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2008 DIGILAW 2148 (PNJ)

Om Prakash v. State of Haryana

2008-12-17

JITENDRA CHAUHAN, K.S.GAREWAL

body2008
JUDGMENT Jitendra Chauhan, J. - The present appeal has been filed against the judgment and order dated 23/24.10.2000. The appellant alongwith his brother Sarwer was tried under Section 302 of the Indian Penal Code for murder of his wife Shakuntla. During trial, the co-accused Sarwer died and consequently on 17.8.1998 the proceedings qua him were dropped. 2. The complainant-Nirmala Devi wife of Ram Niwas got her statement recorded that her sister Shakuntla was married to Om Parkash son of Chandan resident of village Karontha about 12 years ago. Two sons were born out of their wedlock. The complainant Nirmala Devi was also married in the same village with Ram Niwas 7-8 years ago. The accused Om Parkash and husband of the complainant Ram Niwas were real brothers. The accused/appellant, Om Parkash suspected his wife, the deceased Shakuntla of infidelity. On this account, the deceased had left the matrimonial home about 6-7 years ago before she again joined her husband prior to the occurrence about 8-9 months. The problem between husband, the appellant and the wife the deceased continued thereafter as well. 3. On 1.9.1996 at 6.30 A.M., complainant Nirmala went to the house of the deceased after answering call of nature. At that time her sister (the deceased), the appellant alongwith his brother Sarwer and son of the deceased and the appellant Sunil aged 10 years, were also present there. The deceased was sitting in front of the oven (chulla) and Om Parkash and the co-accused Sarwer were quarreling with the deceased. Sarwer caught hold of the hands of the deceased and Om Parkash dealt an axe blow on the head and another blow on the neck of the deceased. Thereafter, one more blow was given on the right shoulder of the deceased. On alarm raised by the complainant, the accused/appellant Om Parkash alongwith his brother Sarwer ran away from the spot alongwith the weapon of offence. 4. The aforesaid statement was recorded by S.I. Sardara Ram. The ruqa Exhibit PB was sent to the Police Station Sadar Rohtak and formal FIR was registered under Section 302/34 of the Indian Penal Code. The special report was sent to the Illaqa Magistrate. 5. The spot inspection was carried out by PW-7 S.I. Sardara Singh. Rough site plan of the place of occurrence was prepared. The inquest report of the dead body of Shakuntala was prepared. The special report was sent to the Illaqa Magistrate. 5. The spot inspection was carried out by PW-7 S.I. Sardara Singh. Rough site plan of the place of occurrence was prepared. The inquest report of the dead body of Shakuntala was prepared. The blood stained earth was lifted from the spot in the presence of Ram Niwas and other residents of the village. 6. PW-3 Dr. S.S. Dahiya, Medical Officer, Civil Hospital, Rohtak conducted the post-mortem examination on the dead body of the deceased Shakuntala wife of the appellant and recorded the following injuries : "1. An incised wound 4.0 cm x 0.5 cm. over the scalp over the left side. It was present 10 cm. above the left pinna. It was skin deep going to the skull bone underneath in such a way that a piece of skull bone was chieselled off. Surrounding this wound there was a haemotoma. Underlying brain tissues and meanings were congested. The scalp wound was parallel to sagittal suture. 2) An incised wound present underneath the chin and above thyroid cartilage. It was 8.0 cm. x 5.0 cm. in size horizontally placed. Underlying muscular and vascular tissue were exposed. The wound was communicating to the laryngeal cavity. There was haemotoma all around the wound. 3) An incised wound 4.0 cm x 1.0 cm. over front of base of neck, 4.0 cm. above the amenubrium of sternum. It was soft tissues deep. Clotted blood was present. 4) An incised wound 5.0 cm. X 3.0 cm. present over the front of right shoulder underlying right humerus bone was seen fractured near the head of humerus bone. Clotted blood was present in the wound. Stomach contained 150 ml. of greyish fluid. Liver, spleen and kidneys were found pale. In my opinion, the cause of death was hemorrhage and shock due to ante-mortem multiple injuries which were sufficient to cause death in ordinary course of nature. Probable time that elapsed between injuries and death was within few seconds to few minutes and between death and post-mortem was within 6 hours to 36 hours." 8. The accused was charge-sheeted on 13.1.1997 by the learned Additional Sessions Judge, Rohtak for committing murder of Shakuntla and thereby charging him to stand trial under Section 302 of the Indian Penal Code alongwith co- accused Sarwar. The accused was charge-sheeted on 13.1.1997 by the learned Additional Sessions Judge, Rohtak for committing murder of Shakuntla and thereby charging him to stand trial under Section 302 of the Indian Penal Code alongwith co- accused Sarwar. However, as recorded in the foregoing paragraph during the pendency of the trial, co-accused-Sarwar died on 17.8.1998 and the proceedings qua him were dropped. 9. After the charges were framed and the case was fixed for the prosecution evidence, on 6.1.1998, an application was moved by the counsel for the accused under Section 328 of the Code of Criminal Procedure for postponing the trial on the ground that the accused was of unsound mind and was not capable for makinghis defence and stand trial. It was also brought to the knowledge of the learned trial Court that the accused was under treatment in the jail and was not able to brief his counsel about his case. 10. The Medical Board was constituted. The statement of Dr. A.K.Vohra, Professor and Head of Psychiatry Department, PGIMS, Rohtak was recorded on 7.5.1998. Dr. Vohra who examined the mental state of the accused, opined that accused was suffering from depressive disorder and needed treatment and was not fit to plead his case. It was also deposed that the weekly examination of the accused by the Medical Board was required. 11. On the basis of medical report dated 19.5.1998, the learned trial Court on 14.7.1998 ordered the case to be fixed for day-to-day trial i.e. 21.7.1998, 22.7.1998 and 23.7.1998. 12. The prosecution to prove its case examined 12 witnesses. However, the material witnesses were PW-1 Nirmala Devi, the complainant, PW-2 Sunil Kumar son of the appellant and PW-12-Inspector Shishpal Singh, who was the Investigating Officer in the present case. 13. After the completion of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure. The accused-appellant denied all the incriminating circumstances against him and claimed that the prosecution witnesses and the prosecution story were false and concocted. The accused did not produce any evidence in his defence despite the opportunity afforded to him. At the same time again an application under Section 328 of the Code of Criminal Procedure was filed on behalf of the accused-appellant vide order dated 24.12.1998. 14. The accused did not produce any evidence in his defence despite the opportunity afforded to him. At the same time again an application under Section 328 of the Code of Criminal Procedure was filed on behalf of the accused-appellant vide order dated 24.12.1998. 14. It was after about 19 months vide order dated 20.7.2000, the trial was resumed on the basis of the report of the Medical Board. No evidence under Section 329 was recorded qua the insanity of the accused. 15. It was argued on behalf of the State that the murder in question stands proved by consistant and convincing evidence of PW-1 Nirmala Devi and PW-2 Sunil. The essential ingredients of the offence had been fully substantiated and established by oral and documentary evidence. 16. On behalf of the accused, it was submitted that as per the statement of PW-3 Dr. S.S.Dahiya, the position and shape of the wounds on the person of the deceased were indicative of the fact that at the time of injury, the deceased could be in sleeping or sitting position as there were no abrasions or marks of resistance on the person of the deceased and she was murdered by unknown persons. 17. The further argument put forth by the defence was that the presence of fluid in the stomach was indicative and the accused had been implicated in the instant case due to enmity of PW-1 Nirmala Devi towards the accused. Another point argued before the learned trial Court was that cuts on the shirt and the injuries on the body of the deceased were not corresponding to each other in size and shape. All the arguments were vehemently countered by the counsel for the State. 18. The learned Trial Court accepted the case of the prosecution. The learned trial Court heavily relied on the statement of PW-2 Sunil, aged 12 years, son of the accused on the assumption that his testimony could not be catapulted away as motivated by ill-will or any other extraneous consideration. In the circumstances, the learned trial Court held that there was nothing on record to show that anybody else other than the accused had any, interest or motive to eliminate Shakuntala, the deceased. In the circumstances, the learned trial Court held that there was nothing on record to show that anybody else other than the accused had any, interest or motive to eliminate Shakuntala, the deceased. This fact acquires greater significance when viewed with the fact that the accused suspected the deceased of infidelity, and the deceased Shakuntala had been staying at her parental home for 7 years before joining the company of the accused only about 8-9 months prior to the occurrence. 19. The counsel for the accused-appellant submitted that as per the statement of Dr. Vohra made on 7.5.1998, the accused was found to be suffering from depressive disorder and was declared not to be fit to plead his case. Thereafter on 14.7.1998, the case was ordered to be fixed for day to day trial. Therefore, the period between the report by the doctor and resumption of trial being less than two weeks, is highly suggestive of the fact that the accused was not fit to stand trial. It was further submitted that even the application under Section 328 of the Code of Criminal Procedure filed on behalf of the accused was pending and no evidence qua the insanity of the accused had been recorded. As such, the resumption of trial was in violation of Section 329 of the Code of Criminal Procedure and the same stands vitiated on this ground alone. A reference was made to Gurjit Singh v. State of Punjab, 1986(2) RCR(Criminal) 458. It was emphatically contended that the entire prosecution evidence was recorded during the period of psychiatric ailment of the appellant and on the date of recording the statement by the Investigating Officer, the accused/appellant was admitted in the PGIMS Rohtak. 20. In the circumstances, the learned counsel for the appellant submitted that the trial in the present case was vitiated and de novo trial was required. The Court was further informed that the appellant at present is also suffering from mental illness. The reliance was placed on Vishwanatha v. State of Karnataka, 2004 (3) RCR (Criminal) 98. 21. In the background of the above submissions, on 18.9.2008 this Court directed the respondents to file the medical report regarding the mental health of the appellant alongwith the brief medical history. 22. The reliance was placed on Vishwanatha v. State of Karnataka, 2004 (3) RCR (Criminal) 98. 21. In the background of the above submissions, on 18.9.2008 this Court directed the respondents to file the medical report regarding the mental health of the appellant alongwith the brief medical history. 22. In pursuance of the order dated 18.9.2008 of this Court, the respondents filed its reply alongwith the latest medical report and the brief medical history of the appellant. 23. As per the report, the appellant was stated to be under constant treatment from Department of Psychiatry, P.G.I.M.S., Rohtak. The appellant was first treated as psychiatric patient. He was kept in jail hospital from 31.5.1998 to 3.9.2008 and thereafter was admitted at PGIMS, Rohtak. He remained admitted in hospital from 3.9.2008 to 6.2.1999 and was diagnosed as a case of Schizophrenia. On 24.10.2000, i.e., the day of conviction, on undergoing medical examination, the appellant was found suffering from psychiatric illness. The appellant remained under constant medical treatment during the period from 24.10.2000 till date. 24. As per record, the accused committed another murder while suffering imprisonment on account of his mental condition and had been admitted in Psychiatry Department of PGIMS, Rohtak. The appellant has undergone more than 12 years of sentence. 25. We have heard the learned counsel for the parties and perused the record. 26. It is admitted by both the parties that the appellant/accused is still suffering from depressive disorder and requires treatment. 27. Without deliberating upon the merits of the case and in view of the mental health and long incarceration of about 12 years, we are inclined to accept the appeal. As the medical history and the opinion rendered by the doctor regarding the mental health of the accused prima facie indicate that the murder was committed while the accused was suffering from depressive disorder. Accordingly, the appeal is accepted. The appellant is ordered to be set free forthwith. 28. During the course of arguments, it was submitted that there was no person to look after the accused-appellant after his release from the jail. As per Section 335 of the Code of Criminal Procedure, a duty has been cast upon the Court to make an alternate arrangement so that the mental health of the appellant is restored. 29. 28. During the course of arguments, it was submitted that there was no person to look after the accused-appellant after his release from the jail. As per Section 335 of the Code of Criminal Procedure, a duty has been cast upon the Court to make an alternate arrangement so that the mental health of the appellant is restored. 29. In pursuance of the order passed by this Court on 12.12.2008, the respondents submitted the report of mental health facilities available in the State of Haryana under the provisions of Mental Health Act. As per report, at the time of inception of the State, the Mental Hospital at Amritsar was declared the State Mental Hospital under the Punjab Re-organisation Act, 1966. There is no separate mental hospital in the State of Haryana. As per the Mental Health Act, 1987, the patients of Haryana suffering from chronic mental disorders or mentally sick criminals, are hospitalised in the Mental Hospital at Amritsar known as Vidhyasagar Institute of Mental Health Amritsar. Apart from the above Institute, the Psychiatry Department at PGIMS, Rohtak, which is under the State Government has a capacity of 64 beds (32 each for male and female) with faculty of approximately 20 specialists including psychiatry Social Workers and Clinical Psychologists. Psychiatric services are also being carried out in some districts of Haryana. Two other medical colleges in the State one at Mullana (Ambala) and another at Agroha (Hisar), have also been providing psychiatric services. Keeping in view the long continuous history of mental depressive disorder of the appellant, we direct the respondents to admit the appellant in any of the mental Hospitals or Centres where the required adequate facilities for the treatment are available on release of the appellant from the jail. Appeal allowed.