A &# as § mm xVRwQ®4wHB XH‘mnkN EHEE nw @Ilm:l m_ 5‘ g M agdxnmv@Qnu saw Swag , §v Ngm k5 WN ADVQVRQWQ wyfg m § m§mrlwm§ aimgg awagm‘gmm WQEnQ‘wa gloom vcU @bXLRa gw 9 3 w .5 gabrmtsg $¥ s 21C 98?“: % g g“ m\ , n; x, agiggaal gaige; 9£$éti§§g lRegl £54» QOG 13 é éga a geiege££g ggiate w¥$= §es§gak K2a&ar gahug . QaQER. Pagt f0! 94.1 2.2903 Sd/ " . SUNILKUMAR SINHA \ Judge ‘x X Q2.’!2.2QO§ ' \ E‘éiE S$URTV $14“ €H£§TTE$§ARE$ 51L~§PUR HKEH €QURT @F CHE-gATTEgGARH BELsPUR r§&igal M§5c. Patitiegz {Reg £94 12,!290 a g :efeggace £Stata ==¥s— §ee¥ak Kama! §ah .giaeazagg u f Shri GK Bmiwal, D€p11t5r Advacate Ganeral for the State. Shri BTP. Shlgh, Advocate far the. accused Deepak Kumar 31111. > 8 4 n; magma G4. 12.2006) §2§§l Kagax 5§ghai {Q This is a rsference mack: uls 318 of m6 Cade. 0f Criminal Procsdure by 1115 Add}: Sassicsns Judg€, Balodg Distt, Burg (CG) in Ssssiens Trial N0, 1&3] !) HQ Whgmin tha Earned Addl, Sassioms Judaa, passed a judgmsnt glad 0rd€r of caavictiQn against tlm accuSed holdmg him guilty 0f an. oifenca {JuniShabk 11,! s 3?§(2)(i} Qf LRC. 5 (SEE —vs- D€5g3ak Kumar Sahu) {g} The. saw 0f mg 131‘ssacutiag is that 011 03.2.2006 at abcuj 6 gm” $115 aaczzssd teak the. w‘asecu £x, K11. Bmashwari (PAEBL a girl aged about 8 ysars, 3'11 a Kothalwhara the cattle. straw is Empahdgd Tha said iacidezxt was wimassed by GaSabai @ Ycgétshwari {RWQ} who maclgsd m tbs spat, 011 hearing cries cf the giyl and saw that the accasal’was lying on the girl and was cemmittjng sexual iatercaurse, Af$er seeing Gasebai, the accused ran away ceamiti€d Sexual mtercoursg against her, C 5 g 1§ $e: . ( $ J‘ fmm tbs swat, GasaBaé re 911a! the. matter t9 the. msmer 9f the ; pasgcumx namdy Kirem Bai (RW.4} arid ultimately a repcrt was lodgal t9 the {Jolica T115. girl was medically exawinsd by Dr. Viaita (P:W.§} 9:: 04.2.2006 whe feund that the. thare. war: 12 taéth 321 ths upger jaw aim 12 teEth 3'11 lowsr jaw, TIE girl was 0f m6 W€ight 9f 18 Kgs., 11d axillary and pubic hails WP 9Q} détwlgggsd. Sacendaty ’ S€X11a1 chaxactsrs ways also zlot {lavelqaed. - She. was a girl 0f nannal meatal conditian. Them we§s multiple small scratch abrasions, raddish 111 colony, ova" laweg" 2,13 iaeg'tion af bath legs (Agtericr part). On the. heal Examinatien, she. fcimd ratiness and milegnmation present evsy the. gxtalnal ggnetilia émd yagizza. The urethra was also intleguadx The hylgall was deg}; stated and wag Eat nlpturgd. Howgver, that: wart: 11c i11jurl€s aver chegk, bz‘east, hip 0r thigh. 811$ l aw: her smilicm 1 that the victim wag nexuah 7 hot matured age! them wel‘e sighs ef l‘ecerlt vagihal hehettatiea. ‘ r “.1 ~ ;n {a .-vn t0 the Ceurt 0f sessiens ahd the sessions Judge framed charges 11,! s 3.7é{2)( , IPC, to which the accused denied and a elea of the accused wae recoitled aceardihgly aftei" takiug his sigaature over the cl cages flamed: 011 the evidence, the pmseeution examihed aS maay as ll witneases. Thereafter, the matter was fixed. for exahminatioh of the accused 11,!55 313 Cr.P,C,, but the examiaation could not he conducted on accouat cf the accused beihg deaf aad dumb, therefore, without recording the accused statemeht, the Addl, Seaaioas Judge, fixed the matter for targaaieata and aftei‘ hearihg the final argumehts, he hassed the ’l‘he chal‘ge sheet was tiled and. the matter was committed judgmgm hslding fly: accused guilty 5f tha offence. §1111ishable 11,13 376(2}(i) @f IPC and rafan‘ed the. mattar £0 this Ceurt Llis , 3 18 Cr,P,C,, for §assi11g an a§pmpriaie 0111a. {4g At tha arouments, leargad ccuasal far the accugad arguad glat ma jurisdictiezl a’ex‘qised by ma med {391111 ufs 318 ‘y r Cr,P,C., is not m accerdaaca with law, HE alga agiled that 111s ?o§1victima is based lama 11:: matayial amd t11€ same. sheuld be < Sétt asida. He mainly Edied G11 the. dacisiealg y€nd€md in 111g & ;m mattar 0f “Egig'eg‘er -¥.§- @fg$ Sigmég; 54$ £4} 1947 A!!¢z!m!;gd gQé 932d kg gg: £§gra @ gyiggggl 3096.13} ME,.§L2§39. On 1115 centre; , lea-unaéi Siam Cmmsd sayporwd $115 cgavicticn alld age s11}}p01‘t€d mE cgur’sé‘. ade§t€d by the addl, Ssssimls Judge by mi'azn'xgg the matter te the. High Ceuzt 11,! s 3 18 (ERG. {5% I have. heard kaumd eminssl fer ma paytias at length emd have ales 113erueed the xecayds cf me couyt helcxw, {é} ha the case ef Emgwrar a—ys- Ugfa! SE‘rLgh (supra; the Allahabad High Court held that 111 dealing will} a deaf agd dumb accused charged with serious olfeecee, it is essential for a £eutt ta record a tiadigg whether the aeeused sail be made ta tmderstaad the preceeclings befere passing all erder ais 341 CLRC. {as it theta was), It further held that Where a deaf er {luaib eezsca is eemmitted t9 ataiid his trial iii the Coutt 9f sesaien at is ceiivieted, a i‘efei‘eiice has ta be iiiade 11,! s 341 as a meaaui‘e 9f extra yrecautiaa SQ that the High. Cemt may satisfy iteelf that Lieder Qie circumstaiices, it was a fair trial 01‘ enquiry gait! in. the ease of all Qi‘der ef cemmituieut, the High Ceiiit may furtlmr givg directieas as tr; how ths trial may }3mce€.d Q1 tha Cmat 9f Ssssiag, £11 £115. matkr Gf Beug‘a @ Drigpal {saga 1115. accuwd W95: deaf am! {hagzb but was get a lunatic a: a §a§sm1 Qf aasguad miwi Euni 13E. cmlld 219i bs‘géxk ta! undagstaizd avail 59314333, ha was trial fgy 3.1a egffalce 0f gays. TEE MP, Higl} Cami Said that 'm suck a. sithaticm swiior; ’% 18 {21' CLEO wcmld i133 ap{)1icab1€ alld tbs: miei has t9 13mcasd glmagh $15 statemanQ 9f thg acmiseé 11,! s 3 13 may get he. Ecordgd axld amen £16. whala €V§d€2§€ thsgudgmmai: ca}: be. gassgd. ‘ V~i ;w l ! :1 A§ 1959 Mgralg l? 355 ! Ira m: y$s§§a5myws§gggg it was § " i ma5€ skew ma: tha 12m¥igiozzg gf sgctian 341 {as it thgn. x as} sag b€ i11vek€d eEly when £115 accused is 1mabl¢3 t9 fagow the {igeceeidingsr The. Cesar: makirig rafaragcs sheuid rsccrd 9 fmdirig as ta whethgy tha accastrd, though a deaf, mum had suificiazg ivfdEgeacé‘ m madastemd £115 Ciimirlal charactgr 3f Elie act cgmmitted by him "‘9 aa‘stain a011vi€$ia2 agairls$ 311d; 9 })€§$Q31, LEE Coax: :ryg'glg him Sheuld not elliy be. Setysflrxi that he. 3v Saws but alscs that Ls is Sf suféicient m£€1lige11c5 as tc: kgaw 3:13;: cztimmal zzaazm ef flag 5L3 he: cammits, They: is :19 {Hevisieri fmmd t9 be. mli‘W 9f affarycs cmald 135 Fvem§t€d {Tam 13uilish§egi merely 's déaf and inmb. ThiS dgci *cn has 1 mEad 9!; 5‘ rn(353 ymur fb" r'n H :11 the. judgggagt ef MP, High Cami in Begim @ 9iigpa!’s rgfewvce {Szipi'u} {a3g T1211$ befai‘g iiie Cami sf isnqLiiy ai‘ irial forwaxdg th€ iirecasdmgq L :11 Eigh Ceiii‘t 14,153 32.8, it muSt be satisfied tha: the. ac usad cgiiiict 3w made’ t9 undamiagld the gmcaédiiigs aud L ox; i x» h .1 1:116 € 1qui1'y 01" the tg'ieu‘ must mgult in a ceaviction arid if thew twe 1‘Equimmants are. nat fulfllled, the, proceadings cannot bc faxwardéd to 3 Bigh Caurt. Thal‘afcm, it is claar that section 31& wauld Clearly Cgvgr the. casa of a 11361‘3011 whs is a deaf 311d dumb and wha caulet be made. to umisrstagd. the p10C€€di31gS, 1 thaugh net magma, Wain off spaech and begging dot-s got imply gxsglt 0f capacity sith€r in the tmderstemdmg G1“ memory but 011137 a dififcult}? i1: th€ means Qf cgmmunicating kgowkdge, t11€refere, as all €Xtracauticn, tbs 1€gis1ature has madc the provisiogs 9f saction 318‘Cr.P:C., so that the Eigh Caurt may satisfy itsaif ;r Lhvt tmdar the cimumsaaaces, it was a fajx tried. Tha language. gaad the 1'11 saciion 318 makas it claar that the by legisgatura Cami cannat rafm‘ a case 1'11 tha midst 0f a trial befcra any, canviction. takes the. ceuxt is t0 procead t0 tha canviction. placa, raquired. aad 0f tha tzial and it is (311137 if the. trial results in a convictien, the. qtlsstian 9f femaldmg precaadéngs t0 the. High Cautt ti, 1311 qtlsstian ail s 318 would axisa. {9% Now it has t0 bé‘. sat-.11 as to whethel" in casa on hand, tha karmid A.S.J., has tightly takéen the dacisieh t0 rsfsr tha hlattar ta the. High Caurt er haing Satisfied in all above. aspacts? {lQg 'l‘he. vazy first alder shaet recoHled by the yemahd Ceurt 011 62,2006 is enclosed alongwith the recerds of the Sessiens Trial. 'A petusal ef the afciesaid order sheet would Show that when the accueed waa histly {arodliced before the remand Court 1 ahd a judicial iemahd. was sought by the prosecution, it was told ////r to the said court that the accused is a mute and in that situation the said €911.11 asked the game. of the. accused who gaw. his name. 111 wxju'lag mstead 0f teHjIAg it 1'11 spaech and he elm wrotxe £116 11am€ 0f his father and village €10, themaftgr only, a judicial Emalgd was gi e3}. After llgaring the, charg€ argumsnts, the S€ssioas Ccult fregnad cllag‘gas. ufs 3’?6{2){i} of IPC grad. wha; it was €Xp1ained aad made to undezstand i9 the accused, 11g deaigd the. cha}g€.s and put his signatum 011 plea awarded ea 1116 statemaa: of chargé'. ii‘amed an the said data It ( is Elgarteilt t0 menticm this fact h€y€ t11a$ tha accused was §e§reseeted -by ail eagaged calmed threugh 011:, but, the . collage! has net takea aily such abjectien that the accused is tmable tc madewtand the cmceediags <31“ he is Lnsame c3: he 1'11 fact dees alleged t0 have bee-11 committed by him, h} this case, ther accused was medicajly exelaieed en 0522006 by P.W.5 Drlfmcd Kumar whe has proved his‘ report EXP. 10. In the said repeat alga he has mentioned that the ace‘ased was unable to talk, In the said Circumstaace, the hial cemmenced 811d altiwately ea the date 0f recet‘diag 0f statement 0f accused i.e., 49—2006, the that £01111 recorded that the accused is deaf ahd dumb and wheu the questieus were asked to him, he makes gestures which meauu that he is unable t0 hear and he is else unable to speak ahd he is net able to uuderstaud the questions. The trial court‘ttied t0 make him understand the questious teueatedly, but the accused was unable to reply on the abeve V tut and on this gtound the the! Ceurt recort ed that it was hot eessible ta tecerd the statemeut ofxthe accused 11,!s 313 at CLPLI 0n 26.92006 i.e.-, ta t‘efereaee stdet, the trial Court has mentioned thi fact that the accused. is deaf and dumb and he is s ‘ ersta‘ad the Camilla; chaxacter 9f the act n; Fin“ unable to understand the. proccedings and is unabla to reply the questions put to him, hawever, he is not a person of unsound mind or he is not an i11sa116 and in these circumstances, the trial Court has made. reference to this Court. I1: is also important to mention that in almost all the orders sheets the accused has s put his signatures in the 'column of signature of parties or gpleaders, alongwith his lawyer, which he has written in Hindi. Therefore,‘it appears to me that these are the sufficient grounds for taking a‘View by the trial Court that the accused though Was not of unsound mind cannot be made to understand the proceedings and the trial Court after recording a finding of conviction has rightly adopted the mode of Iefening this matter to the High Court u/s 318 Cr.P.C. The reference is in order and ' I hold it accordingly. (11) Now l proceed to examine the evidence against the accused. The prosecutrix Ku.Bineshwari has been examined as P.W.3. She deposes vide para 1 that she was taken by the accused to his Kotha and thereafter the accused removed her underwear and he also removed his own underwear and he laid down himself over her. She further states that when she was trying to go to her house, she was again made to lay down by the accused. On a specific question being asked to her, as to what the accused was doing with her, she replies in the following «ra— mesawawmmramrdamw? W—aagqemtnéwaaémt Wanda anteatwaa‘dmw‘a‘ I” £332; P,W,2 Yogeghwag Bai is ax: eye. wiumss to the mcideut, 1; “311s degasas yids: 113ayc1 1 that after imaging tbs 1111!: 941d cry of ths pmswmliv £116 Katha 9§ $5 accused, shé‘. W€nt in side * ;e ' : Katha and Saw that the. accused was lyigg ever the 1 I036C11£X $151 he : cgmmittizlg rails. Whsa the. accused Saw 1151‘, he amt i S ‘ his fall peglt agd ram. away frem 111a S§Q$ axld gm giil game e¥et ta hei‘, teak he: in hei‘ lap and stated crying Like {isava mg”: Thasraaftar 31313 wita€ss calla! the 113M116? 9f ths }}ré§sacutnb§, ~ She. dagmsas Vida Para. é it} $133176? :9 a questigg mat $116 had enly seen i213: accuswi lym'g {av-3r the girl but Sha has demad gait: waggestion vide Fara 8 that it is not Carrect t9 that only by secm‘g that the accusal was lying on tha gxesacutxiz sh€ was sayiaa that the. accaaad. was cammittjngr gag? agaiagt 113$ pre tlix. That maaxzs, aha 11ml afmrmed hemalf G11 tha fact that shs had 36.611 the. accused cemmittjllg tape againet the emeecuttix Quad en Lhe hae aad cry made by the hmeecutzix she had reached tc the $13011. What is stated abcve is the Gutcame at the leagthy crees-exaahmatioa 0f this witaess, {33% D1".¥h1tta Keatiya ’R‘Mé} is the witness whc has examined the ptaaecuuéX ahd. whe has preved herrenert EX,P.11. As E have ahead}? Stated in Para 2 {supra} that she had found the gh‘l aged about 8 years and. she had alsc feuhd multiele entail Scratch abrasiena, tea tel} i1} eeleur, ovet lewer 2/3 eeztion of hath the legs, In le lecal examhtatiea, she found tednesa and tatleahmatiea Fresent ever the external geaetiha and. Vagina ahd the Utethra was alsa inflamed. The hymen was deep seated and it was net runtui‘ed and she has givea aninicn that the victim at ogce, -: .5; s a was sail 9Jly act maimed glad there ware siggs 9f ma€m vaginal Eammtratieg, {14} L1 {‘agv {:f a git; Gf iander age, rapmne. £>f hymé'n, i11 the €ve11$ 9f ixzgsgatiaa, is 31m as a maitar Sf E1116, En cases whem tbs Egygasa is (let-{3 saated, it glav not ruptuys athgugh thxera may be a 32511§n"a:ie3, IE; casg of a farcible. attemg ta ixneaate also, gha‘ca age. Chalmes that Lhe hymail 3f t1}: vicfv'm may Eat 31313tt1r5 gaalticalaxly whaa it is deap Sfratad, The pmmace of rednass aux! M9£amaii0§1-ov€y $11e vagixga is atlsa3t a sigr; that sither a i cczgplata §3€11§t§ati011 has takiau placti 01‘ a pavtial §exletrati0n 119$ taliata plaas Ga" a farcibla attempt'tc panetrate was; mada agaiizst ills victim. Me'di ephms £11 his Madieal Jurisprudgam that 111 small childmn, tha hymen is £101: usually ruptnrad, butt may became red and ccggastgd alegg with tlm inflammatiea and bmising 0f the labia; if £031sid€1ab1€ Vieknx is ust‘d, they: is; aftaa taC€a‘atiQ11 of tlw feuychatta agd §1€ EEEEEEE, Piegge 585 Enégéé’g Mgggégal Jaas'iamaiegasg gagggi E‘exgwle é'rd E zw a: g égh» é gwz . Prassnce. at all thgse siggs 1'11 Lhg mgdical i‘e}30:‘t of th€ Victim atangwith ms €Xt€ “ed igjluiéts foggy! aver bath the legs is; suggestive of the fact that either a eartial peaetyaticn has taken ;}1ace er a forcible attemet t0 penetrate was made aga£1at the victim emd the 0p§11ia11 0£ the Daetor mat there were Signs 5f :‘ecegt vagmal {geaetzation appears to be ceg‘ect. So far as the age 9f the victim is cencet ted, there is evideztce of mother nemely SmtKilzm Bai (RWA) whe states i2} the fn‘st earagraeh ef her ‘evideace that the girl was'aged abeut 8 yeare. T3318 statemerzt is ales gumaozted by the evitence of lady Doctor who ‘ r 4m a‘sg makeS clinical obsewatiea that L115 vicn'xn was agEd about S y 3&3 agd this has Hat be€n diSputed by +he r3efeaca eJse. £15§ k; Lhe fads agd cimumstaamas 0f this Case’ ma £3131 Cmu't has :iUIgl a) Y 11am :hat tha’. Xiictim was l€ss mail 12 vaaiS J af age. and 3L a was Subg'acted t0 saxaal a3$a11lt by the accused. Theugh a c1033.; aviégxzce of cem131e€e vagmal 13anet1‘a£i@11 with discharge i$ gmt availabla 91.! racord hm it ia a§pareg1t m1 meat! that the. accusad. fércibly attammad ts cemmit ra§a an thé victim with a raéult of gag'fial pmwta‘ation causmg atlw aferasaid injua‘ies t0 hay. 1:1 the. spmiml “f this (hurt, 1‘11 ms facts aad circumstaacas, ha has rightly baa}; held guilty by the trial Caurt and he is liabla i0 ha 3gumshad u! . s 376 2 x(1" I mad with saciian , 51 1 91‘ LDC. 4W. ‘ r no . 1a; In the. msult, $13.5. convx'ctian 9f 111$ ascused is up_1sld, Ensiead 0f 3€cLi011 375(2)(£} IPC, he is; held guilty af agenca Flimshahla 11/5; 3275s(2}{§) mad. with sactisn 511 9f tha IPC. Eewayar, leaking t0 tha :gndar,age 9f tha accused aad alga ‘ lacking b t0 his 113h _ YSical caadiiiag that 115: is daaf and dumb, ! deem it awgsr that a sentehca cf 5 yaars xiggmaa hhgh‘isehmeht waald ha adaquaie g-with a fme. 0f Ra, 1009/ ~ 3‘11 ths aacuhar facts and Cir .umstahces Q£ this caaa. §AZ7$ It ia ardarad aaat the accused shall suffay RI, fay 5 years 11d shah :aay a, fma 9f Rs, 1000/n h1 dafauh 9f paymaht af 511a, ha shall auhar {ma yaay 91 39a“ The saaQanm a nady uadergsae shall ha adjusted la lha seataaca {madly awaa‘dad to him. Tha crlmlaal rafaraaca is disaased af all that lama Iafaryed gnu ,\lg." ' tr; ahava "” SUNIL KUMAR Sd/. SINHA \ Judge . \ ru