KAKI AMBU Vs. AMBU ALIAS POTTAN

JUDGEMENT

(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):