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The State Vs. Mookamma Alias Yellamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Case Nos. 8 and 9 of 1962
Judge
Reported inAIR1964Mys182; 1964CriLJ316; (1963)2MysLJ99
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 207-A, 207(A)(4), 341 and 539; Indian Penal Code (IPC), 1860 - Sections 302
AppellantThe State
RespondentMookamma Alias Yellamma and anr.
Advocates:B.S. Keshava Iyengar, Govt. Pleader
Excerpt:
.....to the scope of the enquiry under the said provision, the impugned order is liable to be quashed. - the copy oi the charge was given to the accused free of cost and the question regarding the examination of witnesses for the accused was not put to her as i was satisfied that she was not in a position to understand and answer the question'.he ends the reference by stating that the circumstances in the case reveal that the accused could not be made to understand the proceedings in the case, being completely a deaf-mute and that therefore the records in the case are submitted to the high court under section 341 cr. the reason for adopting such a course is that, as the accused is incapable of following the proceedings and no real trial can be held, it would be futile to subject the..........ismail breathed his last. when the accused was produced before the court, it appeared to the learned magistrate that she was totally deaf and dumb. to assure himself about the matter the district surgeon, chitradurga, was requested to examine her. as the latter was not able to give a definite opinion, he suggested that she may be examined by a specialist. the ear, nose and throat specialist of the victoria hospital examined the accused and found that she was totally deaf and that she was unable to speak as she was a deaf-mute. when the matter was taken up for enquiry, no counsel appeared for the accused and the court found that the accused was not able to understand the proceedings. her husband, who was present in court, was appointed to interpret the evidence of the eye witnesses.....
Judgment:
ORDER

1. Criminal Revision Case No. 8 of 1962 is a reference made by the Second Magistrate, Chitradurga, In C.C. No. 3512/61 on his file. The circumstances of the case are as follows :-

The Thuruvanur police submitted a charge sheet to the Court on 26-10-1961 against the accused Mookamma alias Vellamma for an offence under Section 302 I.P.C. on the allegation that on 10-10-61 at about noon when the accused was crossing the stream known as 'Janigehal'a' near Chickondanahally village she was carrying a bundle of fodder on her shoulder, the deceased Ismail, aged about 10 years, tried to snatch a stalk of hay from the bundle and the accused, getting enraged by this act of the deceased, hit him with the sickle which she had in her hand on his chest as a result of which the deceased sustained a bleeding injury and fell in the stream. Immediately thereafter a companion of his, Munavarulla by name, dragged the injured boy to the shore and poured water into his mouth. Soon afterwards Ismail breathed his last. When the accused was produced before the Court, it appeared to the learned Magistrate that she was totally deaf and dumb. To assure himself about the matter the District Surgeon, Chitradurga, was requested to examine her. As the latter was not able to give a definite opinion, he suggested that she may be examined by a specialist. The Ear, Nose and Throat Specialist of the Victoria Hospital examined the accused and found that she was totally deaf and that she was unable to speak as she was a deaf-mute. When the matter was taken up for enquiry, no Counsel appeared for the accused and the Court found that the accused was not able to understand the proceedings. Her husband, who was present in Court, was appointed to interpret the evidence of the eye witnesses to the accused and he was asked to be present on every day of the hearing. The prosecution examined three persons who were stated to be eye witnesses and on the closing of the prosecution case, the circumstances appearing in the evidence were attempted to be explained to her by means of signs by her husband. But the learned Magistrate says that she was unable to understand anything. Thereafter a charge for an offence under Section 302, I.P.C. was framed against the accused. The learned Magistrate adds that as the accused could not understand any question put by the Court, she was not asked to put up a list of witnesses to bo summoned to give evidence in her trial.

2. In the course of the resume the learned Magistrate has given the substance of the evidence given by the three eye-witnesses, namely, by Munavarulla already referred to above, and two other boys, Nazir and Tippusullhan by name who were also playing near the stream at the time. They all speak to the incident as mentioned above. The post-mortem examination showed a deep cut wound on the left side of the chest penetrating into the heart. According to the Medical Officer, who conducted the post-mortem examination, the death was due to shock and haemorrhage as a result of injury to the heart. In the light of these circumstances the learned Magistrate was of the opinion that the prosecution had prima facie established that the accused had caused such bodily injury as she knew would likely cause the death and made an order of committal under Section 207-A Cr.P.C. to stand her trial for an offence under Section 302 I.P.C. before the Court of Session. In a separate reference the learned Magistrate narrates the steps he took by way of referring the matter to the District Surgeon Chitradurga, and to the E.N.T. Specialist, Victoria Hospital to ascertain the physical condition of the accused. He also refers to appointing the accused's husband to interpret to her the evidence. He says:

'Soon after the evidence of each witness was over the interpreter interpreted the evidence by means of signs and the. accused was unable to understand anything and she used to stand quietly staring at the interpreter. She could not understand anything in the proceedings of the Court. Even when the charge was framed on 5-2-62 it was read over and explained to the accused through her husband she was unable to understand anything. The copy oi the charge was given to the accused free of cost and the question regarding the examination of witnesses for the accused was not put to her as I was satisfied that she was not in a position to understand and answer the question'.

He ends the reference by stating that the circumstances in the case reveal that the accused could not be made to understand the proceedings in the case, being completely a deaf-mute and that therefore the records in the case are submitted to the High Court under Section 341 Cr.P.C.

3. CRIMINAL REVISION CASE NO. 9/1962 is a Reference made by the Learned Munsif Magistrate, Holenarasipur, under Section 341 Cr.P.C. submitting the records in C.C. No. 865 of 1961 on his file. The accused in the case was charge-sheeted by the Chennsrayapalna Police alleging that tie had committed an offence under Section 302 I.P.C. on 2-8-1961 by intentionally causing the death of his mother by throttling her. The learned Magistrate found that the accused was a deaf-mute. This is also certified by the Medical Officer in charge of the L.F. Dispensary, Bagur. The Court sought the help of a teacher in the School for Deaf and Blind boys at Mysore to interpret the proceedings of the Court to the accused. The teacher, while stating that he would be able to communicate with the accused, appears to have expressed the view that in order to explain matters fully to the accused it would be advisable to go to the spot. Accordingly the learned Magistrate, made a reference to the District Magistrate, Hassan, seeking permission to conduct the proceedings at the spot. The District Magistrate was of the view that the Munsiff-Magistrate should give a definite finding that the accused was unable to understand the Court proceedings and exercise his discretion under Section 341 Cr.P.C. Then the Munsiff Magistrate made a further reference seeking permission again as he felt that in the interests of justice, it was necessary to visit the spot so that the accused could have the circumstances explained to him. The learned District Magistrate, however thought that what was sought to be done was in the nature of local inspection under Section 539 Cr.P.C., but amounted1 to holding the Court at the spot and wanted the Munsiff-Magistrate to indicate the provision of law under which such a procedure could be adopted. The learned Munsiff-Magistrate did not find it possible to do so and proceeded to deal with the matter under Section 207-(A) Cr.P.C.

4. According to the. prosecution the case rested entirely on circumstantial evidence and there were no eyewitnesses. The Court did not think that there was any warrant for examining any witnesses under the power the Court has under Section 207 (A) (4). The learned Magistrate also says in the order of reference that as the witnesses could not be examined on the spot with the aid of the expert, no purpose would have been served in examining the witnesses. The learned Magistrate then considered Ihe statement of witnesses recorded by the police in the course of investigation. Some, witnesses spoke to the constant disputes between the accused and his mother, to the accused being addicted to gamble and drinking and constantly asking his mother to dispose of the family property to enable him to obtain funds for the indulgence of his habits. The accused's sister Devakka, who was the only other inmate of the house apart from the accused and his mother, the deceased, spoke to her sleeping by the side of her mother as usual and finding her mother's dead body on her waking next morning. One Thayakka stated that she was sitting on the pail of the accused's house on Saturday, that on the day in question, that is 2-8-61, at 8.30 p.m. she saw the deceased, accused and Devakka going inside the house and latching the door and spoke to finding the accused sleeping outside the house and the accused bringing the dead body of his mother with the help of his wife who had apparently come there that morning. On the basis of this evidence, the learned Munsiff-Magistrate, was of the view that a prima facie case had been made out against the accused in regard to the offence under Section 302, I.P.C. by voluntarily causing the death of his mother. He concludes his reference by saying that looking to the circumstances and the facts that the accused is a dumb and deaf person, unable to understand the proceedings of the Court, it was a fit case n which a reference had to be made to the High Court under Section 341 Cr.P.C. for appropriate orders in the matter.

5. Section 341 of the Criminal Procedure Code reads as follows :

'If the accused, 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 order as it thinks fit.'

It is clear from the above provision that before the Court forwards the proceedings to the High Court with. a report of the circumstances of the case, the Court must find that the accused cannot be made to understand the proceedings and that the inquiry or trial must result in commitment or conviction. If these two requirements are not fulfilled the proceedings cannot be forwarded to the High Court Vide State v. Maktumsab Jatgat AIR I960 Mys. 315, Isso v. Emperor AIR 1943 Sind 237 and In re, Peethambaran, : AIR1959Ker165 . It will be noticed that while both these requirements are fulfilled in the first of these two cases, neither is fulfilled in the second. In the latter case, the learned Magistrate has not given a finding that the accused, though not insane, cannot be made to understand the proceedings. On the other hand, such material as is made available would seem to indicate that the expert who was sent for by the Court was of the opinion that the accused could be made to understand the proceedings, though both he and the learned Magistrate were of the view that the circumstances pertaining to the case could be more satisfactorily explained if the proceedings were conducted at the place of the offence. Further, there is a material to show that the accused was given to gambling and that he was constantly asking his mother to allow him to sell the family property. This would indicate prima facie that he was not without the power of understanding. In these circumstances, the proper course appears to be that indicated, in the decision reported in AIR 1960 Mys. 315 namely, to send the case back to the Court below to dispose of the case according to law, so that the Court below may apply its mind to the question whether the accused could or could not be made to understand the proceedings and to arrive at a reasoned finding on the point. If the Court finds that the accused' can be made to understand the proceedings and If the Court finds that there is prima facie material to put the accused on his trial, the Court has to commit the accused. Otherwise, he has to be discharged. If, on the other hand, the Court comes to the conclusion that the accused cannot be made to understand the proceedings, the Court has to decide whether the material justifies the accused being committed to stand his trial and if there is no prima facie case, the Court should discharge him. If on the other hand, there is prima facie material to justify the accused being put on his trial the Court has to forward the proceedings to the High Court. In the reference made by the Magistrate now, even though the learned Magistrate says that a prima facie case has been made out against the accused there is no finding that he cannot be made to understand the proceedings. The case is accordingly remitted to the Court below for disposal according to law in the light of the above observations.

6. As regards the first case the question is what would be the appropriate order to be made in the circumstances of the case. In the case reported in In re Thimma, 18 Mys LJ 27, following Queen-Empress v. Somir Bowra, ILR 27 Cal 368 and In re, Public Prosecutor, Madras, 1935 Mad WN 1287, the Court held that no useful purpose would be served by ordering the trial to proceed before the Court of Sessions and directed that the accused, be detained in jail during the pleasure of the Government. The reason for adopting such a course is that, as the accused is incapable of following the proceedings and no real trial can be held, it would be futile to subject the accused to the formality of a trial, and since the evidence on record in all those cases clearly and prima facie showed that the accused had committed the act which would amount to the offence with which the accused was charged, it would be unsafe to allow the accused to be at large. The position of such a person would be analogous to, though not the same as that of an insane person, Hence, it would be appropriate to direct the accused to be detained in jail during the pleasure of the Government.

7. In the present case there can be no doubt whatever that the accused caused the death of Ismail, presumably in fit of anger. It is difficult to say whether the mental element necessary to impute deliberate intention to her was present or not. In the circumstances we consider it appropriate that the order should be that the accused be detained in jail during the pleasure of the Government and we order accordingly. This order will be reported to Government.

8. Orders accordingly.


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