of ZAHIRA HABIBULLAH SHEIKH (5) AND ANOTHER VS. STATE OF GUJARAT AND OTHERS reported in (2006) 3 SCC 374 and we place reliance on the observations of the Hon'ble Apex Court in paragraphs 30, 32, 33, 34, 36, 37, 38, 39 and
40.
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial: the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.
32. Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method 50 of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process :
"It is the merit of the common law that it decides the case first and determines the principles afterwards ..... It is only after a series of determination on the same subject- matter, that it becomes necessary to "reconcile the cases", as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step."
33. The principle of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impart and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of 51 our practice and procedure, including the law of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it:
"It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law."
36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an 52 inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
53
38. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage- managed, tailored and partisan trial.
39. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.
40. "Witnesses" as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, 54 coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies. Consequences of defective investigation have been elaborated in Dhanraj Singh. v. State of Punjab (JT 2004(3) SC 380). It was observed as follows:
"5. In the case of a defective investigation the Court has to be circumspect in evaluating the 55 evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. (1995 (5) SCC 518).
6. In Paras Yadav. v. State of Bihar (1999 (2) SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v.
State of Bihar and Ors. (1998 (4) SCC 517) if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view was again re-iterated in Amar Singh v. Balwinder Singh"
42. The Hon'ble Apex Court in the case of SUCHAND PAL VS. PHANI PAL AND ANOTHER reported in (2003) 11 SCC 527 while elucidating the concept of miscarriage 56 ofjustice has been pleased to observe in paragraphs 8, 9 and 10 as under:
"8. The respective stands need careful consideration. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh and Ors. v. State of Madhya Pradesh, [2002] 2 Supreme 567). The principle to be followed by appellant Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so.57
If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade. v. State of Maharashtra, AIR [1973] SC 2622, Ramesh Babulal Doshi v. State of Gujarat, [1996] 4 Supreme 167, Jaswant Singh v. State of Haryana, [2000] 3 Supreme 320, Raj Kishore Jha v. State of Bihar, [2003] 7 Supreme 152, State of Punjab v. Karnail Singh, [2003] 5 Supreme 508 and State of Punjab v. Pohla Singh and Anr., [2003] 7 Supreme 17.
9. The Trial Court appears to have discarded the defence version highlighting unacceptability of the prosecution version, and came to a conclusion that the shot was made from a close range on the courtyard. This plea was taken at the argument stage by the prosecution, trying to read prosecution evidence in a manner so that the ocular evidence and medical evidence do not appear to be irreconcilable. The High Court was right in disapproving the course adopted by the Trial Court. It is an established position in law that prosecution can succeed by substantially proving the version it alleges. It must stand on its own legs and cannot take advantage of the weakness in defence case. The Court cannot on its own make out a new case for the prosecution and convict the accused on that basis.58
Only when a conclusion is arrived at on the evidence and the substratum of the case is not changed, such a course is permissible. The High Court noticed the medical evidence to be consistent with the defence version that the deceased was hit by the gunshot from a close range and that she was accidentally shot in the scuffle between the informant party and the accused. Coming to the acceptability of the dying declaration, the High Court has rightly discarded it. The declaration made by the deceased was not voluntary and in fact the answers were not given by her and it was her husband who was answering. Such nature and manner of response from the injured who ultimately succumbed to injuries can by no means be elevated to the level of her "dying declaration", even when it is found to sound - "the voice of Jacob".
Stand of the prosecution that he tried to clarify by stating that it was the accused who had fired the gun does not improve the situation. In the true sense of the term or in legal parlance the statement made by the deceased cannot be called a dying declaration. In view of the admitted hostility and strained relations, the natural effort was to rope in the accused. The High Court, therefore, discarded the evidence as not worthy of acceptance.
10. We do not find any infirmity in the judgment of the High Court to warrant interference. The appeal fails and is dismissed."
(emphasis supplied) 59
43. The Hon'ble Apex Court in the case of BABLU KUMAR AND OTHERS VS. STATE OF BIHAR AND ANOTHER reported in (2015)8 SCC 787 while dealing with the concept of fair and speedy trial has been pleased to summarise the pro active role of the Courts to ensure a fair trial and also the conditions that warrant retrial. While so elucidating the law on the aspect, the Apex Court has made it mandatory on the Courts to ensure that neither prosecution or accused play truancy with the criminal trial or corrode the sanctity of the proceeding and to ensure the same, the Courts have been directed to play a proactive role in ensuring fair trial. The Apex court has also elaborated on the role of the Public Prosecutor. The observation in paragraphs 17 to 22 are not merely enlightening but an eye opener to the role of the Courts, the prosecution and the accused in the matter of ensuring a fair trial.
44. That apart, on perusal of the entire records, we find that the trial Court has given a complete goby to the 60 provisions of Chapter XXV, Section 329 of the Code of Criminal Procedure, which reads 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.
[(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 psychiatrist or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of--61
(a) head of psychiatry unit in the nearest government hospital; and
(b) 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 (IA) 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.62
(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.]"
45. From a bare perusal of the above provision, it is apparent that the code specifically provides for a situation rather stipulates as to how the trial is to proceed in the case of a person who is of an unsound mind. The provisions of sub section (1) of Section 329 of the Cr.P.C. mandates that in the event of it appearing to the Magistrate or Court that such a person is of unsound mind and consequently, incapable of making his defence, the Court is required in the first instance to try the fact of such unsoundness and thereafter his incapacity to enter his defence and stand trial. From a perusal of the records, the Court, apart from referring the accused for assessment and treatment, has done precious little to comply with the mandate of either sub Section (1) or sub Section (1A) of Section 329 of the Cr.P.C. 63
46. The proviso further vests a right in the accused to also contest the findings of the psychiatrist or clinical psychologists by way of an appeal before the Medical Board. Sub section (2) casts a further duty on the Court to determine whether the unsoundness of mind is of such nature, thereby rendering the accused incapable of entering his defence, then the Court is required to hear the Advocate for the accused and that too without questioning the accused and if no prima facie case is made out, to discharge the accused and then to deal with him in the manner provided under Section 330 of the Cr.P.C.
47. From a reading of the above provisions, it is plain as crystal that the Court is required to conduct an enquiry not only with regard to the unsoundness of mind, but also separately try the fact as to whether such unsoundness of mind has incapacitated the accused from entering his defence. In the instant case, though a report has been forwarded by the NIMHANS, Bengaluru, to the trial Court opining that he is fit to stand trial, the records do not reveal 64 the copy of the opinion having been furnished to the accused or if he has been made known of the right of appeal vested in him to contest the opinion by way of appeal as made available to the accused by the proviso to sub section (1A). In fact, the records reveal that post conviction also the appellant has been referred to NIMHANS for treatment and in the light of the said fact, the failure of the Court to conduct an enquiry in to the fact as to whether the accused was capable of entering his defence and standing trial, becomes even more glaring. In fact, the report submitted to this Court on 17.02.2020 by the Senior Medical Officer, Central Prison Hospital, Kalaburagi, clearly reveals that the appellant has been under treatment both pre trial and post trial for his mental condition. In fact, the answers elicited by the trial Court on 10.02.2015 forced the trial Court to direct reference of the accused to NIMHANS, Bengaluru for proper treatment. In fact, one of the records, during the treatment, reveals that NIMHANS Hospital has recommended anti suicidal measures. In fact, the trial appears to have commenced pursuant to the opinion rendered by the office of the Medical Officer, Central 65 Prison Hospital, Bengaluru, dated 25.03.2015. The said opinion is in the teeth of the provisions of sub Section (1A). The certification as per the provisions of sub section (1A) has to be by a psychiatrist or clinical psychologist. As noted supra, the said documents have not been made available to the accused thereby depriving the accused of a right to contest the validity of the same in terms of Section 329 of the Cr.P.C.
48. The above observations if juxtaposed with the statement of the legal aid counsel that none of the medical records were made available to her, the only inescapable conclusion that this Court can arrive at, is that there has been a serious miscarriage of justice vitiating the trial holding the appellant/accused guilty of the offences with which he is charged. On this ground alone, the judgment and sentence stands vitiated.
49. In terms of the law extracted by the Hon'ble Supreme Court in the aforesaid case, it becomes unmistakably clear that the accused who stands trial must 66 have a sound and mental condition capable of comprehending the material being put against him, failing which the trial against an accused who is suffering from mental infirmity becomes vitiated. In terms of the law declared by the Hon'ble Supreme Court and the opinion of the medical experts, with regard to the mental conditions of the accused, which are extracted herein above, the trial against the accused will have to be held to be vitiated on the ground of mental instability of the accused during trial and a retrial is to be ordered.
50. Before parting, we have also noticed from the records that evidence regarding mens rea is virtually absent. The gist of the allegation is that the accused/appellant demanded money from his wife and when she refused, he stabbed her with scissors. The very nature of allegations by themselves is indicative of an abnormality. There is no history of the accused having used any deadly or dangerous weapons in the past. In the absence of premeditation or motive, whether the act would amount to culpable homicidal 67 amounting to murder as defined under Section 300 of IPC? This aspect also requires to be looked into by the trial Court.
51. In the result, we pass the following order:
(i) The criminal appeal is allowed,
(ii) The order dated 08.10.2015 passed by
the II Additional District and Sessions Judge at Raichur in S.C. No.1/2015 is set aside,
(iii) The matter is remitted back to the trial Court for re-trial in accordance with law.
(iv) The appellant shall be dealt with and released in terms of Section 330 of the Code of Criminal Procedure on bail.
(v) The accused, after a period of three months shall be evaluated by NIMHANS, Bengaluru and a report shall be submitted before the Trial Court in terms of Section 329(1A) of the Cr.P.C.
(vi) The Trial Court shall thereafter try the fact of unsoundness of mind and the incapacity of the accused to stand trial 68 and thereafter if satisfied, it shall record a finding in terms of Section 329 and thereafter proceed further in the trial.
Sd/-
JUDGE Sd/-
JUDGE Cs/-