Allowed

Rasmohan Das v. the State of Tripura

Tripura HC18 Nov 2017Crl.A(J)/57/2016

Case brief

AI extract

What is this about?

The High Court of Tripura set aside the conviction and sentence of the appellant for murder, holding that the trial court failed to properly address the appellant's plea of unsoundness of mind. Despite medical evidence suggesting mental disorder, the trial continued without assessing fitness, violating fundamental fairness.

What did the court decide?

Impugned judgment of conviction and order of sentence set aside; appellant set at liberty forthwith.

Rasmohan Das Vs the State of Tripura — Murder and Culpable Homicide | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA

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AGARTALA

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CRL.A(J) No. 57 of 2016

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Shri Rashmohan Das, at present under the custody of Kendriya Sansodhanagar, Bishalgarh, Tripura

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…………Appellant

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– Vs –

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The State of Tripura

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…………Respondent

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B E F O R E

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THE HON‟BLE THE CHIEF JUSTICE THE HON‟BLE MR. JUSTICE S. TALAPATRA

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For the appellant : Ms. P. Dhar, Advocate For the respondent : Mr. R.C. Debnath, Addl. P.P. Date of hearing of Judgment & Order : 18.11.2017 Whether fit for reporting : NO

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Judgment and Order(Oral)

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(S. Talapatra, J)

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This is an appeal under Section 374(2) of the Cr.P.C. from the judgment and order dated 20.07.2011 delivered in S.T. 10 (WT/K)/2005 by the convict, hereinafter referred to as the appellant.

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One Maya Rani Das (PW-1) lodged an oral ejahar on 26.06.2003 to one S.K. Dey, Inspector of Police from Teliamura Police Station disclosing that in the noon at about 2.00 p.m. on hearing hue and cry from the house of one Khokon Malakar she appeared in their courtyard and found the

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appellant coming out from the dwelling hut of Khokon Malakar with a blood smeared dao in his hand and running towards the western viti hut. The informant raised alarm. From the neighborhood, one Rita Deb came on responding to her alarm. When they entered into the hut, they found Suniti Malakar aged 45 years, wife of Khokon Malakar was moaning with deep cut injury on her left side of the neck and she was lying on the ground in the pool of blood. She also found Khokon Malakar aged 55 years moaning on the wooden cot and he had serious injuries near the right ear. He was bleeding profusely. Both the injured were taken to Teliamura Hospital by the rickshaw of one Khitish Das. Suniti Malakar died in the hospital and Khokon Malakar was taken to G.B.P. Hospital, Agartala from Teliamura Hospital. The appellant was caught and handed over to the police in an injured condition.

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Based on the said ejahar, Teliamura P/S Case No. 84/03 under Section 449/326/302 of the IPC was registered and taken up for investigation. On completion of the investigation, the final police report charge-sheeting the appellant was filed. As the case was exclusively triable by the court of Sessions, it was committed to the court of the Additional Sessions Judge, West Tripura, Khowai. The charge was framed against the appellant under Section 326 and 302 of the IPC to which the appellant pleaded innocence and claimed to be tried.

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To substantiate the said charge, the prosecution adduced as many as 12 (twelve) witnesses and introduced 7

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(seven) documents (Exbt. 1 to 7) in the evidence. From the defence, no evidence has been laid.

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Ms. P. Dhar, learned counsel appearing for the appellant has submitted that despite a plea raised under Section 84 of the IPC, the said aspect was very casually considered by the trial court. Ms. Dhar, learned counsel has further submitted that it would be apparent from the evidence that the appellant was incapable of knowing the nature of the act or that what he was doing is either wrong or contrary to law by reason of unsoundness of mind. In this regard, Ms. Dhar, learned counsel has referred the petition filed under Section 334 read with Section 311 of the Cr.P.C. on 27.11.2007 before the Additional Sessions Judge, Khowai, West Tripura in S.T. 10 (WT/K) of 2005 [from the police station case as aforementioned]. In the said petition, as it appears from the records, it has been categorically pleaded that the appellant was suffering from mental disorder on or before 07.03.1996. From the prescription of one Dr. M. Chakraborty (Shyamal) dated 07.03.1996, the history of unsoundness of mind would be found. In paras 3, 4 and 5 of the said petition, it was asserted by the defence as under :

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“3. That, after examining the Incharge Psychiatric Dept. G.B.P. Hospital by this Ld. Court who opined before this Ld. Court that the accd. is a psychiatric patients on 5.1.06 Ld. Court resume the trial of the instant case and send the accd. to asylum at Agartala for his treatment.

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4. That, the alleged incident took place on 26.6.03 and during the period from 7.3.96 to 5.1.06 the accd. person was by reason of unsoundness of mind incapable of

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knowing the nature of the act alleged as constituting the offence or that it was wrong or contrary to law.

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5. That, the In-charge of Psychiatric Dept. G.B.P. Hospital as well as the doctors who attended the present accd. are required to be examine in this case for fair ends of justice and for just decision of this case.”

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On those premises, a prayer was made for acquittal of the appellant herein. The trial court asked for the report “about his treatment”.

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In the order dated 27.11.2007 filing of the said petition for acquittal under Section 334 read with Section 311 is recorded. But the trial court continued the examination on the appellant under Section 332 of the Cr.P.C. The appellant was also asked to enter on his defence and adduce evidence, if any. But the appellant declined to adduce any evidence. In the order dated 14.12.2007, it has been recorded that the appellant was sent to Agartala Central Jail from Khowai Sub Jail for his production for treatment before the Psychiatric Department of G.B.P. Hospital, Agartala as he was found suffering from mental disorder as reported by Dr. Bimal Krishna Bhowmik, In- Charge, Department of Psychiatric, G.B.P. Hospital, Agartala on 17.08.2005. Based on such report, the order dated 05.01.2006 was passed for production of the appellant before the Department of Psychiatrics, G.B.P. Hospital, Agartala. Accordingly, the appellant was produced. On 02.02.2006, 07.02.2006 and thereafter on 28.2.2006. In the order dated 14.12.2007, it has been observed as under by the trial judge :

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“There is no document submitted today to show that the accused was produced after 28.2.2006 to Psychiatric

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Department. At the same time there is no report from the Department of Psychiatric that the accused is mentally sound to take his defence. It is very suspicious to notice that without getting any report from the Psychiatric Department how the Medical Officer of Central Jail, Agartala opined that the accused is physically fit. At the same time it is also mysterious how the Superintendent, Central Jail Agartala recommended for his production on the basis of report of Medical Officer, Dr. P. Dhar Chowdhury.

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In view of the above position, it is seen that the Central Jail, Agartala did not perform their duty for the purpose for which the accused was sent there and without getting any clearance from Psychiatric Department the accused is sent back.”

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In that background, the Superintendent, Central Jail Agartala was asked to appear in person before the trial court and to showcause why the appropriate action will not be taken against him for non-compliance against the order dated 05.01.2006. In view of the order dated 14.12.2007, the pronouncement of the judgment was deferred. It appears that on 21.01.2008, the said Superintendent appeared in person and explained his conduct. On 15.02.2008, the Superintendent submitted his reply in writing and stated that at the relevant point one Mr. S. Sarkar was the Superintendent of Central Jail, not he (Mr. A.S. Jamatia). Therefore, the court again asked for personal appearance. On 28.02.2008, the former Superintendent appeared in the trial court and sought for time for filing the reply. In that order, it has been observed as under:

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“It appears from the record that without obtaining report from the Psychiatric Department, G.B.P. Hospital, Agartala about the mental condition of the accused

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he was sent back which is a serious laches on the part of the Central Jail, Agartala.

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Since the accused was sent back without treatment and hence the accused is again sent to Central Jail, Agartala through Sub Jailor, Khowai Sub Jail for his treatment in Psychiatric Department, G.B.P. Hospital, Agartala.

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Superintendent, Central Jail, Agartala is directed to submit report to this Court as per provision of Section 39 of Prisoners‟ Act about the mental condition of the accused Rash Mohan Das failing which the matter will be viewed seriously.

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Ld. Chief Judicial Magistrate, West Tripura, Agartala is requested to pass necessary order of remand for the accused Rash Mohan Das time to time till the accused has ceased to be of unsound mind.

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The accused Rash Mohan Das is remanded to J.C. till 17.3.2008 and in the mean time Sub Jailor, Khowai Sub Jail to produce the accused Rash Mohan Das before the Central Jail, Agartala for his treatment as stated above.”

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It appears from the subsequent order dated 17.06.2008 that no substantive assessment was made regarding the mental health of the appellant. In this regard, the court has categorically observed that there was “gross negligence” on the part of the Superintendents of the Central Jail who were held by the trial court as “inefficient and callous officers”. From the order dated 17.06.2008, it transpires that on 20.03.2008 and 14.05.2008, the appellant was produced before the Department of Psychiatrics at the G.B.P. Hospital but no report was produced before the trail court till 22.07.2008. On 22.08.2008, the report from the said department was received by the trial court and the trial court has observed on perusal of the said report as under :

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“It appears from the medical examination report given by Doctor Sajal Gupta that the accused Rash Mohan Das is suffering from psychotic disorder. The Medical Officer also opined that he is fit for trial at present. Both the opinions of Doctor Gupta appear to be self contradictory. If a patient is suffering from psychotic disorder how he can be fit for trial at present? Such type of contrary report of Medical Officer is undesirable. That being the contrary opinions of Medical Officer the report cannot be accepted. Since the accused is suffering from psychotic disorder as opined by the Medical Officer, it appears to me that the accused is still incapable of making his defence for which trial cannot be resumed at this stage and requires further treatment till he has ceased to be of unsound mind.”

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[Emphasis added]

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Thereafter, the trial was deferred for a considerable long time waiting for the report from the Superintendent Central Jail, Agartala till 03.04.2010. During that period, the trial was put on hold for the report from the Superintendent of the Central Jail.

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This court is really surprised to note that no effective order against the Superintendent of the Central Jail for non-compliance of the trial court was passed. On 03.04.2010 the report was placed before the court with observation that the appellant was fit to face the trial. Even though, a petition for recalling the doctor namely Dr. M. Chakraborty, Dr. B.K. Bhowmik and Dr. S.K. Dey who had examined the appellant was filed under Section 311 of the Cr.P.C., but from the order dated 24.07.2010, it emerges that the said petition was not pressed by the amicus curie defending the appellant. However, by the order dated 28.08.2010, as it appears, the trial court in

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pursuance to the earlier order insisted for examination of Dr. Sajal Gupta, Psychiatrist who had examined the appellant. In the same order, the trial court had observed as under :

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“Now in this case this Court finds that the case was adjourned u/s 329 Cr.P.C. as during trial the accused Rasmohon Das was affected by lunacy thereafter treatment was made and the medical officer also had submitted his report within the meaning of Section 331 of Cr.P.C. informing that the accused is fit to face the trial and as such summons was issued to the medical officer for satisfaction of this Court. In a criminal trial during prosecution evidence the evidence of the accused person cannot be taken. If the accused wants to prove any document either he can prove the document by drawing the attention of the prosecution witnesses or by adducing evidenced according to his choice. But to support a plea of the accused the Court cannot allow the prayer of the accused to examine some witnesses u/s 311 Cr.P.C. before the appropriate time for adducing D.W. However, record shows that already 313 Cr.P.C. examination of the accused is over and during that time the accused was asked whether he will adduce any D.W. and he replied in negative.”

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[Emphasis added]

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Thereafter, on 03.09.2010 after recording the

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statement of Dr. Sajal Gupta (PW-12) it has been observed by the trial court as under :

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“I have perused the statement of said Court witness. From his statement it revealed that the certificate which he issued in respect of the present accused was not sent to this Court by the Jail Authority and the medical officer attached to the Central Jail, Agartala only gave any opinion in respect of the accused basing on the report of this Court witness. It is also clear that the Court witness Sajal Gupta made a specific opinion in the month of February, 2010, that the accused was fit to face trial within two months and also prescribed some medicine which is to be continued and

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also opined that follow up action to be taken after two months. Since, it is not evident from the record that whether the follow up action was taken after two months or not so, he could not give any opinion that at present the accused is fit to face trial or not.

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This being the position, I ask the Supdt. Khowai-Sub Jail to produce all the documents relating to original prescriptions and history recorded by the medical officer in respect of the accused, before the Court positively within three days so that further order can be made in respect of the accused to ensure speedy disposal of this case. ”

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On 06.09.2010, the record as asked for was

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produced in the court.

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From the order dated 10.11.2010, it appears that the court was satisfied on the fitness certificate given by the examining doctor that the appellant was fit at that point of time and in the said order dated 10.11.2010, the trial court has observed thus :

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“The documents as received from the Jail authority in respect of ailment of the accused showed that on 10.11.08 the Incharge of the Department of Psychiatry, AGMC, G.B. Hospital, Agartala, opined that the accused was not fit for trial as he was still suffering from unsoundness of mind. Subsequently this Court received some medical reports of Dr. Sajal Gupta who opined that from the period from 25.2.10 for two months the accused was fit for trial. Said Dr. Sajal Gupta was also examined by this Court as witness when stated that he could not say that at present whether the accused is a man of sound to face the trial or not and he opined that after his examination of the accused the trial should be completed within two months.

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This being the position, to begin with the trial it is necessary for the Court to establish that the accused is not suffering from unsoundness of mind. His activities and appearance in the Court shows that the accused is not totally free from

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unsoundness of mind. So, I again remand the accused to j/c till 7.1.2011.

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Supdt. Khowai Sub-Jail is asked to arrange for medical examination of the accused by the Dept. of Psychiatry, AGMC, G.B. Hospital, Agartala, or any other institution of similar nature, within one month and to produce the accused before the Court immediately after his treatment if he is found sound to face the trial and for that purpose the Supdt. Khowai SubJail is allowed to shift the accused to the Central Jail, Agartala, for which no separate order of this Court would be necessary.”

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On 07.01.2011, a further medical report was produced before the court. From that report, the court came to a conclusion that the appellant was fit for facing the trial and Dr. Sajal Gupta was reexamined by the trial court under Section 311 of the Cr.P.C. In this regard it is to be noted that in the order dated 07.05.2011 the court had observed as under:

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“On perusal of the evidence of Dr. Gupta I am satisfied that the accused at present is no longer prevented due to insanity or any other cause to know the consequences of the trial and he is thus fit to face trial. This is an old pending case. This case was dragged at the stage of argument after completion of the accused u/s 313 Cr.P.C. on the ground that the accused is not fit for facing trial due to some mental disorder. So, fix the next date for argument.”

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The judgment was delivered on 20.07.2011

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convicting the appellant under Section 302/326 of the IPC and on hearing, he was sentenced to suffer imprisonment for life with fine of Rs.10,000/- in default of payment, further rigorous imprisonment for 1 (one) year under Section 302 of the IPC. The appellant was further sentenced to suffer rigorous imprisonment for 5 (five) years and fine of Rs.5000/- in default thereof to suffer rigorous imprisonment for 6 (six) months

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under Section 326 of the IPC. The said judgment and order is under challenge in this appeal.

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Mr. R.C. Debnath, learned Addl. P.P. appearing for the state has submitted that to derive advantage of the general exception, it is the defence onus to prove that the accused is covered by such exception. He has made a reference to Section 105 of the Indian Evidence Act and contended that the prosecution is to prove the commission of offence and the defence is to prove the unsoundness of mind. But in this case, the defence is utterly failed to discharge such onus and hence, no ground for interfering with the judgment of conviction and the consequential order of sentence has been made out.

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On the face of the submissions made by the learned counsel for the parties, this court has scrutinized the records to explore how the trial court had dealt with the aspect of unsoundness of mind of the appellant. The extracts of the relevant orders have been reproduced to demonstrate the procedural profile. There cannot be any amount of debate that Section 105 of the Evidence Act has clearly laid down that the burden of proving the existence of “circumstances bringing the case within any of the General Exception in the Indian Penal Code” or within any special exception or proviso contained in any other part of the same code lies on the person who intends to derive such benefit. Whether the appellant was non compos mentis i.e. unsoundness of mind, jurisprudentially meaning incapable of knowing the nature of the act has to be established by the accused.

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16. In Dahyabhai Chhaganbhai Thakkar versus

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State of Gurjat reported in AIR (1964) SC 1563 the apex court had occasion to observe that when a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is a time when the offence was committed. Whether the accused was in such a state of mind or would be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime. If is found that the conduct of the accused „from the time he killed his wife upto the time, the sessions proceeding commenced‟ was in consistent with the fact that he had a fit of insanity, he killed his wife then, no benefit under Section 84 of the IPC can be extended to the accused.

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In State of H.P. versus Gian Chand reported in (2001) 6 SCC 71 having relied on Dahyabhai (supra) , the apex court had observed as under :

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“The only provision of law relevant to the plea of the accused is Section 84 of the Indian Penal Code, 1860 which provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Such is neither the plea nor evidence adduced by the accused. In Dahyabhai case relied on by the High Court, this court has held :

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“9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.”

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The High Court has picked up and quoted another passage from the judgment dealing with burden of proof according to which the burden of proof on the accused is no higher than that which rests upon a party to civil proceedings and it is sufficient if the evidence adduced by the accused raises a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence including mens rea of the accused though not establishing conclusively the plea of insanity at the time of commission of the offence.”

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18. In Dharmendrasinh alias Mansing Ratansinh

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versus State of Gujrat reported in (2002) 4 SCC 679 , the apex court had occasion to observe on how the burden by the defence would be discharged :

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“The prescription of the treatment given to the appellant in the hospital should have been brought in the record or the doctor who may have treated him could be produced to show that the appellant suffered from any mental illness. Obviously these facts if at all, would be in the special knowledge of the defence and in case the defence wanted to take advantage of any such ground of mental illness, this plea should have been substantiated by adducing relevant and cogent evidence. No circumstance has been indicated on the basis of which any such inference could be drawn. We therefore, find no force in this argument as advanced on behalf of the appellant.”

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19. In Shrikant Anandrao Bhosale versus State

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of Maharashtra reported in (2002) 7 SCC 748 the apex court had elaborately dwelled upon the aspects of the burden of proof in order to prove unsoundness of mind vis a vis Section 105 and to derive the benefit of Section 84 of the IPC. For purpose of reference, the relevant passages are reproduced hereunder :

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“13. The burden to prove that the appellant was of unsound mind and as a result thereof he was incapable of knowing the consequences of his acts is on the defence. Section 84 IPC is one of the provisions in Chapter IV IPC which deals with "general exceptions". That section provides that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. The burden of proving the existence of circumstances bringing the case within the purview of Section 84 lies upon the accused under Section 105 of the Indian Evidence Act. Under the said section, the court shall presume the absence of such circumstances. Illustration (a) to Section 105 is as follows :

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"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

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The burden of proof is on A."

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14. The question whether the appellant has proved the existence of circumstances bringing his case within the purview of Section 84 will have to be examined from the totality of circumstances. The unsoundness of mind as a result whereof one is incapable of knowing the consequences is a state of mind of a person which ordinarily can be inferred from the circumstances. If, however, an act is committed out of extreme anger and not as a result of unsoundness of mind, the accused would not be entitled to the benefit of exception as contained in Section 84 IPC. In fact, that is the contention of the learned counsel for the State. It was contended

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that the prosecution evidence has established that the appellant by nature was an angry person and under a fit of extreme anger, he committed the murder of his wife as there was a fight between them that morning and there is nothing to show that at the relevant time the appellant was under an attack of paranoid schizophrenia.

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15. At this stage, it is necessary to notice the nature of the burden that is required to be discharged by the accused to get benefit of Section 84 IPC. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat [(1964) 7 SCR 361] this Court has held that even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. The burden of proof on the accused to prove insanity is no higher than that rests upon a party to civil proceedings which, in other words, means preponderance of probabilities. This Court held that : (SCR pp. 367-68)

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"The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions : (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a

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reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."

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16. In support of the contention that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 IPC is the time when the offence is committed, the learned counsel relied upon the following passage from the aforenoticed case : (SCR p.370)

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"When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime."

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17. Undoubtedly, the state of mind of the accused at the time of commission of the offence is to be proved so as to get the benefit of the exception.

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18. We have already noticed earlier that unsoundness of mind preceding the occurrence and following the occurrence stands proved. It has rightly not been questioned by learned counsel for the State. Regarding the state of mind of the accused at the time of commission of offence, in our opinion, ordinarily that would be an aspect to be inferred from the circumstances. Further, as earlier noticed, the nature of the burden of proof on the accused is no higher than that which rests upon a party to civil proceedings.

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19. The circumstances that stand proved in the case in hand are these:

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1. The appellant has a family history- his father was suffering from psychiatric illness.

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2. Cause of ailment not known - heredity plays a part.

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3. The appellant was being treated for unsoundness of mind since 1992 - diagnosed as suffering from paranoid schizophrenia.

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4. Within a short span, soon after the incident from 27.06.1994 to 05.12.1994, he had to be taken for treatment of the ailment 25 times to hospital.

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5. The appellant was under regular treatment for the mental ailment. 6. The weak motive of killing of the wife - being that she was opposing the idea of the appellant resigning the job of a Police Constable.

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7. Killing in day light - no attempt to hide or run away.

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20. Mr. Arun Pednekar relies upon Sheralli Wali Mohammed v. The State of Maharashtra [(1973) 4 SCC 79] to contend that mere fact that the appellant did not make any attempt to run away or that he committed the crime in day light and did not try to hide it or that the motive to kill his wife was very weak, would not indicate that at the time of commission of the act the appellant was suffering from unsoundness of mind or he did not have requisite mens rea for the commission of the offence. It is correct that these facts itself would not indicate insanity. In the present case, however, it is not only the aforesaid facts but it is the totality of the circumstances seen in the light of the evidence on record to prove that the appellant was suffering from paranoid schizophrenia. The unsoundness of mind before and after the incident is a relevant fact. From the circumstances of the case clearly an inference can be reasonably drawn that the appellant was under a delusion at the relevant time. He was under an attack of the ailment. The anger theory on which reliance has been placed is not ruled out under schizophrenia attack. Having regard to the nature of burden on the appellant, we are of the view that the appellant has proved the existence of circumstances as required by Section 105 of the Evidence Act so as to get the benefit of Section 84 IPC. We are unable to hold that the

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crime was committed as a result of extreme fit of anger. There is a reasonable doubt that at the time of commission of the crime, the appellant was incapable of knowing the nature of the act by reason of unsoundness of mind and, thus, he is entitled to the benefit of Section 84 IPC. Hence, the conviction and sentence of the appellant cannot be sustained.”

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Shrikant Anandrao Bhosale has considered Dahyabhai (supra) and observed that extreme and uncontrolled anger cannot be treated as unsoundness of mind or that the accused did not know the nature of the act and it has been unequivocally held that the state of mind of the accused at the time of commission of the offence is to be proved to derive the benefit from Section 84 of the IPC.

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From the records it appears that the petitioner was examined under section 313 on 06.12.2007 whereas the deposition of CW-2, Dr. Sajal Gupta was recorded on 03.09.2010. On 07.05.2011 again CW-2 was examined on recall as PW-12 under Section 311 of the Cr.P.C. But no further examination under Section 313 was carried out thereafter, though CW-2 (PW-12) has clearly deposed against the defence of unsoundness of mind.

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Let us now revisit the evidence as led by the prosecution as no evidence has been introduced by the defence. The informant, Mayarani Das (PW-1) has stated that on 26.03.2003 while she was cooking in her house, she heard the cry of Suniti Malakar, the wife of Khokon Malakar. She rushed to their place and saw the appellant with a blood- stained dao in his hand. In the dwelling hut, she discovered Suniti Malakar

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lying in the pool of blood with throat-cut. She found Khokon Malakar lying with serious cut injuries on his face and ear. She raised alarm being extremely and the neighboring people rushed in to the place of occurrence. The villagers took the injured persons to Teliamura Rural Hospital. She made an oral ejahar to the police who came to the place of occurrence. She identified the said ejahar. In the cross examination she did not deviate from her statement.

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PW-2, Smt. Rita Deb stated in the trial that she saw the appellant running away from the dwelling hut carrying a blood stained dao in his hand. On entering the dwelling hut, she found Khokan and Suniti Malakar in a severely injured condition. She also did not deviate in the cross examination.

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PW-3, Krishnadhan Das is a seizure witness of blood stained earth from the place of occurrence. PW-3 is the husband of PW-1 and he stated that he heard the incident from her.

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PW-4, Bidhu Bhushan Deb arrived at the place of occurrence on hearing the alarm of PW-1. He heard the narrative of assault from PW-1. He has also confirmed in the trial that he saw Suniti and Khokon Malakar lying inside the hut with multiple cult injures on their person. Suniti Malakar succumbed to her injures in the Teliamura Hospital. He did not deviate in the cross examination, however, the defence made attempts to locate some omission in his statement.

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PW-5, Hira Kumar Malakar is also seizure witness

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of blood stained earth (Exbt. MO-1). He also did not deviate.

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The most important witness in the prosecution case is PW-6, Khokon Malakar who suffered injuries at the hand of the appellant. The relevant part of his testimony is reproduced hereunder :

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“On the 11th day of Ashad before last Ashad on Thursday at noon I was taking rest in my house lying on my bed. My wife was taking „Pan‟. At that time suddenly Rash Mohan Das entered my house being armed with a dao. Before I could understand anything he dealt a dao blow on the throat of my wife. Then she fell down on the floor of my house. As soon as I raised alarm, Rash Mohan Das jumped on me and he dao blows on my face, neck and head indiscriminately resulting in serious cut injuries on my person. Profuse blood was coming out of my wounds. The accused dealt four dao blows on my face and head. On hearing the cries of my wife and myself, first of all my neighbor Smt. Maya Rani Das rushed to my house and she was followed by another neighbor Rita Deb. I cannot say what happened thereafter because I became unconscious. I regained my sense after 17/18 days at G.B. Hospital, Agartala. I had undergone treatment in the G.B. Hospital, Agartala for about a month. After regaining of my sense I learnt that my wife succumbed to her injuries at Teliamura Rural Hospital on the same day of occurrence.”

¶145

In the cross examination, no dent could be

¶146

created in the statement of PW-6.

¶147

PW-7, Sri Kitan Das appeared in the place of occurrence in the aftermath of gruesome incident.

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PW-8, Sri Sajal Das had also appeared in the place of occurrence in the aftermath of the said incident. PW-8 is another seizure witness of the weapon of offence, dao.

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PW-9, Dr. Bimal Krishna Bhowmik (CW-1) examined the appellant on 17.8.2005. He has categorically stated as under :

¶152

“On various examination of the patient I found that the patient was suffering from mental disorder and thereby he was not capable of taking his defence. He identified the medical examination report (Exbt.3).”

¶153

[Emphasis added]

¶154

During the period from 06.06.2005 to 07.05.2011 the witnesses were examined. PW‟s-1 to PW‟s-8 were examined and cross examined from 06.06.2005 to 08.06.2005. On 17.08.2005, after examination doctor found him suffering from serious mental disorder.

¶155

PW-12, has categorically stated that on 08.12.2010 he had examined the appellant and found him fit to defend himself.

¶156

From the records as referred above, it was found that till 10.11.2010 there was no medical report as to the fitness of the appellant. On 07.05.2011 PW-12 stated in the court that the appellant was fit to defend himself. After examination of PW-9, the trial court ought to have recalled all the witnesses and waited for the recovery of the appellant from the unsoundness of mind. The transaction of the offence as gathered from the testimony of PW-6 would demonstrate that the act of the appellant was not prompted by mens rea. PW-6 did not attribute any motive for such attack. It was suddenness and not provoked. To transact in the manner as stated is

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unlikely from a person having soundness of mind. It creates reasonable doubt in soundness of mind.

¶160

This court has reasons to believe that when the petitioner had acted in the gruesome manner he was not in a position of knowing the nature of the act that he was doing whether it was wrong or contrary to law. The trial court did not at all notice at this aspect of the matter. Even there was no question from the court (under Section 165 of the Evidence Act).

¶161

Having scrutinized the records, we find that without exploring from when the appellant was suffering from serious form of unsoundness of mind, the entire trial had taken place. Thus, no real defence was available to the appellant. Even for lackadaisical approach of the defence counsel (the amicus curie) no step was taken for examination of the appellant before the trial commenced. The cumulative effect was that a person of unsoundness of mind was charged and tried under Section 302/326 of the IPC. In the process, the appellant convicted and sentenced as stated. The orders as reproduced herein before bear the testimony. When the trial was carried out, the appellant was suffering from unsoundness of mind and he was not fit to defend himself. For last about fourteen years the appellant has been languishing in jail. We have seen the nature of care provide to the accused who had been suffering from unsoundness of mind. What has happened we have no hesitation to hold is nothing short of travesty of justice. We do not have any other alternative but to set aside

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and quash the impugned judgment of conviction and the order of sentence. It is ordered accordingly.

¶165

Having regard to the state of mental health of the appellant and his incarceration we are also not inclined to direct to recommence the trial. The appellant, therefore, shall be set at liberty forthwith, if he is not wanted in any other case.

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In the result the appeal stands allowed.

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Send down the LCRs forthwith.

JUDGE

CHIEF JUSTICE

Sabyasachi. B

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