1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Geeg Singh vs. The State of Raj. D.B. Criminal Jail Appeal No.557/2002 against the judgment dated 24.6.2002 passed by the learned Additional Sessions Judge (Fast Track), Jalore in Sessions Case No.65/2001. Date of Judgment: February 15 , 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. HON'BLE MR. BHANWAROO KHAN,J. Mr.Hemant Dutt,Amicus Curiae for the appellant. Mr. V. Kachhwa,P.P. for the State. ... REPORTABLE BY THE COURT( Per Hon'ble Mr.Tatia,J): The appellant Geeg Singh s/o Samrath Singh, by-caste Rajput, resident of village Chaurau of District Jalore was charged for committing the offence of murder of one Magha Ram,a young boy of 16 years only and has been convicted by the judgment dated 24.6.2002 passed by the learned Additional Sessions Judge(Fast Track), Jalore under Section 302, IPC and has been sentenced to 2 life imprisonment and a fine of Rs.1000/- and, in default of which, sentence of one year rigorous imprisonment under Section 302,IPC. Hence this appeal has been preferred by the accused-appellant to challenge his conviction and sentence. As per the prosecution case, a written FIR( Ex.P.9) dated 28.12.2000 was submitted by the complainant PW-7 Dhanna Ram at 6.15 p.m. before the S.H.O., Police Station, Sayala stating therein that he and his son Magha Ram went for grazing his sister's son Kera Ram s/o Malaji's cattle on 28.12.2000 at about 5 p.m. Some of the cattle were sick and remained behind and he (Dhanna Ram) was with their cattle. Magha Ram s/o complainant Dhanna Ram was going ahead of the complainant with other cattle and when he reached near the agricultural field of Samartha, he saw the accused Geeg Singh running with axe in his hand. Accused Geeg Singh with intention to kill his son Magha Ram, inflicted two blows of axe on the head of complainant's son Magha Ram. Magha Ram instantly fell down. The complainant Dhanna Ram ran towards his son and at the same time, two other persons Veerma Rebari and Harsan Rebari both resident of Chaurau, who were passing through and saw the incident, also rushed towards the place of occurrence and reached there. The complainant tried to catch hold of the Geeg Singh but he ran in nearby forest. It is also alleged that 3 accused Geeg Singh's brother Bhera was also standing near his Dhani and also saw the incident. The victim was taken to the hospital at Sayala in jeep of one Paras Sant. The doctor at Sayala, looking to the seriousness of the victim, referred him to Jalore. When they were about to start for Jalore, the victim Magha Ram died and, therefore, the body of deceased Magha Ram was kept in the vehicle which is lying in Sayala Hospital and Magha Ram's father Dhanna Ram went to report the matter to the Police Station, Sayala. On this report, Case No.182/2000 was registered under Section 302 IPC. During investigation, statements of various witnesses were recorded. The Panchnama was also prepared and the shirt of the deceased was also taken. The site inspection report was also prepared and the weapon of offence axe was recovered and the post-mortem report was obtained. The accused Geeg Singh was arrested and challan was submitted in the court. The charge under Section 302, IPC was framed against the accused and the accused denied the charge of committing offence of murder of Magha Ram and sought trial. The prosecution examined PW-1 Manga,PW-2 Jethu Singh, PW-3 Dilip Singh, PW-4 Sahi Ram, PW-5 Madhu Singh, PW-6 Abbu 4 Khan, PW-7 Dhanna Ram, PW-8 Veerma, PW-9 Harsan, PW-10 Dr. Kesav Kotwani, PW-11 Parasdas Sant and PW-12 Shanker Singh. The documents referred above were also exhibited. The statement of the accused was recorded under Section 313,Cr.P.C. In defence from the side of the accused, statements of DW-1 Bheru Singh, who is brother of the accused, DW-2 Dr.V.K. Rajdan, DW-3 Balwant Singh and DW-4 Pahad Singh were recorded. The prosecution witnesses Dhanna Ram, Veerma and Harsan were confronted with their statements given under Section 161, Cr.P.C. In defence, medical slips of the appellant in support of the plea that the accused was insane at the time of commission of offence, were produced. The trial court convicted the accused-appellant under Section 302, IPC after rejecting the defence of the accused- appellant that he was insane at the time of commission of offence and, therefore, is entitled to be acquitted under Section 334, Cr.P.C. and sentenced him as aforesaid. The learned counsel for the appellant tried to challenge the finding of conviction on merits also even after submitting that the accused was insane at the time of commission of offence and was suffering from schizophrenia and, therefore, he is entitled to be 5 acquitted under Section 334, Cr.P.C. So far as merit in the case of the prosecution case is concerned, it appears that the incident took place at about 5 p.m. and the FIR was lodged by the victim's father Dhanna Ram (PW-7) in the Police Station at about 6.15 p.m on the same day. In his statement PW-7 Dhanna Ram, who is eye-witness, fully supported the prosecution case. He clearly stated that at the time of incident, the accused came with an axe and the accused inflicted two blows of axe on the head of his son Magha Ram. Magha Ram fell down instantly. He ran towards his son and Veerma and Harchand (Harsan) also saw the incident and ran towards Magha Ram. Geeg Singh ran with the axe in the nearby forest. PW-8 Veerma and PW-9 Harsan are also eye-witnesses and fully supported the prosecution case. Credibility of these witnesses remained intact in cross-examination and there is no reason to disbelieve these witnesses. According to the learned counsel for the appellant, Dhanna Ram, in his statement in the trial court, stated that accused demanded one goat from his son Magha Ram and that was not the statement of PW-7 Dhanna Ram before the police. According to the learned counsel for the appellant, because of this improvement in 6 the statement of Dhanna Ram, Dhanna Ram's statement may be discarded. We are unable to subscribe the view expressed by the learned counsel for the appellant, in view of the fact that Dhanna Ram's statement so far as commission of offence by the accused- appellant Geeg Singh is concerned, that is unambiguous, clear and reliable and he was in position to see the incident and his statement finds support from the statements of other witnesses PW-8 Veerma and PW-9 Harsan. Dhanna Ram's statement also finds support from the medical evidence. Dhanna Ram stated that the appellant inflicted two blows from the axe on the head of Magha Ram and Dr. Keshav Kotwani (PW-10) proved the two injuries on the head of the victim Magha Ram. Dr. Kotwani stated that both the injuries were caused by sharp edged weapon and the victim died because of the above injuries and both the injuries were sufficient in the ordinary course of nature to cause the death. We need not to refer other evidence in detail in view of the fact that substantially the contention of the learned counsel for the appellant is that the trial court committed serious error of law by not acquitting the accused on account of his being unsound mind at the time of commission of offence. Before proceeding to decide the question whether the 7 accused-appellant was man of unsound mind at the time of commission of alleged act of killing victim, we would like to consider Section 84, I.P.C. and Sections under Chapter XXV of the Code of Criminal Procedure, as in cases an act which is offence otherwise is committed by a person when he was man of unsound mind then that act is not an offence as per Section 84, I.P.C. and if Magistrate or the court found the accused appearing to be of unsound mind, Magistrate during enquiry and the court during trial, can proceed as per procedure given under Chapter XXV of the Code of Criminal Procedure and in this case, an application under Section 329, Cr.P.C. was submitted for postponement of trial due to unsoundness mind of accused, upon which the accused was sent to Mental Hospital of Dr.S.N. Medical College, Jodhpur and that hospital submitted report that the accused is schizophrenic patient. It appears that the case was committed to the court of Sessions on 7.3.2001 and was registered on 23.3.2001. On 23.3.2001 itself, an application was submitted by the counsel for the defence under Section 329 Cr.P.C. stating therein that the the accused-appellant was insane at the time of commission of offence and today also he is insane. He was given treatment by Dr. 8 V.K.Rajdan, the expert for mental diseases during the period from 1998 to 2000. The medical prescriptions were also submitted along with the application. It was prayed that before the trial, the issue may be enquired and till then, the trial may be stayed. On 6.9.2001, the trial court observed that it is necessary to enquire into the matter about insanity of the accused. The trial court directed accused to produce the doctor who gave treatment to him as per documents produced by the accused and the accused was also allowed to produce the witness through court process. Neither the doctor was produced nor was summoned by the accused. However, on 20.10.2001, learned counsel for the accused prayed that the court itself enquire the mental condition of the accused as it is the duty of the court to enquire the mental condition of the accused. On 20.10.2001, after hearing the counsel for the accused, the trial court ordered that the report may be called from the Jail Superintendent, Jalore about the behaviour of the accused-appellant. The trial court observed that after receipt of the report from the Jail Superintendent, in case there will be any necessity, the matter will be enquired further. As per the order dated 5.11.2001, the Jail Superintendent submitted report that the accused is suffering from mental disease and he was under 9 treatment for mental disease at Jodhpur. The accused appears to be insane. The trial court also in the same order, recorded the conduct of the accused who was not responding the court's any question and was looking blank only. The court also observed that prima facie, the accused is not appearing to be of sound mental health and, therefore, the trial court directed the Superintendent of the mental disease department of the MDM Hospital, Jodhpur to examine the accused-appellant and submit report about the mental condition of the accused. For this, letter was sent to the MDM Hospital, Jodhpur on 8.11.2001. The Mental Hospital, Jodhpur of the Medical College, vide letter dated 17.11.2001, informed the court that the accused has been admitted in the hospital for investigation. Ultimately, the trial court was informed vide letter dated 18.12.2001 that after investigation, it was found that the accused is suffering from the disease schizophrenia and his treatment has been started. On 31.12.2001, the mental authorities again informed that the patient was admitted in the hospital and he was found suffering from schizophrenia disease and was given treatment for that disease. After treatment, his mental condition has improved and he is in position to get the treatment outside the hospital, therefore, orders may be issued for his release from the 10 hospital. The court vide its letter dated 7.2.2001 enquired from the hospital that whether accused is fit and can be tried in this case ? In response to the court's letter dated 7.2.2001, the Mental Diseases Center, S.N. Medical College, Jodhpur vide letter dated 15.2.2002 informed the court that the accused is suffering from the disease schizophrenia and after the treatment of the accused, his mental condition has improved and he is fit to understand the court's proceedings. After the report dated 15.2.2002 of the Mental Diseases Center of S.N.Medical College, Jodhpur, the trial court vide order dated 20.2.2002 decided to proceed with the trial of the case. The charges were framed on 2.3.2002 and thereafter, witnesses were examined and ultimately the accused was convicted and sentenced to life imprisonment. It will be worthwhile to mention here that in the letters referred above, the doctors already opined and declared that the accused-appellant was old patient of the disease schizophrenia. Those reports which were submitted in the court in pursuance of the order of the trial court under Section 329, Cr.P.C. are the part of the record and its correctness has not been disputed by the prosecution. In view of the opinions received from the Mental Diseases Department of the S.N. Medical College, Jodhpur, the 11 appellant was patient of schizophrenia and when he was sent to Department of Mental Diseases of the Medical College, the accused was not in position to understand the court proceedings and though the learned Sessions Judge did not pass specific order to postpone the trial of the case but the court started proceedings in the case only after receipt of the medical report dated 15.2.2002 certifying that the accused can understand the court proceedings. Section 84 of the Indian Penal Code says 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.” Therefore, if an offence is committed by a person in the state of unsoundness of mind and due to that he is not capable of knowing the nature of the act or consequence thereof and is not understanding that what he is doing is wrong then the act is not offence. Therefore, such person is required to be acquitted in the light of Section 84 of the Indian Penal Code. In the same way, a person of unsound mind, during trial, cannot know what is going on in court and he also cannot knows what he should do and also cannot put his defence. When person cannot put his defence then purpose of trial itself frustrate. 12 The accused who may be of unsound mind and was not capable of knowing the nature of the act and its consequence, may be of man of understanding during trial, which depends upon the facts of each case. Under Chapter XXV of the Code of Criminal Procedure, provisions have been made when the accused is found lunatic or of unsound mind by the court when the court is seized with the trial of the criminal case with respect to the act committed by the such person. As stated above, in view of the Section 84 and in view of the provisions made under Chapter XXV of the Code of Criminal Procedure, if the person is fit and of sound mind and capable to understand the court proceedings, then only can be tried for the offence which he might have committed, in either case whether he was man of sound mind or of unsound mind at the time of commission of offence. An accused of offence may take a defence under Section 84 of the Indian Penal Code and may prove that though during trial, after committing the act which was offence, he became man of sound mind but he was man of unsound mind at the time of commission of offence and, therefore, entitled to be acquitted in the light of Section 84 and it may be held that the act committed by the accused which would otherwise have been an offence, is not offence because of reason that at the time 13 of commission of offence, the accused was of unsound mind and was incapable of knowing the nature of his act and its consequences. Such person's sound mind during trial is irrelevant for the purpose of Section 84, I.P.C. As per Section 329,Cr.P.C., when a Magistrate or court of Sessions holding a trial of any person has reason to believe that the person against whom trial is being held is of unsound mind and consequently, incapable of making his defence, then the Magistrate or the court is required to try the fact of such unsoundness of mind and incapacity. If the Magistrate or the court is satisfied from evidence which may be produced before it, the Magistrate or the court, as the case may be, is required to record a finding to that effect and is required to postpone further proceedings in the case. The court has been given power under Section 330, Cr.P.C. to release such accused who was found of unsound mind under Section 328 or 329, Cr.P.C. and in case, the court decides to release the accused on bail, then it can be on sufficient security obtained about taking proper care of the accused as well as the security for preventing the accused from doing injury to himself or to any other person. While releasing on bail, the court can also 14 direct for appearance of such person before the court or any officer which may be appointed by the court. As per sub-section(2) of Section 329,Cr.P.C., it is specifically provided that the trial of the fact of unsoundness of mind and incapacity of the accused, shall be deemed to be part of his trial before the Magistrate or court. The Section 330,Cr.P.C. applies in both the cases, that is, when person is of unsound mind during enquiry before the Magistrate or he is of unsound mind during trial before the Magistrate or before the court of Sessions. In case enquiry or the trial is postponed under Section 328 or under Section 329, it may be resumed at any time after the person concerned has ceased to be of unsound mind as per Section 331 or 332, Cr.P.C.. When such accused is produced before the Magistrate or the court and the Magistrate or the court considers him capable of making his defence then only the trial can proceed as per sub-section (1) of Section 332, Cr.P.C. and the Magistrate or the court considers the accused to be still incapable of making his defence, the Magistrate or the court is again required to proceed in accordance with Sections 328 and 329,Cr.P.C., as the case may be and may release the accused on bail under Section 330,Cr.P.C. When the accused appears to be of sound mind at the time of enquiry or trial and the case is triable by the court of Sessions 15 then the Magistrate is required to commit the case for trial before the court of Sessions under Section 333,Cr.P.C. and if such accused -person is acquitted in view of Section 84, I.P.C. and as per Section 334,Cr.P.C., then the court is required to record specific finding whether the accused has committed the act or not. It is worthwhile to mention that as per Section 334, Cr.P.C., the court is required to record finding about commission of act by a man of unsound mind only and it is not finding against the person of committing of offence, because the act of such person because of his specific condition is merely an act and not offence as per Section 84. As per sub-section (1) of Section 335,Cr.P.C., whenever a finding states that the accused person committed the act alleged, as required under Section 334,Cr.P.C. and that act is not offence merely because of incapacity found of the accused, then the court is required to pass an order of detention of such person in safe custody in such place and manner as the court may think fit or may order that such person be delivered to any of the relatives or to the friend of such person. At this stage also, the order to detain the accused in lunacy asylum can be made under clause (a) of sub- section (1) of Section 335,Cr.P.C. only in accordance with the rules 16 which may be framed by the State Government under the Indian Lunacy Act, 1912. There is a bar against the delivery of accused to a relative or friend under clause (b) of sub-section (1) of except upon the application of such relative or friend and on his giving security to the satisfaction of the Magistrate or court that the person delivered shall be properly taken care of and will be prevented from doing injury to himself or to any other person and will be produced for inspection of such officer and at such times and places, as the State Government may direct. The Magistrate or the court, as the case may be, is required to send report to the State Government of the action taken by the Magistrate or the court under sub-section (1) of Section 335, Cr.P.C. In the case in hand, on the first day when the case was registered after committal before the court of Sessions, an application was submitted on behalf of the accused through his advocate with a request that the trial may be postponed and the mental state of the accused may be enquired. The trial court found reason to hold enquiry with respect to mental condition of the accused and sought report from the Jail Superintendent with respect to the day to day working of the accused by order dated 12.10.2001, who in turn, informed the court that the accused 17 appears to be not of sound mind. He was sent to Mental Hospital of MDM Hospital of Dr. S.N. Medical College, Jodhpur, four to five times but he was given only slipping pills and was sent back. The jail authorities opined that the accused was not in his fit state of mind and he is not aware of his day to day activities. The trial court directed the jail authorities to examine the accused again from the department of Mental diseases of MDM Hospital, Jodhpur and the court received the reports referred above, from the Dr.S.N. Medical College, Jodhpur, with the finding that the accused was suffering from schizophrenia. However, on 31.12.2001, the Medical College informed that yet the accused is suffering from schizophrenia but he is in position to take his treatment outside the hospital but did not certify that the accused can understand the court proceedings and ultimately, on 15.2.2002, the court was informed that the accused is in position to understand the court proceedings. The court did not proceed with the trial till it received the report from the Medical Officer that the accused is in position to understand the court proceedings. The defence did not question trial by the court which took place after receipt of the medical opinion about mental state of 18 the accused and permitted the trial court to frame charge and record statements of various prosecution witnesses and thereafter deliver the judgment which resulted into conviction of the appellant. In appeal, during course of argument, the only question raised by the learned counsel for the appellant is that the appellant was insane and of unsound mind at the time of commission of offence and, therefore, whatever he has done, is not offence in view of Section 84, I.P.C. At this juncture, we would like to comment on the manner in which the investigating agency acted. The learned Sessions Judge noticed the conduct of the accused and recorded so in its order dated 5.11.2001. The jail authorities, even before that noticed behaviour of the accused and sent him for treatment from the doctors of mental diseases at hospital of the Medical College, Jodhpur. The doctors of department of the Mental Diseases of Dr.S.N. Medical College, Jodhpur observed that the accused was and is suffering from schizophrenia. Bheru Singh, the brother of the accused disclosed mental condition of the accused to the police during investigation with his clear statement that the accused is insane and is of violent nature also, which is apparent from the statement of said Bheru Singh recorded by the police 19 under Section 161, Cr.P.C. on 3.2.2001. Yet, the investigating agency did not enquire about