Back
2006 Supreme(MP) 590
2006(2) JLJ 268
Rakesh Saksena, J.
In Re: Boura @ Drigpal
Miscellaneous Criminal Case No. 283 of 2000: on reference by
II Additional Sessions Judge, Chhattarpur passed in
Sessions Trial No. 49 of 2004;
Decided on 28.4.2006.
Arun Nema. Panel Lawyer for State;
Premnarayan Verma for accused.
Headnote:(1) Criminal P.C. 1973 -- S. 318 - reference for awarding sentence in case under S. 376(1) IPC -- accused deaf and dumb -- also suffering from mental retardation -- sufficient reasons to award lesser than minimum sentence of 7 years - SI for 2 years awarded.
In this case, the accused is a deaf and dumb man therefore, after conviction, the learned Additional Sessions Judge has made this reference for passing appropriate order. [Para 2
Held: The minimum sentence with which accused can be punished should not he less than seven years unless three are adequate and special reasons to impose a sentence less than imprisonment for seven years. From the evidence of the prosecution witnesses and the various medical examination reports of the accused. it is established that the accused is a deaf and dumb person. It is also on record that he is suffering from mental retardation to some extent and that his fingers and toes of hath the hands and feet are syndactyly fused rendering his hands functionally non-utilizable. The incident had occurred as long back as in the year 1994.
In my opinion the aforesaid circumstances seem to be adequate and special reasons to impose a sentence of imprisonment against the accused for a term of less than seven years. Accordingly, I sentence the accused Boura @ Drigpal to undergo simple imprisonment of two years. [Paras 19 & 20
(2) Penal Code, 1860 -- S. 376 -- prosecutrix examined after 4 years -- some minor discrepancies -- are just natural -- dilly corroborated by witness and medical evidence -- offence proved. [paras 12 to 14
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 318 && Hkkjrh; naM lafgrk dh /kkjk 376¼1½ ds v/khu ekeys esa naMkns‘k vf/kfu.khZr fd, tkus ds fy, funsZ‘k && vfHk;qDr cgjk vkSj xw¡xk && eancqf)rk ls Hkh ihfM+r && 7 o"kZ ds U;wure naMkns‘k ls de vf/kfu.khZr fd, tkus ds fy, i;kZIr dkj.k gS && o"kZ dk lknk dkjkokl vf/kfu.khZrA
bl ekeys esa vfHk;qDr cgjk vkSj xw¡xk O;fDr gS] blfy,] nks"kflf) ds i‘pkr~ fo}ku vij ls‘ku U;k;k/kh‘k us leqfpr vkns‘k ikfjr djus ds fy, ;g funsZ‘k fd;k gSA ¿ /kkjk 2À
vfHkfu/kkZfjr % U;wure naMkns‘k ftlls vfHk;qDr naMkns‘k fd;k tk ldrk gS] lkr o"kZ ls de ugha gksuk pkfg, tc rd fd lkr o"kZ ds dkjkokl ls de naMkns‘k vf/kjksfir fd, tkus ds fy, i;kZIr vkSj fo‘ks"k dkj.k ugha gksA vfHk;kstu lk{khx.k ds lk{; ls vkSj vfHk;qDr dh fofHkUu fpfdRlh; ijh{k.k fjiksVksa ls ;g LFkkfir gS fd vfHk;qDr cgjk vkSj xw¡xk O;fDr gSA ;g Hkh vfHkys[kxr gS fd og fdlh lhek rd eancqf)rk ls xzLr gS vkSj ;g fd mlds nksuksa gkFk&iSjksa dh m¡xfy;ka] ;qDrkaxqfy;ksa dh Hkk¡fr tqM+ dj ,d gks xbZ gS ftlls mlds gkFk fØ;kRed :i ls fu:i;ksxh gks x, gSaA ?kVuk iwoZ ls dHkh 1994 esa gqbZ FkhA
esjh jk; esa] vfHk;qDr ij lkr o"kZ ls de dh vof/k ds dkjkokl dk naMkns‘k vf/kjksfir fd, tkus ds fy, iwoksZDr ifjfLFkfr;k¡] i;kZIr vkSj fo‘ks"k dkj.k izrhr gksrk gS rnuqlkj] vfHk;qDr ckSjk mQZ n`xiky dks eSa nks lky dk lknk dkjkokl Hkksxs tkus ds fy, naMkfn‘V djrk gw¡A ¿ iSjk 19 ,oa 20À
¼2½ naM lafgrk] 1860 && /kkjk 376 && vfHk;ksD=h dh ijh{kk 4 o"kZ i‘pkr~ dh xbZ && dqN xkS.k varj && LokHkkfod gS && lk{khx.k rFkk fpfdRlh; lk{; }kjk lE;d~ :i ls iq"V && vijk/k lkfcrA ¿ iSjk 12 ls 14À
1. This case is a reference made by learned II Additional Sessions Judge, Chhattarpur, in ST No. 4912004 under section 318 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") wherein by order dated 24.12.1999, he has passed the order. of conviction of the accused Boura @ Drigpal for the offence under section 376, IPC.
2. In this case, the accused is a deaf and dumb man, therefore, after conviction, the learned Additional Sessions Judge has made this reference for passing appropriate order. Section 318 of the Code reads as follows:
"318. Procedure where accused does not understand proceedings
If the accused though not of unsound mind cannot be made to understand the proceedings the Court may proceed with the inquiry or trial and. in the case of a Court other than a High Court. if such proceedings result in a conviction. the proceedings shall be forwarded to the High Court with a report of the circumstances of the case. and the High Court shall pass thereon such order as it thinks fit."
3. After committal of the case. the charge under section 376 IPC was framed by the trial Judge on 27.4.1994. At that time the objection about the accused being deaf and dumb and incapable of understanding the proceedings was not taken. After framing the charge the Court proceeded to record the prosecution evidence and by 13/14 of September. 1994. statements of 4 of the prosecution witnesses were recorded. From the order-sheets it appears that on 25.11.1994, counsel for the accused filed an application under section 329 of the Code contending that the accused was deaf and dumb and was incapable to defend himself at the trial. On the direction of the Court accused was examined by a team of doctors of District Hospital, Chhattarpur. Vide report dated 10.5.1995. it was opined that accused was deaf and dumb and his mental status was sub-normal. His lingers and toes were fused by birth. However, it was suggested that he be examined by the specialist doctors of neurology and ENT of the Medical College, Gwalior. He was examined by team of doctors of J.A. Hospital. Gwalior. comprising of specialists of ENT. neurosurgery, orthopedics and psychiatry. As per report received from J.A. Hospital Gwalior. it was found that he had no audiometry response on audiometgry and hearing assessment test. Psychiatry expert opined that on clinical examination he was found suffering with mental retardation of IQ along with occasional episode of psychiatric behaviour and congenital deafness and dumbness. Orthopaedician also found his fingers and toes suffering from syndactyly, i.e., fused together rendering them functionally incomplete. In view of the report of the various experts. the trial Court held the accused to be a deaf and dumb person. Though it was also opined that some mental deficiency was also present, but, it was not suggested that he was lunatic or a person of unsound mind.
4. The counsel who represented the accused at the trial had initially not objected that the accused was incapable of understanding the proceedings of the Court. However, in view of the report, he contended that it was not possible for him to cross-examine the witnesses, but his objection was turned down and the trial proceeded and ultimately 12 witnesses were examined and cross-examined by the counsel. Again, at the stage of recording of the statement of the accused under section 313 of the Code, an objection was raised that since the accused was not able to understand even the signs and gestures. the recording of such statement was a futile exercise. From the trial Court's observations, as made in the reference report, it appears that it had tried to make the accused understand the questions by speaking loudly and by making gestures but he shook his head on every question. Trial Court also sought assistance of a teacher of Deaf and Dumb School but even then he could not he made to understand any thing. Said trainer opined that since the accused was not trained
