Bhawani Singh, C.J.@mdashWe propose to decide Criminal Appeal No. 1 of 1995 and Criminal Reference No. 12 of 1994 by this Judgment.
Criminal Reference is by Sessions Judge, Pulwama in terms of Section 374 of Criminal Procedure Code, 1989 (J . and K.) convicting the accused
under Sections 302/376 Ranbir Penal Code (hereinafter for short RPC) and imposing sentence of death.
2. Accused had not preferred Appeal through jail, but when the matter came before this Court, Shri Mushtaq Mohammad, Advocate, was
appointed Amicus Curiae to file Appeal on behalf of the accused within the time allowed by the Court. This is how Criminal Appeal No. 1 of 1995
is before us with Criminal Reference No. 12 of 1994.
3. Material facts of the case are that accused married to Mst. Hajra, who had been divorced by her previous husband for reason of infidelity and
moral turpitude. From the accused, she had four children eldest being the daughter Salima (deceased) aged 15 years. Further, it is recorded in the
Appeal that accused was living jointly with his parents and younger brother, which was not to the liking of Mst. Hajra, who would constantly
impress upon the accused for separation from the joint family. Seven months after the marriage, she left the house against the wishes of the accused
and was brought back after great persuasion and mediation by the village elders. However, her relationship with other family members continued to
be sore, with the result that the accused remained tense and depressed. The situation was aggravated further when his mother died to whom he
was deeply attached. Quarrels between the family members became a constant feature, with the result that he remained in Mental Hospital for 3'/2
months.
4. Prosecution case is that, on Feb. 4, 1994 Complainant Mohd. Shafi Jhat reported at Police Station, Rajpora;
... that today in the morning his brother's wife Mst. Hajra came to his Kotha and told the witness that her husband Abdullah Jhat (accused) has
committed something wrong to his daughter Mst. Salima resulting in her death. Her dead body is present on the spot.
5. Accordingly, case for offence u/s 302, RPC was registered and investigation started. During investigation, the dead body of the deceased was
taken into custody and was subjected to medical examination. On receipt of medical report, offence u/s 376, RPC was also found against the
accused. The wearing apparels of the deceased and the trousers of the accused were seized and sent to the Director, J. and K. Forensic Sciences
Laboratory, Srinagar for examination along with mud/clay recovered from the vagina of deceased and from the accused during the search of his
trousers. After arrest; the accused was referred to Medical Officer, Pulwama Hospital for examination and opinion about his impotency and mental
fitness. Dr. Iqbal examined him and his opinion is that the accused was potent, though no semen was found in his under-garments pubic hair and
that he was mentally healthy. Pursuant to another query from Medical Officer, Pulwama Hospital qua post-mortem report as to whether ribs 9 to
12 described as fractured in the post mortem could be so due to kick and rub by foot and whether such a fracture of the ribs could affect the
kidney and whether kidney could be damaged by kick resulting in death, Dr. Iqbal reported that ribs and kidney rupture could be due to blunt
trauma due to leg push and kicks and fracture of ribs could affect kidney, which could also be damaged by kick resulting in death.
6. Statement of Mst. Hajra was recorded u/s 164 Criminal Procedure Code by Judicial Magistrate, Pulwama. On completion of investigation,
Challan was presented in the Court of Chief Judicial Magistrate, Shopian on March 7, 1994 for offence under Sections 302/376, RPC. Accused
was committed to the Court of Sessions Judge, Pulwama on March 22, 1994, offence being triable by that Court exclusively. In nutshell, the
prosecution allegation is that accused committed rape upon his minor daughter Salima (14-15) and with a view to conceal his guilt, killed her by
intentionally inflicting bodily injuries which he knew were sufficient to cause her death.
7. On March 31, 1994, the Sessions Judge recorded the following order;
The accused in proper custody present. Though the interim orders passed by the committal Court on 22-3-1994 shows that the copies u/s 161
and 173, Cr.P.C. have been given to the accused, but today he is not responding to the queries of the Court properly. It was said in the Court that
the accused is not in a position to defend himself through a lawyer due to his poverty and due to his mental depression and due to his poverty and
due to his mental depression insufficient means. I. therefore, in terms of S. 340A, Cr. P.C. appoint Mr. Abdul Salam Dar (Majal) advocate as an
Amicus Curiae for the accused. The prosecution is directed to supply the said Amicus Curiae with the copies of the challan papers u/s 161 and
173, Cr. P.C. afresh to the said Amicus Curiae by the next date, Mr. Dar was called and apprised of this order in open Court who accepted the
same. Let the case be put up for further proceedings on 4-4-1994. The accused shall remain in judicial lock up at Srinagar and shall be produced
on that date.
(Emphasis supplied)
Announced 31-3-1994
Sd/- Sessions Judge
Thereafter, on 4-4-1994, the Court passed following order;
P.P. present. Accused present in proper custody. Amicus Curiae Ab. Salam Dar present, Shri Ab. Salam Dar has been furnished with the copies
of the challan in the open Court. Amicus Curiae has prayed that the accused be got examined by a Psychiatrist Board of specialist doctors at
Srinagar. PP seeks time for filing objections. Time is granted. Case fixed for 14-4-1994. Further the accused be again produced in proper
custody.
(Emphasis supplied)
8. After the prosecutor filed the objections to the claim made by the defence counsel, they were heard and the case was fixed for orders on April
7, 1994. But no order was announced on this date and on 17-5-1994, 26-5-1994, 30-5-1994, 6-6-1994 and 22-6-1994 either because
accused was not produced in the Court by the Police, or Court could not function due to serious militancy conditions, hartals and absence of the
Judge. Ultimately, on June 29, 1994, the Court passed the following order;
CPO acting as public prosecutor Mr. Ab. Salam Majal, Amicus Curiae The accused Abdullah Jhat is facing trial before this Court for an offence
punishable u/s 302/376, RPC for having committed rape and murder of his own daughter Salima aged 13-14 years. On 4-4-1994 Mr. Jajal made
an oral submission that the accused be got examined by Psychiatrist Board as the accused appears to be of unsound mind. He has invited the
attention of the Court towards a docket on the file whereby the SHO police station, Rajporahas, during the course of investigation referred the
accused to Medical Officer, Pulwama for the examination of the accused with regard to his mental soundness, thus the i/o himself has caused a
shadow on the mental fitness of the accused. CPO acting as public prosecutor has submitted his written objections alleging therein that the accused
has committed rape upon his daughter and after quenching his lust, he committed her murder and that the Medical Officer to whom the accused
was referred by the investigating officer during investigation has opined that the accused was mentally healthy and that there is no evidence or any
substantive material on record whereby it could be said that the accused was suffering from any derangement of his mind or was ever having any
sort of illusions or delusions I have heard the Ld. counsel also have gone through the record on the file. The Amicus Curiae has not produced or
cited any authority on the issue. He has invited the attention of the Court simply towards Section 464 and 465, Cr.P.C. The PP during arguments
has relied upon 1971, Cr.LJ 1193 and I.V. Shivaswamy Vs. State of Mysore, . From the date the Amicus Curiae has made the submission supra,
the case has been called on six hearings and on all these hearings various questions were put to the accused in the open court in order to examine
his mental fitness and to my opinion he has all along been giving proper answers like a sound and healthy man, thereby refuting the submission of
the Amicus Curiae itself. His such conduct does not warrant his medical examination. On the other hand the authorities relied upon by the PP fully
support his contention. In these circumstances the submission of the Amicus Curiae is not well founded and is rejected. Let the file now come up
on 12-7-1994 for arguments regarding charge/discharge of the accused.
(Emphasis supplied)
Announced.
Sd/- Sessions Judge
Pulwama.
Thereafter, on 28-7-1994, the following order was passed;
PP (CPO) for the state.
Accused in custody present. Ld. Amicus Curiae is not present nor he has produced any order as envisaged in the interim order dated 14-7-1994.
The accused requested verbally to the Court that he wants to confess his guilt and as such his statement be recorded. I took the accused to my
chamber, without any guard and without handcuffs and made him understand that his confession can be read against him and his confession may
entail even the extreme penalty and that he was not under any obligation to make a confession. Still he prayed that his conscience and only the
conscience compels him to make the confessional statement.
Since the learned Amicus Curiae is not present today and that the accused was asked to think over his intention again, as such his statement was
not record today. Put up on 1-8-1994 for further proceedings.
(Emphasis supplied)
Sd/-
On August 1, 1994, due to general strike, none was present and the case was adjourned to August 8, 1 994 when the following charge sheet was
framed against the accused;
Charge sheet.
In the court of Sessions Pulwama.
I, Mohammad Maqbool Banday, Sessions Judge, Pulwama hereby charge you, Mohd Abdullah Jhat son of Baja Mohammad Jhat resident of
Zamapathri Pulwama with the following charges.
1. That you during the interventing night 3/4th Feb. 1994 in your own residential Kotha, situated at Zampathri Pulwama with criminal intention
committed rape several times on your daughter, Mst. Saleema aged 14/15 years against her will and thereafter killed her on spot by inflicting bodily
injuries.
Therefore, you have committed offences made punishable under Sections 302 and 376, RPC and which are cognizable by this Court. I, by virtue
of this charge, order you, that the aforesaid charge having been farmed by the Court, you are being proceeded against.
Dated 8-8-1994
Sd/- Sessions Judge Pulwama.
Thereafter, accused was examined in the manner quoted below;
Question : Have you understood the contentions of the charge sheet?
Answer: Yes.
Question: Have you committed the offence?
Answer: Yes, Sir.
Question : Do you want to say anything more?
Answer : Sir, I am young, I committed a mistake for the first time under emotions, I want justice.
Question: Have you confessed to the offence of your own free will and consent or under the influence of any promise, coercion?
Answer : Sir, Of my own free will and consent, I confessed the offence.
Question : Are you aware that by confessing the offence you can be awarded severe punishment ?
Answer : Sir, the deponent is fully aware of the same
Sd/-
Sessions Judge
Certified that the above examination was taken in my presence and hearing and that the record contains a full and true account of the statement
made by the accused.
Sd/-
Sessions Judge 8-8-1994.
Thumb impression of accused.
9. Chapter XXXIV of Code of Criminal Procedure, 1989 (J&K) deals with lunatics with corresponding provision in Chapter XXV of the Code of
Criminal Procedure, 1973. Section 464 provides for procedure in case of person committed before Court of Session or High Court being lunatic.
It envisages that in case any person committed for trial before a Court of Session or the High Court appears to the Court at his trial to be of
unsound mind and consequently incapable of making his defence, the Court shall, in the first instance try the fact of such unsoundness and
incapacity, and if the Court is satisfied of the fact, the Judge shall record a finding to that effect and shall postpone further proceedings in the case.
This Section is pari materia with Section 329 of the Code of Criminal Procedure, 1973. This section relates to unsoundness of mind at the time of
inquiry or trial and not at the time of commission of the offence (See: State of Maharashtra Vs. Sindhi alias Raman, , Jagdeo Vs. Emperor, and
Nabi Ahmad Khan v. Emperor AIR 1932 Oudh 190 : 1932 Cri LJ 542.
10. It is mandatory that when the plea of insanity is raised before a Court, it shall try the fact of unsoundness of mind and incapacity of accused at
the first instance. Commencement of trial without recording medical evidence or satisfying himself or recording of finding on the material placed
before him will vitiate the trial. If a doubt is raised in the mind of the Court that the accused is of unsound mind, it is obligatory on the Court to try
the fact of such unsoundness of mind and incapacity of the accused. In case the accused has been examined by a Civil Surgeon or other Medical
Officer, such Surgeon or Medical Officer should be examined on oath like any other witness. Failure to do so would defeat mandatory requirement
of these provisions and vitiate the whole trial. Similarly, conclusion of the Court that the accused is not of unsound mind must be based on material
placed on record, otherwise, the order passed without holding inquiry to establish the fact would remain unsubstantiated. Medical examination of
the accused by the Medical Officer or any other officer appointed by the State in this behalf and thereafter recording of his statement in the Court
is necessary, since it forms part of material gathered by the Court while conducting the inquiry for establishing whether or not the accused suffers
from unsoundness of mind, therefore, incapable of making his defence. (See : I.V. Shivaswamy Vs. State of Mysore, , Dhani Ram Vs. State of
Himachal Pradesh, .
11. Examined in the contest of these provisions interpreted in numerous judicial pronouncements, we find that Sessions Judge miserably failed to
follow the mandate thereof resulting in serious miscarriage of justice. It transpires from the Court order dated March 31, 1994 that Sessions Judge
noticed two facts, namely that the accused was not responding to the queries of the Court properly and that he was not in a position to defend
himself through a lawyer due to poverty and due to his mental depression. Words ""mental depression"" have been scored out without being
initialled. In case proper meaning is assigned to the observations recorded by the Court, it is patently clear that sessions Judge found that the
accused was not responding to the queries of the Court properly due to his mental depression and that he was not in a position to defend himself
through a lawyer due to poverty and insufficient means. First part pertains to the application of Section 465, Code of Criminal Procedure, 1989.
This inference with respect to the state of accused is further clear from Court order dated April 4, 1994 when Amicus Curiae prayed that the
accused be got examined by a Psychiatrist Board of specialist doctors at Srinagar. Sessions Judge did not pay proper attention to this important
state of the accused, although he had not only noticed the same himself, but was told about it by the Amicus Curiae also. Matter was treated
casually with the result that order dated June 29, 1994 was passed.
12. Defence counsel is not provided to accused only when he is poor. Law docs not make distinction between rich and poor so far as providing of
defence counsel is concerned in case they are not being defended by counsel at the trial. Therefore, even if an accused can afford a counsel, but
has not engaged, still it is the duty of the Court to engage counsel for him. Similar would be the approach with respect to a person, who cannot
engage counsel due to poverty. Primarily, the question before the Court was the incapacity of the accused to defend himself on account of
unsoundness of mind.
13. Perusal of order dated April 4, 1994 indicates that the counsel for accused specifically requested the Court for the examination of accused by
Psychiatric board of doctors at Srinagar. Obviously, this request was not made without any basis. Court had noticed the state of mind of the
accused and it was also brought to its notice by the counsel. However, instead of accepting the request and tried the fact as required under the
provision, sessions Judge was unreasonably and unjustifiably influenced by the statement of Public Prosecutor in the reply that the accused had
been subjected to medical examination as to physical condition, potency and mental condition by the Medical Officer at the instance of
Investigating Officer during investigation on February 5, 1994 and the opinion by the Medical Officer of the same date pointing out that the
accused was in fit mental health. Perusal of this report demonstrates casual approach by the Medical Officer to the examination of the accused. It
is absolutely cryptic, non-speaking and unreasoned. There is hardly any substance and relevance of this report, what to talk of the same being
satisfactory, dependable and acceptable for purpose of establishing that the accused was of sound mind. Sessions Judge depended on this report
without examining the Medical Officer to prove the contents thereof. Moreover, this report pertains to the stage of investigation. It could not be
utilized for the purpose of inquiry envisaged u/s 465, Code of Criminal Procedure, 1989. As said, when this plea was raised, it was mandatory for
the Court to move in accordance with the procedure laid down in this Section. Miscarriage of justice to the accused is, therefore, obvious vitiating
the proceedings against him. Similar view has been taken in Dhani Ram Vs. State of Himachal Pradesh, which says in para 12 that;
12.... If this is position then u/s 329 Cr. P.C. the Sessions Judge had to try the fact with respect to the unsoundness and incapacity of the appellant.
The Sessions Judge was further required to record a finding to the effect and had to postpone the further proceedings in the case. As we have
taken the view that on 20-6-78 it appeared to the Sessions Judge that the appellant was of unsound mind, therefore, it was the bounden duty of
the Sessions Judge to have decided this issue after considering the medical evidence and other evidence as is required under S. 329 Cr. P.C. In
the present case the Sessions Judge has failed to do so. The Sessions Judge has not even recorded the statement of the doctor who had examined
the appellant. The order of the Sessions Judge dated 3-5-1979 thus illegal and proceedings after this order are vitiated. The provisions of Section
329 Cr. P.C. are mandatory and an omission to decide the prelitninary issue shall vitiate the whole trial. A similar view was taken by a Division
Bench of Punjab and Haryana High Court in Satya Devi Vs. The State, wherein it was held that (para 3):
The provisions of Section 465 do not embrace an idle formality but are calculated to ensure to an accused person a fair trial which cannot
obviously be afforded to an insane person and the non-observance of those provisions must be held to convert a trial into a farce. Courts must,
therefore, guard against dealing with the matter of suspected sanity of an accused person in a perfunctory manner as such a course is bound to
result in the trial Judge, more often than not, coming to an incorrect conclusion about the sanity of the accused before him"".
Finally, in para 13, the Court held that;
13. Thus, we are of the view that the trial in the present case is vitiated for the reasons that proper enquiry under S. 329 Cr. P.C. has not been
held by the learned Sessions Judge and the learned Sessions Judge has failed to record a finding with respect to the insanity of the appellant. As the
trial is vitiated, therefore, the present conviction and sentence cannot be maintained and this appeal has to be accepted.
14. In Santokh Singh v. Emperor AIR 1926 Lah 498 : 1926 Cri LJ 552 the accused was sentenced to death for offence u/s 302, Indian Penal
Code. While accepting the plea of guilty, the Sessions Judge relied upon the evidence of Civil Surgeon in the Committing Court as to the mental
state of the accused. The Court held that this deposition is no evidence against the accused at the trial. With respect to Section 465, it is held that
neglect to follow the mandatory provisions of Section 465 must vitiate the trial. Question of unsoundness at the time of alleged offence is separate
from unsoundness at the time when the accused is brought up for trial (see also : Radhanath Mandal Vs. Emperor, . In Ramnath Vs. Emperor, , it
is held that where there is some thing in the demeanour of the accused which would raise or raised doubt in the minds of Judge, Jury or Assessors
or both, the Court cannot proceed with the trial unless it comes to a decision and is satisfied that the accused is not of unsound mind and
consequently, not incapable of making his defence u/s 465. Otherwise the trial and the finding shall stand vitiated.
15. Decisions like State of Madhya Pradesh Vs. Ahmadullah, , Dahyabhai Chhaganbhai Thakker Vs. State of Gujarat, and Sheralli Wali
Mohammed Vs. The State of Maharashtra, , brought to our notice by the learned counsel for the State, have no application to this case.
Moreover, these decisions refer to stage when the offence is committed and not when plea of insanity is brought to the notice of Court during the
trial.
16. Therefore, we are of the opinion that on account of non-compliance of mandatory provisions of Section 465, Code of Criminal Procedure,
1989, serious prejudice is caused to the accused vitiating the trial.
17. Next, it was contended by learned counsel for accused that the trial Court conducted the proceedings in hot haste, committing violation of law
and resulting in failure of justice. Charge was framed on August 8, 1994, plea of guilty was recorded on the same day followed by examination and
conviction of accused on the same day. Learned counsel vehemently submitted that looking to the seriousness of the charge, Sessions Judge should
not have convicted the accused on plea of guilty. It was also contended that discretion should have been exercised for ordering trial instead of
convicting him on such a plea which was neither recorded in accordance with law nor spelled out commission of crime in terms of facts of the case
and the statutory provision. It was also contended that Sub-section (2) of Section 269, Code of Criminal Procedure, 1989 required that after
framing the charge, the same shall be read and explained to the accused and the accused shall be asked whether he pleaded guilty to the offence
charged or claimed to be tried. Apart from the fact that the charge sheet was not read and explained to the accused in his language, since it has
been framed in English, he has not been offered the choice of being tried. These submissions have been contested by the learned counsel for the
State, who contended that accused was given sufficient time to think whether to plead guilty to the charge. The plea of guilty was recorded by the
Court when it was satisfied about its voluntariness. The discretion for convicting him on his plea of guilty has been exercised quite judiciously,
learned counsel contended.
18. We have considered the submissions of learned counsel for respective parties carefully. Perusal of record plainly demonstrates that allegation
of undue haste adopted by the Court while dealing with the case is not without substance. Observations of the Sessions Judge in order dated June
29, 1994 that the examination of accused six times during the trial indicated that he was not suffering from unsoundness of mind, has no basis since
this observation does not find mention in any of the Court order. Further, when specific plea and prayer had been made by counsel for the accused
for his examination by Board of Psychiatrists, the request being permissible under law, should have been allowed. Doubt about the incapacity of
the accused had arisen. It was within the knowledge of the Court. However, instead of inquiring into this question, Sessions Judge proceeded to
frame the charge, record his plea of guilty and sentenced him on the same day. Obviously, it is undue haste resorted to by the Sessions Judge
without following procedure under law. Secondly, the charge has been framed in English. While recording the plea of guilty, it is not explained to
him in language understandable by him. The mode of recording the examination is curious, blatantly inapt and haphazard. Offences committed by
him have not been explained to him. He has not been asked whether he committed both the offences? Question is about offence, which offence, it
is not pointed out. Therefore, his answer is imperfect, since the question does not refer to both the offences alleged to have been committed by
him. Further, in the next answer he has offered justification saying he committed mistake for the first time under emotions being young. What is this
mistake and to what offence (is) it refers to? The answer is vague. In case accused pleads justification or defence for commission of crime, he
cannot be said to have pleaded guilty to the charge. Other questions put to him in this examination are thoroughly inappropriate and irrelevant.
Sub-section (2) of Section 269, Code of Criminal Procedure, 1989 envisages that the charge shall be read and explained to the accused and the
accused shall be asked whether he pleads guilty of the offences charged or claims to be tried. Simply asked the accused whether he pleaded guilty
to the offence charged, but did not ask him whether he claimed to be tried. The accused is given only one option and not the second before his
statement was recorded. Thus, there is non-compliance of mandatory requirement of the provision vitiating the plea of guilty recorded by the
Sessions Judge causing violation of law, serious prejudice to the accused and resulting in vitiating the trial.
19. Next, the second facet of this question centres around Section 270 of Code of Criminal Procedure, 1989. Learned counsel for the accused
contended that even when the accused had pleaded guilty, Sessions Judge should not have exercised his discretion to convict him thereon. Per
practice followed by Courts in India in such serious cases, the discretion should have been exercised for proceeding with the trial and recording of
the evidence. Having examined this question in detail we are of the opinion that there is force in the grievance of the accused. Looking to the
seriousness of the case, state of the accused, his habitat, the sessions Judge should not have convicted the accused on his plea of guilty and
judicious exercise of discretion should have been in favour of holding the trial rather than convicting him on his plea of guilty.
20. Similar has been the view of other Courts on this question. We may refer to some of the decisions on this question brought to our notice by the
learned counsel for accused.
21. In Karam Singh v. State of Himachal Pradesh 1982 Cri LJ 229 (HP), it is held that;
Section 229 confers a discretionary jurisdiction on the Court to accept a plea of guilty and to act upon it. This discretion has to be exercised with
care and circumspection and on sound judicial principles, bearing always in mind the ultimate objective which is to do justice to the accused. The
more grievous is the nature of the charge to which the accused is required to plead guilty, the more care and circumspection is expected to be
exercised by the Court in accepting and acting upon the plea of guilty.
The first duty of the Court before accepting a plea of guilty is to satisfy itself with respect to the voluntary nature of the plea. It is most desirable
that the Courts do not show undue haste in accepting a plea of guilty. They must allow reasonable time to the accused to ponder and deliberate
after the charge is framed and explained to him. Even if the accused makes a formal plea of guilty, prudence requires that the Court must adjourn
the case especially when the accused is produced in custody and the offence involved is a serious one and more so in a case of murder. After the
Court is satisfied that the accused is free from all external influence, it should explain the charge to the accused in simple and clear language and
must ensure that the accused appreciates the nature of the offence to which he is required to plead guilty. A plea of guilty put forward to a charge
of murder should not be accepted unless the meaning of this technical term as defined in Section 300 of the Penal Code is explained to the accused
and understood by him. It cannot be gainsaid that a mere causing a death of another person would not necessarily amount to murder. It will so
amount only if it is caused with a particular intention or knowledge as mentioned in Section 300 of the Penal Code. Such intention or knowledge
must, therefore, specifically find mention in the plea of the accused before the same is accepted concerning a charge of murder. An accused may
legitimately harbour under the impression that every type of homicide would amount to murder and if under that impression he pleads guilty to a
charge of murder, it would be no plea in the eyes of law on which a conviction u/s 302 I.P.C. can be maintained.
22. In Laxmya Shiddappa Vs. Emperor, ithas been held that it was not in accordance with usual practice to accept a plea of guilty in a case where
the natural sequence would be a sentence of death. Section 271, Criminal Procedure Code, though directs that a plea of guilty shall be recorded,
but does not say that the accused shall be convicted thereon, but only that he may be so convicted, it is left to the discretion of the presiding Judge
in each particular case to determine whether in spite of the plea it is or is not desirable to enter upon the evidence. In Lahori Vs. Emperor it is held
that even though the Sessions Judge may have enough material to satisfy himself as to the guilt of the accused, yet in view of the statement by the
accused that he killed the woman out of jealousy thus putting forward some ground for the application of Section 304, Indian Penal Code,
recourse to put up accused for trial would have been the safer and better course. In Hasaruddin Mohommad Vs. Emperor, the Court held that;
We desire to observe that we cannot too strongly impress upon the learned Sessions Judge that in cases u/s 302, I.P.C., it is undesirable to accept
a plea of guilty and to bring the trial to an end thereon. The trial of an accused person does not necessarily end if he pleads guilty but evidence may
and should be taken in cases of murder as if the plea had been one of not guilty and the case decided upon the whole of the evidence including the
accused's plea. It is not in accordance with the usual practice to accept a plea of guilty in a case where the natural sequence would be a sentence
of death: see in this connection Emperor v. Chinia Bhika ILR 1906 (8)Bom 240, Queen v. Bhadu ILR (1897) All 119), Laxmya Shiddppa v.
Emperor 1917 Cri LJ 699, Si 271, Criminal P.C., though it directs that the plea shall be recorded does not direct that the accused shall be
convicted thereon, but only that he may be so convicted, that is to say, it is left to the discretion of the presiding Judge in each particular case to
determine whether in spite of the plea it is or is not desirable to enter upon the evidence. As was observed in the last mentioned case : the question
is, assuming that the appellant is guilty of the murder in question, whether the sentence of death should or should not be enforced. Now that is a
question which could only be answered when the circumstances of the crime are known to us and the circumstances of this crime are not known to
us.
In this case the First Report contains an allegation by the brother of the accused to the effect that the accused while in a state of insanity killed his
wife and cut his own throat. There was therefore all the more reason why evidence should have been gone into and the case placed before a jury.
We must therefore set aside the conviction and sentence and direct that the case must go back in order that there may be a proper trial of the
accused in accordance with the provisions laid down in the Code of Criminal Procedure. Let the record be returned at once.
23. In Achar Sanghar v. Emperor AIR 1934 Sind 204 : 1935 Cri LJ 324, the accused killed the women and caused grievous injury to a man.
Sessions Court accepted plea of guilty and convicted him on it without any further evidence. While coming to plea of guilty, he gave his own
explanation. With this background, Court held that where facts are -not clear and the accused comes forward with explanation, the act may
appear to be murder but the explanation may take it to one of the exceptions to Section 300, Indian Penal Code. In such cases, better course
would be to take evidence. In Abdul Kader Allarakhia v. Emperor AIR 1947 Bom 345 : 194 Cri LJ 329, the Court held that even where the
accused pleads guilty, it would be safer not to convict him thereon and proceed with the recording of evidence unless the Judge is fully satisfied
about the offence being committed by him from the facts before him following voluntary admission of the guilt by the accused. In Gavisiddappa, In
Re: AIR 1968 Kant 145 : 1968 Cri LJ 762, it is held in paras 4, 5 and 14 that;
4. The learned Sessions Judge has not at all noticed the entire plea of the appellant. The most important circumstance pleaded by the appellant has
been omitted. The plea of the appellant that he committed the murder of his wife on grave and sudden provocation when he found her cohabiting
with another person, if had been noticed by the learned Sessions Judge, in all probability, he would not have convicted the appellant u/s
302,1.P.C. His failure to notice it undoubtedly has resulted in miscarriage of justice and in the conviction of the appellant.
5. u/s 271(2) of the Criminal Procedure Code an accused person may be convicted on his plea of guilty. It is, however, a settled practice not to
accept the plea of guilty in a murder case unless the Court is satisfied that the accused knew exactly what was implied by his plea of guilty and its
effect.
14. Some more decisions were cited at the Bar, which in effect lay down the same principle as enunciated in the cases cited above and therefore it
is unnecessary to refer to them. The above decisions are clear authority for the position that where the accused pleads guilty to a charge of murder
and the Judge is satisfied that the accused understands fully the implications of his plea, then the plea must be recorded. After recording the plea, it
is open to the Judge either to convict or not to convict the accused upon that plea, and as a matter of practice it is desirable to proceed with the
trial as if the plea was one of not guilty, lest the evidence may disclose that the facts proved do not, in law, constitute an offence. We are told that
in England, where the Court-does not think it expedient, in the interest of the accused, to convict him upon his own confession, for example, where
the charge is one of murder, the usual procedure is to advise him to withdraw his pica of guilty and to plead not guilty.
In Ramesan Vs. State of Kerala, , the Court held in para 13 that;
13. The rule of practice adopted by the various High Courts in not acting upon a plea of guilty in cases of serious offences of murder is a rule of
caution and prudence. An offence of murder involves not only the physical act of violence but also the mental element of intention or knowledge. A
lay accused, when he pleads guilty is likely to be more concerned with the physical act and may not advert to the various ingredients constituting
the offence. As mentioned in Dalli v. Emperor AIR 1922 SC 233 : 1922 Cri LJ 283, whether act constitutes murder is a mixed question of law
and fact. The Court while holding an accused guilty of murder should also enter a finding that he did the act with the requisite intention or
knowledge. For such a finding to be entered and to decide whether offence is murder or a lesser offence, the Court should have before it the
details of the occurrence, the circumstances under which the act was done and the motive if any and for this purpose it is desirable that the entire
evidence is placed before the Court.
Then in para 15, the Court further held that;
15. It would appear from the judgment that the trial Judge was hesitant to decide the case on the plea of guilty and did so only because the
accused persisted in repeating the plea. The learned Judge did not advert to the fact, while under the old Code discretion in the matter of
examination of witnesses had to be inferred from the use of the word ""may"" there is specified conferment of such discretion on the Court in Section
229 of the present Code. The offence involved being a grave crime, the learned Judge should have availed of the discretion so conferred and
proceeded to dispose of the case after recording evidence.
24. What emerges out of the aforesaid discussion is that factum of unsoundness of mind had come to the notice of the Court and it was also raised
before it specifically by the counsel for the accused, it should have been tried in the first instance and finding recorded after postponing further
proceedings in the case. Section 465, Code of Criminal Procedure, 1989 being mandatory in nature, Sessions Judge failed to follow the mandate
of law and rejected the plea by depending upon facts gathered from statement recorded during investigation of the case and examination of the
accused by him during proceedings before the Court which actually did not take place. Following the provisions of Section 465 is not an idle
formality, but are calculated to ensure a fair trial to the accused, otherwise trial would be converted to a force. As said, provisions being
mandatory, violation thereof would result in vitiating the trial. Further, it is also found that provisions of Sub-section (2) of Section 269 of Code of
Criminal Procedure, 1989 have been violated since the charge has not been read and explained to the accused and that option to claim trial has not
been offered to him. This omission has also caused serious miscarriage of justice vitiating trial. Again, discretion vested with the Court u/s 270,
Code of Criminal Procedure, 1989 should have been exercised in favour of holding the trial rather than convicting him on his plea of guilty looking
to the serious nature of the case, state of the accused and his habitat. This has been the result of non-adherence to the mandatory provisions of law
and undue haste adopted by the Court while dealing with the case. It is also found that examination of accused regarding his plea of guilty has not
been on desired lines resulting in serious prejudice to the accused etc. etc.
25. The result, therefore, is that the trial is vitiated. The conviction and sentence are set aside. Case is remanded to the trial Court, which will
proceed afresh from the stage of March 31, 1994 and record fresh order after hearing counsel for parties and proceed in accordance with law
keeping in mind the observations in this judgment.
We record our appreciation for the assistance rendered by M/s. Mushtaq Mohammad, learned Amicus Curiae and M. A. Rathore, Advocates, in
dealing with this matter.
