Disability is not an exemption from criminal liability

Mohamad Furkhan Mohammed Bashir Joza vs. The State of Maharashtra

Filed Under: Sections 375 & 376 of the Indian Penal Code, 1860
Appellant: Mohamad Furkhan Mohammed Bashir Joza
Respondent: The State of Maharashtra
Citation: MANU/MH/0959/2003; Decide on 16.12.2003
Court: In the High Court of Bombay
Judges: J G Chitre

An appeal against the judgment passed by the Additional Sessions Judge convicting Mohamad Furkhan Mohammed Bashir Joza under Section 376 IPC and sentencing him to undergo rigorous imprisonment for 10 years.

Facts

Benazir, an 18-year-old girl used to keep unwell and suffer bouts of giddiness. Md Furkhan, who was known to Benazir's uncle, claimed that she was haunted by a ghost and told her family that he would treat her.

On the day of the incident, Md Furkhan, a blind man, sent away Benazir's family members stating that the ghost would possess them if they would be around and locked himself and Benazir inside the house. He then intoxicated her and had sexual intercourse with her.

The Additional Sessions Judge found him guilty and convicted him under Section 376 IPC for rape and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs 10,000. If he defaulted in paying the fine, he was to undergo rigorous imprisonment of one more year.

Against this order of conviction, this appeal was filed.

Observations of the Court

The High Court upheld the order of conviction and the sentence passed by the Additional Sessions Judge and dismissed Md Furkhan's appeal.

The High Court observed that though he was blind he deserved no sympathy in view of the circumstances of the case where not only had he raped a girl who was unwell but had also cheated the family into thinking that he was treating her.

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In re Peethambaran

Filed Under: Section 341 of the Criminal Procedure Code, 1898
Appellant: In re Peethambaran
Respondent:AIR 1959 Kerala 165 (V 46 C57)
Citation: MANU/MH/0959/2003; Decide on 16.12.2003
Court: Kerala High Court
Judges: Koshi and M S Menon

This is a case where in Peethambaran, a deaf and mute person was accused of murder.

Facts

Peethambaran alias Pottan, ‘a dumb and deaf man’, was employed as a domestic help for about three years in a house named M P Mandiram, the residence of a Sub-registrar in Government service. A boy Soman (the deceased) of about 14 years was also employed as a domestic help in the same house for a few weeks. It was alleged that Peethambaran developed hatred towards Soman because Soman’s arrival spoiled his chances of petty stealing and interfered with the relationship he shared with a woman who was also attached to the household.

It was alleged that on the night of the incident, Peethambaran hacked Soman’s neck with a chopper. The next day Peethambaran’s employer’s son received information from his uncle that Soman lay dead on the roadside. The matter was immediately reported to police. The investigation into the case took place and then a charge-sheet was filed against Peethambaran.

Thereafter the case went to the Sessions Court. The Magistrate conducted a preliminary enquiry and forwarded the case to the High Court in accordance with Section 341 of the Criminal Procedure Code. The main point of this law is that if the accused, though not insane, cannot be made to understand the proceedings of the Court (the accused being deaf and mute as in the case in point), the Court may still proceed with the inquiry or trial. This law further states that in case such a trial takes place in a Court lower than the High Court, then the proceedings of such a case would have to be forwarded to the High Court. The High Court would then pass an order it deemed fit.

The High Court directed the Sessions Judge to conduct the trial. The Sessions Judge observed that since Peethambaran belonged to an unknown place it would not be possible to find any of his relatives who would be able to interpret the proceedings of the case to him. The Court then employed the services of two individuals who were acquainted with Peethambaran to communicate to him the proceedings of the Court as also to act as witnesses in the case.

Despite this, the Sessions Judge was satisfied whether Peethambaran had finally understood the implications of the testimony given by the witnesses who were examined against him. The Judge then directed the witnesses to explain the substance of the evidence given on behalf of the state, to Peethambaran by means of gestures and Peethambaran’s answers were also gesticulated. The Court understood him to deny the charge and to plead not guilty.

The Court took into account the following six main circumstances that connected Peethambaran with the crime:

  • He had a strong motive to do away with Soman’s life
  • He was seen leaving the scene of the crime immediately after the commission of the crime
  • Both Soman and Peethambaran had been sent together at different times during the night of the incident
  • The manner in which Peethambaran behaved after the crime
  • The presence of blood stains on his clothes.
  • The recovery of a bloodstained shirt and chopper from the place pointed out by Peethambaran

On a careful evaluation of the evidence the Judge concluded that even though Peethambaran was ‘dumb and deaf’, he was perfectly sane and was intelligent enough to understand the proceedings of the trial. The Judge found Peethambaran guilty and convicted him for murder. The case then came to this Court in accordance with Section 341 of the Criminal Procedure Code.

Observations of the Court

The Court examined the evidence under each of the above-mentioned points and concluded that the cumulative effect of the circumstances pointed in the direction of Peethambaran being the murderer. The evidence also excluded the possibility of anyone else having anything to do with the commission of the crime.

The Court pointed out that at the time of the occurrence, Peethambaran had been a servant under Prosecution Witness 2 (PW2, name not given) for over three years but Soman had joined the household

only two or three weeks prior to the crime. It was only after Soman’s arrival that PW 2 and his wife came to know that Peethambaran used to make petty thefts out of the money entrusted to him for purchasing household articles.

After this revelation, Soman was deputed to make the purchases and this irritated Peethambaran. Besides, Peethambaran was illicitly intimate with the maidservant of the house and this had been reported by Soman, to his employers.

When Peethambaran came to know that Soman had told their master about this he beat him up and also threatened to kill him. The Court also took into account the fact that Peethambaran used to complain to his employers that Soman was a useless and lazy fellow and should be sent away. The Court concluded that it was against this background that Peethambaran killed him.

The Court agreed with the lower Court that the circumstantial evidence established beyond all doubt that Peethambaran had committed Soman’s murder. According to the Court the evidence of the witnesses who had known Peethambaran long enough, clearly showed that even though he was dumb and deaf he possessed ordinary intelligence to know the difference between right and wrong.

In support of this observation the Court pointed out that Peethambaran was managing the house, doing the cooking, making purchases and was also following the instructions of his employers. Apart from this the Court also referred to the fact that Peethambaran’s conduct in reporting Soman’s alleged disappearance some time after three of the witnesses had seen him leaving the place with a chopper in his hand and Soman lying dead on the roadside showed that he was a man of above average intelligence.

Furthermore, Peethambaran’s conduct in concealing the blood stained shirt and chopper clearly showed that he was aware of the criminal nature of his actions. In light of these reasons the Court confirmed his conviction for the offense of murder.

The Court also referred to previous relevant judgments in which a sane deaf-mute person had been convicted for the commission of a crime and had also been punished accordingly. The Court then took up the question of the sentence that would have to be passed for Peethambaran. With reference to this issue the Court referred to Section 302 of Indian Penal Code, which states that in case a person is found to be guilty of murder he will be, punished either with death or life imprisonment.

The Court observed that having found Peethambaran guilty of the crime, the lightest sentence it could pass was one of imprisonment for life (refer to quotes). Accordingly the Court sentenced Peethambaran to undergo rigorous imprisonment for life. The Court also mentioned that it was up to the State Government to consider whether the circumstances of the case did not warrant a substantial portion of sentence being remitted.

Sections Referred:

  • Sections 341 of the Criminal Procedure Code, 1898

Cases Referred:

  • Emperor vs. Ulfat Singh (47) AIR 1947 All 301 (V 34): ILR (1947) All 490.
  • In re Ponvavi Jaddidu, (’54) 1954-2 Mad LJ (Andhra) 226.
  • Queen Empress vs. Reubin Samuel, (’94) 1894 Rat Un Cr C 696.
  • King-Emperor vs. Dada Mahadu (’01) 3 Bom LR 371.
  • Emperor vs. A. Deaf and Dumb Accessed (’17) AIR 1917 Bom 288 (V4): ILR 40 Bom 598: 18 Cri LJ 143.
  • Emperor vs. Khashaba Tatyai laeand (’23) AIR 1923 Bom 194 (1) (V 10): 25 Cri LJ 660.
  • Queen vs. Bowka Hari, (’74) 22 Suth WR Cr 35.
  • Queen vs. Bowla (’74) 22 Suth WR CR 72.
  • Queen Empress vs. Somir Bowka (1900) ILR 27 Cal 268:4 WN 421.
  • The Crown vs. Naru (’50) AIR 1950 EP 174 (V 37): 51 Cri LJ 908.
  • In re Narayanan Nair (’57) AIR 1957 Kerala 9 (V 44): 1954 Ker LT 39: ILR (1957) Kerala1:1957 Cri LJ 447.
  • (Kerala) (’57) Criminal Ref No. 3 of A957
  • Emperor vs. Gunga (’27) AIR 1927 Lah 799 (1) V 14): 28 Cri LJ 656.
  • Emperor vs. Gunga (’30) AIR 1930 Lah 64 (V 17): 30 Cri LJ 948.
  • In re Roya Polamma (’41) AIR 1941 Mad 225 (V 28): 42 Cri LJ 315.
  • In re Oomai (’55) 1955-1 Mad LJ 113: 67 Mad LW 881.
  • Emperor vs. Nag San Myin (’11) 12 Cri LJ 386: (1910) 1 UBR 57.
  • Isso vs. Emperor (’43) AIR 1943 Sind 237 (V 30): 45 Cri LJ 138.

Quotes from the Judgment:

“If we were finding the accused guilty of an offense for which no minimum punishment was prescribed, we would certainly have been inclined to inflict a light punishment, but as the law stands we cannot do that.” (pg. 169)

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