Sujit Manna Vs. State of West Bengal - Court Judgment

Amit Talukdar, J.

1. Myriad shades of colour infested the village of Padumbasan while it was celebrating the Festival of Colours in the forenoon of 20.3.2000. Amongst the advent of spring and the riot of colours the house of Rampada Manna was splashed red. The act of the appellant, which spotted the house red with blood, forms the chemistry in this appeal.

2. Factual matrix of the allegations, although adumbrated elaborately in the judgment, may be briefly set out for better appreciation of the entire case.

3. Shri Gajen Pradhan (not examined), the author of the FIR (Ext. 4) was leading a KIRTAN DAL in the village on the occasion of the Holi Festival. When they approached near the house of Rampada Manna, the deceased, his daughter-in-law (C.W. 12), Soma Manna came out and informed that her father-in-law was being killed.

4. This prompted the author of the FIR (Ext. 4) to enter into the house of the deceased Rampada Manna along with other neighbours and he found Rampada Manna had already passed away and his wife, Arati Manna was still alive. P.W.12, Soma Manna disclosed to him that after having her bath when she came out she found her parents-in-law in injured condition in the outer portion of their house and his husband i.e., the appellant was striking his father, Ram Babu with a wooden bar (Mat. Ext. 1). Since the mother of the appellant was still alive she was sent to Tamluk Hospital.

5. The written information (Ext. 3) of Gajen Pradhan (not examined), which was scribed by one Chandan Panda (not examined), son of P.W.1 and P.W.2, was treated as the formal FIR (Ext. 4) by P.W. 7, S.I, Dulal Chandra Dey and it stated that the appellant 'Sujit was suffering for long period and was under treatment and had almost lost his mental balance and due to this in excitement he had injured his father with the wooden bar used for closing door and killed his father.'

6. Pursuant to the same C.W. 11, Milan Bose, being entrusted by the Officer -in-Charge of Tamluk Police Station, took up the investigation and visited the place of occurrence. He prepared the sketch map (Ext. 7) and held inquest (Ext. 1) and also effected the seizure in respect of the blood-stained HURKO (Mat. Ext. I) and blood-stained cement (Mat. Ext II) from the place of occurrence on the strength of the seizure list (Ext. 9) and on completion of the investigation submitted a chargesheet against the present appellant for causing the death of his parents.

7. For having committed patricide and matricide the convict/appellant was placed before the learned Additional Sessions Judge, Midnapore in Sessions Trial No. LVI/June/2000 to answer the following charges:

That you, on or about the 20th day of March, 2000, corresponding to the 6th day of Chaitra, 1406 B.S., at Abasbari Chak P.S. Tamluk, Dist. Midnapore, committed murder by intentionally or knowingly causing the death of Rampada Manna, and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and

Secondly, that you, on or about the same day, and at the same place, caused the death of Arati Manna, with the intention of causing such bodily injury as was likely to cause death, and thereby committed an offence of culpable homicide not amounting to murder, punishable under Section 304, Part I of the Indian Penal Code..

8. The appellant pleaded not guilty to the aforesaid charges.

9. The learned Trial Court after examining the witnesses and considering the materials on record found by its judgment and order dated 22.11.2002 that both the charges against the appellant have been proved. He was accordingly convicted and was sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/-, in default, to suffer simple imprisonment for one month in respect of his conviction under Section 302 of the Indian Penal Code for the offence of patricide. The appellant was further directed to undergo rigorous imprisonment for seven (7) years for his conviction in respect of the charge of Section 304, Part I of the Indian Penal Code for matricide.

10. Hence this appeal.

11. Shri Rash Bihari Mahato with Shri Aslam Khan appeared as State Defence to argue the appeal. Shri Mahato addressed us on a single issue i.e. the ground of insanity of the appellant. He was of the view that since it has been borne out in evidence that the convict/appellant was not sane he was unable to comprehend his behaviour and the act committed by him, which resulted in the death of his parents, is covered by Section 84 of the Indian Penal Code and the appeal should be allowed after setting aside the conviction, recorded by the learned Trial Court.

12. Shri Mahato, learned State-Defence placed the evidence before us and submitted that from the very beginning the FIR and in all the evidence including the various order sheets of the learned Trial Court as also of the learned Magistrate it would be apparent that the convict/appellant was suffering from insanity. As such, the conviction recorded by the learned Trial Court against the appellant was absolutely bad in law.

13. Shri Mahato further argued that the convict/appellant had none to look after and as such, he could not properly take his defence and prove his case of insanity in a full-proof manner. Referring to the evidence of the sister of the appellant (P.W.4), Swapna Das, Shri Mahato submitted that she did not make arrangements for providing legal assistance for the convict/appellant as a result of which he was in a complete lurch and although there were materials before the learned Trial Court that the convict/ appellant was insane, still then he was found guilty and convicted which was totally bad in law.

14. Shri Khandakar for the State put up a very stiff opposition to rebut all the submissions of Shri Mahato. Khandakar also took us through the evidence in his own way. According to Khandakar the prosecution had been able to bring home both the charges against the appellant in a successful manner on the basis of the evidence and other materials on record. He stated that the evidence of P.W.1, Sridam Panda C.W. 3, Aditya Kumar Das and P.W.4, Swapna Das the brother-in-law and sister respectively of the appellant, have, in fact, proved the prosecution case and there is no escape for the appellant.

15. Shri Khandakar further submitted that the defence case with regard to insanity was not at all believable as he participated in the trial and took his defence. As such, it cannot be said he could not understand the sequence of events. He also referred to the records of the learned Trial Court and showed that due precaution was taken by the learned Trial Court and the convict/ appellant was medically examined and it is only after being found fit he was put on trial. That way Shri Khandakar argued the defence could not have any grievance.

16. Thereafter Shri Khandakar invited our attention to the examination of the appellant under Section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the said Code') and showed that even during such examination the appellant could not make out any case of insanity. Accordingly, the plea of insanity did not deserve any consideration and lastly, Shri Khandakar prayed for dismissing the appeal as the appellant was aware of his act as a result of which it did not fall within the ambit of Section 84 of the Indian Penal Code.

17. Having heard the submission of Shri Mahato for the appellant and Shri Khandakar for the State we now proceed to examine the evidence and materials on record to see how far the conviction can be sustained on the basis of the same. Even though, Shri Mahato, learned State-Defence has restricted himself to a single point with regard to the insanity of the appellant, we feel that while disposing of this first appeal we are required to go into the entire merit of the same.

18. Before doing so since the point, raised by Shri Mahato, being a preliminary point, we would advert to the same at first. In the event, this point succeeds then we feel we need not proceed any further into the merit of the case at all.

19. The question that falls for consideration in this appeal relates to the question of insanity of the appellant for which it has been pleaded that as he was unable to comprehend his acts the criminality cannot be attributed to him and the conviction is liable to be set aside.

20. We would look into the law on this point at first before entering into the facts. Section 84 of the Indian Penal Code deals with such a situation when a person by reason of unsoundness of his mind is incapable of knowing the nature of the act, commits the same nothing is said to be an offence. Section 84 of the Indian Penal Code reads as follows:

84. Act of a person of unsound mind.-Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

21. In order to better appreciate the position we would refer to Hallsbury's Laws of England, Fourth Edition, Reissue, Volume 11(1) page 36, paragraph 31:

Where, on a criminal charge, it appear that, at the time of the act or omission giving rise to the offence alleged, the accused was labouring under a defect of reason owing to a disease of the mind so as not to know the nature and quality of his act, or, if he knew this, so as not to know that what he was doing was wrong, he is not regarded in law as responsible for his act.

22. The main criteria for proving the plea of insanity should be that at the relevant point of time the accused was insane and as a result of such insanity or unsoundness of mind he was incapable of knowing the nature of the act or unable to comprehend what he was doing or, as to what he was doing was really wrong or contrary to law. (See Jai Lal v. Delhi Administration : 1969CriLJ259 ).

23. Section 84 of the Indian Penal Code embodies the fundamental maxim of Criminal Law ACTUS NON FACIT RE UM MISI MENS SIT RE A.

24. As we have found earlier that no culpability can be attributed to a person of unsound mind since he does not possess any free will (FURIFIS NULLAR VOLUNTAS EST). This is in a way incorporation of the MC Naughten Rules.

25. Insanity, if it is to be recognized as an exception to criminal liability should be to such an extent so as to disable an accused from understanding the nature and character of the act he was committing at the time of commission of such act.

26. Legal insanity and medical insanity are not parallel aspects. We have to abide by what is known as legal insanity and it is only if a person, who suffers from such legal insanity where his cognitive faculty of mind is shattered as a result of such unsoundness of mind to the extent so as to make him totally incapable of understanding the nature of the act he has committed or, that what he was doing goes against the established norms of law, then only the provisions of Section 84 of the Indian Penal Code can apply.

27. We must remember that every type of unnatural behaviour or other type of unnaturalness which can be connected by medical insanity does not come under the purview of Section 84 of the Indian Penal Code. See: Amrit Bhusan Gupta v. Union of India : 1977CriLJ376 .

28. An accused taking a plea of insanity in a criminal trial is required to prove the same. It is after all his special defence and onus lies on him to prove the existence of such circumstance which would bring his case within the ambit of the general exception mentioned in the Indian Penal Code. After the entire evidence is placed on record and the accused can show from the evidence thereof adduced by either on behalf of the prosecution or the defence that the presumption is removed. The said presumption can be discharged by an amount of preponderance of probability and nothing more See: Pratap v. State of U.P. : [1976]1SCR757 .

29. After we have seen the legal position governing the field we would now enter into the evidence.

30. The written information (Ext. 3) of Gajen Pradhan (not examined), which was scribed by one Chandan Panda (not examined) was treated as the First Information Report (Ext. 4) by P.W.7, S.I., Dulal Chandra Dey specifically stated: 'Sujit was suffering for long period and was under treatment and had almost lost his mental balance and due to this in excitement he had injured his father with the wooden bar used for closing door and killed his father.'

31. Next, we would come to the evidence of C.W. 1, Sridam Panda, who was a neighbour of the Manna family i.e. the family of the appellant. We have to closely look into the evidence of P.W.1, Sridam Panda and his wife (P.W.2), Sandhya Panda, who resided adjacent to the house of the appellant. On the fateful day after hearing about the incident C.W. 1 entered into the house of the appellant and found the parents of the appellant lying on the floor with a pool of blood. He heard that the appellant had murdered them. He deposed: 'When I had been to the P.C. that this accused Babu was taking bidi at his house.' In his cross-examination he stated: 'I heard that this accused-Babu was medically treated prior: to the occurrence : We had marked the abnormality of the accused at his house. This accused was sitting in his house in an abnormal condition.'

32. Followed the evidence of C.W. 1, Sridam Panda we find his wife (P.W.2), Sandhya Panda 'also found that this accused-Sujit (appellant) was sitting with a wooden stick (latches) in his hand.' In her cross-examination she stated that 'The accused-Sujit Manna was mentally deranged for a considerable period of time.'

33. Thereafter, we have before us the evidence of P.W.3, Aditya Kumar Das, the son-in-law of the deceased couple. After hearing about the news of the death of his parents-in-law C.W. 3 went to the house of the appellant. From his cross-examination we find 'Sujit was under the treatment of a doctor at Calcutta. Sometimes he used to behave well and sometimes he became rude.'

34. The sister of the appellant (P.W.4), Swapna Manna (Das) after receiving the news of the death of her parents visited the house. Her cross-examination shows that 'Sujit was abnormal prior to the demise of my parents. I did not see any mental derangement of Sujit in abrupt manner on any day but.... I came to learn that one Ashis Achariya of local hospital used to treat my brother medically.'

35. P.W.5, Dipak Kumar Manna, a cousin of the appellant on receiving a telephone call visited the house of the appellant and found that his uncle and aunt were lying in a pool of blood. In his cross-examination it transpires 'I know that accused Sujit lost her mental equilibrium and he had medically treated at Calcutta.'

36. We would now go to the evidence of the wife of the appellant (P.W.12), Soma Manna. Her cross-examination reveals 'I did not accompany my husband for his treatment at Calcutta but his father used to accompany him. He was mentally deranged for about two years. So long I was at the house of accused Sujit. He was under the treatment of doctor. He was not fully recovered.' She further admitted 'I was married to Sujit without knowing his insanity.'

37. From the entire confection of the evidence the mental state of the appellant is very much apparent. As assessment of the evidence of P.Ws. 1, 2, 3, 4 and 12 including the averments in the First Information Report (Ext. 4) shows that the appellant was undergoing treatment and he was not mentally sound for quite some time.

38. After we have seen the evidence on record we would now read the examination of the appellant under Section 313 of the said Code. Question No. 13 of his examination under Section 313 of the said Code shows: 'How long you are suffering from this disease'. The 'Ans.' was blank.

39. Be that as it may we would now shift to another aspect of the case. Before doing so we must now look into the records of the proceedings in the Trial Court as well as that before the learned Magistrate to gain further control over the situation.

40. For this purpose we would now look into the Chapter XXV of the said Code, which governs PROVISIONS AS TO ACCUSED PERSONS OF UNSOUND MIND. Section 329 of the said Code corresponding to Section 465 of the old Code deals with a situation where in a trial it appears before the Court that the person is of unsound mind and unable to take his defence the Court would at first decide the question of unsoundness after taking into account the medical and other evidence and in the event it is satisfied that it would be advisable to postpone the proceeding it will do so.

41. We would now stop here for a moment and see the picture in the Court below.

42. At first, we would go to the records of G. R. Case No. 179 of 2000 before the learned Sub-Divisional Judicial Magistrate, Tamluk. On 21.3.2000 the appellant was brought under arrest and he was remanded. The order sheet of 4.4.2000 shows that a report was sent by the Sub-Jailor stating that the appellant was transferred to Midnapore Central Jail for treatment. Subsequent order sheets till May, 2000 shows that the appellant was not produced before the Court. Nothing more is heard in the proceedings of G. R. Case No. 179 of 2000 with regard to the state of health of the present convict/appellant.

43. Then we would come to the annals of Sessions Trial No. LVI of June, 2000. At that stage we find the first order sheet dated 26.6.2000 records. The appellant is produced before the learned Sessions Judge and the case is transferred to the file of the learned Additional Sessions Judge, Third Court. Later on the same day 11.7.2000 was fixed for framing of charge by the Transferee Court. On 11.7.2000 since the Presiding Officer was on leave 25.7.2000 was fixed for appointment of State-Defence as the appellant went, undefended. We find from the orders dated 18.8.2000 and 22.8.2000 that the said dates were fixed for engagement of State-Defence and for charge. On 5.9.2000 the Presiding Officer was on leave. It is only on 19.9.2000 the Predecessor-in-Office of the learned Trial Judge recorded:

Accd. Sujit @ Babu Manna is produced from j/c. Today is fixed for consideration of charge. On being asked regarding his name and other matters, the accd. made irrelevant answers.

Superintendent, Midnapore Central Correctional Home is directed to examine the accd. by a Medical Officer (Psychiatrist) as to whether the accd. is mentally alert and physically fit and to submit his report Accompanying medical opinion by the date fixed.

To 31.10.2000 for production of the accd. and submission of report.

The order sheet of 31.10.2000 reads:

Accd. Sujit @ Babu Manna is produced from j/c. Received the report of the Superintendent, Midnapore Central Correctional Home accompanied by medical report of Dr. D. K. Chowdhury, Psychiatrist, Midnapore Hospital.

Perused the medical report. It appears that the doctor examined the accd. and opined that the patient has been suffering from chronic schizophrenia. He also observed that the accd. is not mentally sound at this moment and he is unfit to stand trial at this moment.

In view of the medical report, the Superintendent Midnapore Central Correctional Home is directed to take necessary step for proper treatment of the aforesaid accd. and he is to furnish the periodical report regarding his state of health.

44. On subsequent date i.e. 30.11.2000 on the basis of the medical report showing the appellant to be under treatment the trial was adjourned and date was fixed for production and report.

45. Similar situation can be seen from the orders of 25.1.2001, 27.3.2001, 4.6.2001 and 25.9.2001.

46. Thereafter, the ordersheet of 15.1.2002 shows: '...that the accd. Sujit Manna is now under treatment Supdt. Mld. Central Correctional Home is directed to submit periodical report regarding the state of health of the accd.'

47. Thereafter, again on 6.8.2002 fresh report was called for by the learned Trial Court. Ultimately on 21.8.2002 the report was received from the Midnapore Central Correctional Home and the learned Trial Court fixed 5.9.2002 for charge hearing and directed that the State be informed.

48. We have to pause here for a moment. The report, in question, appears in File- B of the Lower Court Records was forwarded by the Superintendent of the Midnapore Central Correctional Home on 20.8.2002 before the Court. The said report dated 14.8.2002 reads as follows:

This aforesaid Sujit Manna has been examined by me on 14.8.02 at 11=45 a.m. in the Correctional Home, and found to be suffer from subcronic schizophrenia low intelligence.

His mental state, is, at present adequate, to stand for a trial/ or other legal affairs, and to perform his usual duties.

49. We would now again come back to the records of Sessions Trial No. LVI (June) 2000. The ordersheet of 05.9.2002 is as follows:

Accused Sujit Manna is produced from J/C.

There are sufficient materials to frame charge against this accd.

Thus the charges be framed against the accd. Sujit Manna under Sections 302 & 304 (Part I) for causing the death of his father Rampada Manna and Arati Manna. The charges are read over and expld. to the accd. He pleads not guilty. He claims to be tried.

Mr. K. Roy learned Advocate will submit the whereabout of this accd. S. Manna who is the resident of Abas Bari by that date positively....

50. On 09.9.2002 the learned Trial Court recorded the programme of the trial as follows:

None appeared for the accd.

Learned Lawyer Mr. K. Roy of Tamluk reported to this Court that there is none in his family. His three sisters had already got married.

For the ends of justice learned Sr. Lawyer Mr. Briskatu Samanta be engaged as State Defence Lawyer in pursuance of Section 304(i) Cr. P.C.

51. The Schedule of the trial was again refixed from 09.9.2002 to 17.9.2002. On that date the appellant was produced from custody and two witnesses were present. The learned Lawyer for the appellant prayed before the Court for directing the CMOH for examination of the appellant by a specialist on the ground, which has been stated in the petition which appeared at page 40 of file - 'B' is quoted hereinbelow:

1...

2. That the State Defence Lawyer tried to take instruction from the said accused; but the accused failed to understand the questions and also failed to give any answer. He is unable to understand the proceeding of the Court.Accordingly it is prayed that your honour may most graciously be pleased to direct CMOH, Paschim Midnapore for examination of the accused by the specialist....

52. The said prayer was rejected and the learned Trial Court proceeded to examine the witnesses.

53. We have before us the substantive evidence of the witnesses speaking about the deranged behaviour of the appellant on the one hand; while on the other hand, we have before us the record of the proceedings showing that the appellant was not mentally fit to understand his trial.

54. Section 84 of the Indian Penal Code deals with the cases where an act which otherwise could have been an offence is excluded from the said purview by reason of unsoundness of mind and incapacity of the appellant to comprehend the acts done and the resultant consequences.

55. But the scope of Section 329 of the said Code is quite different. Section 329 of the said is reproduced hereinbelow:

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 his 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.

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of bis trial before the Magistrate or Court.

56. The corresponding provision in the old Code being Section 465 is more or less a pari materia position. Section 465(1) of the old Code is quoted hereinbelow:

465.(1) If any person committed for trial before a Court of Session or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the jury, or the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the jury or Court, as the case may be, is satisfied of the fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any, shall be discharged ;

57. Here the Court has to assess the quality of unsoundness of mind with reference to his capacity to defend himself. In this context we have a high authority of a Division Bench our Court in Superintendent & Remembrancer of Legal Affairs, Govt. of West Bengal v. Durga Charan Barman 65 Cal WN 291, where Debarata Mookherjee, J. speaking for the said Division Bench held:

There is a distinction, having a widely differing effect, between incapacity at the item of doing the act charged and incapacity at the time of trial. While both are induced by unsoundness of mind, the former is substantive which.excuses the offence under Section 84 of the Indian Penal Code; the latter affects procedure and merely postpones the trial under Section 465 of the Code of Criminal Procedure.

58. Earlier we have found from the substantive evidence that the appellant was suffering from mental derangement and we feel on the basis of our appreciation of the said evidence that he was foreclosed by virtue of the said handicap to comprehend the consequences of the act he had committed by virtue of the breakdown of his cognitive faculty. Squarely the provisions of Section 84 of the Indian Penal Code, in our view, would be attracted in the present case as at the time of commission of the offence, we are satisfied, that the appellant was found to be of unsound mind. See: Dahyabhai Chhanganbhai Thakkar v. State of Gujarat : 1964CriLJ472 and Sheralli Wali Mohammed v. State of Maharashtra : 1972CriLJ1523 .

59. The position has been brought out very clearly from the evidence as well as the cross-examination of the said witnesses by the defence in a very effective fashion and we are of the view that the burden of proof cast upon the defence within the meaning of Section 105 of the Evidence Act stood discharged See: Bhikari v. State of Uttar Pradesh, 1966 Cr. LJ 63 and T. N. Lakshmalah v. State of Karnataka : AIR2001SC3828 , Shrikant Anandrao Bhosale v. State of Maharashtra : 2002CriLJ4356 .

60. In addition to the same we find that the records of the Sessions Trial No. LVI of June, 2000 corroborates the position in a wholesome fashion. The learned Predecessor-in-Office of the learned Trial Court on 19.9.2000 after having found that the appellant was making irrelevant answers to the questions suspended the trial within the ambit of Section 329 of the said Code and directed the jail authorities for conducting psychiatrist examination.

61. As found earlier that the report, which has been referred to hereinabove, prompted the learned Trial Court on 21.8.2002 to proceed with the trial, which we feel, was a very hasty decision as once the Predecessor-in-Office of the present Trial Court took resort to Section 329 of the said Code and we must say rightly so, the learned Trial Court on 21.8.2002 after receiving the report was duty bound to follow the statutory provisions of Section 332 of the said Code, which states that after the appellant was brought before the Court it has to consider his to be capable of making his defence; then only the trial should be proceeded with.

62. Section 332 of the said Code corresponds to Section 468 of the old Code. It does not contain any drastic change. The purport of the said section shows that after the Court had put off an accused from the trial because he was of unsound mind, on his appearance again before the Court should find him capable of making his defence then only the trial should proceed. Nothing more is required. It is simply his satisfaction that matters. The Division Bench of the Lahore High Court in Ibrahim v. King Emperor AIR 1934 Lahore 123, has exactly said so. John Coldstream, ICS speaking for the Division Bench of the Lahore High Court (Coldstream & J. H. Monroe, JJ.) held that Section 468 (corresponding to Section 332 of the new Code) does not preclude the Court from proceeding under Section 468 (Section 332 of the new Code) at any time when an accused is brought before it. But proceeding further Their Lordships held 'The trial by the Sessions Judge was not contrary to law though we think that the Sessions Judge would have acted wisely if before considering it he had placed it on the record that he considered the accused to be capable of making his defence and stated the grounds on which he came to this conclusion.'

63. On the strength of the Division Bench decision of the Lahore High Court in Ibrahim v. King Emperor (supra) we find that even if the learned Trial Court omitted to record his satisfaction before proceeding with the appellant, who was put on trial afresh being found to be capable of making his defence, we are of considered view that in the particular facts and circumstances of the present case the failure of the learned Trial Court to at least record his own satisfaction within the ambit of the provisions of Section 332 of the said Code that the appellant was fit to stand his trial all subsequent steps taken by the learned Trial Court was not appropriate.

64. The legislative mandate, in our view, was violated by the learned Trial Court and he accepted the report of the physician without applying his mind at all and fixed the date for consideration of a charge. It is extremely unfortunate that the previous orders, passed by his Predecessor-in-Office, were not at all properly perused. Had it been done so it would have at one struck his mind that various dates were fixed for appointment of a State Defence as the appellant was going undefended. But, on account of the change in situation, as found from the ordersheet of 19.9.2000, the appellant was not fit to understand the trial, the then Predecessor-in-Office suspended the trial and as found by us earlier directed medical examination of the appellant.

65. When fresh report, as called for by the learned Trial Court, was received it was such haste which played in the mind of the Court that two very important functional aspects of a trial were overlooked by the learned Trial Court. In his hurry to proceed with the trial the learned Trial Court on 05.9.2002, which we have seen earlier, framed the charge being oblivious of the fact that on that date the appellant was not defended. More so, when the appellant was suffering from a failure of his cognitive faculty it is not understood how the learned Trial Court framed the charge on the said date in the absence of appointment of a State Defence in the particular fact situation of the present case.

66. It seems speed claimed its fatal tally in the trial of Sessions Trial No. LVI of June 2000. On 09.09.2002 the State Defence was appointed and on the first available date of the re-scheduled trial, the learned State Defence filed a petition contents of which we have quoted earlier showing the appellant is unable to answer any question and as such, he is required to be examined by a psychiatrist. The learned Trial Court in a most mechanical fashion held: 'Prayer is considered and rejected as the accused rightly identifies the witness.

67. It is surprising to note that only 'prayer is considered and rejected as the accused rightly identifies the witnesses...' is written in his own handwriting whereas the prefix and the suffix of the order No. 23 dated 17.9.2002 is written in a different handwriting, which we can take judicial notice of is the. result of a ministerial function. The prefix of it reads as follows;

Learned Lawyer for the prosecution files a petition praying for directing the CMOH for examination of the accused by a specialist on the ground stated in the petition.

68. Although there was a petition filed by the learned State Defence obvisously when the order is written by a person, other than the learned Trial Judge, such error is bound to creep in. In fact, Rule 180(b) of the Criminal Rules and Orders, Vol. I relating to maintenance of ordersheet before the Sessions Court states that even though the ordersheet may be written by the bench clerk but shall be signed by the Sessions Judge 'after he has satisfied himself of the correctness of all the entries made therein.'

69. A plain reading of the said ordersheet will show that the said rule stood in its complete breach.

70. We are constrained to observe that in an important junction of the trial a very pertinent prayer made on behalf of the defence was dealt with in such a casual and cursory manner that in fact, shocks our judicial conscience.

71. Further down in the ordersheet of the Sessions Trial No. LVI of June 2000 something more awaits us. After we have seen such a horrendous position later portion of the order No. 33 dated 07.11.2002 reads as follows:

As per the prayer of the learned P.P. -in-charge the prosecution case is closed this day.

To 14.11.02 for 313 Cr. PC, D.W. if any, i.d. argument.

72. From the order No. 34 dated 14.11.2002 we find-

Accd. Sujit Manna is produced from J/C.

This day accd. Sujit Manna is examined under Section 313 of Cr. PC. He...to adduce any D/W.

To 18.11.02 for argument and production of accd.

73. We have yet to come across a case where the following ordersheet can be found:

Order No. 35 dated 18.11.02

Accd. Sujit Manna is produced from J/C.

Lawyers of the local Bar observed cease work this day also. So the judgment be delivered on 22.11.02.

Accd. be produced on that day at 10.30 a.m.

74. Failure of justice in Sessions Trial No. LVI of June 2000 was sealed finally on 22.11.2002 when the judgment was pronounced by the learned Trial Court.

75. An elementary stage in Chapter XVII of the said Code governing the trial before the Sessions Court seems to have been given a go by the learned Trial Court. The ordersheet dated 18.11.2002 clearly shows although the date was fixed for argument yet as there was cease work date was fixed for judgment. Section 234 of the said Code, which reads as follows:

234. Arguments.-When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his Pleader shall be entitled to reply:Provided that where any point of law is raised by the accused or his Pleader, the prosecution may, with the permission of the Judge, make his submissions with regard to such point of law.

seems to have been sacrificed at the puddle of illegalities committed by the learned Trial Court.

76. Although it would not be in good taste to placate further the lapses in the Sessions Trial No. LVI of June 2000 and instead of calculating the errors we should set it right, yet as there has been a system failure, the trial has unfortunately run aground. We cannot take any delight in ostracizing the defects in the judgment See : Samya Sett v. Shambu Sarkar and Anr. : 2005CriLJ3739 and 'K'A Judicial Officer : 2001CriLJ1157 .

77. Errors and omissions, which may creep in the justice delivery system, are required to be looked with some amount of magnanimity by the superior Court and where on account of the same the trial has suffered it should be restored to the rails after extending the requisite healing touch. But in the instant case framing of charge, in the absence of appointment of a learned State-Defence against the appellant whose cognitive faculty was not correct on the said date and ringing down the curtains on the Sessions Trial No. LVI of June, 2000 without hearing the arguments and its failure to appreciate the legal position governing the field in respect of Chapter XXV of the said Code and Section 84 of the Indian Penal Code thereby the entire edifice has been eroded. Neither any amount of magnanimity nor any healing touch can resurrect the trial nor any amount of judicial expediency can give it a seal of approval. Patricide and matricide is followed by slaughter of justice.

78. Since we have found the sole point, raised by Shri Mahato, succeeds and as the convict/appellant has been able to bring his case within the ambit of any of the GENERAL EXCEPTIONS by the standard of preponderance of probability by way of discharging his burden, as such, the fact about his mental state, which could be culled out from the cross-examination of the prosecution witnesses, we feel that he was not of sound mind both at the time of the occurrence as well as during the trial and we venture to say, in view of our perception of the proceedings of the Sessions Trial, it was absolutely a sham trial.

79. We are unable to break bread with Shri Khandakar and find that at the time of the occurrence the appellant was not of sound mind and consequently was suffering from cognitive failure of his faculty and the case falls squarely within Section 84 of the Indian Penal Code. On the contrary, we find there is strength on the submission forwarded by Shri Mahato.

80. In the light of the discussion held hereinabove we find that the conviction and sentence recorded by the learned Trial Court cannot be sustained and is, accordingly, set aside.

81. The appeal is allowed.

82. The appellant is directed to be set a liberty forthwith.

Rudrendra Nath Banerjee, J.

83. I agree.