JUDGMENT & ORDER
This revisional application under Section 397 read with Section 401 of CrPC is directed against order dated 28.08.2009 passed by learned Addl. Sessions Judge, Kamalpur, in case No. ST 25(NT/KMP)2008.
2. Heard learned counsel, Mr. A. Bhowmik for the petitioner and learned Addl. P.P, Mr. R.C Debnath for the State respondent.
3. Facts, in short, necessary for disposal of the revisional application, may be stated thus—
3.1 On 04.04.2008, at about 11/11.30 pm, one Ratan Roy, son of late Jitendra Roy of Muktabilpara, Jail Road, P.S Kamalpur lodged an FIR with the O/C Kamalpur PS alleging that on that day, at about 9.45 pm, unknown miscreant killed his brother Tapan Roy, aged about 38 years by inflicting ‘dao’ blows, and immediately after the occurrence Tapan Roy was shifted to Kamalpur hospital, where he was declared dead by the attending doctor.
3.2 On the basis of that FIR, Kamalpur PS Case No. 27 of 2008 under Section 302 of IPC was registered, and in course of investigation accused Amit Kumar Dey alias Bapan(hereinafter mentioned as ‘accused’) was arrested and produced before the Court of SDJM, Kamalpur on 05.04.2008 On that day the accused was not represented by a lawyer and learned Magistrate remanded him to police custody for ten days. Learned Magistrate also directed the I.O to provide necessary medical aid to the accused.
3.3 On 08.04.2008, the accused was examined in the Sub-Divisional Hospital(B.S.M Hospital), Kamalpur and a medical report was submitted. Thereafter, by order dated 17.04.2008 learned Magistrate directed that the accused should be examined by a Board of Psychiatrists to ascertain whether the accused was a person of unsound mind/schizophrenia and, if so, for how long he was suffering from schizophrenia. Accordingly, a medical Board of eminent psychiatrists of Tripura of Agartala Government Medical College & GBP Hospital was constituted and the accused was examined and the medical Board submitted report on 09.05.2008 certifying that the accused was suffering from schizophrenia. In the meantime, I.O of the case completed investigation and charge sheet was submitted by police and, thereafter learned Magistrate, without determining the issue of unsoundness of mind of the accused as to whether he was capable of making an effective defence, committed the case to the Court of Addl. Sessions Judge, Kamalpur for trial.
3.4 Learned Addl. Sessions Judge, on receipt of the record, registered the case in his file as a Sessions trial case and, thereafter took up the issue as to whether the accused was suffering from unsoundness of mind and was capable of making an effective defence or not as defined under Section 329 of CrPC. In course of inquiry, learned Addl. Sessions Judge examined Dr. Bhubaneswar Roy, chairman of the medical Board as well as Dr. Ashim Choudhury and Dr. Sajal Gupta, members of the medical Board as Court Witness Nos. 1, 2 and 3 respectively and also exhibited the medical report dated 09.05.2008 as Exbt.A Prosecution also examined three medical officers, namely PW1, Dr. Sankar Sarkar, PW2, Dr. Arun Kr. Debbarma and PW3, Dr. Anup Kumar Debnath of the Sub-Divisional Hospital, Kamalpur, who examined the accused on 08.04.2008 while the accused was in police custody and the report submitted by them was proved as Exbt.1 On behalf of the defence, one witness, i.e the father of the accused, namely Dilip Kumar Dey was also examined as DW1. Dilip Kumar Dey proved a bunch of prescriptions in the name of the accused and those are marked as Exbt.C series and Exbt.D series.
3.5 In course of such inquiry, learned Addl. Sessions Judge also examined the accused under Sections 313 of CrPC putting him ordinary questions to test his mental capacity and recorded the answers.
3.6 After considering the evidence collected during inquiry and hearing of learned counsel of both side, learned Addl. Sessions Judge by impugned order dated 28.08.2009 arrived at a conclusion that the accused was insane in medical point of view but from the legal point of view he cannot be treated as such, and therefore he was not entitled to be released under Section 330 of CrPC and, accordingly, arrived at a conclusion that the accused was capable of making his defence.
4. It is submitted by learned counsel, Mr. Bhowmik that on the date the accused was arrested by the police and produced before the learned Magistrate, i.e on 05.04.2008, he was not represented by a lawyer and nobody also appeared in Court on his behalf. On that day he was remanded to police custody till 15.04.2008 and on 15.04.2008 a bail petition was filed on behalf of the accused and a separate petition was also filed with copies of a bunch of prescriptions that the accused was suffering from insanity, and, therefore, prayed for giving proper treatment to the accused. The medical officers of the Sub-Divisional Hospital(BSM Hospital), Kamalpur were not competent enough to examine and opine as to the unsoundness of mind of the accused, and, therefore, learned Magistrate directed examination of the accused by a medical Board of Psychiatrists of Agartala Government Medical College and GBP Hospital and, accordingly, a Medical Board was constituted headed by Dr. Bhubaneswar Roy, the head of the Department of Psychiatrist in the AGMC & GBP Hospital with two other eminent psychiatrist and they thoroughly examined the accused and submitted a report that the accused was suffering from schizophrenia.
In course of inquiry on the issue, submits learned counsel, Mr. Bhowmik that the statements of three psychiatrists of the medical Board were recorded by learned Addl. Sessions Judge in ‘question-answer’ form and the medical officers categorically stated that the accused was suffering from complete mental disorder and his general capacity of judgment was impaired. All the psychiatrists consistently opined that the overall cognitive faculties of the accused were impaired and, therefore the accused was not capable of making an effective defence in the trial against him. It is submitted by Mr. Bhowmik that taking into consideration the allegations in the charge sheet and some other extraneous materials learned Addl. Sessions Judge arrived at a finding that the accused was capable of making his defence and, therefore the impugned order suffer from illegality and impropriety and is liable to be set aside.
5. Learned Addl. P.P, on the other hand, has submitted that might be the accused was suffering from some sorts of unsoundness of mind. Learned Addl. Sessions Judge taking into account the medical report and other relevant factors arrived at a conclusion assigning reason that the accused was capable of making his defence and such finding is not required to be disturbed. He has referred the decisions of the apex Court in the case of Elavarasan v. State reported in (2011) 7 SCC 110.
6. It appears, from the inception the plea of insanity on behalf of the accused was raised before the learned SDJM and he initiated the inquiry as required under Section 328 of CrPC directing examination of accused by a medical Board of Psychiatrists of the principal medical college and hospital of the State, but ultimately he did not arrive at a conclusion about the unsoundness of mind of the accused at the relevant point of time. He committed the case to the Court of Addl. Sessions Judge for trial after receipt of charge sheet. Learned Addl. Sessions Judge conducted the inquiry as required under Section 329 of CrPC but considered the case as if he was deciding a plea of the accused under Section 84 of IPC. There are gulf of difference between an inquiry under Sections 328 or 329 of CrPC and the plea of benefit under Section 84 of IPC during trial. In an inquiry under Sections 328 or 329 of CrPC the Magistrate or the Court of Sessions is required to ascertain whether the accused will be capable of making an effective defence in the trial if taken up against him. Law requires that to arrive at a finding on the issue, the Magistrate or the Court of Sessions is required to record the evidence of the psychiatrist and also to consider other material evidence and thereafter to arrive at a finding. For fair and proper appreciation, let us reproduce here the provisions of Section 329 of CrPC which reads as follows:
“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.
[(1A) If during trial, the Magistrate or Court of Sessions, finds the accused to be of unsound mind, he or it shall refer such person to a psychiatrist or clinical psychologist for care and treatment, and the psychiatrist or clinical psychologist, as the case may be shall report to the Magistrate or Court whether the accused is suffering from unsoundness of mind:
Provided that if the accused is aggrieved by the information given by the psychiatrist or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of—
(a) head of psychiatry unit in the nearest government hospital; and
(b) a faculty member in psychiatry in the nearest medical college.]
(b) for sub-section (2), the following sub-sections shall be substituted, namely:—
[(2) If such Magistrate or Court is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate or Court shall further determine whether unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate or Court shall record a finding to that effect and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if the Magistrate or Court finds that no prima facie case is made out against the accused, he or it shall, instead of postponing the trial, discharge the accused and deal with him in the manner provided under section 330:
Provided that if the Magistrate or Court finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the trial for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused.
(3) If the Magistrate or Court finds that a prima facie case is made out against the accused and he is incapable of entering defence by reason of mental retardation, he or it shall not hold the trial and order the accused to be dealt with in accordance with section 330.”
7. In the present case, the plea of insanity of the accused was taken by the defence on the first date the accused was represented by a lawyer. His medical examination by a Board of psychiatrists was also taken by order of learned SDJM. But even thereafter, the case was committed for trial to the Court of learned Addl. Sessions Judge. Since the plea of unsoundness of mind of the accused was taken, learned Addl. Sessions Judge conducted inquiry and arrived at a definite finding that the accused was suffering from schizophrenia but ultimately concluded that the accused was insane in medical point of view but not in legal point of view.
8. After going through the impugned order dated 28.08.2009, I find that learned Addl. Sessions Judge considered the materials on record as if he was deciding a plea of insanity taken under Section 84 of IPC in course of trial. The conclusion of the learned Addl. Sessions Judge seems to be self-contradictory and cannot stand in the eye of law. In the impugned order considering the evidence of the Court Witnesses, i.e the psychiatrists of the medical Board, learned Addl. Sessions Judge observed in the impugned order thus—
“………It is to be noted here that this court examined the members of the psychiatric board of G.B.P Hospital, Agartala putting them some sets of questions. Most of those questions were taken from Dr. Sir Hari Singh Gour's penal Law of India, 10th Edition, page-698-699. The Medical evidence of Court Witnesses and witnesses for the prosecution mainly P.W 3 Dr. Anup Kr. Debnath who is a MD, Psychiatric show that the accused was a man of schiz-ophrania.
The terms ‘Schizophrania’, indicating a splitting of the mind. The person suffering from schizophrania have in common in the bizarre thought content and odd behaviour, his seeming detachment from the world of reality, the presence of delusions(false belief), illusions(false interpretation of stimuli) and hallucination(perception of non-existant external stimuli), and such person also lacks awareness and understanding of his illness and is disorganised in his social relationship to others. However, there are characteristics of schizophrania like paranoid schizophrania, paranoia and catatonic schizophrania. Paranoid thinking marked by suspiciousness and delusions of persecutions play an important part in such cases of schizophrania. There are often hallucinations of hearing accusing voices, of being shot at with electric currents, cosmic rays or gases, etc. occasionally such person is driven in desperation to kill in supposed self-defence or retaliation against such persecutions. In catatonic schizophrania whose special form of disorder is characterized by excitement, turmoil and marked disorganization of thought and behaviour, may commit serious criminal act. Therefore, the characteristics of the disease has a serious impact on the behaviour of a person suffering from it and as such a disease like schizophrania cannot be looked so lightly as already noted above there is no doubt that accused Amit Kr. De is a person who is suffering from such disease of schizophrania and according to the opinion of the Medical Board of Agartala he was so suffering since the year 2003 A.D
Not-with-standing the fact of such suffering, the law requires that there is to be clear distinction between medico insanity and legal insanity. According to medical science a person may be suffering from any kind of insanity but that does not necessarily mean that he shall be immuned from any criminal liability.
In question No. 5, the Court witness No. 1 deposed that his mental disorder was complete. But in question No. 21 Court witness No. 2 stated that there were some cognitive functions and although it was impaired but only to some extent. Similar question was put to the Court witness No. 3 in question No. 5 what he deposed that the person was fully ill. These witnesses have also confirmed the court that the accused was not a maligner. This led to a presumption of this court that the accused Amit Kr. De has delusions, illusions as well as hallucination whereby his cognitive faculties were impaired.”
9. After the above observation/finding, learned Addl. Sessions Judge taking into consideration the evidence of DW1 that his wife(mother of accused) was also suffering from schizophrenia, whereas, he led his conjugal life with the lady and further taking into consideration that the accused Amit Kumar Dey was a graduate and he had a Xerox machine shop set up in the year 1981 and continued his shop till 2004-05 and further taking into consideration the police report/charge sheet in respect of the alleged commission of crime by the accused and examination of accused under Section 313 of CrPC, etc., arrived at a finding that all cognitive faculties of the accused was not completely impaired because of unsoundness of mind, and therefore he was capable of making defence during trial.
10. The medical Board of Psychiatrists held that the accused was suffering from schizophrenia. The report was submitted on 09.05.2008 Learned Addl. Sessions Judge passed the impugned order on 28.08.2009, i.e almost after one year three months of the examination of the accused by the medical Board. Learned Addl. Sessions Judge also arrived at a definite finding that the accused was suffering from schizophrenia.
11. Let us first see what is ‘schizophrenia’. The ordinary dictionary meaning of ‘schizophrenia’ is a mental disorder involving a breakdown in the relation between thought, emotion, and behaviour, leading to a faulty perception, inappropriate actions and feelings, and withdrawal from reality into fantasy and delusion.
A person suffering from ‘schizophrenia’ has delusions which are bizarre in nature. There is often impulsive and senseless conduct on his part as a result of hallucinations or delusions. The whole personality completely disintegrates. The patient often is in a state of wild excitement, is destructive, violent and abusive. He may impulsively assault anyone without the slightest provocation. The delusions are of a persecutory nature. From the point of view of a psychiatrist, under the term schizophrenia are included those illnesses, in all age groups, which are characterized from the outset by fundamental disturbances in personality, thinking, emotional life, behaviour, interests and relationships with other people.
Schizophrenia involves a tendency for the person to withdraw from the environment and to show an internal disintegration of thinking, feeling and behaviour, resulting in an incongruity between his emotional state and his thoughts and actions, a tendency to form characteristic associations in thinking and a tendency to morbid projection. The disintegration of mental functions in schizophrenia is ‘molecular’ and quite different from the ‘molar’ dissociation found in hysteria and multiple personality. In Schizophrenia the patient, as stated by Linford Rees; tends to become emotionally flattened and to show a loss of natural affection and appropriate emotional reactions to people he formerly loved. He may become insensitive, inconsiderate or even callously indifferent to other people's feeling and experiences. He takes offence readily and tends to isolate himself from his environment and increasingly develops a state of apathy.
Emotional incongruity is one of the most important aspects of the disturbed affect in schizophrenia. There is a lack of agreement between what the patient says and thinks and how he behaves, and how he feels. He may describe intense persecution in a state of indifference or even with cheerfulness. He may show in his facial expression and demeanour a picture of dejection and misery and yet he may feel happy, elated or may have no feeling at all. Schizophrenic patients may also experience an extremely rapid change of emotion within a matter of seconds or minutes; they may be angry, depressed, perplexed, ecstatic and anxious all in rapid sequence. Emotional responses may be quite inappropriate, the patient may smile fatuously in a far-away dreamy state. A knowing smile gives the impression that he understands things that the interviewer knows nothing about. Emotional reactions may be disproportionate and inappropriate to the stimulus and sometimes severe emotional outbursts may appear spontaneously and without any apparent provocation. These may take the form of anger, violence or marked terror and characteristically come out of the blue without warning.
12. Learned Addl. Sessions Judge examined the chairman and members of the medical Board of Psychiatrists in ‘question-answer’ form and in his order he has observed that taking note from Dr. Hari Singh Gour's IPC he has prepared a questionnaire and recorded the answers of the chairman and members of the medical Board of AGMC & GBP Hospital. Dr. Bhubaneswar Roy was the chairman of the medical Board(Court Witness No. 1) and for ready reference and fair appreciation I am inclined to reproduce here the statement of Dr. Bhubaneswar Roy, recorded by learned Addl. Sessions Judge in ‘question-answer’ form, which reads as follows:
“On 7.5.08 I was posted as an Incharge Psychiatric Deptt. of the G.B Hospital and Agt. Govt. Medical College.
1. Have you examined?
Ans. Being the chairman besides two member I have examined Amit Dey.
2. Have you done so on several different occasions, so as to preclude the possibility of your examinations having been made during lucid intervals of insanity?
Ans. I have examined him two times.
3. Do you consider him to be capable of managing himself and his personal affairs?
Ans. I found him partially capable of managing himself and his personal affairs.
4. Do you consider him to be of “unsound mind”, in other words, intellectually insane?
Ans. I found his general judgment impaired.
5. If so, do you consider his mental disorder to be complete or partial?
Ans. It was complete.
6. Do you think he understands the obligation of an oath?
Ans. His abstract ability was not normal.
7. Do you consider him, in his present condition, competent to give evidence in a court of law?
Ans. No he was not so able.
8. Do you consider that he is capable of pleading to the offence of which he now stands accused?
Ans. At that moment he was not so capable.
9. Do you happen to know how he was treated by his friends(whether as a lunatic, an imbecile, or otherwise) prior to the present investigation and the occurrences that have led to it?
Ans. He stopped mixing with his friends.
10. What, as far as you can ascertain, were the general characteristics of his previous disposition?
Ans. I was not much aware about the general characteristics of his previous disposition.
11. Does he appear to have had any previous attacks of insanity?
Ans. Yes.
12. Is he subject to insane delusions?
Ans. Yes.
13. If so, what is the general character of these? Are they harmless or dangerous? How do they manifest themselves?
Ans. It was his believe at that moment that some one is trying to harm him. His delusions was dangerous.
14. Might such delusion or delusions have led to the criminal act of which he is accused?
Ans. The delusion as I found on him during our examination has no relation with the commission of murder.
15. Can you discover the cause of his reason having become affected? In your opinion was it congenital or accidental?
Ans. The cause is not known.
16. If the latter, does it appear to have come on suddenly or by slow degrees?
Ans. Does not arise. However it came in slow degrees.
17. Have you any reason for believing that his insanity is of hereditary origin? If so, please specify the grounds for such an opinion, and all the particulars bearing on it as to the insane parents or relatives of the accused; the exciting cause of his attack; his age when it set in and the type which it assumed.
Ans. On examination we could gather information that his mother and one aunt are psychiatric patient.
18. Have you any reason to suspect that he is in any decree feigning insanity? If so, what are the grounds for this belief?
Ans. It is not a feigning insanity.
19. It is possible, in you opinion, that his insanity may have followed the actual commission of his offence or been caused by it?
Ans. I cannot say.
20. Have you any reason to suppose that the offence could have been committed during a lucid interval, during which he could be held responsible for his act? If so, what appears to have been the duration of such lucid interval? Or on the contrary, do you believe his condition to have been such as altogether to absolve him from legal responsibility?
Ans. There was no lucid intervals in as much as it was a continue one and at best even if he recovers he does not go beyond 50%..
21. Does he now display any signs of homicidal or of suicidal mania or has he ever done so to you knowledge?
Ans. No.
22. Do you consider it absolutely necessary, from his present condition, that he should be confined in a lunatic asylum?
Ans. Treatment is necessary.
23. Do you think that judicious and unremitting supervision out of an asylum might be sufficient to prevent him from endangering his own life, or the lives or property of others?
Ans. Yes. He could be manage.
24. Whether the accused is unable to understand questions and to return intelligent reply?
Ans. He was able to understand question but was unable to return intellectual answer.
25. Do you agree that the science of phychiatry is insufficiently advanced to provide reliable diagnosis?
Ans. Not so developed.
26. Why and how you were convinced that the accused was not a malingar during your examination?
Ans. No. because delusions were there.
27. In such case do you think that the “knowledge of right or wrong” is the real test?
Ans. His abstract ability was impaired.
28. Do you think that Electro encephalograph which record the abnormal brain-ware patterns characteristics of the disease was necessary for diagnosis besides other tests?
Ans. No.
29. How could you come to a conclusion that the cognitive faculties were such that he does not know what he is doing or what will follow from his act?
Ans. His overall cognitive faculties were impaired.
30. From the case in hand is would appear that it was a pre-planed killing and the history of murder does not show that his cognitive faculties were lost?
Ans. I cannot say what was his position on the date and time of the occurrence.
31. Do you think that cognitive faculties of the mind of accused are, as a result of unsoundness of mind, so completely impaired as to render him in capable of knowing the nature of the act or that what he is doing is wrong or contrary to rule of the society or against the law?
Ans. His cognitive faculties were most impaired. However some components were found normal and some were found completely impaired.
32. Whether degree of mental disorder was high?
Ans. There was no examination to ascertain the degree of mental disorder as the medical science does not prescribe any such procedure although we can ascertain the insanity as minor or major one.
33. Whether you have gathered knowledge about the pattern of the crime allegedly committed by the accused for which he was sent to you for examination and report, the circumstance under which it was committed, the manner and method of its execution and the behaviour of the accused before or after the commission of the crime? Do you agree that these information would have furnish you some of the important clues to ascertain whether the accused had no cognitive faculty to know the nature of the act?
Ans. No.
34. Whether there was any family history of insanity.
Ans. Mother and aunt has insanity. Already answered.”
In the statement of Court witness No. 2 and Court Witness No. 3, i.e Dr. Ashim Choudhury and Dr. Sajal Gupta, we find the same observation where the doctors have observed that the overall cognitive faculties of the accused were impaired and he was not capable of giving evidence and also not capable of pleading to the offence. Under such circumstances, I am of the considered opinion that learned Addl. Sessions Judge was not proper in discarding the opinion of the medical experts in respect of the unsoundness of mind of the accused.
13. The evidence of PWs 1, 2 and 3, i.e the medical officers of the Sub-Divisional Hospital, Kamalpur is of no consequence in determining the issue since by order dated 05.04.2005 learned SDJM directed the I.O to give medical aid to the accused and as per that order I.O gave requisition to the SDMO, BSM Hospital, Kamalpur and, accordingly, on the body of the requisition letter itself PWs 1, 2 and 3, i.e Dr. Sankar Sarkar, Dr. Arun Kumar Debbarma and Dr. Anup Kumar Debnath made their observations on examination of the accused and since that examination was not directed by the learned Magistrate in the sense of determining the issue of insanity, the evidence of PWs 1, 2 and 3 requires no consideration for determining the issue.
14. It appears, learned Addl. Sessions Judge considered the evidence of DW1, i.e the father of the accused. DW1 stated that the accused was a graduate and he had a shop of xerox machine set up in the year 1981 and continued till 1984-85. He has also stated that his wife, i.e the mother of the accused was also suffering from schizophrenia but he had conjugal life with the lady. Learned Addl. Sessions Judge also considered the police report/charge sheet in respect of the offence alleged to have committed by the accused for arriving at a conclusion in respect of his finding about insanity. Though law does not permit, learned Addl. Sessions Judge examined the accused under Section 313 of CrPC putting him some ordinary questions. Sub-Section(2) of Section 329 of CrPC clearly embodied that the accused should not be questioned while determining the issue of insanity as to whether the accused would be capable of making an effective defence. Such examination under Section 313 of CrPC of the accused in violation of the legal mandate vitiated the order passed by learned Addl. Sessions Judge.
15. Though the learned Addl. Sessions Judge arrived at a definite finding that the accused was suffering from schizophrenia he has arrived at a conclusion stating that it was a form of medical insanity and not a legal insanity. There is no doubt a difference between the medical insanity and legal insanity which was supposed to be considered at the time of appreciation of evidence on the plea of insanity demanding benefit under Section 84 of IPC. While considering the point of insanity as to capability of taking effective defence as required under Sections 328 or 329 of CrPC, the Magistrate or the Sessions Court supposed to arrive at a conclusion as to whether the accused would be able to make an effective defence.
16. In the case of Dahyabhai Chhaganbhai Thakkar v. State Of Gujarat. reported in AIR 1964 SC 1563 and in the case of Bhikari v. State of Uttarpradesh reported in AIR 1966 SC 1. The Supreme Court while considering the plea of accused taken under Section 84 of IPC has observed—
a] every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law;
b] the court shall presume the absence of such insanity;
c] the burden of proof of legal insanity is on the accused, though it is not as heavy as on the prosecution to prove an offense.
d] the court must consider whether the accused suffered from legal insanity at the time when the offense was committed;
e] in reaching such a conclusion, the circumstances which preceded, attended or followed the crime are relevant considerations; and
f] the prosecution in discharging it's burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of Law that everyone knows the law and the natural consequences of his act.
In the case of Elavarasan (supra) referred by learned Addl. P.P, the same principle has been referred by the apex Court referring to its earlier decision in the cases of Dahyabhai Chhaganbhai Thakker (supra) and Bhikari (supra). In the facts of that reported case while considering the plea taken by the accused at the time of trial under Section 84 of IPC, the Court has held that the accused failed to establish legal insanity and therefore the plea of insanity was not accepted.
17. By medical insanity it is understood the prisoner's consciousness of the bearing of his act on those affected by it and by legal insanity it is meant the prisoner's consciousness in relation to himself. There can be no legal insanity unless the cognitive faculties of the accused are as a result of unsoundness of mind completely impaired. Whether the accused was suffering from medical insanity or legal insanity at the time of commission of offence is a very material issue to be decided but while deciding an issue under Sections 328 or 329 of CrPC if it is found that the accused was suffering from unsoundness of mind and his cognitive faculties were impaired he cannot take an effective defence in the trial to be commenced against him.
18. In the present case, learned Addl. Sessions Judge though arrived at a finding that the accused was suffering from schizophrenia and though it was on record of the medical Board that the cognitive faculties of the accused was impaired, learned Addl. Sessions Judge abruptly arrived at a finding that the accused was not suffering from legal insanity and, therefore capable of making his defence. Such finding cannot stand in the eye of law, and hence, liable to be interfered. Accordingly, order dated 28.08.2008 is interfered and set aside.
19. Every person has a right to a fair trial by a competent Court in the spirit of the right to live and personal liberty. It is to be ensured that the accused get free and fair, just and reasonable trial of the charges in a criminal case. A right of fair trial is a fundamental right of a citizen which shall be ensured by the Court of law. It is to be kept in mind that the procedure prescribed by law is to ensure a fair trial. It is the solemn principle followed in the justice delivery system that justice is not only to be done, it is also to be shown to have done. Where a plea of insanity has been taken and the medical board consisting of expert psychiatrists has arrived at a definite opinion that all cognitive faculties of the accused were impaired and that the judgment capacity of the accused impaired and the accused is not competent to give evidence as well to plead to the offence, I think taking up of trial against him will not ensure justice.
The Supreme Court in the case of Noor Aga v. State of Punjab reported in (2008) 16 SCC 417, has observed—
The extent of right to a fair trial of an accused must be determined keeping in view Article 21 of the Constitution of India as also the International Convention and Covenants chartered in Human Rights. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trial. A fair trial is thus a human right. Such rights are enshrined in our Constitutional Scheme. Justness and fairness of a trial is also implicit in article 21.
In my considered opinion to ensure a just and fair trial to the accused, the trial judge must come to a conclusion based on sound evidence and reason that the accused is capable of making an effective defence.
20. Learned Addl. Sessions Judge is directed to secure attendance of the accused and take appropriate step for further examination of the accused as to whether he can make an effective defence and in the process he may arrange examination of the accused by a board of competent psychiatrists and record the evidence of the medical experts and other evidence and arrive at a finding as to whether the accused is capable of making his effective defence in the event the trial is taken up against him. If he is still found suffering from insanity/unsoundness of mind, he should be released under Section 330 of CrPC. If he is otherwise found fit to make an effective defence, trial should commence against him.
21. The revisional application is accordingly allowed and with the above direction the revisional case stands disposed of.
22. Send back the L.C records along with a copy of this judgment.
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