STATE OF BIHAR Vs. CHINI SAH

JUDGEMENT

(1.) THIS refers to Death Reference No. 6 of 2000 sent to this Court for confirmation of sentence and also Cr. Appeal No. 515 of 2000, preferred by the convict-'appellant raising a question of defence of insanity for an offence of matricide under Section 302 of the Indian Penal Code and also questioning the legality and validity of the order of conviction and capital sentence, as recorded against him by the learned 12th Additional District & Sessions Judge, Saran, Chapra, in Sessions Trial No. 318 of 1993. Gravamen of the charges against the appellant was about chopping off both the hands and head of his mother, pursuant to which, he was apprehended by the Police and also the public while carrying the cut parts of the body, of his mother, kept in a gunny bag. The appellant allegedly confessed his guilt before the Police and public, pursuant to which, prosecution was launched against him and the trial eventually commenced for consideration of his guilt. In the midst of trial, the appellant raised the plea of insanity. A medical board under the direction of the trial Court was constituted which found the appellant mentally abnormal and a psychiatric patient. He had also advised to refer the appellant to Mental Hospital, Ranchi, for further treatment and in view of finding of the Board, the trial was kept in abeyance for some period. Thereafter, the appellant was sent to Mental Hospital, Ranchi and on his return, he was produced in Court from Jail custody. Thereafter, statement of the appellant was recorded and eventually trial terminated after examination of the defence witnesses and the trial Court in its considered opinion, recorded verdict of guilt under Section 302 IPC against the appellant and sentenced him to death.

(2.) THIS proposition of law has been consistently crystallised in catena of decisions of the Court that, as enjoined under Section 329 of the Code of Criminal Procedure (Cr.P.C.), once a plea of insanity is raised by the accused, it must be determined by recording evidence adduced in support and rebuttal thereof and the finding, one way or the other, must be recorded, and without holding due inquiry and recording a finding thereon, framing of charges and commencement of the trial was violative of mandatory provisions of Section 329 Cr.P.C. There are other aspects of the matter which needs to be taken notice of that when a plea of insanity is set up, firstly, the Court has to consider whether at the time of commission of offence, the accused, by reason of madness of mind, was incapable of knowing the nature of act that he was doing what was either wrong or contrary to law. As was held in a case reported in BLJR 1977 Cri.L.J. 1765 Sarju Marandi and Ors. v. State of Bihar, distinction between incapacity at the time of doing the act charged and incapacity at the time of trial is apparent. While both are induced by unsoundness of mind, the former is substantive which excludes the offender under Section 84, IPC, the latter only affects the procedure and merely postpones the trial, which must be resumed when incapacity, disappears on a future date. As a preliminary condition to the applicability of Section 465 Cr.P.C, it must appear to the Court, before which an accused is brought, that he is of unsound mind and consequently incapable of making his defence. If no abnormality is disclosed, the Court should proceed with the trial and no action under Sections 464 and 465 Cr.P.C. is called for.

(3.) WE have reproduced the order passed on different dates by the Court below in the proceeding simply to demonstrate that repeatedly the point of insanity had been set up in the midst of trial by the appellant. Once the appellant was examined by the Medical Board on 26.3.1996 he was found mentally abnormal and a psychiatric patient when trial was kept in abeyance. Both at the time of framing of the charge and also recording of statement, the appellant wore a vacant look and his face was noticed expressionless in answering the questions put to him. He appeared to be in disordered state of mind, incongrous in his answer and displayed symptoms, which did not conform to the normal standards of behaviour. While framing charge, the learned Additional Sessions Judge too felt that, the appellant was a bit mentally upset. In the backdrop of these sequence of events that transpired during trial, the Additional Sessions Judge was required firstly, to determine as to whether the appellant was insane at the time when he allegedly committed the offence and secondly, before recommencement of trial, when it was postponed, the Court was required to hold an inquiry to render an explicit finding as to whether the appellant was capable to make defence. Though some letters, which are Exhibits-A and B were placed on the record by the appellant, the Court did not render a finding about fitness of the accused to defend himself at trial which betrays lack of sensitiveness on the part of the trial Judge to the issues which he was required to determine.