Arminda Dora Fernandes vs The State Of Goa

This is an appeal against the Judgment and Order dated 17.12.2024 and 15.01.2025 passed by the President of Children’s Court for the State of Goa at Panaji, Goa, in Special Case No. 93 of 2022.

Heard learned Counsel Mr. Naik for the Appellant and Mr. Bhobe, learned Public Prosecutor for the State-Respondent.

The Appellant was convicted for commission of the offence punishable under Section 302 of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for life and was also directed to pay a fine of ₹ 10,000/-, and in default to undergo rigorous imprisonment for one year. She was also convicted for commission of the offence punishable under Section 8(2) of the Goa Children’s Act 2003 and was sentenced to undergo rigorous imprisonment for a term of three years and to pay a fine of ₹ 10,000/- and in default to undergo rigorous imprisonment for two years.

The substantive sentences were directed to run concurrently. She was given set off for the period undergone in custody.

The prosecution case in brief is that in the night between 13.08.2022 and 14.08.2022, the Appellant committed murder of her infant daughter aged 5 months by using a rolling pin. Allegedly she assaulted her daughter on her head causing injuries. The husband informed the police and the investigation started. The chargesheet was filed. The case was committed to the Court of Session. The charges were framed under Section 302 read with Section 34 of the IPC and Section 8(2) of the Goa Children’s Act, 2003.

On 11.07.2023, the Appellant pleaded not guilty to the charges and claimed to be tried. The trial proceeded. The prosecution examined PSI Mandar Parab, as the first prosecution witness. His examination in chief was partly recorded and it was deferred further. His deposition was recorded on 14.11.2023, 12.12.2023 and 30.09.2024. He had lodged the FIR no. 52/2022 at Colvale Police Station on 14.08.2022 at about 02.00 am.

Before his cross examination was conducted, the prosecution examined Maradona Fernandes, who was the brother of the Appellant. His cross examination was completed on 15.04.2024 and the matter was pending at that stage.

On 17.12.2024, an application was preferred by the Appellant before the Trial Court, vide Exhibit A-19, praying that she wanted to plead guilty. Her plea be accepted and the necessary orders be passed. The learned Sessions Judge vide the Order dated 17.12.2024, accepted the plea of the Appellant and posted the matter for hearing the accused-Appellant on the point of sentence.

On 15.01.2025, the learned Trial Judge heard the arguments on the point of sentence and then passed the impugned Judgment and Order convicting and sentencing the Appellant.

Learned Counsel for the Appellant submitted that the entire procedure adopted by the learned Trial Court in convicting and sentencing the Appellant was not proper. The learned Judge erred in accepting the plea of ‘guilty’ offered by the Appellant. The learned Judge herself did not explain the consequences of accepting the plea of ‘guilty’ to the Appellant. The application itself indicates that only the Advocate had explained the consequences of accepting the plea of guilty. He submitted that the entire record including the deposition showed that the Appellant was not in a fit mental condition. There are indications that she was not mentally fit at the time of the trial of the case or even at the time of commission of the offence. She could not have been in a position to understand the consequence of her plea of guilt.

Learned Public Prosecutor Shri Bhobe fairly submitted that from the record of the case, it can be seen that the Appellant was diagnosed as suffering from Borderline Personality Disorder even much prior to the incident. The trial was conducted by an inexperienced legal aid Counsel. He submitted that the procedure under Section 329 of Cr.P.C. was not followed. He also submitted that the impugned Judgment and Order is required to be set aside.

We have considered these submissions. The charge was framed at Exhibit C-7 in Special Case No. 93 of 2022 by the learned President of the Children’s Court for State of Goa, on 11.07.2023. The charge mentioned that the Appellant had committed the murder of her five months old infant daughter between the night of 13.08.2022 and 14.08.2022, thereby she had committed an offence punishable under Section 302 of the IPC and Section 8(2) of the Goa Children’s Act, 2003. The Appellant had not pleaded guilty. She claimed to be tried. She had signed the plea of not guilty on 11.07.2023.

After framing of the charge, the trial proceeded, Pw.1, PSI Mandar Parab, attached to Colvale Police Station at the relevant time was examined as the first prosecution witness. He was the first informant. He deposed that, he was deployed as a duty Officer in the night of 13.08.2022 and 14.08.2022. At around 4.00 a.m. on 14.08.2022, HC Redkar telephonically informed him that one person came with an infant child in a basket and the child was having injuries. Pw.1 then directed HC Redkar to refer the child to District Hospital, Mapusa. Pw.1 visited the District Hospital and saw that the child was lying on a stretcher. The Doctor declared the child as dead. The person who brought the said child was the father of the child, who was the husband of the Appellant. He informed Pw.1 that, in the night when he returned to his room, he noticed that his wife was sitting on the bed carrying the infant child on her lap. The Appellant was in naked condition and she was crying. There were blood marks on the infant's body and she was motionless. He further informed Pw.1 that the Appellant was in a confused state of mind and was grumbling to herself. She was saying that both of them should commit suicide and that the child had died. The Appellant’s husband informed Pw.1 that the Appellant was in depression. She was frustrated and she used to assault him by throwing articles in the house. He then deposed about the story told by the Appellant to him. According to her, the husband had committed the murder. Pw.1 was not examined further. His cross examination did not commence.

Thereafter, the prosecution examined the Appellant’s brother Pw.2-Maradono Fernandes. He was not an eye witness to the incident but he deposed that the behaviour of the Appellant was aggressive and she was in the habit of drinking and smoking.

In his cross examination, he deposed that his mother had told him that the Appellant was taking psychiatric treatment and that the Appellant had a mental disorder.

After his cross examination was over, the Appellant preferred an application dated 17.12.2024. At that time she was in custody for about 2 years and eight months. She stated in her application that she desired to plead guilty before the Court. It was mentioned that she wanted to get the charge to be re-explained and wanted to be heard. The learned Trial Judge passed the following order :

The matter was thereafter posted for hearing the parties on the point of sentence. The significant part of this order is that it records that the Appellant had stated that her plea was voluntary and the consequences were explained to her by her Advocate. This means that the learned Judge herself had not explained the charge on this occasion and had not explained the consequences of pleading guilty to the charge. This is one major infirmity in this procedure which has caused a very serious prejudice to the Appellant. Particularly in the background of the fact that there was the history of the Appellant suffering from mental disorder and depression. Paragraphs 3 and 5 of the said Order read thus :

Thus the learned Judge also recorded the fact that it was the case of the Appellant herself that she was suffering from mental condition and that she had submitted that she was disturbed on account of harassment meted out to her by her husband. The order regarding plea of guilty and the order of sentence were passed one after the other and therefore the learned Judge was aware of the stand taken by the Appellant. Therefore, it cannot be said that the Appellant had voluntarily pleaded guilty or that she was aware of the consequences of her pleading guilty of such a serious charge.

The record of the case shows that the infant had died because of asphyxia as a result of smothering by compression of the nose and mouth associated with extensive cranio-cerebral injuries due to blunt force impacts, with shock due to internal haemorrhage as a result of laceration of the liver due to blunt force impacts with cumulative effect of multiple extensive surface injuries caused by multiple blunt force impacts which were collectively necessarily fatal. The infant suffered 15 injuries all over her body.

The learned Public Prosecutor has rightly referred to a report dated 11.10.2022 issued by Dr. Shaheen Sayed, attached to Medical Superintendent, North Goa District Hospital, Mapusa. The Appellant was reported in Psychiatry OPD in January 2018. She was diagnosed with Borderline Personality Disorder. She was treated with antidepressants and sleeping medicines. After the delivery of her first child in June 2020, she was aggressive with her husband and started smoking cigarettes. She was not sleeping and re-started on antidepressants and sleeping medicines. She was aggressive with her husband and her nine months old elder daughter. In January 2022, she reported with her husband and at that time she was six months pregnant with the second child. She was irregular with her medicines as reported by her husband.

The police report filed along with the chargesheet forwarded by the Police Inspector Somnath Mahajik from Colvale Police Station mentions that during investigation of the case, it was revealed that the Appellant was suffering from mental illness. The learned Trial Judge vide Order dated 09.05.2023 had taken note of this fact and had observed that from the material on record, it appeared that the Appellant was undergoing psychological problems and that she was diagnosed with Borderline Personality Disorder. However, it was further observed that it could not be a ground for not framing the charge, as a prima facie case under Section 302 of IPC and under Section 8(2) of the Children’s Act was made out. Interestingly, the learned trial Judge had referred to Chapter XXV of the Cr.P.C. and had observed that the said Chapter dealt with provisions as to accused persons of unsound mind but went on to further observe that to come to a finding whether the accused was of unsound mind at the time of the offence, has to be decided as per the provisions of law. Therefore, at that stage, charge was required to be framed against the accused-Appellant. After passing this Order on 09.05.2023, the charges were framed on 11.07.2023.

All this shows that the Appellant was not in her fit mental on the procedure laid down under Section 329 of the Cr.P.C. Section 329 of Cr.P.C., reads thus :

In this case, quite clearly, this procedure is not followed. The plea of the Appellant was mechanically accepted and therefore the impugned Judgment and order is not sustainable. In this view of the matter, the appeal will have to be allowed. At the same time, it is necessary to remand back the matter for fresh trial. On this occasion, the Trial Court will have to follow the procedure under Chapter XXV of the Code of Criminal Procedure.

Hence, we pass the following Order:

The Appeal is disposed of.