GUJARAT HIGH COURT
J.B. Pardiwala and A.C. Rao, JJ.
State of Gujarat —Appellant
versus
Manjuben D/O. Kasturbhai
Nanjibhai Kunvariya (Devipujak) —Respondent
R/Criminal Confirmation Case No.1 of 2018 with R/Criminal Appeal No.474 of 2019
Decided on 18.3.2019

IMPORTANT POINTS
(1) When plea of insanity is raised before Court, it shall try the fact of unsoundness of mind and incapacity of accused in first instance.
(2) Behaviour antecedent, attendant and subsequent to the event may be relevant in finding mental condition at the time of event but not those remote in time.
(3) Proceedings of sessions trial continue till Death Reference made to High Court by sessions court is finally disposed of.

Headnote:(A) Indian Penal Code, 1860 – Sections 302 and 307 read with Section 84 – Gujarat Police Act, 1951 – Section 135 – Criminal Procedure Code, 1973 – Sections 329 and 330 – Double murder and attempt to murder – Death sentence – Mother and sister of informant killed by convict – Much before criminal case came to be committed to Sessions Court, fact of accused appellant being mentally ill and suffering from psychiatric problems had come on record – Trial court ignored or overlooked something very important and omission on part of trial court has rendered judgment and order of conviction and sentence susceptible to complaint that same is illegal and deserves to be quashed and set aside – Judgment and order of conviction and death sentence set aside – Case remitted to Sessions Court for fresh trial from stage of framing of charge again after verifying mental condition of accused. (Paras 18, 24, 48, 49 and 50)

       (B) Criminal Procedure Code, 1973 – Sections 329 and 330 – Trial of person of unsound mind – Duty of Court is to try such fact of unsoundness of mind and incapacity of accused to defend himself – If on the basis of materials brought on record Court is so satisfied, it should record finding accordingly and in such case trial shall have to be postponed – Proceeding against a person of unsound mind and holding him guilty of criminal offence would be clearly violative of guarantee contained under Article 21 of Constitution that no person shall be deprived of his life or liberty without following procedure established by law – Even if accused had not raised such a plea and even if defence counsel had not bothered to look into it, still if materials on record in form of documents disclose something about mental condition of accused, then it is duty of trial court to look into materials and ascertain capacity of accused to enter defence – Enquiry as to unsoundness of mind and incapacity of accused under Section 329, Code of Criminal Procedure, relates only to unsoundness of mind of accused at the time of enquiry or trial and not at the time of commission of offence. (Paras 22, 23, 27 and 42)

       (C) Indian Penal Code, 1860 – Section 84 – Mental insanity of accused – Section 84 of I.P.C. embodies fundamental maxim of criminal law i.e. actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention) – In order to constitute an offence, intent and act must concur; but in case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est) – Benefit is available only after it is proved that at the time of committing the act, accused was labouring under such a defect of reason, from disease of mind, as not to know nature and quality of act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this Section must be applied – Crucial point of time for deciding whether benefit of this Section should be given or not, is material time when offence takes place – In coming to that conclusion, relevant circumstances are to be taken into consideration, it would be dangerous to admit defence of insanity upon arguments derived merely from character of crime – Mere absence of motive for a crime, howsoever atrocious it may be, cannot in absence of plea and proof of legal insanity, bring the case within this Section – To earn an exemption under Section 84 of Indian Penal Code, accused has to prove insanity at the time of commission of offending act – Behaviour antecedent, attendant and subsequent to the event may be relevant in finding mental condition at the time of event but not those remote in time. (Paras 37, 38 and 43)

       (D) Criminal Procedure Code, 1973 – Section 304 – Constitutionof India – Article 39A – Free legal aid to accused – What is meant by duty of State to ensure a fair defence to an accused is not employment of a defence counsel for namesake – It has to be provision of a counsel who defends accused diligently to the best of his abilities – While quality of defence or calibre of counsel would not militate against guarantee to a fair trial sanctioned by Articles 21 and 22 of Constitution, threshold level of competence and due diligence in discharge of his duties as a defence counsel would certainly be constitutional guaranteed expectation. (Para 54)

       (E) Criminal Procedure Code, 1973 – Section 366 – Death Reference – In cases of reference made under Section 366 of Criminal Procedure Code for confirmation of death sentence, considering provisions of the Code of Criminal Procedure in relation to powers of High Court conferred under Sections 367 and 368 of Code, sessions trial could not be said to be concluded unless reference is answered by High Court – Proceedings of sessions trial continue till reference made to High Court by sessions court is finally disposed of. (Para 65)

       Result: Reference answered.