Bombay High Court at Goa Allows Appeal in Murder Case Due to Procedural Irregularity in Mental Fitness Inquiry. Conviction under Section 302 IPC set aside as trial proceeded without proper inquiry into appellant's unsoundness of mind under Section 328 CrPC.

Criminal appeal against conviction for murder

Appellant sought acquittal or retrial on ground of unsoundness of mind during trial

Appellant was convicted for murder of his father; appeal on ground that trial was vitiated due to failure to conduct proper inquiry into his mental fitness

Trial court convicted appellant under Section 302 IPC and sentenced to life imprisonment on 02.05.2015

Whether the trial court failed to conduct a proper inquiry into the appellant's mental fitness to stand trial under Section 328 CrPC? Whether the conviction under Section 302 IPC can be sustained in light of the procedural irregularity?

Appellant's counsel argued that medical evidence showed appellant suffered from schizophrenia and was not fit to stand trial; trial court's order to proceed was without reasons and without presence of legal aid counsel. State's Public Prosecutor argued in support of the conviction.

The trial court failed to conduct a proper inquiry under Section 328 CrPC when there was credible medical evidence that the appellant was suffering from schizophrenia and was not fit to stand trial. The order directing trial to proceed was bereft of reasons and passed without the presence of the appellant's legal aid counsel, vitiating the trial. Consequently, the conviction and sentence cannot be sustained.

Heard Mr. Gaonkar, the learned Counsel for the appellant appointed under the Legal Aid Scheme for the appellant and Mr. Rivankar, the learned Public Prosecutor for the State-respondent. This appeal is directed against the judgment and order dated 2nd May, 2015, made by the learned Additional Sessions Judge, Mapusa, convicting the appellant for offence punishable under Section302 of the Indian Penal Code (IPC) and sentencing the appellant to undergo life imprisonment and payment of fine of Rs.10,000/- or in default six months simple imprisonment. The appellant was charged of having committed murder of his father Francisco Borges on 16.02.2011 prior to 21.00 hours at house no,452, at Podwalvaddo, Khorjuem, Aldona, Bardez, Goa, by assaulting him with a soda bottle and wooden chair on his head causing the father injuries, which ultimately resulted in his death. Mr. Gaonkar, the learned Counsel for the appellant submits that the material on record very clearly indicates that the appellant was suffering from schizophrenia and, consequently, was not fit to stand trail in the matter. He submits that the learned Additional Sessions Judge has failed to appreciate the evidence of Dr. Shilpa Waikar, IW.1 as well as the medical evidence on record in the proper prospective. He submits that IW.1 in her deposition recorded on 20.10.2012 had clearly stated that the appellant was not fit to stand trial. He submits that IW.1 in her deposition on 02.07.2013, has even stated that the appellant was fit to stand trial but without providing any proper medical particulars. He submits that at that stage, even the lawyer appointed for the appellant under the Legal Aid Scheme was not present and the matter proceeded on the basis of cross examination by the appellant himself. He submits that the order dated 02.07.2013 by which trail was directed to proceed against the appellant is very bereft of any proper reasons. For all these grounds, Mr. Gaonkar, the learned Counsel, submits that the impugned judgment and order is liable to be set aside.

The appellant was charged with murder of his father on 16.02.2011. Trial commenced before Additional Sessions Judge, Mapusa, who convicted and sentenced him on 02.05.2015. The appellant filed Criminal Appeal No. 39 of 2019 before the High Court of Bombay at Goa, which was heard and allowed on 02.01.2020.

• Indian Penal Code, 1860 (IPC): 302
• Code of Criminal Procedure, 1973 (CrPC): 313, 328