In a criminal reference before the Madhya Pradesh High Court made by Special Judge (POCSO Act), Gwalior under Section 318 of the Code of Criminal Procedure, 1973 (CrPC) after convicting the respondent for offences under Sections 449, 376(AB), 506 of the Indian Penal Code, 1860 (IPC) and Section 6 of the POCSO Act by a judgment dated 14-05-2024, a Division Bench of Justice Anand Pathak and Justice Pushpendra Yadav set aside the impugned judgment and directed the trial court to record the accused statement within four months.
Although the respondent was not of unsound mind, the trial court referred the matter because the respondent accused was deaf and dumb and allegedly unable to understand the court proceedings. An FIR was lodged for offences under Sections 376(AB) and 506 of IPC as well as Sections 5m/6 of the POCSO Act. The prosecution alleged that the accused, while visiting a house to perform massage for a paralysis patient, took a seven-year-old victim into a room, bolted the door, and committed sexual assault.
During the trial, the accused raised a plea through counsel that his examination should be conducted by a medical board due to his physical condition. Allegedly, the respondent was neither able to understand the sign language nor the questions being asked for his examination. Therefore, in view of Section 318 of CrPC as well as the decision in State of Chhattisgarh v. Deepak Kumar Sahu (2007) 1 MPHT 80, the said judgment was rendered without entering into defence stage.
The Court noted that as per the medical opinion received by the trial court, while the accused suffered from severe to profound hearing loss, he was not totally deaf and could be helped by a hearing aid, but since he remained non-cooperative, definite results could not be provided by AIIMS Bhopal. It was noted that even upon interacting with sign language experts, the accused showed as if he was unable to understand the sign language.
It was stated that the medical report assumes great importance wherein the medical board described the accused to be ‘malingering’ meaning he was pretending to be ill to escape conviction and sentence. Noting his disability, the Court stated no significant change in the accused person’s response even after usage of hearing aid showed that he was either faking his illness or acting. After perusing various documents such as the arrest memo and consent forms which bore his signatures in Hindi, and witness statements to the effect that he was capable of speaking and that he had threatened the victim, the Court stated that he was capable of understanding the court proceedings.
The Court discovered that the respondent had a previous conviction for raping a 14-year-old disabled girl under Section 376(2) of IPC to suffer 10 years of rigorous imprisonment, an appeal against which was pending before this Court. In the said appeal, the respondent was released on bail by suspension of sentence. Also, to the Court’s surprise, in the 2013 trial, no such plea of being deaf and dumb was taken by the accused.
Further, the Court stated that non-disclosure of previous antecedents itself creates a doubt on the respondent’s conduct. It was said that the allegations were serious in nature and that an accused in such circumstances could not escape the wrath of the proceedings by cleverly managing to represent himself as deaf and dumb. The Court said that once an accused knows the consequences of the act, then his plea that he does not understand the proceedings loses its sheen.
The Court stated that the accused was likely faking or exaggerating his deformity to evade the criminal justice system, found that a proper inquiry into his conduct had not been made and that mandatory provisions for recording the accused statement were not complied with. Hence, the trial court was directed to record the accused statement as per Section 313 of CrPC and also to ensure written examination, if required. It was left open for the trial court to call any sign language expert to ensure the statement. It was held that if the accused refuses to cooperate, then after giving sufficient opportunity, the trial court may proceed to pronounce judgment.
The Court set aside the impugned judgment to ensure opportunity of accused statement so that the trial may not later be vitiated on pretext of non-examination of accused statement. The Court directed the needful to be done within four months.
