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2018 DIGILAW 43 (CAL)

Anima Ekka v. State

2018-01-08

SAMBUDDHA CHAKRABARTI, SIDDHARTHA CHATTOPADHYAY

body2018
JUDGMENT : 1. This is an appeal from a judgement and order dated September 09, 2016 passed by the learned Additional Sessions Judge, Andaman and Nicobar Islands, Port Blair in Sessions Case No. 26 of 2016 (Sessions Trial No. 47 of 2014) convicting the present appellant under section 302 of the Indian Penal Code and sentencing her to suffer imprisonment for life (R.I.) with a fine of Rs. 2000/-, in default, sentencing her to suffer rigorous imprisonment for a period of one month more. 2. The prosecution case, in short, is that on January 21, 2014, at about 9.00 am when PW-1 was taking rest in his house, his wife (i.e. accused/appellant) went out to the village with an eight month old child in her lap. At around 12 noon, a neighbour informed him that the accused had beaten the child very badly as a result of which she had fallen unconscious. He rushed to the house of the informant and found that his wife was sitting there and the child was lying unconscious on her lap. After some time, the child died. On the basis of his a complaint case was registered under section 302 of the Indian Penal Code. Subsequently charge sheet under that section itself was filed. 3. In the trial that followed ten witnesses adduced evidence for the prosecution and the trial ended with conviction and sentence as mentioned above. 4. It appears from the evidence adduced before the trial court that several witnesses including the husband of the accused i.e. PW-1 had adduced about the state of mental health of the accused. PW-1 who was the defecto-complainant specifically stated in the cross-examination that his wife i.e. the accused is a mental patient right from the date of their marriage and he never got her examined by any psychiatrist. He further stated that his wife used to take medicine for her ailment. Again, PW-2 Domnik Kujur, echoed PW-1 in cross-examination. He stated that the accused was a mental patient and she could not understand what was going on surrounding herself. He had also corroborated that at the relevant point of time, she used to take medicine for her mental ailment. 5. PW-4 who is the neighbour of the accused, had admitted that sometime the accused used to talk irrelevant and she had disclosed it to the police that the accused was a mental patient. 6. He had also corroborated that at the relevant point of time, she used to take medicine for her mental ailment. 5. PW-4 who is the neighbour of the accused, had admitted that sometime the accused used to talk irrelevant and she had disclosed it to the police that the accused was a mental patient. 6. It further appears from the evidence of PW-7 who is the Inspector of Police that at the time of investigation some witnesses had informed her about the abnormal behavior of the accused. But she never produced the accused before any Psychiatrist for ascertaining her mental status as to whether she was suffering from mental ailment or not. 7. The Trial Court, while discussing the evidence adduced before it, despite specifically recording the piece of evidence appearing from the deposition of different witnesses about the mental incapacity of the accused, recorded that in spite of the mental disease of the accused, no documents had been produced by the defence. 8. This is a case where the authority should have taken appropriate steps for ascertaining the status of mental condition of the accused at the relevant point of time, i.e. the date and time of commission of the offence under section 302, more so when the immediate ocular witnesses including the defacto complainant had specifically deposed that the accused had been suffering from mental incapacity. It cannot be lost sight of nor it can be glossed over that in families which the accused represented initiative for a psychiatric treatment is generally taken by the husband or by the members of the family. Since it has been deposed by the husband himself that he had never taken his wife to a psychiatrist for treatment there was naturally no document was forthcoming for being produced by the accused as defence. Moreover, it was the duty of the prosecution to get the accused examined at the relevant point of time, particularly, when the investigating officer had herself recorded that some witnesses had kept her informed about the mental disorder that the accused was suffering from. Failure on the part of the prosecution cannot go against the interest of the accused. 9. Mr. Failure on the part of the prosecution cannot go against the interest of the accused. 9. Mr. Mandal, the learned Public Prosecutor, has strongly relied on the judgement in the case of Sudhakaran v. State of Kerala reported in AIR 2011 SC 265 for a proposition that the burden is always on the accused to prove that by reason of unsoundness of mind, he is incapable of the nature of the act committed by him and the very relevant point of time at which such unsoundness of mind should be established is the time when offence is committed. 10. However, this is a case where the unsoundness of mind has already been a part of evidence as deposed by the prosecution witnesses. The theoretical onus on the appellant to prove that her cognitive faculties were impaired need not be insisted on as the the prosecution witnesses themselves have deposed that she was suffering from mental disorder and the statements made by the accused at the relevant point of time, as appearing from the evidence of PW-2, also does not inspire much confidence about her mental ability. 11. That being the evidence by the prosecution witnesses about the state of her mental health, we are of the view that in all fairness, notwithstanding whether the defence had prayed for a medical examination of the accused, she should be examined by a competent psychiatrist to ascertain her state of mind not only for the present but also whether the state of mind had been continuing from the time of occurrence i.e. January, 2014 or even prior to that. 12. We express our reservation about the conviction of the accused by the Trial Court in the teeth of evidence about the mental insanity of the appellant by the prosecution witnesses. It will be a travesty of justice to retain the conviction without she being first examined by a qualified psychiatrist and without his opinion being taken into consideration before passing the final judgment. 13. In such view of it, we set aside and quash the judgement and order impugned in the appeal and send the matter back to the learned Trial Judge. The learned Trial Judge shall request the Director of Health Services, Andaman and Nicobar Administration, Port Blair, to arrange for a psychiatric examination of the accused within the time frame as may be determined by him. 14. The learned Trial Judge shall request the Director of Health Services, Andaman and Nicobar Administration, Port Blair, to arrange for a psychiatric examination of the accused within the time frame as may be determined by him. 14. The Director of Health Services shall submit a report in a sealed envelope before the learned Trial Judge and after getting the report, the learned Trial Judge shall decide the case afresh in accordance with law and the procedure therein. 15. We make it clear that while disposing of the case again he shall not be influenced by the judgement and order impugned in appeal and shall arrive at a fresh decision. 16. With the direction as above, the appeal is disposed of. 17. Let the lower court records be sent back.