021-NLR-NLR-V-42-JOSEPH-v.-FERNANDO-et-al.pdf
Joseph v. Fernando.
03
1940Present: Wijeyewardene J.
JOSEPH v. FERNANDO et al.369—M. C. Dandagamuwa, 7,582.
Deaf and dumb accused—Trial for offence—Procedure to be adopted—Criminal
Procedure Code, s. 288.
A deaf and dumb person may be tried for an offence.
A Magistrate trying a deaf and dumb accused should make all reason-able efforts to ascertain if there is any reliable person who is able tocommunicate with the accused by signs and make him understand thenature of the proceedings in order to avail himself of the assistance ofsuch a person.
It is also desirable that there should be some medical evidence as to thestate of mind of a deaf and dumb accused so that the Court may considerthe propriety of taking action under Chapter 33 of- the CriminalProcedure Code.
Aiya v. Peniya (21 N. L. R. 72) not followed.
^^PPEAL from a conviction by the Magistrate of Dandagamuwa.
No appearance for accused.
N^Gunesekera, C.C., as amicus curiae.
Cur. adv. uult.
■ 94
WIJEYEWARDENE J.—Joseph v. Fernando.
September 10, 1940. Wijeyewardene J.—
There are two aecused in this case. The first accused Francis, a lad of16 years, was charged with the theft of some jewellery and clothes of thevalue of Rs. 18.85. The second accused, an elder brother of Francis,was charged with retaining some of the stolen articles .knowing or havingreason to believe that the articles were stolen property.
At the commencement of the trial the Magistrate recorded the factthat the first accused was deaf and dumb and that there was no one“ who could make him understand the proceedings ”.
At the close of the case for the prosecution the second accused made astatement in the course of which he stated, “ He (the first accused)handed me the string of amulets (one of the alleged stolen articles). Hetold me that he picked it up. He can make me understand him bysigns
The Magistrate found the first accused guilty under section 369 of thePenal Code and the second accused guilty under section 394 of the PenalCode. He sentenced the second accused to one week’s rigorousimprisonment and forwarded the proceedings' to this Court for theconsideration of the case against the first accused under section 288 ofthe Criminal Procedure Code.
I think there has been a misjoinder of accused in this case. The firstaccused is alleged to have committed theft at Pannala on July 18, 1940,while the charge against the second accused is that he received some ofthe stolen articles at Dalupotha on July 20, 1940. Section 184 of theCriminal Procedure Code would not justify the joinder of the two accusedin respect of two such distinct and separate offences (vide Fernando v.Fernando'). I quash the conviction of the first accused for this reason.In the event of fresh proceedings being taken against the first accusedI think it fair that the trial should take place before another Magistrate.A Magistrate trying a deaf and dumb accused should make all reasonableefforts to ascertain if there is any reliable person who is able to com-municate with the accused by signs and make him understand the natureof the proceedings,' in order to avail himself of the assistance of such aperson. It is also desirable that there should be some medical evidenceas to the state of mind of a deaf and dumb accused so that the Courtmay consider the propriety of taking action under Chapter 33 of theCriminal Procedure Code.
I wish to add that as at present advised I am unable to subscribe to theview expressed in Aiya v. Peniya ’ against the trial and conviction of adeaf and dumb person who cannot be made to understand the proceedingsagainst him. Section 288 of the Criminal Procedure Code contemplatesclearly the trial and conviction of such persons. It was held in TheQueen v. Bowka Hari5 that section 186 of the Indian Code of 1872corresponding to section 288 of our Code enabled a Court to try a personthough he was unable to understand the proceedings.
v Quashed.
1 17 X. L. R. p. 240.~~2 21 N. L. R. p. 72.
5 {1874) 22 Sutherland's Weekly Reporter {Criminal) 35.