In Re: Oomai alias Marimuthu

Krishnaswami Nayudu, J.—The accused, who is deaf and dumb, was charged with offences punishable under Ss. 454 and 380, I.P.C. for

having gained entrance into the village cattle pound by scaling over the wall and committing theft of 3 sheep of the value of Rs. 40. The accused

was entrusted with goats for the purpose of grazing by P. Ws. 3 and 4. On 1st May 1954 at about 10 A.M. the goats were sent to Tirupachoor

cattle pound by the village Talayari on the ground that they grazed on private lands and locked in the pound. The accused is alleged to have

jumped over the fence of the pound and removed the goats from the shed inside the pound. The Sub-Magistrate in his order states that the

circumstances appearing in the evidence in the case were explained to the accused through his mother and that, as his mother is accustomed to

communicate with him by means of signs and as she interpreted to the accused the evidence, he (the Sub Magistrate) was satisfied that the accused

understood the evidence let in against him, the questions put to him under S. 342, Crl. P.C. and also the charge framed against him. On the

evidence, the Sub-Magistrate finds the accused guilty and as the accused is deaf and dumb, he has submitted the records to the High Court

through the District Magistrate, Vellore, under S. 341 Crl. P. C. for orders. S. 341, Crl. P. C. provides that if the accused, though not insane,

cannot be made to understand the proceedings, the Court may proceed with the trial and if such trial results in a conviction, the proceedings shall

be forwarded to the High Court for orders. It is only in cases where the accused cannot be made to understand the proceedings that the procedure

prescribed in S. 341, Crl. P.C. should be followed. But, in the present case the Sub-Magistrate seems to be satisfied that the accused understood

the proceedings and if so, S. 341 will have no application. But, apparently, as a matter of abundant caution the Sub Magistrate thought it fit to

proceed under S. 341.

A similar case came up for consideration before Yahya Ali J. in Emperor v. Oomayan 1947 M. W.N. Crl. 83 = 60 L W. 197. where also the

accused was a deaf and dumb person and he was convicted under S. 379, I. P.C. and the Magistrate found that the accessed by signs admitted

the offence in Court and he also pointed out before the police the stolen property. The learned Judge, however, took the view that it was not safe

to act on mere gestures of that kind either to infer that he was the thief or to hold that he admitted the offence.

It is difficult to find in this case that the accused was able to understand by the signs of his mother the offences and its ingredients with which he

was charged and the evidence of the witnesses. I am therefore of the same view as Yahya Ali J. that it is unsafe to act on mere gestures and

convict a deaf and dumb person for these offences. It cannot, however, be Laid down as a general proposition the in no case a deaf and dumb

person could be charged and convicted for any criminal offence. The offence with which the accused here is charged arises out of an incident,

which should not have been taken serious notice of but disposed of by a reprimand of warning by the Village Munsif to whose notice it was

brought, instead of filing a complaint and proceeding with the trial. It is not possible to hold that the accused was aware that the shed in which the

goats were kept was the village pound and that one should not enter the same and remove the cattle. It might be that the accused was under the

impression that the goats had been removed and put in a private shed and he might have thought that he was entitled to remove these goats and no

one had any business to remove the goats in his custody and put in a shed. On the facts of this case and from the nature of the offences, the

conviction could not be upheld. The accused will be acquitted.