Karnataka High Court
The State Of Karnataka (Kanakagiri ... vs Doragal Kanakappa on 24 August, 1995
Equivalent citations: 1996(1)ALT(CRI)605, 1996CRILJ599, ILR1995KAR2777, 1995(4)KARLJ158
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
JUDGMENT Mirdhe, J.
1. This appeal is preferred by the State-appellant against the judgment dated 20-10-93 passed by the I Additional Sessions Judge, Raichur, in S.C. 58/87 acquitting the respondent-accused of the offence punishable under section 307, I.P.C.
2. Since the accused remained absent in spite of the service of notice of this appeal on him, we have appointed Sri Ramadorai, a learned Member of this Bar, as an Amicus Curaie to assist the Court and to argue the appeal on behalf of the respondent-accused.
3. We have heard the learned Additional State Public Prosecutor Sri A. B. Patil and the learned Amicus Curaie Sri Ramdorai fully and perused the records of the case.
4. The case of the prosecution is as follows :-
That P.W. 1 and the respondent-accused are the native of Huli Hyder village situated in Gangavathi Taluk of Raichur District. About three months prior to the date of the incident, the respondent-accused and P.W. 1 had quarrelled when they were working as collies for human construction of a road and P.W. 1 beat the respondent-accused. On 12-6-86 at about 6 P.M. P.W. 1 had gone to answer the second call of nature on a Government open space near a 'halla' and at that time the respondent-accused came there armed with jambia and assaulted P.W. 1 with jambia causing many injuries. Hearing the shouts and cries of P.W. 1, P.Ws. 2 and 3 came there and on seeing them the accused ran away. P.W. 5 informed about this incident to P.W. 4 - the maternal uncle of P.W. 1 and he caame to the spot and shifted him in a jeep to Gangawathi hospital wherein he was admitted and the police came to the hospital in response to the letter sent by the doctor-P.W. 16 and thereafter P.W. 4 gave his complaint which came to be registered by the police and police started investigation into the case and after completing the investigation in the case of police filed charge-sheet against the respondent-accused.
5. The trial Court has acquitted the respondent-accused mainly on the ground that the evidence of P.W. 1 cannot be accepted without corroboration by independent witnesses and as P.Ws. 2 and 3 when turned hostile there is no corroboration to the said evidence. We have gone through the judgment of the trial Court. The approach of the trial Court to the law and evidence of the case appears to be perverse. Even the learned Judge has not framed proper points for consideration. The points which had been raised by him for consideration are as follows :-
"(1) Whether the death of a human being attempted ?
(2) That such death was attempted to be caused by or in consequence of the act of the Accused ?
(3) That such an act was done with the intention of causing bodily injury and Accused knew that such an injury is likely to cause the death of P.W. 1 ?"
Instead of framing the points for consideration on the basis of the facts of the prosecution case, the Judge seems to have culled out some words and phrases from Section 307, I.P.C. and framed the points for consideration. Another basic and very serious mistake committed by the Judge is in not following the mandatory provisions of Section 329 of Cr.P.C. The evidence of C.Ws. 1 and 2 recorded by the trial Court goes to show that the respondent-accused was suffering from mental disorder. Even C.W.I. examined on 15-2-1989 deposes that the accused was examined by him on 13-2-1989 and he appeared to be mentally unsound. Section 329 of Cr.P.C. lays down that at the trial of any person before Magistrate or Court of Session, if 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. The said section lays down the fact of unsoundness of the mind or incapacity of the accused shall be part of the trial before the Court or the Magistrate. Section 329 provides for three stages. That the first stage is, it must appear to the Court that whether the accused was of an unsound mind and incapable of making his defence. It is only after this first stage, the Judge is required to make the enquiry about the unsoundness of mind and incapacity and record a finding on this point. Where in case it did not appear to the trial Judge that the accused was of an unsound mind or that he was incapable of making his defence it is not necessary to adopt the procedure provided by the second part of Section 329, Cr.P.C. In view of the three Court Witnesses examined in this case, it was apparent that the accused was not of sound mind. In view of this material the Judge was required to try the question of unsoundness of the mind of the accused and his incapacity to defend himself before commencing other prosecution evidence. P.W. 13 is examined in this case during the course of the trial. He refers to a letter Ex. P-18 issued by him on 22-4-93 wherein he has stated that the accused will understand the evidence given in the Court. But mere production of Ex. P-18 and its proof through P.W. 13 cannot be held to be the compliance with the requirements of section 329, Cr.P.C. What is required is that the Court should record a finding as to whether the accused is of sound mind or unsound mind and as to whether he is capable of or not capable of defending himself. Though Ex. P-18 is on record, the trial Judge has not recorded any such finidings. The provisions of Section 329, Cr.P.C. are mandatory provisions. This Court in (1990) 3 Kant LJ (Supp) at page 213 (Pujappa v. State of Karnataka) has held that the provisions of Section 329, Cr.P.C. are mandatory and it is mandatory on the part of the Court to first consider the fact of unsoundness of mind and incapacity of the accused to make defence after taking such evidence including medical evidence that may be necessary for the purpose. Failure to comply with such mandatory requirements will vitiate the trial. In this case also the order-sheet dated 11-6-93 mentions only receipts of the letter from the Superintendent of the Hospital, Dharwar, on 30-4-93 to the effect that the accused is capable of understanding evidence. We have seen that order-sheet. The Judge does not seem to have written the portion relating to that letter in his handwriting but he has signed the order-sheet. We do not find anything in the record whether the Judge has considered and given the finding about the mental condition of the accused and his capacity to defend himself. Mere receiving of Ex. P-18 by Court is not the compliance with the mandatory requirements of Section 329, Cr.P.C. After Ex. P-18 was received and exhibited through the evidence of P.W. 13, the Court was required to consider all the material including Ex. P-18 and record a finding about the mental condition and the capability of the accused to defend the case. The non-compliance of the mandatory provisions of Section 329, Cr.P.C. by the Additional Sessions Judge who tried the accused in this case has vitiated the trial and the judgment rendered by him is liable to be set aside. Since we have to order for de novo trial, we do not want to comment on the merits of the contentions raised by both sides in this appeal.
6. Before parting with this case we place on record our appreciation or the services rendered by the learned Amicus Curiae Sri Ramadorai in this case. He is entitled to the fees of Rs. 1000/- for the services rendered by him in this case.
7. For the reasons discussed above, we proceed to pass the following order :-
The appeal is allowed. The judgment of the trial Court is set aside and the case is remanded to the trial Court for de novo trial of the accused after following the mandatory provisions of Section 329, Cr.P.C. in accordance with law.
8. Appeal allowed.