Gujarat High Court
Rajeshbhai Jesingbhai Vasava vs State Of Gujarat on 24 April, 2018
Author: S.G. Shah
Bench: S.G. Shah
R/CR.A/1318/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1318 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJESHBHAI JESINGBHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
HCLS COMMITTEE(4998) for the PETITIONER(s) No. 1
MR PRATIK B BAROT(3711) for the PETITIONER(s) No. 1
MR KL PANDYA, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 10/05/2018
CAV JUDGMENT
1. Heard learned advocate Mr. Pratik B. Barot for the appellant and learned APP Mr. K. L. Pandya for the respondent - State. Perused the record as well as the R & P received from the Sessions Court.
2. The appellant herein is convicted by impugned Page 1 of 16 R/CR.A/1318/2012 CAV JUDGMENT judgment and order dated 28.6.2012 by Sessions Judge, Narmada at Rajpipla in Sessions Case No.10 of 2012 for the offence punishable under Section 304 Part-II of the Indian Penal Code ('IPC', for short) and sentenced to undergo 10 years Rigorous Imprisonment (RI) with fine of Rs.5,000/- and in default of payment of fine, to undergo further RI of one year. Since then, the appellant is in jail because he was not released on bail either pending trial or pending this appeal.
3. The case of the prosecution before the Sessions Court in Sessions Case is to the effect that on 2.1.2012, at about 10 a.m. in the morning, the complainant - Dakshaben Dilipsinh Rana, who is neighbour of the appellant, saw the appellant running after his wife and daughter with Axe in his hand and therefore, when Dariyaben, who was coming towards their house had tried to intervene the appellant for rescuing his wife and daughter, the appellant had inflicted an axe blow on the head of Dakshaben, which resulted into fatal injuries to her, after which she fell down and fall unconscious on the spot. Thereafter, when she was taken to Vadodara Hospital on 19.2.2012 i.e. almost after six weeks', the victim Dariyaben succumbed to the injuries. Pursuant to such incident, Dakshaben, who is also relative of deceased, had filed a complaint on 2.1.2012 with Rajpipla Police Station being C.R.No.I-1 of 2012, wherein after investigation, chargesheet was filed u/s.302 of Page 2 of 16 R/CR.A/1318/2012 CAV JUDGMENT the IPC. However, after evidence, the Sessions Court has deemed it fit to convict the appellant under Section 304 Part-II of the IPC.
4. Learned advocate Mr. Barot for the appellant has at the beginning of the submissions referred the defence of the appellant before the trial Court wherein it is categorically averred that appellant is having some mental disorder and therefore, the incident has taken place in spur of the moment during attack of such mental disorder at a particular time, otherwise, a person would not try to kill his wife and daughter and in any case, he would not have given a blow to his neighbour being a lady, who had tried to rescue his wife and daughter. For the purpose of proving such defence, the appellant - accused has examined few witnesses as defence witnesses to prove that he was in fact suffering from some mental disorder. In addition to defence witnesses, if we peruse the further statement of the accused, it becomes clear that appellant has also categorically disclosed in his further statement before the trial Court that he is suffering from mental sickness and he has not given blow to the victim, but she has fallen down on her own and received grievous injuries for which she died. The appellant has also stated in his further statement, that he was taking regular treatment of his mental sickness and even on the date of trial and recording such further statement he is taking treatment for his mental Page 3 of 16 R/CR.A/1318/2012 CAV JUDGMENT disorder.
5. In view of such specific defence and examination of defence witnesses to prove that appellant was having mental sickness, learned advocate for the appellant has submitted that irrespective of entire bunch of evidence, there is prima facie case in favour of the appellant inasmuch as the Sessions Court has failed to follow the provisions of Chapter XXV of the Civil Procedure Code, 1973 ('Code', for short), which provides for provisions as to accused persons of unsound mind. Though it can be argued that whether accused is of unsound mind or not is not a subjective issue and unless there is a clarity or some evidence to that effect, it cannot be said that accused is of unsound mind and thereby, he may not be entitled to benefit of provisions of Chapter XXV of the Code, however, record shows that in fact, there is prima facie evidence on record to consider that appellant is having some mental sickness and thereby, he can be considered as a person of unsound mind.
6. To verify such condition that whether it is existing at present or not, so as to extend the benefit under Chapter XXV of the Code to the appellant, by order dated 27.3.2018, respondent was called upon to produce a certificate regarding mental status of the appellant. Pursuant to such direction, the learned APP has produced on record a letter dated 4.4.2018 Page 4 of 16 R/CR.A/1318/2012 CAV JUDGMENT addressed by the Medical Officer of Lajpor Central Jail, Surat to the Jailer of such jail, contending that physical and mental condition of the appellant, as per the opinion of the expert, is as under:-
"(1) Patient is having left destroyed lung with healed pulmonary koch's. No active treatment for respiratory condition required.
(2) Patient is having mental illness -
"Schizoaffective Disorder" since 2010 (approx.). He has history of multiple episodes of excerbation/recurrence of pshch. Illness. Since then he was also admitted at Gov. hospitals for the same.
Currently, he is stable on medicines, he may need long term medical management for his mental illness."
7. Therefore, there is prima facie evidence that appellant is having mental disorder. Though such evidence is recent, the record shows that the appellant has examined in all four witnesses to confirm that he was having mental disorder even before the date of incident i.e. 2.1.2012.
8. Amongst such witnesses, defence witness No.1 at Exh.75 is Devenbhai Chaturbhai Vasava, who is brother-in-law i.e. husband of appellant's sister. He has categorically stated that his marriage was performed before 20 years. Therefore, he knew appellant since 20 years. He had categorically deposed on oath before the trial Court that appellant is mentally unsound Page 5 of 16 R/CR.A/1318/2012 CAV JUDGMENT and lunatic and therefore, he was shouting as well as saying that village people had came to kill him and saying that he is God as well as Goddess and running here and there in the village and therefore, he was required to be tied-up on several occasions when he starts abusing the people and tries to run-away from village and created menace. It is also stated that for such mental ailment, he was taken to SSG Hospital at Vadodara by the witness, where he was treated. It is also stated that for the purpose, 3 to 4 persons were required to handle the appellant. It is also stated that he has narrated the symptoms of the appellant to the Doctor where he was admitted as an indoor patient for 8 days and witness has stayed with the appellant for 8 to 9 days in Vadodara. It is further stated that after returning back from the hospitalisation, for some time, the appellant's behavior was good, but thereafter, he has started same nuisance and therefore, they have decided to hospitalise him again and for the purpose, he had been to Rajpipla for managing the vehicle for the appellant. However, on that day, the alleged incident had taken place in village. The witness has been cross-examined by the Public Prosecutor. An attempt was made to prove that appellant has contested the election of Member, Village Panchayat, but witness does not confirm it. On the contrary, it is proved on record during cross-examination that because of the mental Page 6 of 16 R/CR.A/1318/2012 CAV JUDGMENT disorder of the appellant, the witness has shifted his residence from his village Torana to village of the appellant i.e. Rasela. Attempt was also made to prove by learned P.P. that appellant was hospitalised for the treatment of Tuberculosis. However, the witness has denied such suggestion and so far as non-recording of statement of witness by the investigating officer is concerned, the witness has clarified that he was not in the village on the date of incident, since he had gone to manage for a jeep to shift the appellant to Vadodara on the day of incident. Therefore, the prosecution could not prove anything against the appellant from such witness, who is relative of the appellant.
9. Whereas, rest of the three witnesses being defence witness Nos.2, 3 and 4 respectively at Exhs.76, 77 and 78, namely, Dr. Jaldhi Ramniklal Trivedi, Dr. Yogeshbhai Chelabhai Patel and Dr. Porus Rushibhai Vaisuna, had categorically deposed on oath with supporting documentary evidence to confirm that appellant was brought before them on 4-5.1.2012. At that time, appellant was not co-operating for his medical examination and he was not responding to their questions and remained silent without any expression and therefore, he was kept in their observation and referred to Psychiatrist. It is also stated that appellant was discharging urine in his bed. After observation for a day, he was admitted to V.S. Hospital under the care of Page 7 of 16 R/CR.A/1318/2012 CAV JUDGMENT Psychiatrist Dr. Chirag Desai and received treatment for 20 days as an indoor patient. Doctor has also deposed that, in fact, when he was admitted in hospital at Vadodara on 5.1.2012, he was having fracture of his right leg. For such injury, he stated that one Nagjikaka has beaten him. Therefore, Doctors have given him treatment of such injury as well as for his mental disorder. The Psychiatrist Doctor had also confirmed that the appellant was kept in his observation and he was showing symptoms of mental disorder. He has produced case-papers and treatment papers confirming that appellant was suffering from alcohol-induced psychosis as his behavior was aggressive and violent. He starts running all of a sudden and behaved improperly, which was a result of internal mental psychology and psychopathology, which may result into harm and threat to the surrounding. It is also confirmed that though such mental disorder is permanent, such person may behave like a normal person for some time. It is also confirmed that on the date of discharge, though he was recovered upto 50%, his sickness was present upto 50%. An attempt was made to disprove such details by learned APP, but Doctor being an expert of his own subject, except confirming some fact about treatment papers, learned APP could not prove anything to disprove the evidence of any such expert witness and thereby, to rebut the evidence regarding mental disorder of the appellant.
Page 8 of 16 R/CR.A/1318/2012 CAV JUDGMENTThough it is admitted by the Doctor that the medicines are common for some other sickness and that there is no endorsement in case-papers that the mental disorder is permanent when Doctor has deposed on oath before the court and subjected to cross-examination, there is no reason to disbelieve his version on oath.
10. However, while convicting the appellant by impugned judgment, the Sessions Court has though discussed all such evidence of all the Doctors, came to the conclusion that such evidence is not sufficient enough to consider that appellant is mentally sick so as to extend benefit of acquittal because of such ailment. The learned trial Judge has failed to consider the provisions of the Mental Health Act, 1987, which was in force at the relevant time of awarding the sentence as per the impugned judgment. Now, such Mental Health Act, 1987 has been repealed and in place of it, The Mental Healthcare Act, 2017 is in force. The repealed provision being Section 126 of The Mental Healthcare Act, 2017, however makes it clear that anything done in such repealed Act of 1987, is deemed to have been done or taken under the corresponding provisions of the new Act and that it shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897. Thereby, at present, we have to consider that there is no much difference in provisions of repealed Act and the present Act of 2017, and Page 9 of 16 R/CR.A/1318/2012 CAV JUDGMENT thereby, when the Sessions Court was bound to follow the provisions of repealed Act, at present, we may be guided by provisions of the existing Act. Section 3 of the existing Act of 2017 provides for determination of mental illness. It is confirmed by such section that mental illness shall be determined in accordance with nationally and internationally accepted medical standards (including the latest edition of international classification of the disease of the World Health Organisation) as may be notified by the Central Government. It is further confirmed that mental illness of a person shall not be determined on the basis of political, economical or social status or membership of a culture, racial or religious group or for any other reason not directly relevant to mental health status of the person. Whereas, definition of mentally ill person as provided in Section 2(l) of the repealed Act of 1987 simply confirms that mentally ill person means a person, who is in need of treatment by reason of any mental disorder other than mental retardation. Therefore, by all means, consideration of mental sickness or identifying a person as a mentally ill person, needs to be confirmed only by proper consideration as provided under the relevant Act/s. The definition of mental illness in Section 2(s) of the present Act of 2017 is wide enough when it is defining mental illness as a substantial disorder of thinking, mood, Page 10 of 16 R/CR.A/1318/2012 CAV JUDGMENT perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. Therefore, when statute has widened the scope of definition of mental illness, and when there is specific enactment and provisions for consideration of mental illness, the Sessions Court has failed to follow the provisions of such statute before coming to the conclusion that appellant herein is not having any mental illness, more particularly, when such enactment provides for examining such person by Medical Board. It is an admitted position that even after specific plea taken by the appellant before the Sessions Court regarding his mental illness, the Sessions Court has not referred him to Medical Board for confirmation that whether appellant is having any mental illness or not. Section 21 of the repealed Act provides for form and contents of medical certificate, Section 30 provides for time and manner of examination of mentally ill person, Section 89 provides for report by Medical Officer, which means, as provided in Section 2(i) a Gazetted Medical Officer in the service of the Government and includes a medical practitioner declared, by a Page 11 of 16 R/CR.A/1318/2012 CAV JUDGMENT general or special order of the State Government, to be a Medical Officer for the purpose of this Act.
11. Therefore, it would be appropriate for the Sessions Court to first get the appellant examined through Medical Board as described in such repealed Act before taking decision that he is mentally ill or not.
12. However, when Sessions Court has failed to follow the provisions of such special Act and when there is prima facie evidence available on record that appellant is having some mental disorder and when such fact has been confirmed by the jail authority also because of the confinement of the appellant in jail since last 6 years, there is a reason to believe that appellant is having some mental disorder and he may be considered as mentally ill person, subject to his proper examination and certificate by a competent authority and Doctor as per above- referred special Acts.
13. Since Sessions Court has failed to carry out such exercise, at this stage, pursuant to prima facie evidence regarding mental disorder of the appellant, there is no option, but to quash and set-aside the impugned judgment and order and to remand the matter back to the Sessions Court for taking appropriate steps under special statute regarding mentally ill person and to ascertain Page 12 of 16 R/CR.A/1318/2012 CAV JUDGMENT that whether appellant is really having any mental sickness so as to consider him as a mentally ill person for extending any benefit to him pursuant to such personal characteristic.
14. The Code of Criminal Procedure, 1973 confirms in form of Section 328 regarding procedure in case of accused being lunatic, that the court shall inquire into the fact of such unsoundness of mind and shall call such person to be examined by Civil Surgeon or other Medical Officer as the State Government may direct and thereby, shall examine such surgeon or other officer as a witness and shall reduce the examination in writing. The detailed provisions are made in Chapter XXV, wherein provisions are made for accused persons of unsound mind in Sections 328 to 338. It is quite clear and obvious that Sessions Court has failed to follow such provisions.
15. Learned advocate for the appellant is relying upon following two decisions. After considering the discussion herein above, these citations need to be scrutinized at the time of taking decision by the trial Court that whether appellant is entitled to benefit of Section 84, which would depend upon the outcome of exercise suggested herein above. Therefore, I do not wish to discuss such citations at this stage;
a) Shrikant Anandrao Bhosale Vs. State of Maharashtra reported in (2002)7 SCC 748; and Page 13 of 16 R/CR.A/1318/2012 CAV JUDGMENT
b) BAPU alias Gujraj Singh Vs. State of Rajasthan reported in (2007)8 SCC 66.
16. Learned APP has argued at length in support of the impugned judgment of conviction, the factual details discussed herein above makes it clear that there is prima facie evidence that appellant is suffering from some mental disease and therefore, unless and until this issue is properly adjudicated by trial Court as discussed herein above, rest of the evidence and submissions are immaterial to be discussed at this stage. Learned APP is relying upon following citations. However, at this stage, none of such citations are much relevant because they only confirm that conviction under Section 304 Part-II in place of Section 302 is proper in given facts and circumstances;
a) B.N. Kavatakar & Anr. Vs. State of Karnataka reported in 1994 Supp. (1) SCC 304;
b) Ganga Dass alias Godha Vs. State of Haryana reported in 1994 Supp. (1) SCC 534;
c) Shanmugam alias Kulandaivelu Vs. State of T.N. Reported in (2002)10 SCC 4;
d) Pravinsinh @ Paliyo Ambalal Sodha Paramr Vs. State of Gujarat reported in 2013(0) GLHEL-HC 230494; and
c) State of Gujarat Vs. Pratapbhai Babarbhai Rathod & Ors. reported in 2016(2) GCD 1014 (Guj) (DB).
Page 14 of 16 R/CR.A/1318/2012 CAV JUDGMENT17. Therefore, when Sessions Court has failed to follow the provisions of Chapter XXV of the Cr.P.C., more particularly, when there is prima facie evidence regarding mental illness and unsoundness of mind of the appellant, the impugned judgment and order dated 28.6.2012 is hereby quashed and set-aside with a direction to remand the matter back to the Sessions Court of Narmada at Rajpipla to proceed further after the stage of recording further statement of the accused so as to follow the provisions of Chapter XXV of the Cr.P.C. and provisions of special Acts, provisions of which are referred herein above. Thereby, the Sessions Court has to refer the appellant to the competent authority as provided under the Act before concluding that whether he is mentally ill or not. If appellant is declared as mentally ill person by such competent authority, then, he may be entitled to benefits of provisions of Chapter XXV of the Cr.P.C.
18. However, when appellant was otherwise also not released on bail, pending trial, at this stage, appellant cannot be ordered to be released on bail because of his mental illness, considering the fact that pursuant to special enactment, if a person is declared as mentally ill person, then, he may be sent to the mental asylum. Therefore, the Sessions Court shall follow all such procedures and shall pass Page 15 of 16 R/CR.A/1318/2012 CAV JUDGMENT appropriate order after getting the appellant examined by competent authority as per the provisions of Cr.P.C. and statute referred herein above.
19. In view of above facts and circumstances, the present Criminal Appeal is partly allowed to the aforesaid extent and remanded back to the Sessions Court for taking necessary steps as observed herein above.
20. R & P be sent back forthwith to the concerned trial Court.
(S.G. SHAH, J) binoy Page 16 of 16