PEETHAMBARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) In this case the accused a dear and dumb man, has been convicted of murder under Section 302, Penal Code by the learned Sessions Judge, Trivandrum and the proceedings have been submitted to this Court under Section 341. Criminal P. C. S. 341, Criminal P. C. reads as follows : "If the accused, though not insane, cannot he 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 inquiry results, in a commitment, or if such trial results 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." In committing the accused to the Court of Session, the learned First Class Magistrate, Varkala, who conducted the preliminary enquiry forwarded the proceedings to this Court with a report of the circumstances of the case as enjoined by the provision of law quoted above. Pursuant to that report, in Criminal Reference No. 3 of 1957. a Division Bench (Koshi, C. J. and Vaidialingam, J.) directed the learned Sessions Judge, Trivandrum to conduct the trial. That order was made on 17-6-1957. It invited the learned Sessions Judge's attention to the decision in In re Narayanan Nair, 1957 K. L. T. 39: ILR (1957) Kerala 1: (AIR 1957 Kerala 9) for guidance and also directed the learned Judge to afford the accused such special facilities as the circumstances warranted to enable ham to understand the proceedings, to give him as fair a trial as possible and to ascertain whether the accused had sufficient intelligence to understand the criminal character of the act attributed to him. In his judgment convicting the accused the learned Sessions Judge has observed that as it was not possible to find out any relation of the accused to interpret the proceedings to him two persons who were acquainted with him were examined as court witnesses at the commencement of the trial and that their services were utilised by the court to communicate to the accused by gestures the substance of what each of the witnesses had testified. The accused belonged to some unknown place and the court was therefore not in a position to get at any relation of the accused to serve as an interpreter. As directed in the order of this Court in Criminal Ref. No. 3 of 1957, the learned Sessions Judge had also made available to the accused the services of a fairly senior counsel to defend him. All the same the learned Judge did not feel satisfied that the accused had fully understood the purport of the testimony of the witnesses examined against him. As directed by the learned Judge the court witnesses explained the substance of the prosecution evidence to the accused by means of gestures and his answers during his examination under Section 342, Criminal P. C. were also made by gestures. The court understood him to deny the charge and to plead not guilty. On a careful evaluation of the evidence the learned Judge has found that the offence of murder arraigned against the accused was well brought home to him, that though he was deaf and dumb he was perfectly sane and that he was intelligent enough to understand the criminal character of the act committed by him. Conformably to the provisions in Section 341, Criminal P. C. the learned Judge has therefore, after convicting the accused of the offence of murder, forwarded the proceeding to this Court to pass such orders as the Court deems fit.

(2.) Having found that the accused was a sane deaf-mute who could not be made to understand the proceedings of the trial, the learned Judge rightly invoked the provisions of Section 341, Criminal P. C. to make this reference after finding him guilty and convicting him of murder, without at the same time passing the sentence therefor. It is settled law that the provisions of the said section could be invoked only when the accused is unable to follow the proceedings, see King- Emperor v. Dada Mahadu, 3 Bom LR 371, Emperor v. Gunga, AIR 1927 Lah 799 (1), Isso v. Emperor, AIR 1943 Sind 237, The Crown v. Naru, AIR 1950 EP 174 and In re Pondavi Jaddidu, (1954) 2 Mad LJ (Andhra) 226. These cases hold that though an accused is a deaf-mute, if he understood what was being alleged against him by the prosecution and its witnesses, Section 341 would have no place and that the court concerned should deal with him in the ordinary way and dispose of the case. In the Sind case, AIR 1943 Sind 237, Davis, C. J. and Weston, J. have elaborately considered the scope and amplitude of Section 341, Criminal P. C.

(3.) Another preliminary fact which we would advert to at this stage about a reference under section 341, Criminal P. C. is that the court making the reference should record a finding as to whether the accused, though a deaf-mute had sufficient intelligence to understand the criminal character of the act committed by him, see Emperor v. A Deaf and Dumb Accused, ILR 40 Bom 598 : (AIR 1917 Bom 388) and Emperor v. Gunga, AIR 1930 Lah 64, In this case the learned Judge has definitely found that the accused knew the nature of the act he had committed and that his conduct, both previous and subsequent, made no other conclusion possible. On a perusal of the evidence in the case we are inclined to agree, with that view.