KAKI AMBU Vs. AMBU ALIAS POTTAN
HIGH COURT OF KERALA
AMBU ALIAS POTTAN
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(1.) A rather interesting question touching the scope and applicability of S.341 of the Code of Criminal Procedure has been raised in this revision petition. A deaf-mute was tried before the Sub Divisional Magistrate of Hosdrug in C. C. 248/65 for an offence under S.326, IPC.
(2.) The case of the prosecution was that accused 1 and 2 (first accused alone is a deaf and dumb) obstructed pw. 1 and his employees in carrying on agricultural operations in their land. When they questioned the 2nd accused about the obstruction the first accused's wife placed a knife in his hands, and asked him by signs to cut pw. 1. The first accused accordingly inflicted a cut on him which was warded off by him; but it hit his right hand. When he tried to catch hold of the first accused so as to bring him under control the 2nd accused dealt another stab on his back from behind. That was followed by one or two stabs on the sides also. He cried out and on hearing his cries his wife and other relations rushed to the scene and seeing them the accused left the place. The second accused denied his presence even at the scene. The first accused who was deaf and dumb could not make any plea as he did not understand the questions put to him by the court The learned Magistrate himself has stated that the accused was unable to follow the questions and he (the Magistrate) himself was unable to infer anything from the signs shown by him; but both the accused were, however, acquitted finding that they were protected by the right of private defence of person as well as of property. The learned Magistrate has further found that the prosecution has not succeeded in establishing possession in favour of pw. 1; on the other hand, the indications in the evidence are that the first accused was in possession. pw. 1 has come up in revision.
(3.) The learned counsel in challenging the order of acquittal has pointed out that the trial is vitiated, in that the provisions of S.341 Crl. P. C. have not been strictly followed. S.341 lays down that where the accused cannot understand the proceedings, the court should proceed with the trial and if the trial ends in conviction, should forward the papers to the High Court with a report of the circumstances of the case, for the High Court to pass appropriate orders thereon. Prima facie, therefore, S.341 would come into play only in the event of the trial ending in a conviction against a deaf and dumb; but in the present case the trial has ended in acquittal and in such circumstances whether we should go into the question as to whether S.341 is attracted, does not arise. The learned counsel argues that since the accused did not understand the proceedings he could not make a plea as to his guilt or innocence, and if he had understood the proceedings he would probably have admitted the guilt, or admitted the circumstances under which the occurrence took place as stated by the prosecution. In such a contingency, the prosecution would have been in a better and more advantageous position, in that it could have made use of the answers given by the accused to the questions put by the court. Thus the pith and substance of the contention is that the want of an effective examination of the accused especially under S.342 has caused prejudice to the prosecution. That would take us to the further question whether prejudice to the prosecution is a factor to be reckoned with in discussing the scope of S.341 of the Code. "The object of S.341", observes a Division Bench of the Mysore High Court in State v. Kampu Shetty (AIR 1966 Mys. 95):
"is that the High Court should be in a position to satisfy itself that the accused is ensured a fair trial. It is also within the power of the High Court to give necessary directions to the Trial Court before whom such an accused is to be tried, to ensure that sufficient provision is made for his defence and that he will have a fair trial."
Thus prejudice to the prosecution is absolutely out of the picture.
Certain procedure has been prescribed to try a deaf and dumb. Deaf and dumb man can understand by signs and gestures; but signs and gestures do not form a language though loosely it may be called the language of the deaf and dumb.
"Where in a trial it is averred that a particular accused though not insane, is deaf and dumb and the public prosecutor does not challenge its veracity and his attitude is in no way helpful to the court for purpose of ascertaining as to whether that accused cannot be made to understand the proceedings of the court, that does not in any way lessen the responsibility of the magistrate to make every reasonable attempt to find out whether it is not possible to make the accused understand the proceedings of the court. The Magistrate's conclusion that the accused is deaf and dumb by merely observing the demeanour and the conduct of the accused and by questioning with reference to certain pieces of evidence, is not proper when he has not made, every attempt or taken every step to make the accused understand the proceedings of the court. He should have made an endeavour to find out as to whether it was not possible for any of the relations or friends of the accused to communicate with him by signs and as to whether it would not be possible for such a person to interpret the proceedings of the court; further, he should have sent the accused before a doctor for the purpose of ascertaining the degree of his disability." (Vide AIR 1965 Mys. 95 cited supra).
It must be stated that none of these steps was taken by the learned Magistrate in the present case. He did not trouble himself to ascertain by medical examination or by other means whether the accused is really deaf and dumb; nor did he enquire whether any of the relations of the accused are available who could interpret his language. At the stage when the charge was read out, it is stated, that he showed some signs from which the learned Magistrate gathered that he pleaded not guilty, but at the stage of 342 questioning, the Magistrate himself confesses that the questions were not understood by the accused and no intelligible answers were made by him which the Magistrate could understand. That does not vitiate the trial because under S.341 the Magistrate is empowered to proceed with the trial even if the accused is unable to understand the proceedings. All that the section demands is that in the event of a conviction, the Magistrate without passing the sentence should forward the papers to the High Court for appropriate further orders to be passed. There was, therefore, nothing wrong in the learned Magistrate having proceeded with the trial, and the trial having ended in acquittal the further course contemplated in S.3 41. did not arise. There is also no force in the contention that prejudice is caused to the prosecution because all that the prosecution stated has virtually been believed by the court below. It is on the facts of the prosecution case as presented before court that the learned Magistrate has acquitted the accused. The right of private defence of person and property was culled out from the prosecution case itself and in these circumstances, even if the accused had admitted the act as stated by the prosecution, the position would have been in no way better for the prosecution. In any event, therefore, I see no case for interference on the ground that the provisions of S.341 of the Code have not been complied with.
On the facts, the learned counsel for the petitioner argued that he has a good case for retrial. He stated that the evidence regarding possession has been misread; but I do not see any substance in this argument. Under S.439 of the Code this court will only sparingly interfere with an order of acquittal. Only in cases where the finding is perverse or manifestly erroneous or is based on no evidence or on the improper rejection of material and relevant evidence, or partly on evidence and partly on suspicions, conjectures, and surmises or when the lower court acts capriciously or in disregard of any legal principles in exercise of its discretion or when the onus of proof has been wrongly cast or where the vital evidence has been overlooked or has not been given due consideration or where the evidence has been wrongly shut out or wrongly admitted this court will be justified in interfering with the order. None of these contingencies exists in the present case and I would, therefore, decline to interfere.
The Revision Petition, in the circumstances, is dismissed.;
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