Chattisgarh High Court
Smt. Gomti Sidar vs State Of Chattisgarh on 24 March, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal, Rajani Dubey
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1076 of 2014
Smt.Gomti Sidar W/o Hemsagar Sidar, Aged about 32 years,
occupation agriculturist / house wife, R/o Village Gadgaon,
Thana-Punjipathra, Distt.Raigarh, permanent R/o Kugarikharpara
Tamnar, Distt.Raigarh (CG)
---- Appellant
(In Jail)
Versus
State of Chhattisgarh Through Police Station Punjipathra,
Distt.Raigarh (CG)
---- Respondent
For Appellant: Mr.Deepak Jain, Advocate
For Respondent/State: Mr.Sunil Otwani, Additional Advocate
General with Mr.Sudeep Verma, Dy.G.A.
and Mr.Soumya Rai, P.L.
Amicus Curiae: Mr.Anil Pillai, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Smt.Justice Rajani Dubey
Judgment on Board
(24.03.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant/accused herein under Section 374(2) of the CrPC is directed against the judgment of conviction recorded for offence punishable under Section 302 of the IPC and sentence awarded for imprisonment for life and fine of ₹500/-, in default of payment of fine, to further undergo rigorous imprisonment for two months by the Second Additional Sessions Judge, Raigarh by the impugned judgment dated 11.09.2014 in Sessions Trial No.145/2010.
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2. Case of the prosecution, in brief, is that on 9.3.2010 at 3 p.m. at village Gadgaon, P.S. Punjipathra, District Raigarh the appellant herein murdered her minor son namely Devam aged about 5 years by axe and thereby committed the offence. It is further case of the prosecution that Smt.Gomti Bai, appellant herein, was suffering from mental illness and for which she was being treated in mental hospital. She at the relevant point of time was suffering from unsoundness of mind. On 9.3.2010 she came to his father's place along with younger son Devam, aged about 5 years and her husband Hemsagar had gone to village Munud for collecting money due to him. Hemsagar was informed by his brother-in-law that the appellant herein caused murder of her younger son by axe, he reached to the spot and saw that her son's dead body was lying inside the house with injuries. Hemsagar lodged FIR vide Ex.P-12 and thereafter wheels of investigation started running. Dead body of deceased Devam was sent for postmortem to Primary Health Centre, Libra vide Ex.P-7, where Dr.Dhansingh Paikra (PW-6) conducted postmortem and opined that mode of death was due to hypovolumic shock (excessive blood loss) caused by cardio respiratory arrest. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Gharghoda, who in turn, committed the case to the Court of Session, Raigarh, from where the Second Additional Sessions Judge, Raigarh received the case on transfer for trial. The appellant herein abjured the guilt and entered into 3 defence.
3. In order to bring home the above-stated offence, the prosecution examined as many as 11 witnesses and exhibited 25 documents. However, the accused / appellant has examined none in her defence and no document has been exhibited in her support.
4. Main plea of the appellant herein was the plea of insanity as provided under Section 84 of the Indian Panel Code and that was taken by the appellant herein during the course of trial, but that has been negatived by the trial Court.
5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 11.09.2014, convicted the appellant for offence under Section 302 of the IPC and sentenced her as mentioned in opening paragraph of this judgment.
6. Mr.Deepak Jain, learned counsel for the appellant herein, would submit that in view of plea of insanity taken by the appellant herein the trial Court ought to have followed the procedure laid down in Section 328 of the CrPC. In absence of not following the procedure particularly when there was sufficient evidence on record to hold that she was suffering from unsoundness of mind, the trial is vitiated. The learned trial Court has committed grave legal error in not accepting the plea of unsoundness of mind of the appellant herein as provided under Section 84 of the IPC, as such, the judgment of conviction recorded and sentence awarded 4 deserves to be set-aside.
7. On the other hand, Mr.Sunil Otwani, learned Additional Advocate General, Mr.Sudeep Verma, learned Deputy Government Advocate and Mr.Soumya Rai, learned Panel Lawyer for the respondent/State, would submit that as and when directed by the learned trial Court with regard to mental condition of the appellant/accused, information was furnished before the trial Court and considering the mental condition of the appellant herein, the Superintendent, Central Jail, Raigarh on 20.3.2010 requested the Judicial Magistrate First Class, Gharghoda at remand stage to transfer the appellant to Medical College, Raipur, which the trial Court has also accepted by order dated 23.3.2010 and furthermore, before committal, the appellant herein was examined by the Department of Psychiatry, Dr.B.R.Ambedkar Hospital, Raipur, in which she has been diagnosed to be suffering from Psychosis and opined that she is not having any active symptoms of illness and she was advised to visit Psychiatric O.P.D. regularly for follow up, but thereafter, the trial Court on the basis of oral and documentary evidence available on record, did not accept the plea of unsound mind and finding incriminating evidence against her, convicted her for the aforesaid offence, which is in accordance with law and as such, the appeal deserves to be dismissed.
8. Mr.Anil Pillai, learned Amicus Curiae, would submit that plea of unsoundness of mind as provided under Section 84 of the IPC 5 has been taken by the appellant herein during the course of evidence. Therefore, the trial Court ought to have taken into consideration the behaviour of the appellant before commission of offence and after commission of offence and evidence brought out during the course of trial from the prosecution witnesses should have been taken into consideration to prove the defence of insanity by virtue of Section 84 of the IPC. The appellant/accused has invoked the plea of insanity and she has also established the said fact. Therefore, in the light of evidence available on record, the plea of insanity is fully proved by the appellant/accused and as such, the appellant/accused is entitled for benefit of Section 84 of the IPC.
9. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
10. Plea of insanity as provided under Section 84 of the IPC has been taken by the appellant herein before the trial Court, which is apparent from perusal of paragraphs 23 to 33 of the impugned judgment and it has been negated by learned trial Court and proceeded to convict that the appellant has committed the offence under Section 302 of the IPC.
11. In order to consider the plea raised at the Bar, it would be appropriate to notice Section 84 of the IPC which states as under:-
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"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."
12. The burden of proving an offence is always on the prosecution; it never shifts. Intention, when it is an essential ingredient of an offence, has also to be established by the prosecution. But the state of mind of a person can ordinarily only be inferred from circumstances. Section 84 of the IPC can be invoked by the accused for nullifying the evidence produced by the prosecution. This he can do by establishing that he was at the relevant time incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. The prosecution need not establish that a person who strikes another with a deadly weapon was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. Every person is presumed to know the natural consequences of his act. Similarly every person is also presumed to know the law. The prosecution has not to establish these facts. It if for this reason that Section 105 of the Evidence Act places upon the accused person the burden of proving the exception relied upon by him. (See Bhikari v. The State of Uttar Pradesh 1).
13. The Supreme Court in the matter of Dahyabhai 1 AIR 1966 SC 1 7 Chhaganbhai Thakkar v. State of Gujarat 2 has held that the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite, mens rea. It was further held that when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Penal Code can only be established from the circumstances which preceded, attended and followed the crime. It was observed as under:-
"5.....It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as S.84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under S. 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under S. 105 of the Evidence Act, read with the definition of
2 AIR 1964 SC 1563 8 "shall presume" in S. 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity. "
14. Likewise, the Supreme Court in the matter of Shrikant Anandrao Bhosale v. State of Maharashtra 3 has held that in coming to the conclusion that a man was labouring under defect of reason as not to know the nature of the act he was doing relevant circumstances like the behaviour of the accused before the commission of the offence and his behaviour after the commission of the offence should be taken into consideration and the Court may rely not only on defence evidence but also on what
3 2002 Cri LJ 4356 9 is elicited from the prosecution witnesses as well as on circumstantial evidence consisting of the previous history of the accused and his subsequent conduct in the surrounding circumstances including absence of the motive. It was further held that the accused has only to satisfy the standard of a prudent man and he need not establish his plea beyond all reasonable doubt. It was also held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution has been discharged.
15. The question for consideration would be, whether the appellant herein was suffering from unsoundness of mind on the date of commission of offence on 9.3.2010?
16. Admittedly, the date of commission of offence is 9.3.2010 and the appellant was arrested on that day and kept in Raigarh Jail. Thereafter at remand stage, on 20.3.2010 the Superintendent, District Jail, Raigarh requested the Judicial Magistrate First Class, Gharghoda for transferring the appellant herein to Medical College, Raipur for treating her qua her unsoundness of mind / mental illness as per advise of doctor of the jail, which the learned Magistrate granted on 23.6.2010 and 10 she was immediately transferred to District Jail, Raipur and she was admitted at Medical College, Raipur. It is also apparent from record that immediately after incident, she was treated at Kirodimal Government Hospital, Raigarh which shows that she was being treated for epilepsy also and she remained hospitalized from 18.6.2010 at Medical College, Raipur. Thereafter, it appears that on 23.6.2010, Medical Officer of the concerned Jail informed the Superintendent, Central Jail, Raipur to medically examine the accused qua her medical condition and ultimately, the Department of Psychiatry, Dr.Bhimrao Ambedkar Hospital examined the appellant herein and submitted its report dated 02.11.2010 which states as under:-
"DEPARTMENT OF PSYCHIATRY Dr.B.R.A.M. Hospital Raipur (C.G.) C/Psy/209 Raipur, Dated 02.11.2010 To, The Superintendent, Central Jail, Raipur, Raipur (C.G.) Subject:- Medical Report of Gomti Sidar W/o. Hemsagar Regd.No.216217 Sir, The above mentioned patient is under treatment from Dr.B.R.A.M. Hospital, Raipur since March, 2010. She has been diagnosed to be suffering from Psychosis and is under treatment for the same. She was examined last in the Psychiatry OPD on 02.11.10. She is not having any active symptoms of the illness. However, she requires continuation of treatment. She is advised to visit Psychiatric O.P.D. regularly for follow up.
Head Department of Psychiatry, 11 Pt.J.N.M. Medical College & Dr.BRAM Hospital, Raipur (C.G.)"
17. A careful perusal of opinion of Head of the Department of Psychiatry, Pt.J.N.M. Medical College & Dr.BRAM Hopsital, Raipur dated 02.11.2010 would show that from March, 2010 she was under treatment at Dr.B.R.A.M. Hospital, Raipur and she has been diagnosed to be suffering from Psychosis.
18. In Shorter Oxford English Dictionary, Fifth edition, Volume 2, psychosis has been defined as severe mental illness, derangement, or disorder involving a loss of contact with reality, freq. with hallucinations, delusions, or altered thought processes, with or without a known organic origin.
19. The Judicial Magistrate First Class, Gharghoda while committing the case to the Court of Sessions in its order dated on 16.11.2010 though noticed the medical report dated 2.11.2010, in which she is reported to be suffering from "psychosis", but did not resort to the proceeding under Section 328 of the CrPC and held that she was not having any active symptoms of illness and therefore, committed the case to the Court of Sessions and trial proceeded for offence under Section 302 of the IPC. The trial Court by its order dated 6.4.2013 directed the Civil Surgeon, Raigarh to examine the accused herein for treatment and submit report, which was reiterated on 23.5.2013 and 21.6.2013 and which was ultimately received by the trial Court on 1.8.2014 and the trial Court recorded as under:-
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01@08@14 ftyk tsy v/kh{kd jk;x<+ dk i`"Bkadu dza- 1210@okajV@2014 jk;x<+ fnukad 21@07@14 izkIr gqvkA izdj.k ds lkFk layXu fd;k tk,A dk;kZy; v/kh{kd ftyk tsy jk;x<+ ¼N-x-½ ls vkjksfi;k ds bZykt ds laca/k esa izfrosnu izkIrA euksjksx fo'ks"kK }kjk tkap@ ijh{k.k i'pkr~ orZeku esa ejht dks dksbZ fnekxh chekjh lfdz; ugha gS vafdr fd;k x;k gSA vr% vkjksfi;k dks vkxkeh fnukad ij vko';d :i ls U;k;ky; esa mifLFkr j[kus gsrq ftyk tsy v/kh{kd jk;x<+ dks funsZf'kr fd;k tkrk gSA izdj.k vfxze dk;Zokgh gsrq fnukad&11@08@14
20. Apart from above-stated medical evidence available on record, it would be appropriate to notice ocular evidence available on record. Uttam Raj (PW-2), Sarpanch of the village at that time, has clearly stated that at the time of incident, medical condition of the appellant was not good and she has been brought from her husband's place to father's place for her treatment and at the time of incident, she was depressed and she was not able to understand the things properly and she used to sit at one place quietly. Similarly, Nanki Bai (PW-3), mother of the appellant herein, has also stated that on the fateful night Gomti was sleeping along with her two sons and in the morning when she visited the appellant's room, she noticed dead body of Devam and Gomti was also present in the room. In para-4 of her cross-
examination, she has stated that the appellant was undergoing treatment for unsoundness of mind and even the appellant does 13 not recognize her. Charansingh (PW-4), brother of the appellant, in para-6 of his cross-examination has stated that two years prior to the date of incident, she was suffering from unsoundness of mind and she was being treated by the doctor and was also treated by divine healing and her behaviour was violent and uncontrollable. Similarly, Ramprasad (PW-5) (father of the appellant herein) in para-2 of his statement has clearly stated that when he entered into the room of the appellant herein in morning, he noticed that there were no clothes over body of the appellant and her son Devam also. Paras-2, 3 and 4 of statement of Ramprasad (PW-5) state as under:-
"2- jkf= esa eS vkSj esjh iRuh uudhnkbZ ijNh esa lks;s Fks rFkk xkserh vius iq= nsoe~ ds lkFk dejs ds vanj lksbZ FkhA lcsjs tc eS 6 cts mBk vkSj ukyk rjQ pyk x;k] ukyk rjQ ls ?kj vk;k vkSj nsoe~ dks vkokt fn;k ijarq nsoe~ ugh mBk rc dejs ds vanj tkdj ns[kk rks xkserh ds 'kjhj esas diMs ugh Fks rFkk nsoe~ ds 'kjhj esa Hkh diMk ugh Fkk rFkk nsoe~ ds xnZu esa pksV ds fu'kku Fks rFkk [kwu fudyk Fkk rFkk ,d Vkaxh dejs esa iM+k Fkk] ftlesa [kwu yxk FkkA 3- eS vius yMdh xkerh di foog gselkxj ds lkFk vkt ls 8&9 o"kZ iwoZ fd;k FkkA 'kknh ds 4&5 lky ckn xkserh dks nks iq= gksus ds i'pkr og ikxy gks xbZ FkhA mlds ckn 4&5 o"kksZ ls mldk MkWDVjh bZykt o >kM QWwd ls Hkh bZykt py jgk FkkA ?kVuk fnukad ds iwoZ ls xkserh Lo;a D;k djrh gS mlds ckjs es mls [kqn dks dksbZ tkudkjh ugh jgrh Fkh rFkk og xqelwe ,d txg cSBh jgrh FkhA ge yksx mls [kkus ihus ,oa ugkus ds fy;s tcju ys tkrs FksA rc og pqipki pyh tkrh Fkh rFkk dHkh vkifRRk djrs ,d gh LFkku ij fnuHkj cSBh jgrh FkhA 4- ;g dguk lgh gS fd ?kVuk fnukad dks xkserh ftl dejs esa lksbZ Fkh mlds ckgj ijNh esa ge yksx lks;s FksA ?kVuk fnukad dks jkr esa ge yksx dksbZ vkokt gYyk ugh lqus FksA ;g dguk lgh gS fd nsoe~ dks fdl rjg pksV yxk eq>s tkudkjh ugh gSA ;g dguk lgh gS fd ?kVuk ds iwoZ rFkk Ik'pkr Hkh xkserh dh ekufld fLFkfr Bhd ugh gSA mls tsy essa jgus ds nkSjku Hkh mlds ikxyiu dk bZykt dbZ vLirkyksa esa py jgk gSA eq>s ? kVuk ds ckjs esa dksbZ tkudkjh ugh gSA "
21. Hemsagar (PW-8) (husband of the appellant herein) has also stated that at the time of commission of offence, she used to 14 have fits of epilepsy and behaved like insane person. In para-4 Hemsagar (PW-8) has stated as under:-
"4- ;g dguk lgh gS fd tehu ds vanj [kwu cgdj lw[k x;k] vkjksih xkserh ds igus gq, lkM+h] lk;k moa Cykmt ikl esa iM+k] [kkV ds uhp Vkaxh iM+k gS] Vkaxh ,oa diMs+ esa [kwu ds /kCcs gSa] esjs llqj jkeizlkn] lkl uudhnkbZ] lkyk pj.kflag us crk;k fd jkr esa vkjksfi;k xkserhckbZ nsoe ds lkFk vyx dejs esa lk;s Fks] djhc 3 cts vkjksih xkserh vpkud mBdj Vkaxh ls cPps ds xys esa ekj nh ftlls cPpk ej x;kA vkjksih xkserh dks nkSjk iM+rk gS] dHkh&dHkh ikxy tSlk crkZo djrh gS ftldk >kM+Qwad djk jgs gSaA xkao ds ljiap mRrejkt rFkk dksVokj rydjke ,oa vU; yksxksa dks cqykdj fn[kk;k] muds lkFk fjiksVZ djus Fkkuk x;k Fkk vkjksih xkserh ls dkQh iqNrkN fd;k ijarq og dqN cksy ugha jgh gSA xokg dks mldk iqfyl c;ku izih&14 ds v ls v Hkkx tehu ds vanj [kwu cgdj lw[k x;k------ "
22. Even investigating officer Balbir Singh (PW-11) has also stated that at the time of arrest, she was not able to speak, she was absolutely quite and he was informed by her husband Hemsagar (PW-8) that her mental condition is not good and she is undergoing treatment for unsoundness of mind.
23. The aforesaid narration of facts about her mental condition and statements of the prosecution witnesses would show that at the time of commission of offence she was suffering from psychosis as per memo dated 02.11.2010 issued by the Department of Psychiatry, Dr.Bhimrao Ambedkar Hospital, Raipur and not in a fit mental condition.
24. The Supreme Court in the matter of Ratan Lal v. The State of Madhya Pradesh 4 while relying upon its earlier decisions has held that plea of unsoundness of mind under Section 84 of the IPC has to be established by the accused and the crucial point of time at which unsoundness of mind has to be proved is the time 4 AIR 1971 SC 778 15 when the crime is actually committed. The burden of proving this can be discharged by the accused from the circumstances which preceded, attended and followed the crime. The Supreme Court in that case has held that tendency of setting fire to one's own clothes and house is more than mere irrationality. It is prima facie proof of insanity. In that case also, the accused was suffering from psychosis and the doctor has opined for treatment.
25. Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court in the above stated judgments (supra), it is quite vivid that in the present case, it appears that 9.3.2010 is the date of offence when the appellant is said to have caused murder of her son Devam by axe and immediately thereafter, her father Ramprasad (PW-5) entered into room of the appellant herein and found that his grandson Devam has suffered injuries on his neck with blood and axe was also lying in the room and the appellant was also in naked condition. Ramprasad has also stated that the appellant was remain depressed at that time and she was sitting quietly and even she was forcibly given bath and she sat quietly for entire day. Even Nankibai (PW-3), mother of the appellant, has also made similar statement. As such, there is sufficient medical and ocular evidence on record to hold that at the time of commission of offence the appellant herein was suffering from unsoundness of mind, which is established from medical and ocular evidence available on record and the trial Court has committed grave legal 16 error in convicting the appellant herein holding that she was not having symptoms on subsequent examination as submitted on 28.7.2014, as such, the appellant has established that at the time of commission of alleged offence by reason of unsoundness of mind, she was being incapable of knowing the nature of her act.
26. Not only this, learned committal Court as well as learned Second Additional Sessions Judge, Raigarh has also committed grave legal error in not following the procedure laid down in Section 328 of the CrPC. At this stage, it would be appropriate to notice Section 328 of the CrPC which states as under:-
"328. Procedure in case of accused being lunatic. -
(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing.
(1A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation:
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 off-
(a) head of psychiatry unit in the nearest Government hospital; and
(b) a faculty member of psychiatry in the nearest medical college;17
(2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330.
(3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate 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 he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under section 330:
Provided that if the Magistrate 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 proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 330. (4) If such Magistrate is informed that the person referred to in sub-section (1A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 330."
27. A careful perusal of the aforesaid provision would show 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 was 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 18 believe, he has to institute an inquiry into the fact of unsoundness of mind and cause the accused 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 of justice.
28. The Supreme Court in the matter of Dr.Jai Shanker (Lunatic) through Vijay Shanker brother guardian v. State of Himachal Pradesh 5 has considered Section 464 of the old CrPC, which is analogous to Section 328 of the CrPC has held that 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. It was observed as under:-
"7. The situation arising in this case is governed by S. 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 5 (1973) 3 SCC 83 19 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 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 of justice."
12. In this view, the High Court was not correct when it held that the Magistrate had 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 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 nova committal proceeding directed. We further direct the Magistrate to hold those proceedings in compliance 20 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."
29. As such, it is quite vivid that before the case is committed to the Court of Sessions by the learned committal Court, the Medical Officer, Central Jail, Raipur has produced medical report of the appellant herein, in which she has clearly diagnosed to be suffering from psychosis, but the learned Magistrate did not consider it properly and taking one paragraph of the report that she is not having any symptoms of illness, proceeded for committal and ultimately, committed the case to the Court of Sessions by order dated 16.11.2010 by observing as under:-
"5- ;g mYysf[kr fd;k tkrk gS fd vkjksfi;k xkserh flnkj dks tsy fpfdRlk ckcr~ ekufld mipkj ds fy;s lykg fn;s tkus ij dsafnz; tsy jk;iqj LFkkukarfjr fd;k tkdj esdkgkjk jk;iqj esa ekufld mipkj djk;k x;k FkkA rFkk foHkkxk/;{k euksfoKku ds i= dzekad 207 fnukad 2-11-10 ds vuqlkj orZeku esa vkjksfi;k dk euksjksx dk dksbZ lfdz; y{k.k ugha ik;k x;k gSA fdarq mls fu;fer euksjksx foHkkx esa LokLF; ijh{k.k dk lykg fn;k x;k gSA"
30. The learned committal Court was required to make an inquiry under Section 328 of the CrPC before proceeding for committing the case to the Court of Sessions and in the meanwhile he could have followed the procedure laid down in Section 328 of the CrPC as well as the law laid down by their Lordships of the Supreme Court in Dr.Jai Shankar (supra) and as such, the trial Court has failed to follow the appropriate procedure while trying the appellant herein for offence under 21 Section 302 of the IPC as she was suffering from unsoundness of mind.
31. Consequently, the appeal deserves to be allowed for two reasons, firstly, the appellant has fully established the defence as contemplated under Section 84 of the IPC that on account of unsoundness of mind she was being incapable of making her defence before the trial Court and secondly, inquiry as contemplated under Section 328 of the CrPC was not conducted by the learned committal Court despite the evidence of psychosis / mental illness was present before the committal Court. Accordingly, we set-aside the impugned judgment of conviction recorded and sentence awarded. The appellant is in jail, she be released forthwith, if not required in any other case.
32. The criminal appeal is allowed to the extent indicated hereinabove. This court appreciates the valuable assistance rendered by Mr. Anil Pillai, learned amicus, who on short notice graciously assisted the Court.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
B/-