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2015 DIGILAW 959 (JHR)

Jagdish Gope v. State of Jharkhand

2015-08-13

P.P.BHATT, VIRENDER SINGH

body2015
JUDGMENT VIRENDER SINGH, J. 1. The sole appellant (hereinafter to be referred to as the accused) namely Jagdish Gope who was of the age of 44 years at the time of recording of his conviction vide impugned judgment dated 19th December, 2012 handed down by the Additional Sessions Judge-3rd, Dhanbad under Section 302 of the Indian Penal Code, has preferred the instant appeal through Jharkhand State Legal Services Authority (JHALSA), as he had no means to defend himself primarily for the reason that no one from his family has come forward, may be that he has killed his real uncle namely Sukar Gope (for short referred to as deceased). The arm allegedly used by him is stated to be axe. In common parlance it is known as Tangi a sharp edged weapon of heavy weight. There are as many as three injuries on the person of the deceased which proved to be fatal. It is a case resting upon eye version account of PW 1 and 2 who also happened to be the wife and daughter of the deceased. The cause of occurrence, as projected by the prosecution, is some land dispute going on between the deceased and the accused. This, in brief, is the case of the prosecution and we do not want to enter into the more details for the reason that there appears to be a gross irregularity committed by the learned trial court during the trial which, according to Mr. Awnish Shankar, Advocate for the appellant, turns out to be very grave one and in turn, it will vitiate the entire trial. 2. Learned counsel contended that the accused, in fact, was suffering from mental disorder (schizophrenia) which came to the notice of the Court during the trial, as is evident from the trial court record. He stated that what is available from the trial court record is that on 10.3.2003 the proceeding of the trial court was stayed as there was a report of the Civil Surgeon regarding mental illness of the accused, as such he was to be shifted to Ranchi Institute of Neuro-Psychiatry & Allied Sciences (RINPAS). He stated that what is available from the trial court record is that on 10.3.2003 the proceeding of the trial court was stayed as there was a report of the Civil Surgeon regarding mental illness of the accused, as such he was to be shifted to Ranchi Institute of Neuro-Psychiatry & Allied Sciences (RINPAS). Learned counsel submitted that thereafter also trial remained stayed for a reasonable good time as the report of the Doctor finding the accused to be fit to face trial was not received and ultimately it was received on 30th November, 2006 indicating therein that he was fit. 3. Learned counsel submitted that trial court record further reveals that on 21.9.2007, the concerned Jail Superintendent again requested for permission of the Court to send the accused to RINPAS for his treatment as he had developed some mental problem once again and that the permission was, accordingly, granted and the accused was sent for his treatment. The case was then kept pending awaiting report of the concerned Doctor of RINPAS. Learned counsel submitted that without waiting for the report of the concerned doctor about the mental condition of the accused, the Court went on recording the evidence of the prosecution in which not only the formal witnesses were recorded, even the main witnesses of the occurrence (eyewitnesses) were also recorded. 4. Learned counsel submitted that no doubt there appears to be some lapse on the part of the defence counsel also who should not have cross-examined the witnesses in absence of the report of the doctor of RINPAS, but that lapse, in any case, would not cure the fundamental defect crept in the trial and in this eventuality, the entire trial gets vitiated. 5. Learned counsel contended that there appears to be another lapse on the part of the trial court in awarding sentence to the accused on the date of conviction itself without affording any opportunity to the accused of hearing him on sentence, but primarily the learned counsel banks upon the aforesaid grave irregularity committed while conducting the trial. 6. 5. Learned counsel contended that there appears to be another lapse on the part of the trial court in awarding sentence to the accused on the date of conviction itself without affording any opportunity to the accused of hearing him on sentence, but primarily the learned counsel banks upon the aforesaid grave irregularity committed while conducting the trial. 6. Learned counsel submitted that in the event of the entire trial being vitiated, the accused, who is in custody since February, 1998 and by now undergone more than 17 years, deserves to be acquitted, instead of remitting the case back to the trial court for recording the evidence afresh from the stage the irregularity is committed as after the lapse of long 17 years of incarceration of the accused, it would not solve any purpose, rather it would be against the interest of justice. Learned counsel, thus, prays for acquittal of the accused by setting aside the impugned judgment of conviction/sentence as already recorded by the learned trial court. 7. Whatever is stated on facts by Mr. Awnish Shankar, learned counsel for the accused, is not disputed by the learned State counsel. Learned State counsel fairly stated that he has gone through the trial court record minutely and admits that gross irregularity has been committed by the trial court while conducting the trial as put forth. He however states that although on account of the said irregularity the trial gets vitiated, but the present case does not call for acquittal of the accused and it may be remitted to the trial court for curing the irregularity from the stage it is committed and that the prosecution evidence can be recorded from that stage. 8. Chapter XXV contained in the Code of Criminal Procedure, 1973 deals with the provisions as to the accused persons of unsound mind. Section 329 of the Code deals with the procedure in case of person of unsound mind tried before Court. Section 329 of the Code reads:- 329. 8. Chapter XXV contained in the Code of Criminal Procedure, 1973 deals with the provisions as to the accused persons of unsound mind. Section 329 of the Code deals with the procedure in case of person of unsound mind tried before Court. Section 329 of the Code reads:- 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-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. (b) A faculty member in psychiatry in the nearest medical college. (b) A faculty member in psychiatry in the nearest medical college. (2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) 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. 9. Section 330 of the Code deals with the release of the person of unsound mind pending investigation or trial which reads:- 330. Release of person of unsound mind pending investigation or trial — (1) Whenever a person if found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be shall, whether the case is one in which bail may be taken or not, order release of such person on bail: Provided that the accused is suffering from unsoundness of mind or mental retardation which does not mandate in-patient treatment and a friend or relative undertakes to obtain regular out-patient psychiatric treatment from the nearest medical facility and to prevent from doing injury to himself or to any other person. (2) If the case is one in which, in the opinion of the Magistrate or Court, as the case may be, bail cannot be granted or if an appropriate undertaking is not given, he or it shall order the accused to be kept in such a place where regular psychiatric treatment can be provided and shall report the action taken to the State Government: Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the State Government may have made under the Mental Health Act, 1987 (14 of 1987). (3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering defence by reason of unsoundness of mind or mental retardation, the Magistrate or Court, as the case may be, shall keeping in view the nature of the act committed and the extent of unsoundness of mind or mental retardation, further determine if the release of the accused can be ordered: Provided that — (a) If on the basis of medical opinion or opinion of a specialist, the Magistrate or Court, as the case may be, decide to order discharge of the accused, as provided under Section 328 or Section 329, such release may be ordered, if sufficient security is given that the accused shall be prevented from doing injury to himself or to any other person. (b) If the Magistrate or Court, as the case may be, is of opinion that discharge of the accused cannot be ordered, the transfer of the accused to a residential facility for persons of unsound mind or mental retardation may be ordered wherein the accused may be provided care and appropriate education and training. 10. Adverting to the case on hand, once the learned trial Judge had come to know of the fact that the accused was suffering from mental disorder (schizophrenia), and he resorted to the provisions of Section 329(1) of the Code by postponing the further proceeding, he could not start with the proceedings without getting the report of the concerned doctor still he went ahead with the trial and recorded the statement of all the prosecution witnesses and even convicted him knowing very well that he was incapable of entering defence by reason of mental retardation. The learned trial Judge could even resort to provisions of Section 330 of the Code. Admittedly, the trial court has not dealt with this case in accordance with Chapter XXV of the Code and on account of this gross irregularity committed by the trial court, the entire trial gets vitiated. 11. The next question now crops up for consideration of the Court is, whether the accused gets acquittal straightway on account of his remaining in custody for more than 17 years as he is languishing in jail right from the date of his initial arrest or that on account of the latest report of the Medical Board available on record describing him mentally fit to face the trial, the case should be remitted to the trial court for recording the evidence afresh from the stage the irregularity has been committed by it. 12. On a specific query put to Mr. Pankaj Kumar, learned State counsel, whether the accused, after suffering conviction, was ever sent for medical treatment, he fairly stated that he was sent to RINPAS from jail on many occasions and very recently he remained admitted in RINPAS but now stands discharged after having been cured. He stated that even the Court has been getting information with regard to his mental condition during the pendency of the instant appeal. 13. Another fact which the learned State counsel has brought to the notice of the Court is that the case of the appellant is being considered for premature release from jail in accordance with Rules and Regulations in vogue and, perhaps, within few months, his case would be ripe for premature release which stage has not arrived as yet. 14. In the flashback of the aforesaid grave irregularity committed by the trial court, the impugned judgment of conviction and order of sentence, in any case, deserves to be set aside, and we order accordingly. However, keeping in view the peculiar facts of the present case in which the accused has already suffered incarceration of long 17 years and is suffering from mental disorder right from 2002 and even after suffering conviction he had been getting treatment for the said ailment through jail itself, remitting the case for its re-trial afresh from the stage of recording of the evidence, at this stage, would not be justified as it would be against the interest of justice. The accused, thus, deserves acquittal. The accused, thus, deserves acquittal. Ordered accordingly. 15. The net result is that the instant appeal stands allowed. Conviction of the accused as recorded by the trial court vide impugned judgment is hereby set aside. Person of Jagdish Gope son of Late Guhichandra Gope, resident of village Rudibasti, P.S. Katras (Kapuriya), P.O. Katras, District Dhanbad shall be released forthwith, if not required in any other case. 16. Can we think of rehabilitation of the appellant is another very important aspect to be considered. 17. The Hon’ble Apex Court in case of R.D. Upadhyay vs. State of Andhra Pradesh & Others, decided on 13.11.2014 while dealing with the Writ Petition (Civil) No. 559 of 1994 observed as under:- “2. While examining the issue touching the rights of the under-trial prisoners especially the females and the children with them, the High Courts may also examine the question relating to the rights of mentally challenged under-trials and convicts and issue appropriate directions. The High Court may while examining the rights of such unfortunate members of the society as suffer from any mental disability also examine whether any directions are required to be issued in relation to people who suffer from such illness but are not involved in any crime and yet suffer harassment, neglect or deprivation at the hands of their family or are seen roaming about in public places without any one taking responsibility for their care, protection or maintenance.” 18. In view of the aforesaid observations and looking to the peculiar facts and circumstances of the present case that no one from the family of the accused has ever bothered to extend any helping hand to him throughout the period he remained in jail and suffered mental ailment on different occasions, we are of the view that while examining the rights of such unfortunate members of the society, necessary directions are required to be issued so that he may not involve in any crime and not seen roaming about in public places without any one taking responsibility for his care, protection and maintenance. 19. Copy of the order be sent to the Secretary, High Court Legal Services Committee, who may, in consultation with the Member Secretary, JHALSA, take some positive steps for rehabilitation of the accused in the society by extending helping hand to him in coordination with the concerned authority of the State Government. 19. Copy of the order be sent to the Secretary, High Court Legal Services Committee, who may, in consultation with the Member Secretary, JHALSA, take some positive steps for rehabilitation of the accused in the society by extending helping hand to him in coordination with the concerned authority of the State Government. Necessary help under some welfare scheme of the State Government can also be extended to him. Member Secretary, JHALSA in coordination with the concerned department may also explore possibility to provide skilled/semi-skilled work in any of the scheme/project run by the State Government to the appellant, as it reveals from the record of the instant case that no one from the family of the accused has ever bothered to extend any helping hand to him. This, in our considered view, would serve the cause in the right direction. 20. Before parting with the judgment, we must leave a note of appreciation for Mr. Awnish Shankar, Advocate for rendering assistance to this Court on behalf of appellant. In fact, such like young and energetic lawyers are required to be put on the panel of JHALSA.