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Madhya Pradesh High Court · body

2008 DIGILAW 886 (MP)

State of Madhya Pradesh v. Dilip Bankar

2008-07-21

A.K.SHRIVASTAVA, S.A.NAQVI

body2008
Judgement A. K. SHRIVASTAVA, J. :- This judgment shall also govern the disposal of connected Criminal Appeal No. 1274 of 2007 (Dilip Bankar v. The State of M.P.) filed on behalf of the accused. 2. By exercising the power conferred to it under Section 366 of the Code of Criminal Procedure, 1973, this reference has been submitted to this Court by learned Sessions Judge, Bhopal in Sessions Trial No. 28/2006 for confirmation of the death sentence awarded to the accused for the offence punishable under Section 302, IPC. The learned Sessions Judge has also convicted the accused for the offences punishable under Sections 363 366, 376 (2) (f), IPC and has sentenced him to suffer 7 years rigorous imprisonment and fine of Rs. 500/-, in default of payment of fine, further S.I. for six months; 10 years rigorous imprisonment and fine of Rs.500, in default, S.I. for six months and life imprisonment and fine of Rs. 1000/- respectively. 3. In brief the case of prosecution is that Naina alias Gurmeet (hereinafter referred to as 'the deceased prosecutrix') who was a minor daughter of Satnam Singh was playing along with her brother Chhutu @ Jagmohan nearby a temple which is located nearby her house, when she did not return to her home till evening, her father Satnam Singh lodged the missing report which was written on Roznamcha (Ex.P/20). The Station Officer Incharge S.M. Zaidi arrived at Roshanpura and made enquiry from the residents of that locality. In the said enquiry it came to know to the investigating officer that one person whose appearance resembled with that of the accused was seen last along with the deceased prosecutrix. The investigating officer thereafter went to the hut of the accused but he was not found there. The relatives and the friends of the accused were also interrogated and it came into the knowledge of the investigating officer that one brother of the accused resides in a hut in Sai Baba Nagar, eventually, the Investigating Officer also went to search the accused at that place, but, neither accused nor his brother was found. Thereafter, when the Investigating Officer was going to the residential place of the third brother of the accused, on the main road accused was seen and he was identified by Chhutu alias Jagmohan. Thereafter, when the Investigating Officer was going to the residential place of the third brother of the accused, on the main road accused was seen and he was identified by Chhutu alias Jagmohan. It is said that on the interrogation the accused admitted that by enticing to give biscuit to her, the deceased prosecutrix was firstly kidnapped and thereafter she was raped and killed. The accused also showed the place of occurrence where the prosecutrix was lying dead. A Panchanama of the dead body was prepared and it was seized. The spot map was also prepared. 4. In furtherance to its investigation, the investigating agency called the FSL team to get the spot inspected; the photographs of the place of occurrence were taken, seized ordinary earth of the place of occurrence; grass pieces; an empty quarter of liquor; one bottle; cap of the bottle; half burnt Bidi, awrapper of Parle-G "Biscuit" and a blue coloured parity lying on the dead body was seized. 5. From the possession of accused, his shirt was seized in which the dust particles were found on the sleeves where the elbow rests, some hairs were found on the sleeve of the shirt. The dust particles were also found on that place of the trouser where the knee rests. One pair of sleeper of the accused having dust on the sole was also seized. The dead body of the deceased was sent for postmortem; the statements of witnesses were recorded; and the accused was arrested. 6. After the investigation was over, a charge sheet was submitted in the committal Court and thereafter the committal Court committed the case to learned Sessions Judge where accused was tried. 7. The learned Sessions Judge after going through the charge sheet framed charges punishable under Sections 363, 366, 376 and 302 of IPC. Needless to emphasize the accused abjured his guilt and pleaded complete innocence as well as maladroit implication. 8. In order to prove the charges, the prosecution examined as many as 13 witnesses and placed Ex. P/1 to P/59 the documents on record. The defence of accused is of maladroit implication and the same defence he set forth in his statement recorded under Section 313, Cr.P.C. He also stated that he was not in fit mental condition. 9. 8. In order to prove the charges, the prosecution examined as many as 13 witnesses and placed Ex. P/1 to P/59 the documents on record. The defence of accused is of maladroit implication and the same defence he set forth in his statement recorded under Section 313, Cr.P.C. He also stated that he was not in fit mental condition. 9. The learned Sessions Judge on the basis of evidence placed on record came to hold that accused did commit the offence for which he was charged and eventually convicted him and passed the sentences including the capital sentence which we have already mentioned hereinabove. 10. In this manner this reference has been referred to this Court to pass appropriate order in respect to the confirmation of the death sentence. Simultaneously the accused has also preferred an appeal (Cr.A. No. 1274/2007) against the impugned judgment of conviction and order of sentence. 11. Apart from merit of the case, it has been contended by Shri Datt, learned senior counsel that on going through the order sheets of the Trial court it would reveal that the accused was of unsound mind during the trial and he was treated at Mental Hospital at Gwalior. In this context, learned senior counsel has invited our attention to the order sheet dated 30.5.2006 and 18.8.2006. By inviting our attention to the order sheet dated 13.10.2006, it has been argued that report of Mental Hospital, Gwalior was submitted before the learned Trial Court and according to the said report the accused was only partially cured. Our invitation has also been drawn to the order sheet dated 13.12.2006 of Trial Court and it has been submitted that a letter was directed to be sent to the Superintendent Central Jail, Gwalior to the send the mental report of the accused. The contention of learned senior counsel is that neither any report from Mental Hospital at Gwalior in original is on record nor in pursuance to the direction given by learned Sessions Judge dated 13.12.2006 the accused was mentally examined at Bhopal and without holding any enquiry under Section 329, Cr. P.C. in order to ascertain whether the accused is of sound mind or not, the trial was commenced and the accused has been convicted. P.C. in order to ascertain whether the accused is of sound mind or not, the trial was commenced and the accused has been convicted. The contention of learned senior counsel is that the procedure so adopted by the learned Sessions Judge is wholly unwarranted under the law and dehors to the mandatory provision and hence not only the conviction and sentence awarded to the accused but the trial is also vitiated. To bolster his contention, learned senior counsel has placed reliance on Dr. Jai Shankar (Lunatic) through Vijay Shankar brother guardian v. State of Himachal Pradesh, AIR 1972 SC 2267 : (1972 Cri LJ 1526) decision of Himachal Pradesh High Court Dhani Ram v. State of Himachal Pradesh, 1982 Cri LJ 1546; decision of Karnataka High Court, Pujappa v. The State, 1991 Cri LJ 1189; and decision of Bombay High Court, Balu Ganpat Koshire v. State of Maharashtra, 1983 Cri LJ 1769. 12. On the other hand Shri Modh, learned Deputy Advocate General argued in support of the impugned judgment and has submitted that a photocopy of a certificate of Mental Hospital, Gwalior certifying that the accused has now ceased to be of unsound mind is in the record of learned Trial Court. The learned Dy. Advocate General has also placed reliance on the photocopy of the observation report of Central Jail, Gwalior Psychiatric Ward in which the Psychiatrist of the Mental Hospital had certified that the accused is able to defend himself in a Court of law and, therefore, according to learned State counsel, it appears that the learned trial Court by placing reliance on these reports have tried the accused by assuming that he has ceased to be of unsound mind and, therefore, no illegality has been committed by the learned Sessions Judge. In support of his contention, learned State counsel has placed heavy reliance on the decision of Supreme Court Bapu alias Gujraj Singh v. State of Rajasthan (2007) 8 SCC 66 : (2007 AIR SCW 3808) It has also been put forth by learned Dy. In support of his contention, learned State counsel has placed heavy reliance on the decision of Supreme Court Bapu alias Gujraj Singh v. State of Rajasthan (2007) 8 SCC 66 : (2007 AIR SCW 3808) It has also been put forth by learned Dy. Advocate General that looking to the genesis of the occurrence and the evidence placed on record, since the deceased prosecutrix was firstly raped and thereafter she was killed in gruesome manner by the accused, apart from the sentences awarded to the appellant convicting him under Sections 363, 366 and 376 (2)(f) of IPC, rightly he had been convicted under Section 302 of IPC by awarding capital punishment to him. 13. Before entering into the merit of the case, it is to be ascertained whether the accused who was found to be of unsound mind became in fit mental condition and ceased to be unsound mind during the trial. This is very much essential in the facts and circumstances of the case, because under Section 329 Cr.P.C. the Court is duty bound if it appears to it that accused is of unsound mind and consequently incapable of making of his defence. In that situation the Court shall try the facts of such unsoundness and incapacity and if the Court after considering the material placed on record and other evidence as may be produced before it is satisfied of the fact, it shall record a finding to that effect and would also postpone further proceedings in the case. The provisions of Section 329 Cr.P.C. are mandatory and there cannot be any deviation. Since this provision is mandatory in character therefore omission to decide the preliminary issue would vitiate the entire trial when there is no proper enquiry and the Trial Court has failed to record a finding with respect to insanity of the accused. It is mandatory on the part of the Court to first consider the fact of innocence of mind, incapacity of the accused to make defence after taking such evidence including medical evidence that may be necessary for the purpose. We may further add that mere report of the Superintendent of Jail that the accused is capable of understanding is no compliance to Sections 329 and 332 Cr.P.C. unless the Court record its satisfaction that accused has ceased to be unsound mind. 14. We may further add that mere report of the Superintendent of Jail that the accused is capable of understanding is no compliance to Sections 329 and 332 Cr.P.C. unless the Court record its satisfaction that accused has ceased to be unsound mind. 14. Section 331 Cr.P.C. speaks about resumption of enquiry or trial and according to this section whenever an enquiry or trial is postponed under Section 328 or 329 Cr.P.C., the Magistrate or the Court as the case may be, may at any time after the person concerned has ceased to be unsound mind resumed enquiry or trial and requires the accused to appear or be brought before such Magistrate or Court. Section 332 throw light on the procedure when the accused appears again before the Magistrate or Court and according to this section if when the accused appears or is again brought before the Magistrate or Court as the case may be, the Magistrate or Court considers him capable of making of his defence, it shall proceed with the enquiry or trial. 15. If the provisions contained in Sections 329, 331 and 332 are read conjointly, it would reveal that during the trial of any person it appears to the Court that such person is of unsound mind the said fact should be tried and on reaching to the conclusion that the insanity of the accused has been ceased, the trial will be resumed on the satisfaction of the Court that the accused now can defend himself and is not unsound person. 16. By testing the above said provisions in the present factual scenario it would reveal that Constable Man Singh of Gwalior Central Jail appeared before the learned Sessions Judge on 20.2.2006 and made request that the accused has been brought in a case pending before First Additional Sessions Judge, Bhopal in Sessions Trial No.253/2005 and also submitted the committal warrant of the accused and the letter issued by Sessions Judge as a result of which the matter was taken up for hearing on 20.2.2006 and fixed 21.3.2006 the date of hearing. In the order sheet it has also been mentioned that constable also submitted certificate of hospital. The learned Sessions Judge directed to issue notice to relative of the accused. In the order sheet it has also been mentioned that constable also submitted certificate of hospital. The learned Sessions Judge directed to issue notice to relative of the accused. In the record of learned Sessions Judge, there is a letter dated 19.2.2006 written by Superintendent of Central Jail, Gwalior addressed to Sessions Judge, Bhopal informing the mental condition of accused. According to this letter, the accused is undergoing treatment/examination in the Mental Hospital, Gwalior. The observation report, in original, written by Doctor of Mental Hospital Gwalior has been enclosed. In the said report, it has been mentioned that patient/accused is receiving treatment and he is not able to defend himself in Court of law. The learned Trial Court took the case for hearing on 21.3.2006 and 21.4.2006 but the report of Mental Hospital, Gwalior was not produced. The order sheet of the Trial Court dated 23.5.2006 also indicates that the report from Mental Hospital, Gwalior in respect to the mental condition of the accused has not been received and the learned Trial Court directed to send letter to Superintendent of Central Jail, Gwalior to send requisite information and 18.8.2006 the date was fixed. On 18.8.2006 no report was filed nor accused was produced from Central Jail Gwalior and 13.10.2006 the date was fixed. On 13.10.2006 Constable Narendra Singh of Gwalior Central Jail, produced the accused along with the observation report of the accused who was undergoing treatment in Psychiatrist Ward Central Jail, Gwalior. Doctor of the Mental Hospital, Gwalior on 12.10.2006 observed the accused for the period 5.9.2005 to 12.10.2006 and it was observed that the accused is still revealing psychotic symptoms mainly asleep and appetite, dullness, fearfulness, persecutory, ideations and idiatory, hallucinations. The doctor specifically opined that the patient (accused) is not able to defend himself in the Court of law. The learned Sessions Judge on 13.10.2006 recorded this fact in the order sheet that the accused is not mentally fit and adjourned the case for 13.12.2006. On 13.12.2006 the accused was brought from the jail and the learned trial Judge directed to send the letter to jail authorities supplying information about the mental condition of the accused from the mental hospital, Gwalior and further directed that the accused shall also be examined at Bhopal and the reports be submitted prior to 27.12.2006. On 13.12.2006 the accused was brought from the jail and the learned trial Judge directed to send the letter to jail authorities supplying information about the mental condition of the accused from the mental hospital, Gwalior and further directed that the accused shall also be examined at Bhopal and the reports be submitted prior to 27.12.2006. On 27.12.2006 the counsel of the accused who was appointed through State Legal Service Authority did not remain present as such it was directed to issue letter to the Secretary State Legal Authority and the case was fixed for 15.1.2007. 17. Although the case was fixed on 15.1.2007, but it was taken up for hearing on 11.1.2007 and straightway the charges were framed under Sections 363, 366, 376(f) and 302 of IPC and thereafter the case was fixed for recording the evidence. 18. On going through the above said order sheets of learned trial Court, it is revealed that the accused was of unsound mind and he was sent to Gwalior Central Jail where he was being treated by the doctor of the Mental Hospital, Gwalior. The observation report dated 18.2.2006 given by the doctor of the Mental Hospital, Gwalior indicates that the accused was examined in Psychiatric Ward at Central Jail, Gwalior. In the report it has been specifically mentioned that the patient is still showing psychiatric symptoms mainly poor personal care, poor sleep, social interaction, no talking, fearful perplexed, hallucinatory behaviour. According to the report, the accused was receiving treatment accordingly and he was not found fit to defend himself in the Court of law. This report was given by the doctor of the Mental Hospital, Gwalior after observing the accused from 5.9.2005 to 18.2.2006. 19. Another observation report of Psychiatric Ward Central Jail Gwalior is on record of learned trial Court. According to this report, the accused was observed for the period 5.9.2005 to 12.10.2006 and again it was found by the doctor of the Mental Hospital, Gwalior that accused is still revealing psychiatric symptoms mainly sleep, appetite, dullness, fearfulness, persecutory, ideations and ideatory hallucinations and again it was opined by the doctor of the mental hospital that the accused is unable to defend himself in Court of law. The learned Sessions Judge also mentioned this fact in the order sheet dated 13.10.2006 that medical report of the accused indicates that he is not mentally fit. The learned Sessions Judge also mentioned this fact in the order sheet dated 13.10.2006 that medical report of the accused indicates that he is not mentally fit. On 13.12.2006 also the Court directed to send letter to Superintendent Central Jail with a direction to send the medical report about the mental status of the accused from Mental Hospital, Gwalior as well as accused be examined in Bhopal also, but, the report of any of the Medical Institute of Bhopal is not on record in order to indicate that accused has ceased to be insane. 20. According to us, if the trial of the accused was postponed on account of his unsoundness mind under Section 329 Cr.P.C., the same could be resumed by the Trial Court only if the accused has ceased to be of unsound mind. In this regard Section 331 is very much clear. Under Section 332 Cr.P.C. if the accused appears again before the Court and the Court finds him capable of making his defence it shall proceed with the trial. Thus, the satisfaction of the Court on the basis of material placed on record is paramount consideration. The purpose of referring the several order sheets of Trial Court is that there was overwhelming material before the learned Trial Court that accused was of unsound mind and he was undergoing treatment in Central Jail, Gwalior in Psychiatric Ward. The doctor of the Mental Hospital. Gwalior from time to time opined that accused is not fit to defend himself and, therefore, it was incumbent upon the learned Sessions Judge before proceeding with the trial before 11.1.2007 to record its satisfaction under Section 332 Cr.P.C. that accused is ceased to be insane and is capable of making his defence. This satisfaction has not at all be recorded by learned Sessions Judge. 21. The word "considers" appearing in Section 332 Cr.P.C. empowers the Court not only to examine the Medical Certificate and also the doctor, if necessary, but, also should consider other factors and the accused should also be interrogated by the Court and only after due application of mind the Court should come to the conclusion that accused is capable of making of his defence. This power should be strictly complied with because it relates to the defence of the accused which is his valuable right and also relates to personal liberty of accused. This power should be strictly complied with because it relates to the defence of the accused which is his valuable right and also relates to personal liberty of accused. The aim and object of the provisions as to accused persons of unsound mind (Sections 328 to 332 Cr.P.C.) is that the accused who is of unsound mind should not be put to trial because he is unable to defend himself and, therefore, there must be a specific order of the Court recording a finding that insanity of the accused has been ceased and he is in fit mental condition to defend himself. In absence of any such finding, if the accused is put to trial, according to our firm view not only the conviction but the trial is also vitiated. 22. True at the time of the passing of the judgment, when the learned trial Court was at the stage that what punishment should be awarded to the accused, there is some indication that accused is mentally fit, but, no finding was recorded by the learned trial Court in regard to the mental status of the accused when he was put to trial and there is no order of learned trial Court holding that accused has now become sound mind and has been ceased to be insane. Indeed, this finding ought to have been recorded by the learned trial Court on or before 11.1.2007, the date on which the charges were framed against the accused and case was put for trial. In the record of the learned trial Court a photocopy of observation report of Central Jail, Gwalior Psychiatric Ward has been tagged which appears to be of 25.10.2006 and in which it has been mentioned that at present patient (accused) is improved but he is under maintenance phase, with the treatment currently patient is free from active psycho pathology, so he is able to defend himself in the Court of law. Further it has been opined that patient (accused) is discharged with the advice of continuous medication and regular follow up, but, this alone could not be a ground in order to hold that accused has ceased to be unsound mind particularly when it has been opined by the doctor of the Mental Hospital that continuous medication and regular follow up is necessary. There is nothing on record that continuous medication was provided to the accused and he was regularly observed and by whom. We have already held hereinabove that the learned trial Judge did not interact with the accused in order to form an opinion that he is capable of making of his defence and ceased to be an insane. According to us, the learned Trial Court should not have acted mechanically only on the basis of the photocopy of the medical report of the accused by taking it to be a gospel truth. According to us, the learned trial Court after recording its satisfaction by putting questions to the accused in order to ascertain that he is now ceased to be of unsound mind, a finding should have been recorded in that record. If necessary, the doctor should have also been examined. At this juncture we may profitably place reliance on the decision of Supreme Court Dr. Jai Shankar (1972 Cri LJ 1526) (supra). The view taken up by us has also been taken by Himachal Pradesh High Court in Dhani Ram (1982 Cri LJ 1546) (supra), Bombay High Court in para 7 of Balu Ganpat Koshire (1983 Cri LJ 1769) (supra) and Karnataka High Court in Pujappa (1991 Cri LJ 1189)(supra) 23. The decision of Bapu alias Gujraj Singh (2007 AIR SCW 3808) (supra) placed reliance by learned State counsel is not applicable in the present case because in that case plea of unsoundness of mind and a protection given under Section 84 of the IPC to the accused was point in issued. In the present case, the point involved is altogether different and it is to be considered whether during the trial appellant was of unsound mind or not and, therefore, the decision of Bapu alias Gujraj Singh (supra) placed reliance by learned State counsel is not at all applicable in the present factual scenario. 24. For the reasons stated hereinabove, we are of the view that since no finding has been recorded by learned Trial Court before putting the accused to trial that he is not of unsound mind and the insanity has been ceased, therefore, not only the conviction but the trial is also vitiated. 24. For the reasons stated hereinabove, we are of the view that since no finding has been recorded by learned Trial Court before putting the accused to trial that he is not of unsound mind and the insanity has been ceased, therefore, not only the conviction but the trial is also vitiated. Accordingly we set aside the impugned judgment of conviction and order of sentence and remand the case to learned trial Court to record first its satisfaction that the accused is of sound mind, in the light of the observations made hereinabove and after recording the finding that accused is in fit mental condition to defend himself, he may put to trial. 25. The reference is accordingly answered and the appeal of the accused is allowed in part. The Trial Court is hereby directed to pass an order to produce the accused before it on 4th August, 2008. The Registry is hereby directed to send the record posthaste to learned trial Court so as to reach much before 4.8.2008. Order accordingly.