Pradeep Khatiwara vs State Of Sikkim

Meenakshi Madan Rai, J

Heard Learned Counsel for the parties on I.A. No.02 of 2023, which is an application filed on behalf of the Appellant, under Section 391 of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C.”).

Learned Counsel for the Appellant submits that although Dr. Satish Rasaily, Psychiatrist, was examined as a Witness for the Appellant/Accused before the Learned Trial Court, however, the documents pertaining to the psychiatric treatment of the Appellant were not exhibited before the Learned Trial Court. That, the Appellant be afforded a fair opportunity to rebut the Prosecution evidence against him, by exhibiting the documents that have been appended to the application under Section 391 of the Cr.P.C., to enable him to obtain the exemption provided under Section 84 of the Indian Penal Code, 1860.

Learned Additional Public Prosecutor vehemently objects to the Petition on grounds that the documentary evidence furnished by the Appellant does not indicate that at the time of the commission of the offence the Appellant was suffering from mental illness.

Learned Counsel for the Appellant also submits that I.A. No.01 of 2022 was another application filed on behalf of the Appellant under Section 391 of the Cr.P.C. which was taken on record vide Order of this Court dated 13-03-2023. That, by the said application, the Learned Counsel sought to bring on record the action of the Appellant in the Jail, i.e., his attempt to commit suicide in the prison on 02-02-2022. That, there was timely intervention by his cell mates which prevented the incident. That, the Assistant Superintendent of Prison had accordingly written to the Sikkim State Legal Services Authority on 21-04-2022 informing the Authority of the said incident. That, in the interest of justice, the Assistant Superintendent of Prison also be allowed to examined along with Dr. Bibhusan Dahal, the Psychiatrist, who examined the Appellant immediately post the said incident.

Learned Additional Public Prosecutor fairly concedes that the incident took place post the Appellant’s conviction and during the time of incarceration and he has no serious objection to the I.A. No.01 of 2022.

We have duly considered the submissions put forth before us. On due consideration thereof and in the interest of justice, we find it proper to allow the application under Section 391 of the Cr.P.C., being I.A. No.02 of 2023, and thereby direct that the evidence of Dr. Satish Rasaily, Psychiatrist, be recorded by the Learned Court of Sessions Judge, North Sikkim, at Mangan, for the limited purpose of exhibiting the documents as sought for by the Appellant.

I.A. No.02 of 2023 stands disposed of accordingly.

Further, as prayed for by the Learned Counsel for the Appellant, let the Assistant Superintendent of Prison and Dr. Bibhusan Dahal, Psychiatrist, also be also examined as Defence Witnesses.

Original records of the Learned Trial Court be returned forthwith along with a copy of this Order to the Learned Trial Court for compliance of the above order.

Let the Learned Trial Court complete recording of the requisite evidence by the first week of November, 2023, and the evidence and other relevant documents be returned to this Court by 6th of November, 2023.

List accordingly on 08-11-2023.