AJI ALIAS AJITH KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT was convicted and sentenced to imprisonment for life and a fine of Rs.50,000/- and in default, simple imprisonment for six months for the offence under section 302 of Indian Penal Code by the I Additional Sessions Judge, Kozhikode in S.C.No.603 of 2005.

(2.) THE prosecution case is that accused married deceased Sheeba 2= years earlier to the date of the incident and they were residing at Goodallur and a child was born in that wedlock. On 15.10.2003, accused along with his wife and child came to the family house of Sheeba. Sheeba was then pregnant. Appellant suspected that he is not responsible for the said pregnancy of Sheeba. On 17.10.2003, at about 3 p.m., accused inflicted an injury on the neck of Sheeba with intention to cause her death, from the bed room while she was feeding the child and thereby caused her death and committed the offence under section 302 IPC. When the final report was filed, the case was committed to Sessions Court, by Judicial First Class Magistrate-I, Thamarassery. The learned Sessions Judge took the case on file and made it over to the First Additional Sessions Court, for trial. Appellant was produced before the learned Sessions Judge and he was defended by a counsel of his choice. When charge for the offence under section 302 IPC was framed, read over and explained, appellant pleaded not guilty. Prosecution examined 17 witnesses, marked 15 exhibits and identified 7 material objects. After closing the prosecution evidence, the accused was questioned under section 313 of Code of Criminal Procedure. He denied the incriminating evidence put to him and filed a written statement contending that he was cultivating plantains and earning livelihood. In 2002, he sustained loss in the cultivation and from Onam 2003 onwards, he was mentally disturbed and therefore, came to Kozhikode for treatment from a Psychiatrist and started residing in his wife's house. He came to know later that his wife sustained injury and died. He got that information only while he was in Central Prison, Kannur. He has no knowledge as to what transpired after he reached his wife's house. While he was in Central Prison, Kannur, he was treated at District Hospital, Kannur for mental illness. After he was released on bail, he was treated for mental illness in Mental Health Centre, Kuthiravattom, Kozhikode and is even now under the treatment for mental illness.

(3.) LEARNED counsel appearing for the appellant pointed out that as borne out from the records, the learned Magistrate, before committing the appellant to the Sessions Court, did not comply with the mandatory provisions of Section 328 of the Code. It was pointed out that the records show that on 6.6.2005, appellant was produced before the Magistrate along with a report on his mental condition which does not disclose that he was mentally fit to stand for trial and therefore, the learned Magistrate called for a further report on the mental fitness of the appellant to stand for trial and though the case was committed on 22.8.2005, no certificate or report was received from any doctor stating that appellant was fit for trial. It was also pointed out that the learned Magistrate did not conduct any enquiry and did not record that he is satisfied that appellant was fit to stand for trial and therefore, the order of committal is vitiated and if the committal order is vitiated, the learned Sessions Judge has no jurisdiction to try the appellant and therefore, the entire trial is vitiated. The learned counsel relied on a Division Bench decision of this Court in State v. Baby (1981 KHC 13).