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2015 DIGILAW 747 (GAU)

Ajit Doley v. State of Assam

2015-06-12

PRASANTA KUMAR SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT : Prasanta Kumar Saikia, J. 1. This appeal is directed against the Judgment dated 19.10.2012 rendered by the learned Sessions Judge, Dhemaji in Sessions Case No. 3(DH)2011 convicting the appellant Sri Ajit Doley of offence under Section 302 of IPC and sentencing him to imprisonment for life and also to pay a fine of Rs. 10,000/-, in default, R.I. for another period of 6 months for the offence U/s. 302 IPC and R.I. for 3 years and to pay fine of Rs. 5,000/- i.d., R.I. another period of 3 months for the offence aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellant Sri Ajit Doley (hereinafter referred to as the accused person) has preferred this appeal from jail citing several infirmities in the judgment under challenge. 2. We have heard Mr. R. De, learned Amicus Curiae appearing for the accused person. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 3. The case projected in the FIR dated 25.05.2010 and in subsequent trial, in short, is that on 25.05.2010 at about 5/6 pm, the accused person caused death of his daughter, namely, Rumia Doley, aged about one and a half year by inflicting dao blows and thereafter buried her body in a place not far from his house. Subsequently, the villagers suspected that the accused person had killed his daughter. Therefore, he was apprehended following his he confessed to his guilt admitting that he killed his daughter and buried her body in a place not far from his house. 4. In that connection, an FIR was lodged with the In-charge of Sissiborgaon Police Out Post. On receipt of the FIR, I/C Sissiborgaon Police Out Post made a GD. Entry on such FIR and forwarded the FIR to the Officer-in-Charge, Silapathar Police Station for registering a case. On receipt of the FIR, Officer-in-charge, Silapathar Police Station registered a case vide Silapathar P.S. Case No. 143/2010 U/s. 302/201 IPC and ordered investigation into the case. 5. On receipt of the FIR, I/C Sissiborgaon Police Out Post made a GD. Entry on such FIR and forwarded the FIR to the Officer-in-Charge, Silapathar Police Station for registering a case. On receipt of the FIR, Officer-in-charge, Silapathar Police Station registered a case vide Silapathar P.S. Case No. 143/2010 U/s. 302/201 IPC and ordered investigation into the case. 5. In due course, I/O, Sri Atul Hajarika, In-charge of Sissiborgaon Police Out Post visited the place of occurrence, examined the witnesses, arrested the accused person and disinterred the body of the deceased, sent the body of the deceased to Civil Hospital, Dhemaji for post mortem examination, did other needful and on completion of the investigation, he submitted charge sheet under Section 302/201 IPC against the accused person and forwarded him to the Court to stand his trial there for the offence aforesaid. 6. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Session since the offence under Section 302 IPC is exclusively triable by Court of Session. The learned Sessions Judge, Dhemaji on receipt of the case on commitment and on hearing the learned counsel for the parties, framed charge U/s. 302 IPC against the accused person and the charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 7. During trial, the prosecution had examined as many as 11 (eleven) witnesses including the informant, the M.O. who conducted autopsy on the body of the deceased as well as the I.O. of the case. The statement of the accused person was also recorded U/s. 313 CrPC. The plea of the accused person was of total denial. He, however, did not adduce any evidence in support of such claim. 8. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned Sessions Judge, Dhemaji was pleased to convict the accused person of offence U/s. 302 IPC and sentenced Mm punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 9. We have heard Mr. R. De, learned Amicus Curiae, appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 10. Mr. It is that judgment which has been assailed in the present appeal. 9. We have heard Mr. R. De, learned Amicus Curiae, appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 10. Mr. Dey, learned Amicus Curiae, submits that the judgment under challenge is unsustainable since there is no legal evidence to convict the accused of offence U/s.302/201 IPC and on that count alone, the judgment in question needs to be quashed and set aside. 11. His further case was that there is indisputable evidence on record to show that when the trial was conducted in the case aforementioned, the accused person was not mentally sound for which he had to be sent again and again to Mental Hospital at Tezpur for treatment. It is contended that there is no proof on record to show that the accused person had ever recovered from his illness so as to enable him to defend the charge against him. 12. In support of his contention, our attention has been drawn to the to the various materials on record to show that on several occasions during the pendency of the case aforementioned, the accused was sent to Mental hospital for treatment and that he had been suffering from serious mental disorder. According to learned Amicus Curiae, there is also no material on record to show that at no point of time during trial, the accused had fully recovered from his illness. 13. Being so, such a trial, vitiated the entire proceeding before the court below which, in turn, requires, this Court, now, to quash the judgment under challenge since the trial was not conducted not in accordance with the prescription of law. In that connection, learned Amicus Curiae referred us to various provisions of law including Section 329/331 CrPC. 14. Ms. S. Jahan, learned Addl. P.P. Assam has supported the contention, so raised by the learned Amicus Curiae since she did not dispute the claim, advanced by learned Amicus Curiae. 15. In that connection, learned Amicus Curiae referred us to various provisions of law including Section 329/331 CrPC. 14. Ms. S. Jahan, learned Addl. P.P. Assam has supported the contention, so raised by the learned Amicus Curiae since she did not dispute the claim, advanced by learned Amicus Curiae. 15. On going through the materials on record, we have found that there are various materials on record to show that when the trial was conducted against the accused person, he has been suffering from serious mental illness requiring the trial court to send him to Mental Hospital for treatment We have also found that the certificate issued by Mental Hospital did not disclose that the accused had recovered from the illness, he was suffering from in order to enable him to defend the charge against him. 16. It is worth noting that when a person, facing trial for committing of offences appears to the Court/Magistrate to be a person suffering from mental illness, the Court/Magistrate is to first try such fact in accordance with the prescription of law in order to ascertain the mental health condition of such an accused person Such provisions can be found in Section 329 CrPC. For ready reference, the relevant parts of such provision is reproduced below:- "329. Procedure in case of person of unsound mind tried before Court.- (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case. 1[(1-A) If during trial, the Magistrate or Court of Sessions finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind: 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 of- (a) head of psychiatry unit in the nearest government hospital; and (b) a faculty member in psychiatry in the nearest medical college.] 2[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1-A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court 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 the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing-the trial, discharge the accused and deal With him in the manner provided under Section 330: Provided that if the Magistrate or Court 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 trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused. (3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with Section 330." 17. It may be noted here that section 331 of the CrPC speaks about resumption of the inquiry or trial whenever such a person ceases to be unsound person. For ready reference, the relevant part of such provision is reproduced below:- "331. It may be noted here that section 331 of the CrPC speaks about resumption of the inquiry or trial whenever such a person ceases to be unsound person. For ready reference, the relevant part of such provision is reproduced below:- "331. Resumption of inquiry or trial.-(1) Whenever an inquiry or a trial is postponed under Section 328 or Section 329, the Magistrate or Court, as the case may be, may at any time after the person concerned has ceased to be of unsound mind, resume the inquiry or trial, and require the accused to appear or be brought before such Magistrate or Court". 18. In that connection, reference may be made to the decision of this Court in the case of Bangla Bagti v. State of Assam, reported in (2012) 1 GLR 115. The relevant paragraphs of the judgment are reproduced below:-- "37. As provided by section 329 CrPC, the trial court, dealing with a person of unsound mind, in the first stance, is required to try the fact of such unsoundness and incapacity. In the present case, as per the report issued by the LGBRIMH, Tezpur the accused had recovered considerably, thereby meaning that he did not recover fully. That apart, subsequently, he was required to be sent to the Psychiaty Department, Silchar. The trial court on the basis of the report (not proved) issued by the petitioner, Psychiatry Department, Silchar Medical College Hospital concluded that the accused was fit to face trial. In fact, the learned Judge neither recorded as to what were the findings regarding mental health of the accused, nor examined the Medical Officer, who examined/treated the accused and submitted the reports. Therefore, it is found that the learned trial Judge did not try the fact regarding unsoundness and incapacity of the accused". "43. In view of above, it was the duty of the learned trial Judge to come to a definite finding, on the basis of the medical evidence, regarding the mental health of the accused and the learned trial Judge should have taken resort to the provisions, provided by section 329, CrPC". 19. "43. In view of above, it was the duty of the learned trial Judge to come to a definite finding, on the basis of the medical evidence, regarding the mental health of the accused and the learned trial Judge should have taken resort to the provisions, provided by section 329, CrPC". 19. On a careful perusal of the record, we have found that though in the case in hand, there is indisputable evidence on record to show that the accused/appellant had been suffering from serious kind of unsoundness of mind, yet, learned Trial Court in the first instance did not try such fact of unsoundness of mind as required under the law and conducted trial in total violation of aforesaid provisions of law. 20. Being so, we are of the opinion, that since the trial in question was conducted in total disregard to provisions in section 329 CrPC, the entire trial stands vitiated and, therefore, the judgment, rendered by the Trial Court, in total disregard to the aforesaid provisions of law, is liable to be set aside and quashed. 21. In the result, the appeal is allowed and the judgment under challenge is quashed and set aside. 22. Consequently, the accused/appellant is acquitted of offence U/s. 302 IPC and is set at liberty forthwith if he is not required in connection with any other case. We deeply appreciate the assistance rendered by Mr. R. De, learned Amicus Curiae in disposing present appeal. The State is, therefore, directed to pay Rs. 7,000/- as being his professional fee within a period of 3 (three) months from the date of receipt of the certified copy of this judgment.