Decided on December 09,1952

STATE Respondents


Narayan, J - (1.) THIS is an appeal by one Chetu Mushar who has been convicted under Section 302, Penal Code, by the learned Sessions Judge of Monghyr for the murder of his wife Musammat Sarbatia and sentenced to transportation for life.
(2.) THE short case put forward by the prosecution was that at about 10 a. m. on 15-1-1951, Musammat Sarbatia shouted in her room that she had been killed. She ran out of the room, but fell down in the angan. THE accused, however, followed her from the room with a bloodstained tengari in his hand. Rameshwar (P. W. 2) who also lived in the same angan raised an alarm, and then his brother Dhane-shwar (P. W. 1) came to the angan and found Musammat Sarbatia fallen on the ground. THE accused was standing there with the tengari in his hand. Rameshwar and Dhaneshwar then snatched the tengari from his hand and took him to the house of one Bishwanath who directed Rameshwar to bring the chaukidar. THE village chaukidar then came to the house of the accused and after having been told about the occurrence went to the thana and lodged the first information. THE Sub-Inspector after recording the first information report took up the investigation, and after the investigation was complete, he submitted charge-sheet against the accused. We find that the trial held by the learned Sessions Judge in this case is completely vitiated, because the allegation as to the un-soundness of mind of this appellant was not investigated, and the provisions of Section 465 of the Code were not complied with. It appears from the order-sheet of the learned Sessions Judge that during the cross-examination of the first witness Dhaneshwar Mushar it transpired that the accused was insane and that his insanity had continued untill the day of the trial. The learned Sessions Judge observed that the trial could not proceed if he was insane even on that day, and he further noted in the order-sheet that after having put certain questions to the accused he was not able "to understand fully as to whether he was insane or sane at present". He, therefore, directed that the accused should be placed under medical observation, and the Civil Surgeon of Monghyr was asked to report about the sanity of the accused. The order of the learned Sessions Judge in this connection runs as follows: "It is, therefore, necessary to have him placed under medical observation with a view to understand his medical condition at present. If the Civil Surgeon, under whose observation the accused will be placed for a week, certifies that he is at present insane, then an inquiry is to be made under Section 468, Cr. P. C. The Civil Surgeon will please keep the accused under his observation for a week or more, as he thinks necessary and report whether at present his mental condition is such as to make him unfit to follow the proceedings in this Court. The trial is adjourned to 16-5-1951. P. Ws, and assessors to reattend on that date and they have been so directed." In the deposition of P. W. 1 who had made a clear statement to the effect that the mind of the accused had been deranged ever since he lost his son about two years back and that he had remained a pagal after his son's death up till the date he was deposing in this case, the learned Sessions Judge has made the following note: "At this stage the Court put a few questions to the accused in order to understand if he can follow the proceeding. Not being satisfied after putting a few questions the accused is put under the observation of the local Civil Surgeon and the case is adjourned to 16-5-51." Not only P. W. 1 but also P. W, 2 had deposed before the Court that the accused had been mentally deranged ever since he lost his son. It is this witness who had gone to the chaukidar, and he has stated that he had told the chaukidar as well that the accused was not mentally sound. These are the two witnesses on whom the prosecution mainly relies for the purpose of establishing the charge under Section 302 against the accused, and both of them have made very clear statements to the effect that the accused had been mentally deranged ever since he lost his son and that he was mad even up till the date of the trial. Besides these two witnesses there is one other witness, P. W. 11 a chaukidar, who also says that since the death of his son the accused used to laugh and that sometimes he did not work. From the notes made by the learned Sessions Judge in the order-sheet as well as in the deposition of P. W. 1, it is manifest that he was in doubt as to the sanity of the accused. If he entertained any doubt as to the sanity of the accused, then he ought to have followed the procedure laid down in Section 465, Criminal P. C. Though a report was called from the Civil Surgeon, that report is not on the record, and in fact if the learned Sessions Judge wanted to rely on the opinion of the Civil Surgeon, he ought to have examined him as a witness. In the case of -- 'Santokh Singh v. Emperor' AIR 1926 Lah 498 (A) their Lordships of the Lahore High Court took exception to the learned Sessions Judge using the deposition of the Civil Surgeon in the committing Court when the Civil Surgeon had not been examined at the trial. In this case, there is not even a deposition of the Civil Surgeon which might have been recorded in the committing Court relating to the question of sanity or otherwise of the accused. There are several decisions which have laid down that when a Court entertains doubt as to the sanity of the accused, the Court should not merely put questions to the accused but should try the issue of such unsoundness of mind by examining the Civil Surgeon and by taking such evidence as might be adduced or procured. In -- ' Shib Das v. Emperor', AIR 1924 Cal 713 (B) a Division Bench of the Calcutta High Court did not approve of the charge to the jury in which it was said that it was for the defence to satisfy the Court with regard to the capacity of the accused to stand his trial. In -- ' Radhakant Mandal v. Emperor', AIR 1927 Cal 289 (C) their Lordships have said that the moment the question of the insanity of the accused is raised, it becomes incumbent on the learned Sessions Judge to put to the jury as a preliminary issue to be tried by them as to whether or not they are satisfied that the accused is a person of unsound mind. In -- 'Jhabu v. Emperor', AIR 1920 All 354 (D), the Counsel who represented the accused had prayed to the Sessions Judge that evidence might be taken on the question of the sanity or otherwise of the accused in view of certain materials indicating that the accused had been in custody before the commission of the alleged offence as a lunatic. Their Lordships observed that the provisions of Section 465 were obligatory on the Court and that as a preliminary to the hearing of evidence on the charge, the learned Sessions Judge should first of all have tried the plain issue whether or not the accused person as he stood before the Court was of unsound mind and consequently incapable of making his defence. Their Lordships regarded the entire proceedings as vitiated because the question of soundness or unsoundness of his mind had not been tried as a preliminary issue. This, in my opinion, is a much stronger case in which the procedure laid down by Section 465 have been carried out, inasmuch as, as I have already pointed out, both the witnesses on whose evidence the prosecution relies for bringing home to the accused the charge under Section 302, Indian Penal Code, have stated that the accused had been insane ever since the death of his son about two years back and that he is insane even now. It is difficult to conceive of a stronger case in which the procedure laid down by Section 465 should be carried out, and it is regrettable that the learned Sessions Judge has rejected the plea of insanity raised by the accused even without examining the Civil Surgeon and without his report being placed on the record as a legal evidence in the case. This trial, therefore, stands vitiated, and the case has to be sent back for a retrial.
(3.) THE conviction and the sentence passed on the accused are set aside, and the learned Sessions Judge is directed to hold a fresh trial according to law which should commence with the procedure required by Section 465, Criminal P. C., to be followed by a formal finding as to the capacity of the accused for making his defence. THE accused will remain in detention and under medical observation until the fresh trial is held or until the result shown by the evidence in the enquiry under Section 465, Criminal Procedure Code.;

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