Gauhati High Court
CRL.A(J)/74/2018 on 22 December, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
GAHC010185752018
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
CRL.A.(J) No. 74/2018
Shri Sukumar Roy,
S/O Sri Prahlad Roy,
resident of Puratan Bagbahar,
PS-Silchar, District-Cachar.
......Appellant.
-Versus-
State of Assam.
......Respondent.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY For the Appellant: Ms. B. Sarma, Amicus Curiae. ......Advocate.
For the Respondent: Ms. S. Jahan, Addl.P.P., Assam. ......Advocate.
Dates of Hearing : 25.11.2022 & 13.12.2022
Date of Judgment : 22nd December, 2022
Crl.A.(J) 74/2018 Page - 1 of 32
JUDGMENT AND ORDER (CAV)
[N. Kotiswar Singh, J.]
Heard Ms. B. Sarma, learned amicus curiae for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing for the State respondent.
2. The present jail appeal has been preferred against the judgment dated 05.02.2014 passed by the learned Sessions Judge, Cachar, Silchar, in Sessions Case No.36/2012, by which the appellant has been convicted for commission of offence under Section 302 of IPC and was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs.500/-.
3. The prosecution case in brief is that on 04.09.2011, the appellant who is a person with impaired speech and hearing, assaulted his elder brother Chandu Roy with a chopper (dao) hitting him on the neck and thereby causing his death. Accordingly, an FIR was lodged on 04.09.2011. On the basis of the aforesaid FIR lodged, a police case being Silchar Police Case No.1471/2011 under Section 302 of IPC [Indian Penal Code, 1860] was registered. Investigation was then launched and on completion of the investigation, the charges were framed and on committal and on charges being denied by the appellant, trial commenced. In course of the trial, the prosecution examined as many as 8(eight) witnesses in support of their case. One Court witness was examined relating to the issue as to whether the petitioner could understand the proceedings of the Court during the stage of examination of the appellant Crl.A.(J) 74/2018 Page - 2 of 32 under Section 313 of Cr.P.C. [Code of Criminal Procedure, 1973]. The learned Trial Court after considering the material evidence on record held that the prosecution has been able to prove the case beyond reasonable doubt against the appellant and accordingly, convicted him under Section 302 of IPC and sentenced him to suffer R.I. for life as mentioned above.
4. In view of the submission advanced that the prosecution has not been able to prove the charges beyond reasonable doubt, we will proceed to examine the evidences on record.
5. P.W.1, Parimol Roy, is the sole projected eye witness, who stated that the occurrence took place on 04.09.2011 on the said day at around 2 p.m. He stated that the deceased Chandu Roy called him to his house to cut his hair. On reaching there, he found Chandu Roy cutting bamboo and the accused was standing there. The accused was unable to speak. He then by gesture asked the P.W.1 to cut the hair of Chandu Roy and that he will cut the bamboo. While he was in the process of cutting his hair and went to fetch his razor blade about 5/6 feet away, to complete the hair cut, he saw the accused giving a dao blow on the neck of the deceased. Thereafter, he raised the hue and cry. Then the accused person also tried to give him blow with the dao. Out of fear he ran away from the place of occurrence. He stated that upon hearing the hue and cry raised by the P.W.1, people gathered there and after that he again came back at the place of occurrence. Thereafter, the police came to the place of occurrence and recovered the blood stained dao from the bamboo bush and Crl.A.(J) 74/2018 Page - 3 of 32 seized the same to which he put his signature as a seizure witness. He stated that after about 25 days of occurrence his statement was recorded before the Magistrate which was also proved before the Court.
In the cross-examination he stated that he had no idea if there was any quarrel between the appellant and the deceased, but he found that there was a cordial relation between them and he did not hear about any quarrel between them. He also stated that the deceased and appellant resided separately and he also stated that he did not know whether there was any partition in respect of land was made in between the deceased and the appellant. He also stated that he was related to the appellant as well as to the deceased. He also stated that nobody had informed him that the appellant was suffering from mental disorder. He denied the suggestion that he along with one Chandu Roy had tried to evict the appellant from his residential house by assaulting him and he also denied the suggestion that when he and Chandu Roy wanted to assault the appellant, suddenly the dao blow fell on the deceased. He also denied that he had falsely accused the appellant of killing the deceased.
6. P.W.2 is one Namita Roy, the daughter of the deceased Chandu Roy, who stated that at the time of occurrence she was sewing clothes in her house and his cousin Parimol Roy, P.W.1 was cutting the hair of her father and then her father asked her to go inside. Suddenly, P.W.1 started shouting and came running and told her that the appellant Sukumar Roy had cut off her father and then she came to the place of occurrence and found her father lying dead with Crl.A.(J) 74/2018 Page - 4 of 32 cut injury. Thereafter, people came to the place of occurrence. She then reported about the incident to Pabitro Roy (PW-3), who is the elder brother of his father. She stated that when she came out of the house on hearing the shout, she saw the appellant running away and throwing the dao in the bamboo bush. She also mentioned about recovering of the dao from the bamboo bush.
7. P.W.2 was also cross-examined by the defence and she denied that she was influenced by P.W.1 and her uncle and had deposed falsely.
8. The next witness was Pabitro Roy examined as P.W.3, who is the elder brother of the deceased. He stated that he resided in a separate house and on the day of occurrence at about 2.30 p.m. he heard shouts from the house of the deceased, whereupon he went there and he saw that Parimol Roy P.W.1 running towards his house and he asked him as to what had happened. He was then informed that the appellant Sukumar Roy had killed Chandu Roy. Thereupon, he arrived at the place of occurrence and found Chandu Roy lying dead. However, he did not find the appellant and raised a hue and cry. Thereafter, Parimol Roy (PW-1) again arrived there. He then informed the people who gathered there what had happened and thereafter, the villagers apprehended the appellant. He then lodged an FIR to the police. He was a witness to the inquest conducted on the dead body.
During his cross-examination P.W.3 stated that after hearing the shouts he came to the place of occurrence and found Parimol running away but did Crl.A.(J) 74/2018 Page - 5 of 32 not find any other person there. He also stated that he had not stated that the deceased and the appellant had fought with each other. He further stated that there was cordial relation between the appellant and the deceased. He said that the appellant was loyal to the deceased Chandu. He also stated that the appellant could not speak since his childhood.
9. Khelon Roy, who is another elder brother of the deceased, was examined as P.W.4. He stated that the appellant Sukumar Roy is his brother. He also stated that the appellant was unable to speak since his childhood. On the day of occurrence he had gone for work at the house of Anchalik Panchayat and while he was working there, he was informed over the mobile phone that an incident had occurred in his house. He then returned home and learnt that the appellant Sukumar Roy had cut Chandu Roy. Thereafter, Anchalik Panchayat Member informed the police. When he came to his house, he found Namita Roy, the daughter of the deceased, in an unconscious state. He was also a witness to the inquest conducted on the dead body of the deceased. He stated that the police recovered a dao from the bamboo bush. He stated that the appellant was not mentally unsound.
In the cross-examination he stated that he never witnessed any quarrel between Chandu Roy and Sukumar Roy and the appellant was loyal to the deceased. He admitted that he was not an eye witness as he was not present at the place of occurrence when the occurrence took place.
10. The next witness examined was Dr. B.C. Roymedhi who conducted the Crl.A.(J) 74/2018 Page - 6 of 32 postmortem examination on the dead body who found the following injuries:
"1) One cut injury present or right side of neck and left uppermost part of front chest wall cutting all soft tissues, vessels trachea oesophagus left clavicle, 1st and 2nd left ribs, 4th C.V. All structures cut in one thrush. Blood clots firmly adherent on cut wound. Ligature mark not present. Cut injury present as described.
Spinal Chord - cut along 4th C.V. cut level. Rest not examined. Trachea-cut. Refer injury No.1. Vertebrae-body of 4th cervical V. cut rest organs are found healthy."
According to him the immediate death resulted from the cut injury sustained on the neck and chest, which was ante mortem and caused by heavy sharp cutting weapon and homicidal in nature.
10. The next witness examined was Chandana Roy as P.W.6 who knew both the deceased and the appellant. She stated that on the day of occurrence at about 2 P.M. she along with the daughter of Chandu Roy were working inside their house. At that time Parimol Roy came running to her and told her that Sukumar Roy had cut Chandu Roy. Thereafter, Parimol Roy went running towards his house and the appellant also chased Parimol with a dao in his hand. At that time, she heard the shouting of daughter Chandu Roy and on hearing the shouts she went to the place of occurrence and saw blood stain at the place of occurrence and saw the head of Chandu Roy was shivering. Then she saw Kokil Roy bringing a bucket of water and then she fainted. When she regained her consciousness, she saw police and saw the dead body being taken by the Crl.A.(J) 74/2018 Page - 7 of 32 police. She also stated that the accused was not suffering from mental abnormality. In the cross-examination she stated that the appellant Sukumar Roy is her brother-in-law (her husband's younger brother). She also stated that she did not see the occurrence herself.
11. Next witness is one Kukil Moni Roy (PW-7). She stated that on the day of occurrence at about 2 P.m. while she was returning from jungle with firewood and taking bath in the pond, she heard a shout from the house of Chandu Roy and on hearing the shout she went to his house and saw Chandu Roy lying on the ground with bleeding injury on his neck and then she poured water on his head but Chandu Roy was already dead by that time. Namita Roy, daughter of the deceased on being asked reported to her that the appellant Sukumar Roy had cut Chandu Roy with a dao. She also stated that the appellant is not mentally unsound, only that he cannot hear and speak.
12. The next witness examined was Anjan Chakraborty as P.W.8 who was a police personal and was examined to testify the investigation conducted by the I.O. of the case. Though P.W.8 himself did not examine any witness, as he was familiar with handwriting and signature of the IO of the case, P.W.8 verified the various documents prepared by the IO of the case. Since he was not I.O., he did not examine any witness nor he visited the place of occurrence and had no personal knowledge about the occurrence as he was not entrusted by the O.C. to investigate the case. The said P.W.8 was examined as the IO had expired.
13. After conclusion of the recording of evidence of the prosecution Crl.A.(J) 74/2018 Page - 8 of 32 witnesses, the Court examined one Jayanta Kalita as a Court witness, who was serving in the Deaf and Dumb School, Guwahati as a special educator, to act as an interpreter for Sukumar Roy, the appellant who is a deaf and dumb person. The said court witness observed the gesture of the appellant by which he responded to his queries and found that the appellant was able to understand what was conveyed to him by way of gestures and stated that the appellant can write his name in Bengali language. The court witness stated that he had explained the charge to the appellant and it appeared that he had understood the same. As the appellant could write his name, the charge was written in Bengali language on a paper and shown to him, but he denied the charge. The appellant indicated his denial by gestures of head and hand but wrote his name on the charge which was exhibited as Exhibit-B.
14. On completion of the recording of evidence of the prosecution witness and Court Witness as mentioned above, the appellant was examined under Section 313 of Cr.P.C.
To the question put to the appellant by the Court that the P.W. 1 had stated that on 04.09.2011 at about 2 p.m. when he went to the house of Chandu Roy, he saw Chandu Roy was cutting bamboo and he was standing there and the appellant by gesture asked him to cut the hair of Chandu Roy, the appellant replied that these are false. But the appellant also stated that Parimol had given him a push.
15. As regards the allegation that the appellant had given a dao blow on the Crl.A.(J) 74/2018 Page - 9 of 32 neck of Chandu Roy, the appellant stated that it was false and he was taking meal at that time and he did not know how Chandu Roy died.
16. To the question that after P.W.1 saw the incident and raised a hue and cry and tried to run away from the place of occurrence, the appellant stated that these are false and some other person had killed Chandu Roy and other people came and tied him up and beat him up.
17. On the statement of the P.W.1 that the people had gathered there and the police came there and recovered the blood stained dao from bamboo bush, the appellant stated that four persons had come and one of them killed the deceased with the dao and threw the dao in the bush.
18. As regards the statement of P.W.2, he denied the statement of the P.W.2 to be false stating that he did not kill the deceased. He also denied the other incriminating statements made against him by P.W.2, P.W.3 & P.W.4. However, he admitted that the villagers had apprehended him. To the other questions put to him, he either denied those or claimed ignorance. However, he reiterated that four persons had come and one of them had killed the deceased and he is innocent and has been falsely implicated.
19. The learned Trial Court, considering the aforesaid evidences, held that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt.
20. The learned Trial Court, on the basis of the post mortem report in which Crl.A.(J) 74/2018 Page - 10 of 32 medical opinion was given that immediate death resulted from the cut injury sustained on the neck and chest which were ante mortem and caused by heavy sharp cutting weapon and homicidal in nature, held that it has been established that the deceased died as a result of the injuries inflicted upon him.
21. We will now examine, how the learned Trial Court proceeded to examine the evidence of the witnesses to convict the appellant.
22. Referring to the evidence of PW1, Parimol Roy, who was projected as the sole eye witness, the learned Trial Court did not find any reason to doubt the evidence of PW1 and discounted the suggestion of the defence that it was PW1, who was the actual assailant while he tried to project the appellant as the real killer.
23. The Trial Court was also of the view that the evidence of PW2, Namita Roy, daughter of the deceased, who was present at the time of occurrence in her house sewing clothes with another cousin, who was informed by PW1 that the deceased had cut her father is reliable. She also stated that she saw the appellant running away throwing the dao in the bamboo bush, which was recovered by the police.
24. The Trial Court took into consideration the fact that when the said PW2 was examined by the Investigating Officer, what she stated before the Court was not mentioned before the Investigating Officer. The Trial Court considered the fact that since she was only 12 years of age when the Investigating Officer Crl.A.(J) 74/2018 Page - 11 of 32 recorded her statement, it is quite possible that certain aspects of what she saw might have been left unstated inasmuch as she would have unnerved on the death of her father and there is no reason why she would falsely implicate her own paternal uncle especially in the absence of any enmity between her father and the appellant. The learned Trial Court was of the opinion that in view of the evidence of PW2, the suggestion of the defence that it was PW1 who killed the deceased can be ruled out.
25. The learned Trial Court also noted the evidence of PW3, Pabitra Roy, who stated that on hearing the hue and cry, when he proceeded to the house of the deceased, he found Parimol running away and there was no other person present there. He also stated that he had not seen the deceased and the appellant fighting together and there was cordial relation between the deceased and the appellant. The Trial Court did not find any aspect of the evidence of PW2 doubtful.
26. The Trial Court also referred to the evidence of PW4, Khelon Roy, who is the brother of the deceased as well as the appellant to the effect that the appellant used to work in the house of Parimol on daily payment basis and Parimol is richer than Chandu Roy (deceased) and the appellant. He also stated that there was no enmity between the appellant and the deceased.
27. The Trial Court also took into consideration the evidence of PW6, wife of PW4, who stated that on the day of the occurrence, Parimol came running to her and told her that the appellant had cut Chandu and thereafter, Parimol went Crl.A.(J) 74/2018 Page - 12 of 32 running towards his house and she also saw the appellant chasing Parimol with a dao in his hand. Going to the house of Parimol, she saw the severed head of the deceased. The learned Trial Court discounted the suggestion made by the defence that PW1 was richer than the deceased and being a rich person, he was hardly expected to cut his hair to a poorer. It is not unusual in a village area that a person who knows how to cut hair would give a hair cut to one's uncle on his request.
28. As regards the motive for committing the crime, which was not established by the prosecution, considering the fact that the appellant and the deceased had cordial relation and the former was loyal to the latter, it was held that in view of the direct evidence in the form of eye witness account of PW1, which is corroborated by the other witnesses, the absence of motive cannot be said to be fatal in the present case. The Trial Court, on the basis of the evidence, held that though the appellant may be suffering from impairment of speech and hearing, nevertheless, he was not of unsound mind as testified by the prosecution witnesses and repelled the suggestion of perpetrating the crime because of his unsound mind.
29. Coming to the statement of the appellant recorded under Section 313 of Cr.P.C. to the effect that four persons had come and one of them had killed the deceased and threw the dao in the bush, the Trial Court held that the same is not established and there is no reason why his own relatives PW1, PW2 and PW6 would implicate the appellant falsely. The Trial Court after considering the Crl.A.(J) 74/2018 Page - 13 of 32 evidence on record, took the view that it was the appellant who had caused the injuries to the deceased leading to his death and also there is nothing in the evidence on record to suggest that the appellant had assaulted the deceased upon grave and sudden provocation or in exercise of his right of private defence and that there was a sudden fight and the act was done in a heat of passion and, as such, held that the appellant had requisite intention to make him liable for committing the offence of murder. The Trial Court, accordingly, convicted him under Section 302 of IPC and sentenced him to undergo RI for life.
30. From the evidence on record and as held by the learned Trial Court, it appears that there was an eye witness in the form of PW1, Parimol Roy and the other witnesses who apparently corroborated the statement of PW1, yet there is one aspect which is causing concern to us, i.e., condition of the appellant, who is undoubtedly a deaf and dumb. This fact has not been doubted by the prosecution and also noted by the learned Trial Court. In view of his above disability, the Court requisitioned the service of an expert to assist the appellant at the time of examination of the appellant under Section 313 of Cr.P.C.
31. We have noted that one Jayanta Kalita, who was working in the Institute of Deaf and Dumb Government Institution, had acted as an interpreter to the appellant who was examined as CW1. He stated that he had observed the gesture of the appellant by which he responded to his queries and found that the appellant was able to understand what was being conveyed to him by way of gesture and the appellant can also write his name in Bengali.
Crl.A.(J) 74/2018 Page - 14 of 32
32. The said CW1 also stated that on request of the Court, he had explained the charge to the appellant and the appellant appears to have understood the same. As the appellant could write his name, charge was written in Bengali language on a paper and shown to him, which the appellant denied by gestures of head and hand. However, record does not indicate that assistance of any such expert interpreter was utilised by the Court during recording of evidence of the prosecution witnesses. There is nothing on record to show that services of such an expert was utilized at the time of examination/cross-examination of the witnesses. This has caused a serious concern to us.
33. Fair trial is an important component of the justice delivery system and if fair trial is not ensured, a trial may be vitiated. Without elaborating as to what is fair trial, suffice to mention that fair trial certainly involves all the opportunities to be given to an accused contemplated under law so that he can defend himself properly during trial which may include providing legal assistance in the form of legal aid counsel if the accused is not able to engage a counsel of his own and also adhering to all the procedures contemplated under law.
34. In the present case, what we have noted is that though the appellant is not of unsound mind as testified by the witnesses and also not suggested in any manner by the expert interpreter, what is evident is that services of such an interpreter was not provided to the appellant during the course of the trial except recording of his statement under Section 313 of Cr.P.C.
Crl.A.(J) 74/2018 Page - 15 of 32
35. In a criminal trial, the most important component is adducing of evidence before the Court. The prosecution must produce all the evidences which are collected in course of investigation, which would sustain the charge against an accused and the accused must be given all opportunities to question the veracity of any such evidence including admissibility of the evidence which may be sought to be brought on record by the prosecution.
36. In order to achieve the aforesaid purpose, cross-examination is an important tool in the hands of the defence. It is through cross-examination that defence would seek to shake the credibility of the evidence of the witnesses as regards truthfulness, credibility, relevancy, admissibility, etc.
37. In the present case, what we have noted is that the appellant was represented by a counsel. Therefore, he was given opportunity to be represented in course of the trial. However, in our opinion, mere providing a counsel is not sufficient for the reason that we are not sure as to how the counsel was communicating with the accused as regards the evidence, which have been brought on record in course of the trial.
38. We are not able to understand how the testimony of the witnesses was made understandable to the appellant. Certainly, there was no expert interpreter who could convey as to what the witnesses were deposing before the Court by way of any hand gesture or any other mode of communication which will be understandable to the appellant, who is, admittedly, deaf and dumb. Therefore, we find it difficult to accept that the appellant was able to Crl.A.(J) 74/2018 Page - 16 of 32 understand what was being testified/deposed by the witnesses during trial.
39. If the appellant does not know what is being deposed against him, how he is going to cross-check, challenge or question it by way of cross- examination. Though the witnesses appear to have been cross-examined, we do not understand whether it was with the tacit knowledge of the appellant or at the instruction of the appellant. Certainly, there is nothing on record to indicate that the counsel who was representing the appellant was himself capable of communicating with the appellant through gesture or any other mode of communication. There is also nothing on record to suggest that the appellant and the counsel were able to communicate with each other with the help of an expert or any person familiar with the appellant. In the absence of any record to that effect we hold that there was no means of communication of the appellant who was deaf and dumb with his counsel. In that event the question being asked by the counsel for the accused during the cross- examination was certainly on the basis of the understanding of the counsel for the appellant and not necessarily on the basis of understanding of the case and evidence by the appellant himself. In our opinion, this is an aspect which will have a serious consequence as far as fair trial is concerned. We, therefore, hold that even though the appellant was represented by a counsel, there is nothing to suggest that the appellant was able to understand what was being deposed against him and that cross-examination of the witnesses was done with the knowledge or with the instruction of the accused-appellant. If that is so, we are Crl.A.(J) 74/2018 Page - 17 of 32 of the view that the entire recording of evidence against the appellant would cause great prejudice to the appellant.
40. We have also observed that the learned Trial Court did not follow the procedure laid down under the Cr.P.C while dealing with such an accused who is deaf and dumb. Section 318 of Cr.P.C. deals with such a situation, which provides that 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.
41. In the present case, though the trial culminated in conviction of the appellant, the proceedings had not been forwarded to the High Court with a report of the circumstances of the case by the Trial Court. The matter is before us because the appellant being aggrieved by the conviction appealed against it, and not by the Trial Court.
42. Accordingly, we have drawn our conclusion based on the records of the case to the effect that that while an expert interpreter was used, his services was utilised for a limited purpose only while recording the statement of the appellant under Section 313 of Cr. P.C. and no such services was provided at the time of recording of evidence of the prosecution witnesses and their cross- examination.
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43. The question, which arises for consideration, is: whether non-utilisation of services of the expert interpreter during recording of evidence of the prosecution witnesses would vitiate the trial?
44. Even if the learned Trial Court has not furnished any report as required under Section 318 of Cr.P.C., we have examined the matter on our own to see whether recording of evidence without the aid of an expert would vitiate the trial.
45. As we proceed to examine the matter, we will refer to some of the decisions which have been brought to our notice by the learned counsel for the both the parties.
46. In Emperor Vs. A Deaf and Dumb , [MANU/MH/0140/1916], a deaf and dumb was convicted of theft under Section 380 of the Indian Penal Code (IPC) and the Bombay High Court being satisfied that the learned Magistrate was right in finding that the accused understood the nature of the act when he had committed the theft, confirmed the conviction and sentenced the accused to one month's rigorous imprisonment.
47. This judgment is relevant to show that in the trial of a deaf and dumb person, if it is shown that such person had sufficient intelligence to understand the character of the criminal act, he will be liable to be punished.
48. In the said case of Ulfat Singh Vs. Emperor, MANU/UP/ 0269/1946: AIR 1947 ALLAHABAD 301, in the light of Section 341 of the Crl.A.(J) 74/2018 Page - 19 of 32 Cr.P.C., 1898, the learned Magistrate called for a report from the a civil surgeon whether Ulfat Singh is able to understand the proceeding to which the civil surgeon submitted his report that "he is incapable of understanding the spoken language but he can understand the written language if he knows them". On the basis of that, it was held that he was capable of understanding the proceeding of the Court. The High Court, however, observed that since the Courts have to ensure that the trial is a fair trial and the accused gets a chance of putting all such defences as he may have as a measure of extra precaution, a special counsel should be appointed for the accused at the Government cost who may explain to the accused the nature of the charge by signs and other means and put up on his behalf such defences as may be considered proper or as the accused may desire.
49. In Re Peethambaran, MANU/KE.0057/1959 : AIR 1959 Ker 165, the accused was convicted on the charge of murder and two persons acquainted with the accused were examined as Court witness at the commencement of trial and their services were utilised by the Court to communicate by gestures the substance of what each of the witnesses had testified. The Trial Court on evaluation of the evidences held that the offence of murder arraigned against him were well brought to him though he was deaf and dumb and was perfectly sane and that he was intelligent enough to understand the criminal character of the act committed by him. Thereafter, the Trial Court convicted the accused and forwarded the proceeding to the High Crl.A.(J) 74/2018 Page - 20 of 32 Court as provided under Section 341 of Cr.P.C.
50. Two principles based on earlier judicial decisions were emphasized, (1) Though an accused is a deaf and mute, if he understood what was being alleged against him by the prosecution and its witnesses, Section 341 would have no place and the Court concerned should deal with him in the ordinary way and dispose of the case and (2) while making reference under Section 341, the Court should record a finding as to whether the accused, though deaf and dumb, had sufficient intelligence to understand the criminal character of the act committed by him.
Referring to Section 341 of Cr.P.C., 1898 which permitted reference to the High Court at the stage of commitment or after conviction, the Court confirmed the conviction of a deaf and mute. The Court in view of the overwhelming evidences against the accused took the view that to sustain a conviction against a person subject to certain physical infirmities as deaf and dumb, the Court trying should not only be satisfied that he is sane but also he has a sufficient intelligence as to know the criminal nature of the act he commits. In the said case, the Court observed that the said accused was managing his house, doing the cooking, making purchases and followed instruction of other members of the family and there was evidence that he concealed blood stained shirt and the blood stained chopper and also a false explanation was sought to be offered by him as regards the presence of the blood stained clothes he was wearing.
51. In State Vs. Nooka Maktumsab Jatgat, AIR 1960 Kant 315 , the Crl.A.(J) 74/2018 Page - 21 of 32 service of the relative of the accused was opted to assist the accused only at certain stage but not at the stage of examination of the prosecution witnesses wherein the learned Magistrate recorded that "The accused is represented by his learned pleader. That is why the interpreter was not present, when the evidence was recorded as it was not necessary for the accused to follow the evidence having been represented by his learned counsel." Thus, the High Court of Karnataka held that it was necessary that the Magistrate be satisfied as to whether the accused could or could not be made to understand the proceedings and accordingly, arrived at a reasoned finding on that point which is a necessary requirement for the Magistrate acting under Section 341 of Cr.P.C.
The High Court of Karnataka felt that the fact that the Magistrate forwarded the proceeding to the High Court indicated that the accused's deafness and dumbness were not themselves unable to show that the accused could not be made understand the proceeding. Though the Magistrate took certain steps earlier by taking the help of a relative. The High Court felt that the examination of the prosecution witnesses without the help of the interpreter is a serious lacuna in the proceeding before the Magistrate and accordingly, the proceeding was set aside.
52. In State Vs. Kampu Shetty, MANU/KA/0063/1965 : 1963 ILR (Mysore)537 : 1965(1) Crl.L.J.456, the Karnataka High Court took the view that all endeavours must be made by the Trial Court to ensure that the accused understands the proceedings of the Court and while doing so, it may also find Crl.A.(J) 74/2018 Page - 22 of 32 out as to how his friends and close relatives are accustomed with him in ordinary affairs and record its conclusion, if necessary by taking evidence as observed by the High Court of Bombay in the case of State Vs. Radhamal, AIR 1960, Bom, 526.
53. In State of Gujarat Vs. One Deaf and Dumb, MANU/GJ/0108/1967 : 1969 Crl.L.J.328, a deaf and dumb Sadhu was charged of committing theft punishable under Section 379 of IPC. The High Court of Gujarat observed that merely because an accused is deaf and dumb and is unable to fully understand the nature of the proceeding would not exempt him punishment if it is found that he had sufficient intelligence to understand the criminal character of his act. The Gujarat High Court was of the view that sufficient steps must be taken to make the accused understands the proceedings of the Court referring to the decision of the State Vs. Kampu Shetty (supra).
54. In Charan Singh Vs. State of U.P. [Criminal Appeal No.1171 of 2006, disposed of by the Division Bench of High Court of Judicature at Allahabad on 08.04.2022], the Court after referring to some of the decisions as already quoted above, took the view that there is no bar to proceed against a deaf and dumb on a charge of criminal offence but, whenever the criminal proceeding is drawn against a deaf and dumb person, all endeavors should be made that he understands the proceeding. In the said case, the Court below found that the accused was able to communicate though in low lisping tone and could Crl.A.(J) 74/2018 Page - 23 of 32 understand the proceeding and accordingly, affirmed the order of the Trial Court in convicting the accused.
In the aforesaid case, the Allahabad High Court further made an important observation that no application was submitted by the counsel representing the appellant to provide a sign language interpreter to enable the counsel to communicate with the appellant or for the appellant to communicate with the Court there is a legal presumption that judicial and official acts have been regularly performed but it will not vitiate the trial as provided under Illustration (e) to Section 114 of the Evidence Act, 1872 .
55. In Office Reference Vs. Ramnarayan Manhar, decided on 18.10.2022 by Chhatisgarh High Court, [Crl. Ref. No.3/2021] , the accused was charged under Section 376(2)(f) of IPC and Section 4 of POCSO Act. 15 Witnesses were examined and the accused was examined under Section 313 of Cr.P.C. wherein the accused replied through gesture, as he was deaf and dumb. The Trial Court, however, felt that he could have understood the proceedings of the case and accordingly, referred the matter to the High Court under Section 318 of Cr.P.C. for passing appropriate order. Referring to Section 341 Cr.P.C., 1898 which permitted reference to the High Court at the stage of commitment or after conviction, the High Court confirmed the conviction of a deaf and mute. The High Court, in view of the overwhelming evidences against the accused, took the view that to sustain a conviction against a person subject to certain physical infirmities as deaf and dumb, the Court trying should not Crl.A.(J) 74/2018 Page - 24 of 32 only be satisfied that he is sane but also he has a sufficient intelligence as to know the criminal nature of the act he commits.
56. From the above decisions what can be deduced is that, merely because a person is deaf and dumb, it cannot be said that he cannot be tried and also convicted. However, before the trial commenced, the Court must make all endeavours to ensure that such a deaf and dumb accused understands the proceedings of the Court for which if necessary, the services of his family members or his acquaintances may be utilized so as to make him understand the proceedings of the Court. If the service of trained expert interpreters is available, so much the better. However, in absence of a trained mediator, persons of acquaintance or friends could also serve the purpose if they are able to communicate to and with the deaf and dumb and also communicate to the Court of the understanding of the deaf and dumb.
57. While we would respectfully prescribe to the views already taken by the various High Courts, we would, however, like to go a bit further inasmuch as in our view that, provision for such expert or acquaintance and family members must, however, be made all throughout the trial for the reason that in such a trial, if such service is not made available, certainly, for such period, it cannot be said that the deaf and dumb had understood the proceedings of the Court. Therefore, even if a lawyer is present to represent the accused, if such expert or family members or acquaintances are not present, there not be any presumption as held by the Allahabad High Court in Charan Singh (supra) that Crl.A.(J) 74/2018 Page - 25 of 32 the accused had understood the proceedings.
58. In the case of Charan Singh (supra), Allahabad High Court perhaps took the said view. Considering the observation and finding that in the said case the accused could communicate, though in a low lisping tone and could understand the proceeding. In our view, absence of interpreter or such family member or acquaintances which will be the medium of communication with the deaf and dumb who is otherwise will not be able to understand the proceedings of the Court would vitiate the trial.
59. In the present case, what we have noted is that it is on record that the accused-appellant is deaf and dumb and that he is otherwise not able to understand without aid of an expert is clearly evident from the fact that when he was examined under Section 313 of Cr.P.C., the Court took the help of an expert who was working in the Government Institute of Deaf and Dumb. In his deposition as CW-1, he stated that he had observed the gesture of the appellant by which he responded to his queries and found that he is able to understand what he would convey to him by way of gestures. Furthermore, he also stated that as accused can write his name in Bengali, the charge was written in Bengali language on the paper and shown to him and he denied the charge.
60. From the above evidence, it appears that the accused could understand if the same to be written in Bengali language, otherwise being deaf, obviously even he was spoken in Bengali language, he could not heard it. Therefore, Crl.A.(J) 74/2018 Page - 26 of 32 unless the entire evidences of the witnesses were put in Bengali and shown to him, it cannot be said that he could have understood the evidences if not assisted by any expert interpreter. There is nothing on record to show that the evidences was recorded in Bengali and shown to the appellant. As can be seen from the records, the evidences were written in English. How did the appellant then understand the proceedings without the help of an expert interpreter, can merely be conjecture.
61. Under the circumstances, we are of the opinion that such evidences of the prosecution witnesses recorded in the Court in English language could not have been understood by the appellant without the help of an expert by conveying it through gestures.
Merely because, the appellant was represented by a lawyer and that the lawyer at any stage did not raise any objection or demanded the help of an expert, we cannot draw any presumption that the appellant understood the evidences being recorded in course of the trial.
We are, therefore, satisfied that in the substantial part of the proceeding/trial, except for the recording of evidence under Section 313 of Cr.P.C. in which the service of an expert interpreter was utilized, the appellant did not have the benefit of the assistance of any other expert. We have, therefore, no other option but to hold that the appellant could not have understood the proceedings, in which event the trial will stand vitiated.
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62. In our view, the fact that the appellant was represented by a lawyer and conducting the trial on his behalf, does not fill the fundamental lacuna in the trial. There is nothing on record to show that the defence counsel representing the appellant was also quite adept in sign language by which he communicated with the appellant as to what was being deposed by the prosecution witnesses. Under the circumstances, we can draw the inference that appellant was denied a fair trial by not ensuring that he understood the proceedings.
63. In this regard, we would like to make a further observation that even though the prosecution claims to have established the basic facts beyond reasonable doubt, yet, there are some areas with which we are not satisfied about the investigation and trial. As per the prosecution, when the incident occurred, there were no one else except the accused appellant, the sole eye witness Parimol Roy (PW1) and the deceased. While PW1 had all the opportunities to explain what he has seen and transpired during the period, we do not know as to the version of the accused when the investigation was carried out. There is nothing on record to suggest that the Investigating Officer had taken the help of some experts or family members to ascertain the version of the appellant during the investigation.
64. We would like to make this observation for the reason that the appellant had taken the plea that there were 4(four) persons who had come and one of them had killed the deceased. We have also noted that while PW1 stated in his deposition before the Court that after he saw the appellant striking the Crl.A.(J) 74/2018 Page - 28 of 32 deceased on his neck with the dao, he raised a hue and cry and thereafter, the appellant tried to give a blow to him with the dao and out of fear he ran away from the place of occurrence and hearing the shouting, people gathered there. Thereafter, he again came back to the place of occurrence. However, in his statement recorded under Section 164 of Cr.P.C. which was exhibited as Ext.2 which was recorded after 25 days of the incident, he stated that after he saw the appellant striking the deceased with a dao, he raised an alarm and people arrived there and apprehended the appellant but he fell down and remained unconscious for a while. He also stated in his statement recorded under Section 164 of Cr.P.C. That people raised him up, poured water on his head whereupon he regained his senses.
65. There appears to be certain inconsistencies in his statement made under Section 164 of Cr.P.C. and the testimony before the Court as regards his becoming unconscious at the place of occurrence. We have to remember that it is the testimony of PW1 which is the foundation/basis of the case against the present appellant. Keeping the aforesaid inconsistencies in mind, proper and meticulous cross-examination of the said PW1 was certainly called for. Though the said PW1 was cross-examined but we fail to understand on what basis and how the counsel of the appellant cross-examined the said PW1, unless the counsel was also able to communicate with the accused appellant by gesture. However, there is nothing on record to show that the counsel was able to communicate with the accused appellant by way of gesture or any other mode Crl.A.(J) 74/2018 Page - 29 of 32 of communication understandable to the appellant.
66. For the same reasons, we are of the view that the deposition of the other witnesses and the cross-examination conducted during the trial perhaps could not have been understood by the appellant.
67. Under the circumstances, we are of the opinion that the trial would be vitiated on account of the failure of the Trial Court to fully satisfy that the appellant was able to understand the proceedings properly.
68. On perusal of the impugned judgment does not indicate that the learned Sessions Judge had made all efforts to ensure that the appellant understood the proceedings of the Trial Court.
In fact, there is no whisper at all on the important aspect of the trial when a deaf and dumb was being tried for committing a serious offence under Section 302 of IPC.
69. Even if assuming that the appellant indeed had struck the deceased with a dao, we have no clue as to what immediately preceded the act of assault. Every act of culpable homicide may not amount to murder. It may be a culpable homicide not amounting to murder depending on the circumstances leading to the homicide.
The law contemplates that there can be situation where culpable homicide is not murder as provided under the Exceptions mentioned under Section 302 of IPC, as in the case of grave and sudden provocation or where Crl.A.(J) 74/2018 Page - 30 of 32 the murder was committed without premediation but in a sudden fight in a heat of passion or a sudden quarrel.
70. Therefore, even though the claim of the appellant that four accused were present and one of them had killed, is not supported by any evidence, yet, we have to keep in mind that throughout the trial except at the stage of recording of statement under Section 313 of Cr.P.C., the appellant was not assisted by any interpreter or expert.
71. For the reasons discussed above, we are of the view that in spite of the evidences which have been brought on record, we hold that the trial against the appellant stands vitiated. Consequently, in normal course, we would have remanded the matter for a re-trial by providing an expert interpreter to assist the appellant during the recording of evidence of the prosecution witnesses and their cross-examination but in the present case, the records show that the appellant was arrested during the investigation on 04.09.2011. It appears that he continued to remain in custody during the trial as there is nothing on record to show that the appellant was released on bail and he was convicted by order dated 05.02.2014.
Thus, he has remained in custody for more than 12 years.
72. Under the circumstances, we are of the view that holding a re-trial at this stage would cause enormous delay in the criminal proceeding against the appellant, which would cause immense prejudice to the appellant.
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73. Accordingly, since the appellant has undergone more than 12 years of imprisonment, we close the proceeding against the appellant and acquit him. The appellant shall be set at liberty forthwith.
74. For the reasons discussed above, we allow the appeal.
75. We have noted the able assistance rendered to this Court by Ms. B. Sarma, learned amicus curiae in conducting this jail appeal who may be given the honorarium at the rate fixed under the Rules.
Sd/- Arun Dev Choudhury Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant
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