Judgment & Order (Cav)

1. Heard Mr. D K Bhattachharya, learned counsel for the petitioner. Also heard Mr. B Sarma, learned counsel appearing for the respondent No. 2.

2. This appeal is directed against the Judgment & Sentence dated 22.03.2022. passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 155/2014, whereby the petitioner/appellant was convicted under section 304 (Part-1), IPC and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5,000/- (Five Thousand) only and in default to suffer simple imprisonment for further 2(two) months.

3. The prosecution case in a nutshell is that on the basis of verbal intimation received on 20.01.2014 at around 8:30 P.M. from one Sibaprasad Medhi regarding the murder of one Prabin Medhi, a Morigaon Police Station G.D. Entry, being G.D. Entry No. 484 dated 20.01.2014, was recorded. On the basis of this Entry, the police started investigation into the matter on that very night. They proceeded to the place of occurrence and took the present appellant into custody for the alleged offence. On the very night of 20.01.2014, the police had conducted the inquest at the place of occurrence and forwarded the dead body of the deceased for post-mortem examination.

4. On 21.01.2014 at about 10:00 A.M., one Ratul Medhi, i.e. the Respondent no. 2 herein, who is the brother of the appellant, lodged a First Information Report inter alia stating that on 20.01.2014 at around 7-8 P.M., his brother Ratan Medhi killed their uncle Prabin Medhi at their courtyard by inflicting axe blows on the person of Prabin Medhi. It was alleged that while the appellant was quarrelling with his father, Jiban Medhi, the deceased, Prabin Medhi had come there to mediate on the issue when the appellant had inflicted the axe wounds. Based on the said FIR dated 21.01.2014, Morigaon P.S. Case No. 23/2014 was registered as against the appellant herein under section 302, IPC.

5. That during investigation, the I.O. arrested the accused person/ appellant, visited the place of occurrence, seized an axe which was the alleged weapon of the offence and also seized the woolen sweater of the deceased Prabin Medhi. The axe and the woolen sweater were sent for FSL examination to the Directorate of Forensic Science, Kahilipara. On the basis of the FSL report, post mortem report, and materials collected during investigation, on 31.07.2014, the Investigating Officer filed charge-sheet against the appellant under section 302, IPC.

6. That, thereafter, on appearance of the accused person and after purportedly observing necessary formalities, the offence being exclusively triable by a Sessions Judge, the case was taken up for trial by the Learned Sessions Judge, Morigaon. On appearance of the accused and after considering the materials on record, on 18.12.2014, the Learned Trial Court framed charges under section 302, IPC, against the accused person to which the accused person pleaded not guilty and claimed to be tried.

7. In course of trial, prosecution examined as many as 14 (fourteen) witnesses, including the investigating officer and the medical officer. After closure of the prosecution witnesses, the accused person/ appellant was examined under Section 313, Cr. P.C.

8. On consideration and appreciation of the evidence of the aforesaid witnesses, the Learned Trial Court vide Judgment and order dated 22.03.2022 convicted the accused /appellant under section 304 (Part I), IPC, and sentenced him to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs. 5,000/- (Rupees Five thousand only) and in default to suffer simple imprisonment for further 2(two) months.

9. That, it maybe pertinent to mention herein that though the appellant was granted default bail undersection 167 Cr.P.C., his bail bonds were not accepted and he was still kept under judicial custody as during the said period he was kept at the LGBI Mental Institute, Tezpur, in respect of his treatment for Schizophrenia. However, on his purported discharge from the mental institute, his bail bond was accepted and he was thereafter released.

10. Pursuant to the impugned judgment and order dated 22.03.2022, the appellant was sent to jail. It is stated that being poor and without any resources to pursue his appeal, neither he nor his family members were able to file the necessary appeal against the judgment and order dated 22.03.2022. However, on 13.03.2023, when a team from 'Studio Nilima': Collaborative Network for Research and Capacity Building (an organization engaged in facilitating access to justice to marginalized inmates imprisoned in the correctional homes of Assam) had visited the District Jail, Morigaon, it was apprised of the plight of the applicant herein. Thereafter, certified copies of relevant documents pertaining to the Applicant's trial were procured on 18.03.2023. Subsequently, on 05.04.2023, the Applicant herein authorized the Director of Studio Nilima, to execute his Affidavit in, and contest, the instant Appeal on his behalf. Only thereafter, steps were taken to prefer the present appeal on behalf of the applicant herein.

11. That even as of today, the Appellant herein is being administered medication for schizophrenia and schizophrenia-related symptoms, under the District Mental Health Programme, Morigaon Civil Hospital. As of 18.02.2023, the Appellant was being regularly prescribed with 10 milligrams (mgs) of Olanzapine and 4 mgs of Risperidone, which are drugs specifically meant for treatment of schizophrenia, bipolar disorders, and mania. He was also being administered 2 mgs of Lorazepam, which is used to treat anxiety disorders, inter alia. He is also being prescribed with 2 mgs of Trihexyphenidyl, which is used to treat tremors and spasms. He is also being prescribed 5 mgs of Zolcalm, which is used to treat insomnia. He has been regularly administered these medicines in 30-day schedules, under the above- mentioned Programme, since 27.12.2021.

12. It is submitted that the Learned Trial Court failed to consider the fact that there have been gross violations of the provisions of Section 328 and 329 Cr.P.C. before proceeding with the trial against the appellant herein. The Ld. Trial Court completely ignored the import of the admitted fact that the appellant had to be admitted at Lokopriya Gopinath Bordoloi Regional Institute of Mental Health (LGBRIMH), Tezpur, for his treatment for schizophrenia before the commencement of the trial. Under such circumstances, strict compliance of the provisions of Sections 328 and 329, Cr.P.C., was necessary to ascertain whether the appellant was fit to stand trial before proceeding with the trial against him. However, to the contrary, the Ld. Trial Court refrained from considering any evidence regarding the appellant’s fitness to stand trial. Not even a single document was marked as an exhibit to demonstrate this either. Under such circumstances, the entire trial of the appellant becomes non est in law and the impugned judgment and order which culminated from such non est trial cannot be allowed to stand and therefore liable to be set aside and quashed.

13. It is further submitted that the learned Trial Court failed to consider the fact that the doctors who had been treating the appellant for his mental illness, i.e. Dr. J. Dutta of Morigaon Civil Hospital and the Superintendent, LGBRIMH, Tezpur, were never examined to ascertain if at all the appellant was fit to stand trial and enter into his defence. The learned Trial Court only relied on an unexhibited discharge report of the appellant from the LGBRIMH, Tezpur, stating that the appellant was fit to stand trial. However, the said discharge certificate was neither exhibited nor was the person who had issued the same examined to ascertain as to whether the accused was fit to stand trial. Under such circumstances, the trial of the appellant cannot be considered to be a proper trial and the impugned judgment and order is liable to be set aside and quashed on this ground alone.

14. It is urged that it is settled law that recording of statement under section 313 is not a mere formality and the same cannot be simply seen as a part of audi alteram partem. Section 313 Cr.P.C. confers a valuable right upon the accused to establish his innocence and can well be considered not merely a statutory right but also a constitutional right to a fair trial under Article 21 of the Constitution of India. However, in the present case, the Learned Trial Court had itself recorded in its orders dated 30.01.2015, 07.02.2015, 13.02.2015, 16.03.2015, 09.04.2015 and 19.05.2015 that the appellant was suffering from mental psychosis and schizophrenia and was undergoing treatment at the LGBRIMH, Tezpur. Thereafter, all of a sudden, vide its order dated 20.06.2015, on the basis of an unexhibited document, the Ld. Trial Court observed:

                   "Seen the report received from LGBRIMH Tezpur, accused Ratan Medhi is discharged from hospital and fit to stand trial at present".

15. The learned Trial Court ought to have judiciously exercised its powers conferred under section 329 Cr.P.C. before proceeding with the trial. Moreover, while examining the appellant under section 313, Cr.P.C., it ought to have satisfied itself regarding the mental health of the appellant and his capacity to understand the questions put to him at that stage. Such non-consideration of vital aspects of the appellant’s mental health renders the entire trial non est in law and on the back drop of such material infirmities, the impugned judgment and order are liable to be set aside and quashed, submitted by the learned counsel.

16. At this stage it would be apposite to refer to the part of the impugned judgment wherein the Learned Trial Court has dealt with the aforesaid aspect of the matter.

17. The Learned Trial Court has observed as follows:-

                   “…..At this I would like to mention here that though in the course of argument hearing learned advocate for the accused has argued that accused was not mentally fit, but from the evidence available on record, particularly from the admission of PW 4, the father of the accused during crossexamination, it revealed that 'The accused was mentally ill prior to that incident. At the time of incident, the condition of the accused was not so bad.' Moreover, the wife of the accused PW 12 in her evidence has categorically admitted that accused is suffering from sleeping disorder only. Her husband can do other activities. He can count money, sometimes he makes wrong counting due to his mental disorder. He can do other activities like taking meals, bath etc. He also knows to show care to his daughter and her. His other activities are found to be good. He only creates problems wherever he does not feel sleepy. Apart from above, during long trial process, no plea of mental illness was taken and accused regularly attended the court and was found mentally fit even during his examinations u/s 313 Cr.P.C. Hence the plea of mental ailment neither exist on the date of incident nor even during trial and hence said plea raised by the learned advocate for the accused could not be accepted.”

18. For a proper appreciation of the issue at hand, the relevant provision of law is quoted herein below:

                   “329. Procedure in case of person of unsound mind tried before Court.— (1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.”

19. A bare reading of the aforesaid provision leaves one in no manner of doubt that as and when it appears to the Magistrate or Court that the accused is of unsound mind and consequently incapable of making his defence, such Magistrate or Court has no option but to try the fact of such unsoundness and incapacity. It is only after considering the medical and other evidence that may be produced before such Magistrate or Court and on being satisfied regarding the fact of such unsoundness or incapacity as the case may be, the Magistrate or Court is required to record a finding to that effect and to postpone further proceedings in the case.

20. A perusal of the order sheet in Sessions Case No. 155 of 2014 would show that it is reflected in the Order dated 30.01.2015 that it appears from the behavior of the accused that he is suffering from ailment and it was directed that the accused be produced at Morigaon Civil Hospital.

21. Subsequently, as reflected in the Order dated 13.02.2015, he was examined by the psychiatrist at Morigaon Civil Hospital and on that date, the said psychiatrist Dr. J. Dutta was present in the Court and submitted his report and as per the report, it is disclosed that the appellant/accused is provisionally diagnosed as suffering from a major mental disorder and needs further treatment regularly and immediately and that he is not in the position of a normal person at present.

22. After personal hearing of Dr. J. Dutta as well as the accused, the learned Court formed the opinion that the accused was incapable of making his defence due to his mental disorder and hence the trial of the case was postponed under the provisions of Section 329 CrPC till his recovery.

23. It is further seen from a subsequent Order dated 19-05-15 that a report was received from LGBRIMH, Tezpur stating that the accused, Ratan Mehdhi, was examined and diagnosed as having schizophrenia and was undergoing treatment. However, within one month thereafter, the following order came to be passed:

                   “The P.O. is on leave. Accused Ratan Medhi is produced from custody. He is remanded to custody till the next date. Seen the report received from LGBRIMH, Tezpur, accused Ratan Medhi is discharged from hospital and fit to stand trial at present. Hence, the case is fixed for evidence ."

24. Therefore, what transpires from the above is that the learned Judge who was in charge of the Court of the Sessions Judge, Morigaon on that day, merely on the basis of the report and without affording any opportunity to the accused, straightaway fixed the case for evidence. Neither was the said report exhibited nor was the doctor who submitted the said report examined in order to determine whether the appellant was indeed fit to stand trial.

25. At this point, Section 331 CrPC may be referred to, which reads as follows:

                   “Section 331. Resumption of inquiry or trial. (1) Whenever an inquiry or a trial is postponed under section 328 or section 329, the Magistrate or Court, as the case may be, may at any time after the person concerned has ceased to be of unsound mind, resume the inquiry or trial and require the accused to appear or be brought before such Magistrate or Court.”

26. Therefore, Section 331(1) CrPC empowers the Magistrate to resume the trial at any time when the person concerned has ceased to be of unsound mind. Whether the person concerned has ceased to be of unsound mind is naturally a matter of inquiry for which evidence is required to be taken from the psychiatrist or the doctor who submitted the report regarding his mental condition.

27. This view finds support from the provisions of Sub-section 2 of Section 332 CrPC which provides as follows:-

                   “Section 332(2)--- If the Magistrate or Court considers the accused to be still incapable of making his defence, the Magistrate or Court shall act according to the provisions of section 328 or section 329, as the case may be, and if the accused is found to be of unsound mind and consequently incapable of making his defence, shall deal with such accused in accordance with the provisions of section 330.”

28. Obviously, the Magistrate or Court cannot consider the accused to be still incapable of making his defence without again trying the fact of unsoundness of mind as envisaged under sub-section (1) of Section 329, which mandates the Magistrate or Court to consider such medical and other evidence as may be produced before him or it, and also obliges such Court or Magistrate to record a specific finding to that effect. However, no such independent finding is discernible in the order dated 26.06.2015 reproduced above, which was passed without any further inquiry and solely on the basis of the medical report, which itself is not on record.

29. In the case of Bangla Bhagti versus the State of Assam reported in (2012) 1 GLR 115, a Division Bench of this Court had observed as follows:-

                   “37. As provided by section 329, Cr.PC, the trial court, dealing with a person of unsound mind, in the first stance, is required to try the fact of such unsoundness and incapacity. In the present case, as per the report issued by the LGBRIMH, Tezpur the accused had recovered considerably, thereby meaning that he did not recover fully. That apart, subsequently, he was required to be sent to the Psychiatry Department, Silchar. The trial Court, on the basis of the report (not proved) issued by the petitioner, Psychiatry Department, Silchar Medical College Hospital concluded that the accused was fit to face trial. In fact, the learned Judge neither recorded as to what were the findings regarding mental health of the accused, nor examined the Medical Officers, who examined/treated the accused and submitted the reports. Therefore, it is found that the learned trial Judge did not try the fact regarding unsoundness and incapacity of the accused.”

30. A similar state of affairs appears to have prevailed in the present case also, whereby the learned Court below proceeded to resume the trial merely on the basis of a medical report which was not even proved, let alone making any further inquiry or affording any opportunity to the accused to participate in such inquiry.

31. Furthermore, the manner in which the learned Trial Court, in the impugned judgment, has sought to explain away the mental condition of the accused/appellant on the basis of the evidence of non-medical witnesses cannot be accepted in view of the provisions of Sections 329, 331 and 332 CrPC, which are to be resorted to prior to proceeding with the trial or the resumption thereof.

32. In view of the above discussion, this Court has no hesitation in holding that the trial stands vitiated due to non-compliance with the statutory provisions as indicated above and accordingly, the impugned judgment and order is set aside.

33. Since the appellant was convicted and sentenced after a full trial and has also undergone part of the punishment, a de novo trial after accompliance with the provisions of Section 331 Cr.P.C and other connected provisions would fall foul of Article 22(2) of the Constitution of India, which bars the prosecution and punishment of a person twice for the same offence. Consequently, the appellant stands acquitted. He be set at liberty forthwith.

34. The appeal stands allowed on the aforesaid terms.

35. Send back the TCR.