VARIETH Vs. STATE

JUDGEMENT

(1.) This is an appeal against a conviction for murder and sentence of transportation for life. One Anthony Varieth was tried by the Sessions Judge of Parur in Sessions Case No. 15 of 1952 for the murder of his wife. The accused's plea was one of insanity. The learned Judge found that the accused had intentionally caused the death of his wife by cutting her with a stickle on the neck, shoulder and head and that the plea of insanity had not been made out. Consequently he convicted the accused under S.302 IPC, and sentenced him to transportation of life. This appeal is filed against the said conviction and sentence, and in the appeal memorandum the name of the appellant is given as Anthony Variath, accused in Sessions Case No. 15 of 1952 in the Sessions Court of Parur, represented by his father Panthalookaran Variath Anthony. The appeal memorandum is signed by the father of the accused, Variath Anthony, as appeal petitioner.

(2.) A preliminary objection was taken by the Public Prosecutor to the maintainability of this appeal. It was contended by him that under S.410 of the Code of Criminal Procedure, it is only a person convicted who can file an appeal, and that it is not open to his father to file an appeal on his behalf. The appeal memorandum in this case shows that the appeal is really by the accused himself and that his father is only representing him and has filed the appeal on his behalf, because he is of unsound mind and incapable of directly filing the appeal himself. It is the accused is really insane, this might be all that could be done; and the appeal filed by a proper representative may have to be treated as one filed in compliance with the provisions of S.410 of the Code of Criminal Procedure. We do not however propose to decide the question in this case as we are satisfied for reasons, which will be stated presently, that even if the appeal is not maintainable, this is a fit case for exercising our revisional jurisdiction under S.439 of the Code of Criminal Procedure and quashing the conviction.

(3.) The trial in this case has been conducted in violation of a mandatory provision of law which has been enacted for preventing grave miscarriage of justice. The Prosecution case against the accused is that, while his children were saying their prayers, he rebuked and beat one of them on his cheek for praying with his face turned to the north, and that when his wife intervened he first beat her and then cut her on the neck, shoulder and head. She is said to have fallen down and died immediately as a result of the injuries inflicted by him. The accused was defended at the trial by a counsel engaged at the cost of the State, and his plea was one of insanity. In paragraph 9 of his judgment the Sessions Judge says:- "It is admitted by the prosecution that about two years prior to the occurrence the accused was suffering from insanity and he was treated in the Mental Hospital for a short period. Before the preliminary enquiry the Magistrate sent the accused to the Government Hospital at Alwaye for observation and report about the mental condition of the accused". After the preliminary enquiry the Magistrate committed the accused, on the 3rd November 1951, to stand his trial in the Sessions Court. When the accused was brought before the Sessions Court for trial on 14.7.1952 his counsel filed a petition stating that he was then showing symptoms of insanity, and should therefore be sent to a Medical Officer for observation. The learned Sessions Judge allowed this petition, and after adjourning the trial sent the accused for observation to the Medical Officer in charge of the Government Hospital, Parur, with a letter dated 15th July 1952. In that letter the Sessions Judge said:- "I am to inform you that Anthony Variethu, accused in Sessions Case No. 15 of 1952 on the file of this Court, is stated to be under some mental aberration and so he is unable to stand his trial before this Court. I therefore request you to keep him under your observation for a few days and forward a certificate to this Court as to his present mental condition". After keeping him for observation for 20 days the Medical Officer, Parur, wrote back to the Sessions Judge saying that the accused "cannot be said to be quite abnormal", and that he should be sent to the Mental Specialist, Trichur, for further examination. Accordingly, the Sessions Judge directed the accused to be kept under observation by the Superintendent of the Mental Hospital, Trichur. After observing him for some time, the Superintendent of the Mental Hospital, Trichur, sent a medical certificate of insanity to the Sessions Judge on 22.2.1953. In that certificate he said that he had personally examined Anthony Variethu, the accused in Case No. 15 of 1952 of the Sessions Court of Parur, and had come to the conclusion that the said Variethu was a lunatic and a proper person to be taken charge of and detained under care and treatment in the Mental Hospital. The grounds on which this conclusion was arrived at were stated as follows in the certificate: "The patient is in a state of unexplicable apprehension, irritable, bad tempered, gets ready to defend, fight or run away". Strangely enough, on the next day, ie., 23.2.1953, the Sessions Judge received another letter from the same Superintendent of the Mental Hospital, Trichur, saying that Anthony Variethu, accused in Sessions Case No. 15 of 1952 was fit to stand his trial and that the certificate of insanity was sent on account of a mistake. Thereupon, the Sessions Judge posted the case to 6.7.1953 for trial, and the trial commenced on that day without conforming to the mandatory provisions of Ss. 465 and 468 of the Code of Criminal Procedure.