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1993 Supreme(Bom) 335
IN THE HIGH COURT OF BOMBAY
S.P. Kurdukar M.F. Saldanha, JJ.
Sau. Saraswati Mahadeo Jadyal..... Appellant.
Versus
The State of Maharashtra..... Respondent.
Criminal Appeal No. 198 of 1989, decided on 26-7-1993.
Advocates appeared :
S.B. Shetye, appointed for final hearing.
R.Y. Mirza, A.P.P., for the respondent-State.
Headnote:Sections 84, 201 and 302-Evidence Act, 1872, Section 105-Conviction under Sections 201 and 302-Accused appellant strangulated her a week old infant child-Mental ailment of accused-Applicability of Section 84-Duty of prosecution-Where during investigation some material emerges justifying application of exception to Section 84, prosecution cannot keep back such material from Court-Accused had been kept in mental hospital.
Held, conviction set aside and accused shall continue to be retained in mental hospital and looked after there.
The added circumstance in favour of the accused is the plea canvassed with respect to her behaviour, by her Counsel, namely the fact that it was the definite duty of the prosecuting authorities to have placed before the Court all material relevant to her medical history in relation to the insanity and to have afforded her the appropriate treatment for this and to have placed all those records in relation to the treatment afforded to the accused at the past offence stage before the trial Court. The right to a fair trial necessarily implies that this vital material be placed before the Trial Court and the present case is a classic instance where for want of that material having been brought before the Court, almost by default, the accused was wrongly convicted. It was fortunate that the Counsel tried to salvage the position by leading defence evidence but the prosecution has failed in its duty as far as the aforesaid principles are concerned in having withheld from the Trial Court this material of crucial importance. High Court has already discussed the case-law in this regard and it must be held that the duty of the prosecution does not end merely in expounding the prosecution evidence and trying to establish that the ingredients of the law are satisfied but if there is corresponding material that has emerged in the course of investigation that would otherwise justify the case being brought under one of exceptions, the prosecution cannot be pardoned for having kept that material back from the Court. As indicated by High Court earlier, this case has thrown up these rather unusual features which in High Courts considered view required to be decided in favour of the appellant. Having regard to this situation the appeal is liable to be allowed. The conviction and sentence awarded to the appellant by the Trial Court are set aside.
2. One of the factors which will have to be taken into consideration while dealing with cases of accused persons who, as in the present case have virtually nobody in this world to assist or take care of them or provide for them, or in the cases of patients who are so situated that they will be illtreated or ostracised by their people and driven to beggary if they are to be released, merely because of the earlier displayed insanity, is the obvious question as to whether release from jail would put the accused in a worse situation. The Court will be required to issue appropriate directions to the Doctors and other authorities concerned to decide as to whether in the given or particular set of circumstances, the patient would have a relapse. In such a situation, it would be appropriate for the authorities to keep the patient in the Mental Hospital itself as the release would be both inappropriate and undesirable. First, however, the facts :
3. This appeal presents a set of extremely distressing facts but it also raises certain aspects of some importance vis-a-vis section 84 of the Indian Penal Code. The appellant before us Saraswati Mahadeo Jadyal is a resident of a little village by name Bhadkambwadi, in Ratnagiri District. She comes from an extremely poor strata and was married to a labourer who, as the record indicates, was not only in dire straits but was also an Alcohol addict. The prosecution alleges that the accused had given birth to a male child about a week prior to 18-8-1987. It is alleged that on the night of that day, the accused strangulated the infant and thereafter went to a lonely place and left the body there. Next morning, some of the villagers found the body and being a very small place, i
