IN RE: BHUPATIRAJU RAMARAJU Vs. STATE

JUDGEMENT

(1.) THIS is a reference to this Court by the District Magistrate of West Godavari. He has submitted the records in C.C. No. 475 of 1944 on the file of the Sub -Magistrate, Bhimavaram, under Section 341 of the Code of Criminal Procedure for passing the necessary orders thereon. The accused in the case was a born deaf and dumb mute. He was charged under Sections 457 and 380 of the Indian Penal Code for having broken open into a house and having committed theft of two brass vessels and a tiffin carrier. Under Section 341 of the Code of Criminal Procedure if an accused person though not insane, 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 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 orders as it thinks fit. In this case the Magistrate has found the accused guilty of the offence under Sections 457 and 380 of the Indian Penal Code. There is no direct evidence of theft or house -breaking. The only evidence about the commission of the offences is that of P.W. 1. He had locked his house and gone one night and returned the next morning. The lock was found picked and a tiffin carrier and two brass vessels kept inside were missing. The evidence against the accused is that they were found in his possession. The police chased him and he dropped the vessels. That is all the evidence we have in this case. Even though there is no direct evidence of theft or of house -breaking and the only evidence is the possession by the accused of stolen articles shortly after the theft it will be open to the Court to draw a presumption that he must have been the thief if he is not able to satisfactorily explain that possession. If the theft could not have been committed without house -breaking it may be presumed he must have committed the house -breaking. That the articles were stolen and that they must have been obtained by house -breaking is clear from the evidence of P.W. 1. But that will only show that house -breaking and theft were committed. But the question is whether it is the accused that committed it. The only evidence against him was that he was in possession of them. An inference under Section 114 of the Evidence Act could be drawn only if he is not able to explain his possession of them. It is not possible to communicate with the accused because he was born deaf and dumb and there is nothing to indicate that he was asked to explain or he explained. If he could not be made to understand what he was asked and if he could not give an explanation, no inference under Section 114 can be drawn. It is only if an explanation is called for and he fails to give a satisfactory one, such a presumption could be drawn. In these circumstances, I do not think, I will be justified in supporting the conviction. It is unnecessary to take further steps in this case in view of the fact that the accused has been in jail for three months. He is accordingly acquitted and set at liberty.