Failure to follow the prescribed procedure for cases involving mental illness, as laid down in Section 329 of the Code and Section 105 of the Mental Healthcare Act, can vitiate a trial.

JUDGMENT :

S.K. MISHRA, J.

1. In this Reference under Section 366 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for brevity), and the connected Criminal Appeal No. 441 of 2021, the legality of conviction and sentence of death recorded by the learned Additional Sessions Judge, Tehri Garhwal, New Tehri, in Sessions Trial No. 02 of 2015, as per the judgment dated 21.08.2021, is examined, for confirmation or otherwise of the death sentence. The conviction itself is challenged by the condemned prisoner in the connected criminal appeal.

2. The facts of the case are that the father of the appellant–condemned prisoner submitted a written report on 13.12.2014 that the appellant has committed murder of his mother, brother and sister-in-law by means of a sword (a sharp edged weapon). On such report, first information report was registered; investigation was taken up, and on completion of investigation, charge-sheet was submitted against the appellant.

3. Keeping in view the peculiarity of the case, and the serious contention raised by the learned Senior Counsel Mr. Vashistha, we are of the opinion that there is no need to go into the question of facts and appreciation of evidence at this stage. Rather, we confine ourselves to the argument advanced by the learned Senior Counsel, who has been appointed as Amicus Curiae by the Court, to come to a just and proper finding.

4. The learned Senior Counsel took us through the evidence of PW-13 Dr. Vinay Sharma, PW-14 Dr. Mahesh Kumar Khaitan, PW-15 Dr. Ravi Gupta and PW-16 S.C. Godiyal and Exhibit A-36, page 48; Exhibit A-34, page 46; Exhibit A-39, page 54 and Exhibit A-38, page 53 of the paper book and contended that the defence has taken the plea of insanity as available to him under Section 84 of the Indian Penal Code, 1880 (hereinafter referred to as ‘the Penal Code’ for brevity). It is contended by the learned Senior Counsel that in the entire discussion regarding this aspect of the case, the learned Additional Sessions Judge failed to appreciate the fact that during course of trial the appellant was found to be suffering from mental illness, and for that purpose the provisions of Section 329 of the Code as well as Section 105 of the Mental Healthcare Act, 2017 have not been complied with, and the learned Additional Sessions Judge disbelieved the plea of insanity, and went on to convict the appellant under Section 302 of the Penal Code, and sentenced him to death. He further contended that proper procedure should have been followed, and for compliance of those provisions, the matter should be remanded back to the learned trial court by setting aside the judgment and order passed by the learned Additional Sessions Judge.

5. The learned Deputy Advocate General Mr. Virk would argue that the evidence of PW-15 Dr. Ravi Gupta, and the effect of Exhibit A-38 appearing at page 53 of the paper book, has not been discussed in the impugned judgment. In other words, Mr. Virk fairly conceded that the judgment lacks clarity on certain aspects such as plea of insanity, and insanity during course of trial.

6. Before we discuss the evidences available on record, it is appropriate to take note of the provisions of law as contained in the Code. Section 329 of the Code, prescribes the procedure in case of person of unsound mind tried before Court. The same reads as under:

329. Procedure in case of person of unsound mind tried before Court:

(1) If at the trial of any person before a Magistrate or Court of Session, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case.

(1A) If durin