LAWS(MPH)-2006-4-13

BOURA ALIAS DRIGPAL Vs. STATE OF MP

Decided On April 28, 2006
BOURA ALIAS DRIGPAL Appellant
V/S
STATE OF MADHYA PRADESH Respondents

JUDGEMENT

(1.) THIS case is a reference made by learned IInd Additional Sessions Judge, Chhatarpur in S. T. No. 49/04 under Section 318 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') wherein by order dated 24-12-99, 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-sheet, 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, Chhatarpur. Vide report dated 10-5-1995, it was opined that accused was deaf and dumb and his mental status was sub-normal. His fingers 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, Neuro Surgery, Orthopaedics and Psychiatry. As per report received from J. A. Hospital, Gwalior, it was found that he had no audiometry response on audiometry 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.