Bombay High Court
The State Of Maharashtra vs Sheshrao Sonaji Jadhav on 21 December, 2017
Bench: T.V. Nalawade
1 APEAL221.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 221 OF 2002
The State of Maharashtra,
Through P.P. High Court,
Aurangabad. ... Appellant
(Orig. Complainant)
VERSUS
Sheshrao S/o Sonaji Jadhav,
Age : 37 years, Occu. Labour,
R/o. Malegaon (Khurd), Tq. Gevrai,
Dist. Beed. ... Respondent
..........
Mr S. D. Ghayal, APP for the appellant
Mr N. B. Jadhav, APP for respondent/State
.............
CORAM : T. V. NALAWADE &
A. M. DHAVALE, JJ.
RESERVED ON : 09.11.2017.
PRONOUNCED ON : 21.12.2017
JUDGMENT (PER A. M. DHAVALE, J.) :-
1. This is an appeal by the State against acquittal of the
respondent, who was found guilty u/s 302 IPC for committing
murder of his wife who was acquitted on the ground of insanity.
2. The prosecution is launched against the accused on the
basis of FIR lodged by his father PW3-Sonaji on 08.12.2000 at Police
Station Chaklamba, Tq. Georai, Dist. Beed. As per the FIR, the
2 APEAL221.2002
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. His daughters were
married whereas; sons were residing at their grandmother's house on
account of insanity of their father. Deceased Kamalbai was wife of
the accused Sheshrao. She was residing at her maternal house and
just 12 days before the incident she had resumed cohabitation with
her husband. As she stayed at her maternal house for long period,
the accused used to assault her. On 06.12.2000, deceased Kamalbai
due to fear of her husband was proceeding to her maternal house,
hence the accused had confined her in the house. The accused and
his wife were the only persons residing in the house. On 07.12.2000,
the house of the accused was not opened upto 09:00 a.m., hence,
PW3 Sonaji and his brother knocked the door but it was not opened.
Hence, PW3 Sonaji called some neighbours and some of them
entered the house by removing the roof sheets. It was noticed that,
Kamalbai was lying unconscious and accused Sheshrao was sleeping
by her side. There was ligature mark of some rope around her neck.
PW3 Sonaji formed an opinion that, his son Sheshrao under the
insanity attempted to commit murder of his wife Kamalbai during the
night between 10:00 p.m. to 09:00 a.m. Kamalbai was first taken to
outpost at Umapur and she was forwarded to Primary Health Centre
3 APEAL221.2002
at Umapur but she was referred to Rural Hospital at Georai and then
to Civil Hospital at Beed. She had some injuries on her neck as well.
On the basis of such FIR, the crime was registered at C.R. No.
I-63/2000 at Chaklamba Police Station, Georai and the same was
investigated into by PW6-API Waghmare. The accused was produced
before the ld. JMFC. Initially, he was remanded to police custody
from 09.12.2000 to 11.12.2000 and thereafter he was remanded to
MCR. The Investigating Officer visited the spot and drew spot
panchanama. Some pieces of bangle were seized from the spot. A
rope prepared from Saree found on the spot was seized. The
Investigating Officer recorded the statements of material witnesses
and collected medical evidence. On 07.01.2001, Kamalbai died
without regaining consciousness. The post-mortem was conducted
on her dead body which discloses that there was one ligature mark
and two abrasions on her neck. There was internal damage to the
brain and dislocation of cervical spine C1-C2. She died due to
complications of spinal injury due to fracture dislocation of cervical
spine C1-C2 associated with ligature compression of neck. On
14.03.2001, the Investigating Officer submitted a report to the
ld.JMFC, Georai that the accused should be referred to medical
examination about his mental condition and he was accordingly
referred to Mental Hospital at Pune and he was accordingly in mental
4 APEAL221.2002
hospital from 21.03.2001 to 18.06.2001. He was declared fit to face
trial and defend himself. Thereafter, charge-sheet came to be filed.
In due course, the case was committed to the court of sessions. The
accused could not engage advocate and advocate appointed on state
expenses was provided to him. The charge Exh. 4 was explained to
the accused to which he pleaded not guilty. The prosecution
examined six witnesses. The accused has admitted that he and his
wife were alone in the house during the fateful night but claimed that
due to unsoundness of mind he was unable to understand what has
happened during that night. The ld. trial Judge accepted the
prosecution evidence to hold the accused guilty u/s 307 IPC but also
accepted evidence of accused about insanity and therefore the
accused was acquitted but he was detained in the Jail with direction
to the Jail authorities to submit report to the Government whether
the accused could be released without danger to himself or to any
other person. It is reported that soon thereafter the accused was
released from the Jail.
3. Shri. S. D. Ghayal, learned APP for the State has deposed
that, there is convincing evidence both ocular as well as
circumstantial to show that the accused and his wife Kamalbai were
alone in the house and Kamalbai sustained throttling and
strangulation whereby she became unconscious and later she died
5 APEAL221.2002
due to injuries on 07.01.2001. He argued that, the medical evidence
and evidence of material witnesses has not been challenged and the
same is sufficient to show that the accused has committed murder of
his wife. The ld. trial Judge has rightly held him guilty u/s 302 IPC.
4. However, Shri. Ghayal argued that, the ld. trial Judge erred
in holding that the accused committed murder under insanity and
was covered by the exception u/s 84 of IPC. He relied on judgments
in Sudhakaran v. State of Kerala 2011 Cri.L.J. 292 and Santosh
S/o Shridharrao Bhatambrekar v. The State of Maharashtra (Cri.
Appeal No. 173 of 2001) delivered by Division Bench of this Court to
which one of us (T.V. Nalawade, J.) was party, on 06.09.2017. He
argued that, the conduct of the accused at the time of commission of
offence or soon before or after the crime is relevant to determine
whether he was legally insane or not or whether his case would fall
under exception to Section 84 of IPC. He relied on Section 105 of
Evidence Act and submits that the burden was on the accused to
prove that his case falls under exception to Section 84 IPC. He fairly
conceded that the burden is on the accused that he has to show by
preponderance of probability that his case falls under exception. He
pointed out that, there is no such evidence to show that the accused
was suffering from mental insanity at the time of commission of
offence. There is also no expert evidence to show that the accused
6 APEAL221.2002
was suffering from some mental insanity and unsoundness of mind
which would deprive him of powers to realize what he was doing was
wrong or contrary to law or that what he was committing was an
offence. Mr. Ghayal submitted that the accused used to assault his
wife and while she was proceeding to her maternal house he had
brought her back. He had wrongfully confined her. He was in senses
and he was knowing the consequences of his acts. The ld. trial Judge
erred in relying on the evidence regarding previous and subsequent
behaviour of the accused which was not in close proximity with the
date of incident. He submitted that, the case of the accused does not
fall under exception to Section 84 IPC. Therefore, the accused should
be convicted u/s 302 IPC.
5. Per contra, ld. Counsel Shri. N. B. Jadhav for respondent
supported the judgment of the trial court. He relied on State of
Rajasthan Vs Shera Ram. AIR 2012 SC 1 and Ratan Lal v The
State of Madhya Pradesh AIR 1971 SC 778. He submitted that,
even if the accused succeeds in creating reasonable doubt in the mind
of the Judge about the mens rea, the accused is entitled for acquittal.
He has to prove the defence of case falling under exception by
preponderance of probability. He submitted that, right from FIR and
evidence of the witnesses there is ample material to show that the
accused was suffering from insanity and was under treatment of
7 APEAL221.2002
psychiatrist. Even after the incident, he was required to be sent to
mental hospital where after treatment of three months, he was
declared fit to face the trial. According to ld. advocate, there is
sufficient material to show that at the time of the incident as well, the
accused was not understanding the consequences or that whatever he
was doing was wrong or contrary to law. He therefore submitted
that the ld. trial Judge has properly appreciated the evidence and no
interference is called for.
6. On the basis of the evidence on record, the points for our
consideration with findings thereon are as follows :
Sr. Points Findings
No.
1 Whether the deceased Kamalbai met In the affirmative.
with a homicidal death?
2 Whether the accused has committed Proved.
murder of deceased Kamalbai?
3 Whether the accused committed Proved.
murder due to unsoundness of mind
and his case falls under exception to
Section 84 IPC?
4 What order? The appeal is dismissed.
REASONS
7. The prosecution has examined following witnesses and
produced documents which can be conveniently grouped as follows:
8 APEAL221.2002
(I) Homicidal Death:
PW1 - Anil Jinturkar. Provisional Certificate Exh. 13 and
PM notes Exh. 14. Inquest panchanama Exh.10 (admitted).
(II) Evidence on last seen together and custodial death:
PW2 - Laxman, Police Patil.
PW3 - Sonaji, father of the accused.
PW4 - Madhukar, spot panch with panchanama Exh. 24.
Evidence of Investigating Officer API - Waghmare PW6.
(III) Plea of insanity :
(a) Evidence of Sonaji and FIR Exh. 20.
(b) Evidence of PW2 Laxman.
(c) PW5 Psychiatrist - Mr Stanley.
(d) First remand report.
(e) Application dt. 17.3.2001 by prosecution and was
passed by ld. JMFC, Exh.30.
(f) Certificate of fitness issued by Pshychiatrist
(PW5) Exh. 29.
(g) Application by APP for referring the accused to
the Mental Hospital dt. 14.3.2001 and order of
JMFC (Exh. 51).
8. Point No. 1 - Homicidal Death.
Evidence of PW1 Anil Jinturkar shows that on 07.01.2001,
he conducted PM between 12:30 to 1:30 p.m. on the dead body of
Nanda. He found following injuries on her person.
9 APEAL221.2002
(i) Abrasions over the region of right and left angle of
mandible of sizes 3 cm x 2 cm and 3 cm x 3 cm.,
respectively with black scab over them. Scab was falling
from margins.
(ii) Whitish scar of 5 cm. length seen over right side of neck
antero lateral aspect above thyroid cartilage width was 2
cm.
(iii) Bed sores seen over both buttock and sacral region
gralululation tissue seen.
9. Injury no. 2 referred above is a ligature mark around the
neck whereas; injury no. 1 is the abrasions found on the right and left
side of angel of mandible with black scab. These are obviously the
injuries caused on the fateful night. Injury no. 3 bed sores is not
attributable to the incident. Dr. Jinturkar deposed that, on
examination of spine and spinal cord he found deformity in cervical
region. There was fracture of body of cervical 1 with evidence of
dislocation of inter-vertebral joint between C1 & C2. Paraspinat
muscles were contused and showed haemorrhages, spinal cord in
respect of fractured vertebra was soft and showed dark blackish tiny
hemorrhages after cut section. Dr. Jinturkar opined that the cause of
death was delayed complications of spinal injury due to fractured
dislocation of cervical spinal C1 & C2 associated with evidence of
10 APEAL221.2002
ligature and compression of neck. He has sent the viscera and organs
for histopathology and received report thereof which is on record.
After referring to the report, he had given his opinion in provisional
death certificate at Exh. 13 and PM notes at Exh. 14. He deposed
that, no fracture of odontoid process of second cervical verterior was
noticed. He opined that, besides the hanging manual pressure was
applied around the neck and such injury was possible by applying
pressure by means of Saree around the neck.
10. The evidence of PW2 Laxman and PW3 Sonaji disclosed
that, after the fateful night, in the morning deceased Nanda was lying
unconscious inside the house and the accused was beside her. They
were in a house latched from inside and Nanda was taken out by
making entry from the roof by removing tins. In the light of these
facts, it is clear case of homicidal death. There is no possibility
whatsoever of suicide or accidental death. Even the defence has not
denied this fact. We therefore hold that deceased Nanda met with
homicidal death.
11. Point No. 2 : whether the accused has committed
murder?
In this regard, we find that the accused and deceased
Nanda were the only two persons inside the house. The room was
11 APEAL221.2002
latched from inside. In the morning, when father of the accused
Sonaji knocked the door, the accused did not open it. PW3 Sonaji
called the neighbours and made entry in the room by removing tin
sheets. They found that Kamal was lying unconscious with ligature
marks around her neck. The accused was sleeping by her side. She
and the accused were immediately shifted to the hospital. PW3 Sonaji
has stated that Kamal was alright when she and the accused were
gone for sleep. According to his evidence, his son used to assault
Kamalbai and hence Kamal stayed at a maternal house. She had
taken to her matrimonial house few days before the incident. Due to
fear of the accused, she was proceeding to her maternal house but
the accused went to the S.T. Stand, Shirsala and brought her back
and confined her in the house. Thus, it is clear that on the night
intervening 07.12.2001 to 08.12.2001 Kamal sustained fatal injuries
to her neck and spinal cord which ultimately resulted into her death
after one month. This is a case of custodial death. PW2 Laxman,
Police Patil and PW3 Sonaji father of the accused have deposed that
the accused used to assault Kamalbai. They have no reason to falsely
implicate the accused. The accused alone had opportunity to commit
murder of Kamalbai during the night. She has met with a homicidal
death. In the light of these facts, we rely upon the judgment in
Trimukh Maroti Kirkan Versus State of Maharashtra (2006) 10
12 APEAL221.2002
SCC 681.
. This was the case where bride Revata was subjected
to dowry and ill-treatment. Shed died in her matrimonial
house. Her husband disclosed that she died due to snake bite
but the medical evidence disclose that she died due to
asphyxia due to compression of neck. Explaining the scope of
Section 106 of Evidence Act regarding the burden to proof of
the accused, it was held that these crimes are generally
committed in complete secrecy inside the house and it becomes
very difficult for the prosecution to lead evidence. ..... But, it
does not mean that a crime committed in secrecy or inside the
house should go unpunished. ..... In such case, strict principle
of circumstantial evidence should not be insisted upon by
courts. ...... The prosecution is not expected to plead evidence
which is almost impossible to be led. ............ After reporting
to various judgments, it was observed that when the accused
has committed murder of his wife and the prosecution
succeeds in leading evidence to show that shortly before the
commission of crime they were seen together or the offence
takes place in the dwelling house where the husband also
normally resided, it has been consistently held that if the
accused does not offer any explanation how the wife received
injuries or offers an explanation which is found to be false, it
is a strong circumstance which indicates that he is responsible
for commission of the crime. The conviction awarded by the
High Court u/s 302 was upheld by the Apex Court.
12. The evidence of custodial death against the accused rules
out possibility of murder by anybody else except the accused. We find
that chain of evidence is so complete as to leave no other hypothesis
consistent with the guilt of the accused. The accused in his statement
u/s 313 also has not disputed the material facts which point towards
his guilt. We therefore hold that the homicidal death has been
proved.
13 APEAL221.2002
13. The plea of insanity:
The accused has taken plea of insanity. Even when a person
has committed any offence if the case falls u/s 84 under exception at
Section 84 IPC is not guilty. Section 84 IPC reads as follows:
Section 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.
14. The law with regard to scope of Section 84 IPC has been
explained in various rulings, which is as follows.
(a) Bhikari v The State of U.P. AIR 1966 SC 1.
Every person is presumed to know the natural
consequences of his act. Similarly every person is also presumed to
know the law. It is for this reason that S. 105 of the Evidence Act
places upon the accused person the burden of proving the exception
relied upon by him.
(b) State of M.P. v. Ahmadulla AIR 1961 SC 998 & Jay Lal v.
Delhi Administration AIR 1969 SC 15.
State of mind of the accused just before or just after
commission of the act is relevant.
14 APEAL221.2002
(C) Dahyabhai Chhaganbhai Thakkar v. State of Gujarat AIR
1964 SC 1563.
The evidence shows that the accused gave several blows is
not indicative of insanity. It reflects of his vengeful mood or his
determination to see that the victim had no escape.
(d) Ratan Lal v The State of Madhya Pradesh AIR 1971 SC
778.
Tendency to set fire to one's own clothes and house is more
than mere irrationality. It is prima facie proof of insanity. Testimony
of defence witnesses as to unsoundness of mind of accused should
not be disbelieved merely because they are relation of accused. It is
not necessary that every insane person should have homicidal
tendencies. What is material is behaviour of the appellant on the day
of the occurrence.
15. The material evidence with regard to previous and
subsequent conduct of the accused just before the incident may be
stated as follows.
(i) PW2 Laxman, a villager and PW3 Sonaji, father of the
accused have deposed that, on the earlier day, Kamal was
frightened that the accused would beat her and therefore
she was returning home. The accused went to the ST stand
15 APEAL221.2002
and persuaded her and brought her back to his house and
thereafter confined her in the house by bolting the door.
(ii) The accused and deceased Kamal had slept inside the house
but the door was not opened till 09:00 a.m. Then PW3
knocked the door, still it was not opened. Hence, he called
the neighbours and the neighbours made entry in the room
by removing the roof tins. Kamalbai was found in
unconscious condition in the house and accused was
sleeping by her side.
(iii) Thereafter, Kamalbai and the accused were put in a Jeep
and were taken to Police Chowki.
(iv) PW6-API Waghmare arrested the accused on 08.12.2000 at
10:30 p.m. Thereafter, he was produced before the
Magistrate. There is no evidence that, PW6 Magistrate saw
any symptoms of insanity in the conduct of the accused.
(v) The evidence shows that, the accused has used hands for
throttling as well as rope for strangulation so as to ensure
that his wife Kamalbai should not survive. The evidence of
Medical Officer PW1 shows that there were scratch injuries
on the neck showing throttling and besides there was a scar
on the neck right side above thyroid cartilage. There was
also dislocation of intra vertebral joints between C1 & C2.
He has opined that, the cause of death was delayed
complications of spinal injury due to fracture dislocation of
cervical spine C1-C2 associated with evidence of ligature of
compression of neck.
16 APEAL221.2002
(vi) PW2 & PW3 Sonaji have not deposed any specific conduct
or behaviour of the accused immediately after the incident
disclosing signs of insanity when they entered the house.
Even the FIR does not disclose such material.
(vii) Evidence of PW5 Psychiatrist Dr. Ivan Stanley Neto does
not show the nature of mental insanity of the accused when
he examined him on 21.03.2001 much later from the date
of incident.
(viii)There is no evidence that, the accused had shown any
homicidal or suicidal tendency or tendencies of setting on
fire any property.
16. The ld. Sessions Judge, Beed considered the evidence on
record showing symptoms of insanity much before or much after the
time of incident. These circumstances are not relevant for
determining whether the case falls u/s 84 IPC or not. When the
conduct of the accused at the time of incident is relevant and no
evidence is possible to disclose his conduct at the time of incident, his
conduct just before or just after the incident becomes more relevant.
If the above circumstances are taken into consideration in the light of
the various rulings, we are tempted to hold that the accused has
failed to discharge his burden. However, the evidence on record of
father of the accused and PW6 Dr. Ivan Stanley Neto shows that the
accused was suffering from insanity both much before and much after
17 APEAL221.2002
the time of incident. There are some symptoms showing that the
accused was sleeping with the deceased and did not open the house
till 09:00 a.m. suggesting that he might be insane. There was specific
FIR by the father of the accused showing that the accused was
suffering from insanity and the murder was committed in the
insanity. The FIR shows that, the accused was under medical
treatment.
17. In the light of these facts, the judgment in Siddhapal
Kamala Yadav v State of Maharashtra AIR 2009 SC 97 is most
relevant. In this case it is held in para 8 as follows:
8. ....... The onus of proving unsoundness of mind is on the
accused. But where during the investigation previous history
of insanity is revealed, it is the duty of an honest investigator
to subject the accused to a medical examination and place
that evidence before the Court and if this is not done, it
creates a serious infirmity in the prosecution case and the
benefit of doubt has to be given to the accused. The onus,
however, has to be discharged by producing evidence as to the
conduct of the accused shortly prior to the offence and his
conduct at the time or immediately afterwards, also by
evidence of his mental condition and other relevant factors.
Every person is presumed to know the natural consequences of
his act. Similarly, every person is also presumed to know the
law. The prosecution has not to establish these facts.
18. 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
18 APEAL221.2002
with the Mental Hospital whether he was taking treatment. In the
light of the facts, the accused is entitled to get benefit of doubt and
therefore we though do not agree with the findings of the ld. trial
Judge based on the evidence discussed by him, in view of the serious
infirmity of non production of the accused before the medical officer
& in the light of the previous and subsequent history, we grant the
benefit of doubt to the accused and hold that at the time of incident
he was probably insane.
19. One more lacunae in the present case is that, the accused
was unrepresented and learned Sessions Judge had provided him a
lawyer at the 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 may be
stated as follows.
. In Md. Sukur Ali v. State of Assam AIR 2011 SC 1222, it
is held if the advocate for the accused either negligently or
deliberately remains absent, still the Court is bound to appoint
counsel for the accused in a criminal case. The accused should not
suffer for the fault of his counsel. Proper legal assistance is a part of
19 APEAL221.2002
guarantee of protection of life and liberty under article 21, which is
'heart and soul' of the fundamental rights. Relying on US Supreme
Court in Powell Vs. Alabama, 287 US 45 (1932)and Maneka
Gandhi vs. Union of India AIR 1978 SC 597, it is held;
22. We reiterate that in the absence of a counsel,
for whatever reasons, the case should not be decided
forthwith against the accused but in such a situation the
Court should appoint a counsel who is practising on the
criminal side as amicus curiae and decide the case after
fixing another date and hearing him.
20. In Mohd. Hussain v. State (Govt. of NCT), Delhi 2012
Cri. L. J. 1069, it is held that denial of assistance of counsel to the
accused charged with serious offences amounts to negation of
concept of due process of law. The conviction and sentence of death
penalty were set aside for want of assistance of counsel.
21. In Ranchod Mathur v. State of Gujarat AIR 1974 SC
1143, it is observed that, Sessions Judge should view with sufficient
seriousness the need to appoint State Counsel for undefended
accused in grave cases. Indigence should never be a ground for
denying fair trial or equal justice. Therefore, particular attention
should be paid to appoint competent advocates, equal to handling the
complex cases, not patronising gestures to raw entrants to the Bar.
Sufficient time and complete papers should also be made available to
the advocate chosen so that he may serve the cause of justice with all
20 APEAL221.2002
the ability at his command, and the accused also may feel confident
that his counsel chosen by the court has had adequate time and
material to defend him properly.
22. In Sunil Gaikwad v State 2009(3) BCR (Cri.) 504, the
Division Bench of this Court in a case of triple murder found that
advocate of 9 years standing was appointed for the accused, he had
conducted sessions cases but had no experience to conduct sessions
cases of this magnitude and complexities. It was observed that, by
referring to observations from Jahira Shaikh v State of Gujarat AIR
2006 SC 1367 regarding concept of fair trial and the role of Judicial
Officer as a participant in the trial evincing intelligence, active
interest and elicit all relevant materials necessary for reaching the
correct conclusion, to find out the truth, and administer justice with
fairness and impartiality to both the parties, "we have minutely
considered the evidence on record more particularly the cross-
examination of the witnesses conducted by the defence. In the facts
of the case, we are not of the opinion that, this is a fit case for setting
aside the judgment and order of conviction and sentence and
remanding the matter back to the court for holding fresh trial but
certainly we are of the opinion that, some of the witnesses already
examined are required to be cross-examined afresh maintaining the
earlier cross-examination conducted by the defence counsel". There
21 APEAL221.2002
was direction issued for appointment of an advocate for the accused
having sufficient experience of conducting such cases and permitting
the accused to take further cross-examination of the material
witnesses.
. (The case where the accused has appointed advocate of his
own choice will be governed by the ratio in AG v. Shiv Kumar Yadav
& Anr. 2015 Cr.L.J. 4640 SC).
23. It is 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
High Court of Bombay as follows :
i. 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 the 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.
22 APEAL221.2002
ii. If the Investigating Officer fails to perform his duty of
getting the accused person examined, it is the obligation of
Judicial Magistrate before whom 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.
iii. It should be also born 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 the state expenses.
iv. 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. The
inquiry should be made whether he has conducted sessions
cases or not and his length of practice would not suffice for
23 APEAL221.2002
his appointment. In case of sessions cases of complex or
peculiar facts it should be esquired whether he has
conducted such case or not. Legal aid to be provided at
state expenses should not be for the name sake. Then only
he should be appointed as advocate for the accused and
after recording his satisfaction of competency of the
advocate. Copies of this judgment may be forwarded to
Registrar General and Director General of Police,
Maharashtra for issuing necessary directions in this regard.
24. When the cases in which advocate is appointed at state
expenses at the trial stage comes before this Court 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.
24 APEAL221.2002
25. In the result, the appeal deserves to be dismissed and same
is dismissed.
[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGE
sgp
