The failure to assess the appellant's mental fitness before trial constituted a serious procedural irregularity, necessitating the acquittal of the appellant under Section 302 IPC.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. D.K. Bhattacharyya, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor assisted by Ms. P. Bora, learned counsel.

2. This appeal has been filed against the impugned judgment dated 04.06.2018 passed by the Court of Sessions Judge, Karbi Anglong, Diphu, Assam in Sessions Case No. 35/2012, by which the appellant was convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- in default to undergo simple imprisonment for 6 (six) months.

3. The prosecution story in brief is that an FIR dated 10.03.2012 was submitted before the Officer-in-charge, Dokmoka Police Station by Prosecution Witness-2 (PW-2), stating that her husband Kamal Basumatary was murdered by the appellant with a spade, while the deceased was watching T.V. in his house at about 4:30 p.m. Pursuant to the FIR dated 10.03.2012, Dokmoka P.S. Case No. 11/2012 under Section 302 IPC was registered. The investigation of the case was initiated and after concluding the same, the I.O. submitted a charge-sheet, on finding a prima facie case against the appellant under Section 302 IPC.

4. The learned Trial Court framed charge under Section 302 IPC against the appellant, to which he pleaded not guilty and claimed to be tried.

5. The learned Trial Court thereafter examined 9 (nine) prosecution witnesses and after examining the appellant under Section 313 Cr.P.C. came to a finding that the appellant was guilty of killing his uncle. The appellant was accordingly convicted under Section 302 IPC and sentenced accordingly.

6. Mr. D.K. Bhattacharyya, learned counsel for the appellant submits that a perusal of the case records and the orders passed during the trial showed that the appellant appeared to be a person of unsound mind. As such, after the testimony of PW-1 & PW-2 had been recorded by the learned Trial Court, the learned Trial Court vide order dated 18.07.2016, had made an observation that the appellant seemed to be a person of unsound mind. The learned Trial Court, vide the said order dated 18.07.2016, directed that the appellant should be examined by medical experts in Diphu Civil Hospital, to ascertain as to whether the appellant was of unsound mind and to submit a report thereafter.

7. The learned counsel for the appellant submits that no report was made by the medical expert as had been directed by the learned Trial Court, vide order dated 18.07.2016. He submits that in view of the fact that no decision had been taken by the learned Trial Court with regard to it’s apprehension/suspicion regarding the sanity of the appellant, the subsequent conviction of the appellant by the learned Trial Court could not be sustainable, keeping in view the provisions of Sections 328, 329, 334, 335 and 465 Cr.P.C. He accordingly submits that the impugned judgment would have to be set aside, as no trial could have been concluded without the Trial Court having first taken a decision as to whether the appellant was a person of unsound mind. He also submits that though this Court is bound to set aside the impugned judgment, the appellant would have to be sent before a Mental Health Review Board constituted in terms of Section 74 of the Mental Healthcare Act, 2017 (hereinafter referred to as “the 2017 Act”), who would then be required to take a decision as to whether the appellant should be put in a mental hospital. With regard to his submission that the actions of a person of unsound mind and the explanation given by the said person under Section 313 Cr.P.C. should not be accepted as admissions of the true facts of the case, the learned counsel for the appellant has relied upon the Supreme Court judgment in I.V. Shivaswamy vs. State of Mysore, (1971) 3 SCC 220 and the Division Bench judgment of this Court in Bangla Bagti vs. State of Assam, (2012)