Source: The Hitavada      Date: 01 Jan 2018 09:48:20

Deceased Kamlabai was the wife of the accused Sheshrao. She was residing at her parents’ place till 12 days prior to the incident. The accused used to assault her and allegedly murdered her, but was acquitted on the ground of insanity.

IN THE judgement of the case –State of Maharashtra through P.P., Aurangabad v. Sheshrao Sonaji Jadhav, Justice T.V. Nalawade and Justice A.M. Dhavale constituting a division bench at the Aurangabad Bench of the Bombay High Court have issued directions to the Maharashtra Police and the Sessions / Special Courts at the District-level about handling the accused with unsound mind, on December 21, 2017.

In this judgement the court has also pointed out that in the cases, where accused are provided lawyers to defend them at the State expenses, it should not be for the name sake. While appointing lawyers the courts below must see that lawyers being appointed are experienced and competent and the courts must record their satisfaction about their competence in its order while appointing them.

In this case, the State came in appeal against acquittal of the respondent- accused, who was held guilty under Section 302 IPC for committing murder of his wife but was acquitted on the ground of insanity. The prosecution was launched against the accused on the basis of FIR lodged by his father Sonaji on December 8, 2000, at Police Station Chaklamba in the district Beed. As per the FIR, the accused Sheshrao, aged 45 years was behaving like a mad person and was under treatment of Dr. Vinay Barhale at Aurangabad. The accused had two daughters and two sons. Daughters were married and sons were residing at their grandmother’s house due to insanity of their father.

Deceased Kamlabai was the wife of the accused Sheshrao. She was residing at her parents’ place till 12 days prior to the incident. The accused used to assault her. He allegedly murdered her between 10 PM and 9 AM of the next day. When the door of the room was opened, she was found lying on the floor unconscious and the accused was seen sleeping by her side. There was ligature mark of some rope around her neck. She died of throttling and strangulation, about one month after the incident, on January 7, 2001.The court noted that in the present case, it is material lacunae that the Investigation Officer did not produce the accused before the Medical Officer to obtain opinion about his mental status nor made inquiry with the Mental Hospital whether he was taking treatment.

In the light of the facts of the case, the accused was entitled to get benefit of doubt and therefore, the HC, though it did not agree with the finding of the trial court based on the evidence discussed by it in view of the serious infirmity of non production of the accused before the medical officer and in the light of previous and subsequent history, the HC granted the benefit of doubt to the accused and held that at the time of incident he was probably insane.

One more lacunae in the present case is that, the accused was unrepresented and the Sessions Judge had provided him a lawyer at State expenses. It seems that the lawyer was not sufficiently experienced, particularly with regard to the conduct of cases involving point of insanity of the accused. There is no proper cross-examination of the witnesses to find out the conduct of the accused just before and just after the incident. The law regarding necessity of appointment of the advocate for the accused is settled through various decisions of the Supreme Court and the High Court.

After discussing the legal precedents, the HC concluded that it was necessary to issue directions to all the police officers through Director General of Police and to all the Judicial Magistrates, Sessions Judges, Special judges through the Registrar General of the Bombay High Court as follows :

Whenever any accused person is arrested and there is any history or the conduct of the accused indicating that he is not mentally sound, it is the duty of the police officer who has arrested him to produce him before a Medical Officer for his examination with regard to his unsoundness of mind and to obtain the necessary certificate. If he is suffering from any unsoundness of mind, he should be forwarded to mental hospital for treatment and until certificate of his fitness is received, the matter cannot proceed further.

If the Investigating Officer fails to perform his duty of getting the accused person examined, it is the obligation of Judicial Magistrate before he is produced for the first time. If he finds at the time of first remand that there is history of insanity or symptoms of the accused showing insanity, he should refer the accused for medical examination and find out whether the accused is suffering from mental or legal insanity or not. In case of mental insanity, he should be provided with appropriate medical help.

It should be also borne in mind by the trial judges that, no criminal case particularly inviting the substantial sentence should be conducted without appointment of advocate. If the accused is not represented, appropriate legal assistance should be provided to him at State expenses. In case of sessions triable offence, it is the duty of the Sessions Judge that sufficiently experienced lawyer should be provided for conducting the case of accused person. Inquiry should be made whether he has conducted sessions cases or not and his length of practice would not suffice for his appointment.

In Sessions cases of complex or peculiar facts, it should be enquired whether the concerned lawyer has conducted such case or not. Legal aid to be provided at State expenses should not be for name sake. Then only he should be appointed as advocate for the accused after recording his satisfaction of competency of the advocate. Copies of this judgement were directed to be forwarded to the Registrar General of the HC and Director General of the Maharashtra Police for issuing necessary directions in this regard.

Relating its experience, the HC has observed that when the cases in which advocate is appointed at State expenses at the trial stage comes before the HC in appeal, it becomes difficult for the appellate court to find out the competency of the lawyer or otherwise. It is therefore advisable that while appointing a lawyer at State expenses, the trial court should disclose in its order the length of practice of the advocate appointed and his/her experience in conducting the criminal cases, sessions cases or sessions of particular types and his opinion that in the situation he/she was the competent person to be appointed for the accused particularly in cases where there is likelihood of conviction for major offences.In the result, the HC dismissed the State appeal against acquittal by the trial court.