HC questions rape convict’s deaf-mute claim, orders fresh examination

Bhopal: The Madhya Pradesh high court has questioned the claim of a man convicted of raping a seven-year-old girl that he was deaf and mute and therefore incapable of understanding court proceedings.

Observing that he appeared to have exaggerated or faked his disability to avoid examination under Section 313 of the Criminal Procedure Code (CrPC) — a mandatory stage of a criminal trial where an accused is given an opportunity to personally explain the evidence against him before judgment is delivered — the court ordered a fresh exercise.A division bench of Justice Anand Pathak and Justice Pushpendra Yadav set aside a Gwalior POCSO court’s order referring the matter to the high court under Section 318 CrPC without recording the accused’s statement.

It directed the trial court to conduct the Section 313 examination afresh, using written questions, interpreters or sign-language experts if required, and complete the exercise within four months.The accused, Kalyan Raikwar, was convicted in May 2024 under IPC Sections 376(AB), 449 and 506 and Section 6 of the POCSO Act for raping a seven-year-old girl in Gwalior. During the trial, he claimed to be deaf and mute and incapable of understanding court proceedings, prompting the trial court to invoke Section 318 CrPC, which applies to accused persons unable to understand proceedings, and refer the matter to the HC.

Examining the record, the HC found several circumstances that cast doubt on the defence. It noted that neither during investigation nor while prosecution witnesses were examined did the accused or his lawyer claim that he could not understand court proceedings. The plea surfaced only when the case reached the stage of recording his statement under Section 313 CrPC.The bench also relied on medical evidence. While doctors found that the accused suffered severe hearing loss, they concluded he was not completely deaf and could hear amplified sounds with the help of a hearing aid.

AIIMS Bhopal also reported that hearing aids could help him but could not give a definite opinion because of his non-cooperation during testing. The medical board described him as “malingering”, indicating he appeared to be pretending to be more disabled than he actually was.The court also referred to the accused’s previous conviction in a 2013 rape case involving a 14-year-old disabled girl. It noted that during that trial he had undergone examination under Section 313 CrPC without ever claiming to be deaf and mute or incapable of understanding court proceedings.

He was released on bail in that case in 2019 before allegedly committing the present offence in 2022.The bench observed that the accused appeared to have “faked or exaggerated his physical deformity to gain advantage”. It also pointed to arrest memos, consent forms, DNA documents and court records bearing his signatures in Hindi. Police documents described him as a person who stammered while speaking rather than someone who was completely mute.

The child victim had also stated that the accused threatened her after the assault, indicating that he could speak.Comparing records from the two criminal cases, the high court found discrepancies in the accused’s educational qualifications and occupation, and observed that his conduct during medical examination and trial warranted closer scrutiny.“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.

A cautious approach is required. Victim’s rights are also required to be seen,” the bench observed.The court further observed that “once an accused knows the nature and consequences of the act, his plea that he does not understand the proceedings loses its sheen.” It said trial courts should first attempt to record the accused’s statement through written questionnaires, interpreters or sign-language experts before invoking Section 318 CrPC.Directing the trial court to complete the exercise expeditiously, preferably within four months, the HC said that if the accused continued to refuse cooperation despite being given adequate opportunity, the trial court would be free to proceed in accordance with law.