(In Reference Of) State Of Madhya Pradesh vs Kalyan Raikwar

1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE PUSHPENDRA YADAV
CRIMINAL REFERENCE NO. 01 of 2024
IN REFERENCE OF : STATE OF MADHYA PRADESH
Vs.
KALYAN RAIKWAR
----------------------------------------------------------------------------------------------------------
APPEARANCE:
Shri Deependra Singh Kushwaha – Additional Advocate General for the
appellant/State.
Shri R.K. Sharma – Senior Advocate and Shri V.D. Sharma – Advocate
along with Ms. Bhavya Sharma – Advocate as amici curiae.
JUDGEMENT
th
{Delivered on 29 the Day of June, 2026}
Per : Justice Anand Pathak,
1. The instant criminal reference has been made by the learned Special
Judge (POCSO Act), District Gwalior (M.P.) under Section 318 of the
Code of Criminal Procedure, 1973 after convicting the
respondent/accused for the offences under Sections 449, 376(AB),
506 of IPC and Section 6 of Protection of Child from Sexual
Offences Act, 2012 (hereinafter referred to as “the POCSO Act”) vide
judgment dated 14.05.2024 in SC Case No. 186/2022, on account that
though the respondent/accused was not of unsound mind but on
account of being deaf & dumb, the respondent/accused is unable to
understand the Court proceedings, hence, referred the matter for

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further course to this Court. Hence, this reference is before this Court.
BRIEF FACTS OF THE CASE
2. The factual matrix which led to the presentation of the instant
reference is that an FIR came to be lodged at crime no.488/2022 at
Police Station Thatipur, District Gwalior (M.P.) for the offences u/s.
376 (AB), 506 of IPC and Sections 5m/6 of POCSO Act giving the
following particulars as is stated in para 4 & 5 of the judgment dated
14.05.2024 passed in SC Case No.186/2022 :
“... 13.07.22
ककि ददिननांकि किको पपीडडितन किकी मनतन ने अभभियकत ददनरन
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उसकिकी अदयसकि पयतपी उम्र दर्ष किने किपडिने उतनरकिर पपीडडितन किने सनथ
बलनतसनांग किरने किने समबनन्ध म लनेखखिय ररपकोर्ष यह पनेश किकी है ककि दह
,
किकोचचनांग पढ़ने जनतपी है द उसकिने पतत सनेलसमनेन है उसकिने घर म उसकिन
, , , , 6
पतत पपीडडितन सनस ससयर द ननदि किने सनथ रहतपी है उसकिने ससयर सनल
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सने पहैरनभलभसस किने मररीज है
अभभियकत पपछलने एकि मनह सने उसकिने ससयर
| 11.07.22
किकी मनभलशकिरने किने भलए उनकिने घर आतन थन ददिननांकि किको
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अभभियकत
ददिन किकीछयटररी किने बनदि कफिर सने उनकिने घर ससयर किकी मनभलश
| 12.07.22 1
किरने आयन थन ददिननांकि किको दिकोपहर किररीब बजने उसकिकी
3
सनस ने बतनयन थन ककि अभभियकत ने किल दिकोपहर मकिररीब बजने किमरने
किन गनेर बनांदि किर कियनांदिरी लगन दिरी और किमरने मम पपीडडितन भिपी थपी तथन उसकिकी
सनस ने पपीडडितन सने बनर बनर पयछन किकी ककि अनांकिल ने गनेर कयक्यों लगनयन थन
,
और गनेर लगनकिर कयन ककियन थन तब पपीडडितन ने बतनयन ककि एकि ददिन
पहलने मनभलश दनलने अनांकिल दिकोपहर म आयने थने तब दिनदिद किकी मनभलश किरने

3
किने बनदि दिनदिद बनथरूम किरने चलनेगए थने और दिनदिरी चनय बननने चलरी गयपी
,
थपी
बयआबनहर पकोचर्ष म सकोफिने पर सको रहरी थपी और दह बयआ किने पनस लनेररी
थपी तभिपी अनांकिल ने उसने हनथ सने इशनरन किर अपने पनस दिनदिद किने किमरने म
बयलनयन और किमरने किकी कियनदिरी लगनकिर उसकिकी चडडिपी और लनेगपी उतनर दिरी
थपी कफिर अनांकिल ने अपनन पमर और चडडिपी उतनर लरी थपीऔर उसने जमपीन पर
लनेरनकिर अनांकिल ने उसकिकी बनथरूम किकी जगह पर अपनपी बनथरूम किकी जगह
,
लगनकिर दहलने लगनेथने थकोड़पी दिनेर बनदि दिनदिरी ने किमरने किन गनेर खिरखिरनयन
तको दह अनांकिल जलदिरी सने उठ गयने थने और उससने बकोलने किकी जलदिरी सने अपने
,
किपडिने पहन लको और अनांकिल ने अपने किपडिने पहनकिर गनेर खिकोल ददियन थन
कफिर दिनदिरी ने अनांकिल सने पयछन ककि गनेर कयक्यों लगनयन थन तको अनांकिल बकोलने ककि
दह बचचपी किको बतन रहन थन ककि दिनदिद किको पननपी किहैसने दिनेनन है औरबनदि म
अनकलने बकोल रहने थने ककि ककिसपी किको भिपी यह बनत बतनई तको तयमहनरने दिनदिद किकी
,
तबयत सहरी नहरीनां हकोगपी
कफिर उनहक्योंने पपीडडितन सने पयछन किकी अनांकिल ने तयमहनरने
किपडिने उतनरने तको तयमने दिनदिरी किको कयक्यों नहरीनां बयलनयन तको पपीडडितन सने पयछन किकी
अनांकिल ने तयमहनरने किपडिने उतनरनेतको तयमने दिनदिरी किको कयक्यों नहरीनां बयलनयन तको
पपीडडितन ने बतनयन ककि दह बहयत डिररी हययपी थपी इसभलए उसने ककिसपी किको
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कियछ नहरीनां बतनयन थन
पपीडडितन किने पपतन खिनरदशयनम सने दिशर्षन किर दनपस घर आयने तब
उसने सनड़पी बनत बतनई थपी और अभभियकत उन किने घर पर आयन थन तब
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दह सब उसने अपने सनथ लनेकिर ररपकोर्ष भलखिने थनने लनेकिर गए थने
अभभियकत ने उसकिकी बचचपी किने सनथ उसकिने किपडिने उतनर किर गलत किनम

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| -04
ककियन है पपीडडितन किकी मनतन किकी लनेखखिय ररपकोर्ष प्रदिशर्षपपी किने आन्धनर पर
, 488/22 376( ), 506
अपरनन्ध क्रमनांकि अनांतगर्षत न्धनरन एबपी
थननन थनररीपयर
. . . 5( )/6
भिन दि स एदनां न्धरन एम लैंचगकि अपरनन्धक्यों सने बनलकिको किन सनांरक्षण
2012 |
अचन्धतनयम किन दिजर्ष किर पपीडडितन किन मनेडडिकिल पररीक्षण किरनयन गयन
सनक्षपीगण किने किथन लनेखिबदन्ध ककियने गए तथन पपीडडितन और अभभियकत किकी
मनेडडिकिल पररीक्षण किने उपरनांत दसतयएनां जपत किर पपीडडितन किकी उम्र किने
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समबनन्ध म दिसतनदनेज प्रनपत ककियने गए थने पददनेचनन उपरनांत अभभियकत पत
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पदशनेर नयनयनलय किनेसमक्ष पनेश ककियन गयन
3. On the basis of the aforesaid FIR, investigation got initiated and
charge-sheet was filed along with all investigative processes being
undertaken before the learned trial Court, whereinafter the trial began
after framing of charges u/s. 376(AB), 506, 449 of IPC and Sections
5(m) r/w. 6 of POCSO Act, wherein the charges were denied by the
respondent/accused through counsel.
4. During trial the prosecution witnesses from PW-1 to PW-11 were
examined and when the trial was at the stage of accused examination
u/s. 313 of Cr.P.C., the plea was raised by the respondent/accused
through counsel that as the accused is deaf & dumb, therefore, his
examination be conducted by the medical board or medical officer.
5. When the examination from the medical board was undertaken and
even the sign language experts were called, the respondent/accused
allegedly unable to understand the sign language and even was
unable to understand the questions being asked for accused
examination. Therefore, in view of Section 318 of Cr.P.C. and
judgment of the Chhattisgarh High Court in the case of State of

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Chhattisgarh Vs. Deepak Kumar Sahu, (2007) 1 MPHT 80 trial
Court without examining the accused u/s. 313 of Cr.P.C. and entering
into defence evidence stage, directly rendered the judgment of
conviction dated 14.05.2024 in SC Case No.186/2022 by learned
Special Judge (POCSO Act), District Gwalior (M.P.) and thereafter,
made the reference to this Court u/s. 318 of Cr.P.C. while concluding
in para 82 as stated hereunder:
“ 82 . /
अभभियकत किन उकत तनणर्षय उसकिने मदकि बनचन्धर हकोने किने किनरण
. . . 318
दि प्र स किकी न्धनरन किने प्रनदन्धनन अनयसनर पररीक्षण ककियने बबनन ककियन गयन
| . . . 318
है ऐसपी ससथतत म दि प्र स किकीन्धनरन किने प्रनदन्धनन अनयसनर आपरनचन्धकि
प्रकिरण किन समपदणर्ष अभभिलनेखि एदनां तनणर्षय किकी एकिअततररकत प्रतत सदहत
मनननपीय पप्रनांभसपल रसजससनर उचच नयनयनलय खिनांडिपपीठ गदनभलयर मनननपीय
|”
प्रन्धनन सजलन नयनयनन्धपीश गदनभलयर किने मनधयम सने प्रनेपरत ककियन जनतन है
6. Hence, this reference is before this Court for further orders in view of
section 318 of Cr.P.C.
hether the proceedings
7. Issue involved in the present reference is; “W
been submitted u/s. 318 of Cr.P.C. before this Court is proper and as per
settled legal matrix in view of material available on record and otherwise ?”
8. Learned amici curiae argued at length and while placing reliance on
several judgments in Re: Boura @ Drigpal, (2006) 4 MPLJ 72 ,
State of Chhattisgarh Vs. Deepak Kumar Sahu, (2007) Cr.L.J.
1522, State of Rajasthan Vs. Gani Mohammad judgment dated
19.02.2009 passed in Crim. Misc. Pet. No. 222/2005, Charan
Singh Vs. State of U.P., (2022) 4 ILR A53, Shantaram Dattatraye &
Ors. Vs. State of Karnataka, 2003 Cr.L.J. 1775, Bijay Nanda @

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Bijay Kumar Nanda Vs. State of Orissa, (2010) 2 Orissa Law
Reviews 192, State of Orissa Vs. Rathlal Dhanwar @ Kunda,
(2019) III ILR-CUT-37 , submits that not in all cases where accused
is deaf & mute reference can be made. If the accused does not
understand the proceedings then he can be made understood the
proceedings by way of his relative or interpreter. Trial may go in
ordinary way and examination of accused under Section 313 of
Cr.P.C. can be made in writing. Of course, if the case is genuine and
accused is not acting or faking by all means adopted, the accused
could not be made understood the incriminating material against him
or any other proceedings of the Court then reference can certainly be
made as a measure of extra caution so that tenets of fair trial is
maintained.
9. It is further submitted that when the accused though is not of unsound
mind but cannot be made to understand the proceedings of the Court,
the matter is referred to the High Court whereas the proceedings
resulted into conviction and only after conviction matter can be
referred and if the accused is found to be of unsound mind or a
lunatic, then he has to be dealt with in accordance with Chapter XXV
of the Cr.P.C.
10. As submitted, it is the duty of the trial Court to make an inquiry as to
whether the accused can be made to understand the proceedings of
the Court and would record a finding that, despite all endeavours, the
accused cannot be made to understand the proceedings rather he is
capable to understand the nature and consequences of the act and also
he is not of unsound mind, then the trial can proceed and even
accused be made punishable to any sentence despite accused being
deaf and dumb. In case, the accused can understand the proceedings,

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no need for reference of the case under Section 318 of the Cr.P.C.
arises.
11. While referring to the factual matrix of the case, including the
medical report obtained, that the accused does not appear to be
whether he is deaf and dumb, learned amici curiae also referred to the
details of the earlier case in ST No. 489/2013, where the accused
suffered conviction vide judgment dated 20-12-2014 for offence
under Sections 376(2)(i), 376(2)(I) of the IPC and Section 5(k) read
with Section 6 of the POCSO Act. In the said trial, the accused did
not raise the plea of being deaf and dumb. Even in the medical report,
his conduct is referred to as Malingering [meaning pretending to be
ill so as to escape something (here conviction and sentence)].
12. Learned Additional Advocate General appearing on behalf of the
State was in unison with the submissions advanced by the learned
amici curiae. As submitted, on the basis of record, this is a case
where accused is deliberately avoiding the proceedings by pretending
himself to be a deaf and mute person, whereas he is actually
misleading the Court. The medical report and the evidence as
surfaced on record indicate that the accused knew the nature of the
act and its consequences very well. After appreciation of the
evidence, the impugned judgment is being passed.
13. Heard the submissions advanced by the learned amici curiae as well
as learned Additional Advocate General at length and perused the
record.
14. The accused is facing conviction in respect of offence under Sections
449, 376(AB), 506 (Part I) of IPC and Section 5(m) read with Section
6 of POCSO Act against the victim being aged around 7 years, 5

8
months and 20 days at the time of commission of offence.
15. It is worth while to mention here that neither during investigation nor
at any time during examination of prosecution witnesses, the
respondent/accused or his counsel raised any plea in respect of
difficulty to understand the court proceedings by the accused and
even cross-examination of witnesses have been conducted at length
including to put forth the defence (in cross-examination itself) that
there was some monetary dispute which is the basis of initiation of
instant criminal proceedings and it was only at the time of accused
examination being undertaken u/s. 313 of Cr.P.C. on 14.12.2023 (as
is evident from the order sheets of the learned court), wherein the
learned trial court observed that though accused showed up his name
but when questions were asked in respect of prosecutrix and alleged
offence, then he by virtue of signs and gestures had shown that he is
neither able to hear nor speak, wherefore, the examination was
adjourned and medical report in that regard was called by the court
below.
16. The said medical opinion was received by the trial court on dated
21.02.2024, wherein it was opined by the medical expert that though
accused bears certain deafness but is not totally deaf and after using
Hearing Aid of amplification can make the accused understand the
conversation. The same is on record as per order sheet dated
21.02.2024 of the trial court. The report of Pure Tone Audiometry
Test (PTA test) was also called, but as the said machine is not
available, the same could not take place and the accused was referred
to AIIMS Bhopal for further Auditory Tests. The report of AIIMS
Bhopal showed that V wave in his auditory test comes at 80 decibel
points and his hearing loss is from severe to profound and using of

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hearing aid would help him, but due to his non-cooperation, definite
results could not be provided by AIIMS Bhopal. It was on the request
of counsel for accused, that trial court should himself interact with the
accused, hence, he was called on 20.04.2024 as is evident from the
order sheet of the trial court, where accused didn’t answer to any of
the questions so asked by the trial court. Thereafter, it was ordered
that sign language experts be called for conducting accused
examination u/s. 313 of Cr.P.C. and the case was fixed for
27.04.2024. In compliance of the order, Smt. Rakhi Asthana & Shri
Ramsewak Baraiya were present who after interaction with accused
opined that he is even unable to understand the sign language but he
is not “unsound mind” but cannot be made to understand the
proceedings of the court. Thus, the trial court without examining the
accused u/s. 313 of Cr.P.C. by virtue of Section 318 of Cr.P.C.
proceeded with the trial which resulted in conviction vide judgment
dated 14.05.2024 and in terms of section 318 of Cr.P.C., the case was
referred to this Court for further orders. All these proceedings of trial
court are part of the record.
17. The medical report in respect of respondent/accused assumes great
importance wherein the medical board has opined the accused to be
“ MALINGERING ” meaning pretending to be ill so as to escape
something (in the present case conviction and sentence), as is opined
that though accused is not “unsound mind” and he is not totally deaf
which means he can hear at loud amplification and even has ability to
understand the consequences of his actions and is able to instruct his
counsel in trial. It is also opined in the report that the
respondent/accused can hear loud sounds above 70 dBHL which
means he is suffering from severe to profound hearing loss as is

10
demonstrated in the table given below:
18. This requires usage of hearing aid wherein accused was giving
inconsistent response and no significant change by using hearing aid
could be noticed which would show that either accused was
faking/acting. At internal page 15 of the said report, it is shown that
hearing aid trial was done but no response and cooperation was given
by accused, hence referred to higher center, where on internal page
no. 16 certain history is written may be in respect to something >2
years being written which shall be verified by doctor or accused or
his family members which includes children and wife and thus, it is a
case of faking hearing loss prima facie , which can be deciphered
from previous conviction against the respondent/accused for the

11
sexual offence itself. The copy of the medical report of
respondent/accused and other documents are part of record.
19. So far as documents exhibited in instant trial conducted at SC
No.186/2022, clearly shows that on every document
respondent/accused has signed in Hindi writing his name “ ”
किलयनन
whether it is arrest memo (Ex. P-16), consent for medical
examination (Ex. P-18), Sahmati Panchnama (Ex. P-19), sample for
DNA examination (Ex. P-20) and he had also signed the orders sheets
of the trial court when he was present which is reflected from the
orders sheet dated 13.10.2023, 14.12.2023, 23.12.2023, 03.01.2024,
09.03.2024, 20.04.2024, 27.04.2024 as well as on acknowledgement
of receipt of notices been issued by this Court through Jail
Superintendent as is available on ERP portal at Sr. No. 4 & 5 at ADV.
It shows that he is capable of understanding the proceedings of the
court and only when he could understand, then only he had made his
signature on the aforesaid documents.
20. To substantiate the aforesaid contention that the respondent/accused
is not totally a deaf and dumb person, it is required to peruse the
arrest memo of the respondent/accused Ex.P-16 as well as Crime
Details Form Ex.P-5 wherein it has been stated that the accused
while speaking stammers. Therefore, the respondent/accused neither
totally deaf nor mute/dumb as per the aforesaid analysis of medical
reports/documents and exhibits, even also, the statements of
prosecution witnesses especially that of prosecutrix (PW-1) including
her police and magistrate statement u/s. 161 & 164 (Ex. P-2) of
Cr.P.C. as well as complaint (Ex P-3) shows that respondent/accused
is capable of speaking and had threatened the prosecutrix not to tell
about the incident to anyone.

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21. The important factum which didn’t come to light before the trial court
was in respect to previous conviction delivered against
respondent/accused for the offence of rape u/s. 376(2) of IPC to
suffer 10 years (RI) with fine & default stipulation wherein the
respondent/accused faced allegations in respect of rape of a 14 years
old disabled girl, wherein the FIR bearing crime no. 519/2013 was
registered at P.S. Bahodapur, District Gwalior (M.P.) and he was
convicted for the offences u/s. 376(2)(i), 376(2)(l) of IPC & sections
5(k) r/w. section 6 of POCSO Act vide judgment dated 20.12.2014 in
S.T. No.489/2013 wherein the appeal against the conviction &
sentence is pending before the this Court bearing CRA No.144/2015.
22. In the said appeal vide order dated 14.08.2019, the
respondent/accused was released on bail vide suspending his
sentence. It was after the release of the accused in that case of 2013,
committed another sexual offence of which the present proceedings
emanates from in the year 2022 and surprisingly, in the trial of 2013
case, no such plea of being deaf & dumb and unable to understand
the proceedings of the court came to highlight either by the
respondent/accused or his counsel or family members & even his
statement u/s. 313 of Cr.P.C. 1973 had also been recorded by the trial
court and conviction as well as sentence was implicated.
23. In criminal appeal (CRA No. 144/2015) it was for the first time
referred by the accused that the respondent/accused is a deaf & dumb
person who has certificate/proof of the same and that formed one of
the arguments in suspension of sentence application, but if that be the
case, then why the said certificate or plea was not taken at the time of
trial or even advancing final arguments or even while stating
mitigating circumstances when heard on point of sentence after

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conviction as is evident from kind perusal of the judgment of
conviction dated 20.12.2014. This creats suspicion on the part of the
respondent/accused only for getting benefit in criminal proceedings.
24. Non-disclosure of previous antecedents itself doubts the conduct of
the respondent/accused and as he has not approached with clean
hands and thus, no benefit could be availed by as it is his deliberate
omission to state previous conviction before the trial court because
while applying for bail before the trial court, the respondent/accused
has not mentioned his previous antecedents which speaks volume
about the conduct of the respondent/accused. This has even been
highlighted by this Court in order dated 10.03.2026 passed in this
reference itself when personally interacted with the
respondent/accused and hence, requires orders on this reference as
the said material was not on record with the trial court and if the same
would had been placed, then trial court would had been reluctant in
sending the reference, as apparently the respondent/accused was
faking or exaggerating his physical deformity to gain advantage.
25. Looking to the nature of the allegations, the evidence surfaced
against the accused, and the defence taken by the accused as a person
with disability (deaf and dumb), an inquiry of the other family
members of the accused and background report accompanied by the
educational qualifications and other attributes of the accused could
also have been enquired so that equity and justice can be balanced.
The allegations are serious in nature, and an accused in such
circumstances cannot escape the wrath of the proceedings by cleverly
managing to represent himself as deaf and dumb or as a person who
cannot understand the proceedings held against him. A cautious
approach is required. Victim's rights are also required to be seen.

14
26. The documents in relation to Crime No.519/2013 registered at P.S.
Bahodapur, Dist. Gwalior (M.P.) especially the arrest memo so
prepared in that case of accused/respondent shows following glaring
information, wherein arrest memo (crime no. 519/13) shows
educational qualification of respondent/accused as “ 2” whereas
ककक्षा
“
in present matter, the arrest memo shows and in
अशशिककत”
occupation, the former shows “ but the latter shows “
मक्षाशलिशि” मजददरर”
and in arrest memo (Ex. P-16) in present matter, in
तककयक्षा कलिक्षाम
“
column it is written which categorically shows that the
क्षेतत्रीय हहिंदर”
respondent/accused has attended school and speaks (though
stammers) at time as is stated in Ex. P-16 and it might be a case,
where deliberately such a modus operandi been adopted by the
respondent/accused to evade the criminal justice system.
27. In S.T. No.489/2013 which culminated into judgment of conviction
and sentence dated 20.12.2014 by the learned Fifth ASJ, Gwalior
(M.P.), the respondent/accused was examined u/s. 313 of Cr.P.C. as is
evident from para 5 of the said judgment. Thus, the record of the said
Sessions Trial as well as record in CRA No.144/2015 can be perused
for arriving at a just conclusion in present matter. After perusing the
medical report, record of ST No.489/2013 as well as CRA No.
144/2015, also record of the instant case by examining the near kins
of the respondent/accused and to call for educational qualifications
details from the school in which he went and other social background
persons in whose company he was in & also from jail authorities as
well as inmates regarding his daily routine are some additional tools

15
which may be employed, if required.
28. Prosecutrix (PW-1) of both the cases have stated that
respondent/accused could speak & there is no evidence by any of the
witnesses, that the respondent/accused could not speak or is dumb,
neither any of the medical examiners who examined
respondent/accused during investigation in both the cases, have
opined so and even no document in respect of his deaf & dumb
ailment is on record in both the cases, which doubts the very
credibility of such illness.
29. The evidence of prosecutrix (PW-1) assumes importance, and
incidentally, in both the cases, the prosecutrix have stated that the
respondent/accused could speak, and there is no evidence by any of
the witnesses that the respondent-accused could not speak or is dumb.
Notably, neither any of the medical examiners who examined the
accused during investigation in both the cases have opined so, nor is
any document in respect of the deaf and dumb ailment on record in
both the cases. Therefore, it creates doubt about the very credibility
of such illness.
30. Interestingly, in earlier Case No. 489/2013, which culminated into the
judgment of conviction and sentence dated 20.12.2014 by the 5th
ASJ, Gwalior, the accused was examined under Section 313 of CrPC,
as is evident from para 5 of the said judgment. However, the accused
in the present case is showing himself as a person who cannot
understand the proceedings and is deaf and dumb. The question
remains that when he participated in the earlier sessions trial without
raising this plea and without representing himself as deaf and dumb,
then in this trial, his attempt is to wriggle out on the pretext of being
deaf and dumb. This clever disposition requires further enquiry.

16
31. The accused knew the nature and consequences of the act very well.
Once an accused knows the consequences of the act, then his plea
that he does not understand the proceedings loses its sheen.
32. Nowhere the defence alleged either in previous trial or in this trial
that the respondent/accused is not able to understand the proceedings
of the court as on one hand he had defended one trial without any
plea & in this case, the respondent/accused was reluctant to use the
hearing aid and didn’t respond to the questions asked by the trial
court nor cooperated with the medical examiners team for auditory
purposes, which raises serious reservations against the conduct of the
respondent/accused.
33. The remand order sheet & form as available over ERP portal of this
Court at LC (Lower Court) details at Sr. No.12 titled as POLICE
REMAND-JUDICIAL REMAND categorically shows that the
Special Judge who had referred the matter u/s. 318 of Cr.P.C. should
have taken assistance of the order-sheets of Presiding Officer who
had ordered judicial remand (both P.O. being different) of the
respondent/accused as in the remand order sheet dated 14.07.2022, it
has been categorically stated that “
अश यकत सक्षे पदछक्षे जक्षानक्षे पर उनहक्षे क$ई च$ट न
|” E ven in the Judicial Remand form it has been stated
ह$नक्षा वयकत ककयक्षा
that respondent/accused was heard. Order-sheets of court
proceedings are sacrosanct. From different order-sheets, Court
proceedings by way of evidence recorded of witnesses indicate
disposition of accused. {See: D.P. Chadha Vs. Triyugi Narain
Mishra and others, (2001) 2 SCC 221, State of Maharashtra Vs.
Ramdas Shrinivas Nayak and another, (1982) 2 SCC 463,
Bhagwati Prasad Vs. Delhi State Mineral Development

17
Corporation, (1990) 1 SCC 361 and Dr. G.C. Chourasiya Vs.
State of Madhya Pradesh and others, (2023) 4 MPLJ 222}.
34. This categorically shows that proper evaluation or inquiry in respect
.
of condition or conduct of the respondent/accused has not been made
35. In view of the above facts and circumstances of the case, it appears
that prima facie this is a case where the mandatory provision of
Section 313 CrPC is not being complied with by recording the
accused statement, and if needed, the accused examination be made
in writing as per Section 313(5) of CrPC, which was inserted by
the 2009 Amendment Act in accordance with law ; otherwise, it
will prejudice the cause of the accused and accused would try to get
advantage of it.
36. Therefore, the trial Court is directed to record the accused statement
as per Section 313 of CrPC, and if required written examination be
ensured. It is also open for the trial Court to call any sign language
expert for ensuring the accused statement under Section 313 of CrPC.
The accused is expected to cooperate in the proceedings, and if the
accused still does not cooperate in any of the circumstances referred
hereinabove, then after giving sufficient opportunity in this regard,
the trial Court may proceed to pronounce judgment in accordance
with law. This way, interest of justice would be served both ways.
37. The impugned judgment by which the trial Court referred this
reference to this Court, is hereby set aside/modified for the purpose
of ensuring opportunity of the accused statement under Section 313
of Cr.P.C. to the respondent/accused so that the trial may not later on
be vitiated on the pretext of non-examination of the accused
statement. Needful be done at an expeditious note, preferably within

18
four months from the date of passing of this order.
38. The reference is answered accordingly and is disposed of in terms
referred above.
39. Copy of this judgment be sent to the trial Court for necessary
information and compliance.
40. Before parting, this Court intends to record deep appreciation for the
valuable assistance rendered by Shri R.K. Sharma, Senior Advocate
and Shri V.D. Sharma, Advocate and Ms. Bhavya Sharma, Advocate
as amici curiae .

(ANAND PATHAK) (PUSHPENDRA YADAV)
Anil* JUDGE JUDGE
ANIL KUMAR
CHAURASIYA
2026.06.29 18:58:26
+05'30'