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1990 Supreme(HP) 36
High Court Of Himachal Pradesh
BHAWANI SINGH,D.P.SOOD
BHAGMAL - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Criminal Appeal No. 271 of 1988
Decided On : 07/12/1990
For the appellant(s) :Shri Harish Behl, Advocate. For the respondent(s):Shri M. S. Guleria, Assistant Advocate General.
The provisions of section 329 of the Code of Criminal Procedure are mandatory and the court cannot avoid its consequences by simply relying on a medical report without examining the medical specialist who prepared it.
Headnote:
CRIMINAL LAW - PROCEDURE - TRIAL - UNSOUND MIND - PROCEDURE TO BE FOLLOWED - SECTION 329, CODE OF CRIMINAL PROCEDURE - MANDATORY - FAILURE TO COMPLY - TRIAL VITIATED.
Fact of the Case:
The accused was convicted of murder under section 302 of the Indian Penal Code for causing the death of his father. During the trial, the accused raised the plea of unsoundness of mind. The trial court ordered a medical examination of the accused, which found that he was not suffering from any mental disorder. The accused was allowed to summon the doctor from the Mental Hospital, Amritsar, where he had been treated earlier, but the record of his treatment was not available. The trial court proceeded with the trial and convicted the accused.
Finding of the Court:
The trial court erred in not following the mandatory provisions of section 329 of the Code of Criminal Procedure. The court should have first tried the fact of the accused's unsoundness of mind and incapacity to make his defense before proceeding with the trial. The court's failure to do so vitiated the trial.
Issues: Whether the trial court erred in not following the mandatory provisions of section 329 of the Code of Criminal Procedure.
Ratio Decidendi: Section 329 of the Code of Criminal Procedure requires the court to try the fact of the accused's unsoundness of mind and incapacity to make his defense before proceeding with the trial. This is a mandatory provision and the court cannot avoid its consequences by simply relying on a medical report without examining the medical specialist who prepared it. The court must give the accused an opportunity to cross-examine the doctor and challenge the correctness of his opinion.
Final Decision: The appeal was allowed, the conviction and sentence were set aside, and the case was remanded to the trial court for a de novo trial.
Bhawani Singh, J.—By this appeal, the accused has challenged his conviction under section 302, Indian Penal Code for causing the death of his father, Tara Chand in the middle of March, 1987 at Jagna, Tehsil Sarka ghat, District Mandi. He has been sentenced to imprisonment for life and to pay a fine of Rs. 1,000 by the Sessions Judge, Mandi on June 20, 1988.
2. Briefly, the facts are that after working as driver at Amritsar for couple of months, the accused came back to live with his father in the village. He was married to Smt. Parmilla. whom he used to give beatings and on such occasions, his father, Tara Chand used to abuse him and chastise him for his behaviour. The incident took place on 18-3-1987, when at about 9 30 p.m. the deceased, after taking his meals in kitchen on the upper storey of the house, came down to his room alongwith his grand daughter, Kumari Meera. Thereafter, Kumari Meera went to her room and soon after the accused came with stone (Ext. P-2) from outside and hit his father on the head. On hearing the cries of the deceased, Kumari Meera came there from her room and saw the accused giving two more blows with the said stone on the head of the deceased. She went up-stairs to inform her mother, Smt. Jaiwanti and aunt, Smt. Parmilla, wife of Shri Biri Singh, who came down to the place of occurrence and saw the deceased lying unconscious in a pool of blood. At the scene, they started crying and on hearing the same, number of villagers came there. They encircled the accused to prevent his escape and on being asked, the accused told them that it was in a fit of anger that he killed his father with the stone and in the presence of Smt. Jaiwanti, Smt. Parmilla and Kumari Meera, he also said that he had committed a mistake so he may be saved.
3. The incident was reported to the police, Police Station, Sarkaghat telephonically and a case under section 302, Indian Penal Code, vide First Information Report No. 49/87 was registered on 19-3-1987. The Station House Officer, Kehar Singh came to the spot, prepared the Inquest Report (Ext. PD), sent the dead-body for post-mortem examination, prepared the site plant (Ext. PW-17/B) and took into possession the stone (Ext. P-2) vide recovery memo. (Ext. PE). During this investigation, blood-stained earth from nearby the dead-body was taken in a Dibba which was sealed on the spot. The beddings of the deceased, namely, pillow (Ext. P-3), gunny bag (Ext. P-4) and Khandolu (Ext. P-5) were also taken in addition to other necessary articles like blood-stained pant (Ext. P-l). After completing the investigation and collecting the necessary documents in the case, challan for the trial of the accused was preferred in the court. Number of witnesses were examined by the prosecution in support of its case.
4. In his explanation under section 313 of the Code of Criminal Procedure, the accused has admitted almost all the incriminating circumstances against him although he had denied the same at the stage when the charge was read out to him on 22-8-1987. The trial, finally, ended in the aforesaid conviction and sentence of the accused. This shows the matter has come before this Court. Since the accused was not represented by a Counsel, Shri Harish Behl, Advocate, was appointed amicus curiae to defend him.
5. During the course of arguments, Shri Behl raised a fundamental question as to the legality of the trial. His contention was that the trial Court committed gross error in not following the mandatory provisions of section 329 of the Code of Criminal Procedure and as a consequence thereof, the trial is vitiated and the judgment is liable to be set-aside. Since we saw substance in this submission of the learned Counsel, for the reasons to be recorded hereinafter, it was considered unnecessary to go into the merits of the case.
6. On 3-10-1987, Shri G. D. Saini, learned Counsel for the accused, moved an application to the trial Judge pointing out that the accused did not appear to be menta
