Judgment ( 1. ) THE case, though registered on 24. 1. 2002 is, in essence, a reference under Section 318 of the Code of Criminal Procedure (for short the code), made by First Additional Sessions Judge, Raisen, by way of an observation made by him in paragraph 59 of a common Judgment passed as early as on 27. 9. 1989 in ST. No. 131/84 and 95/86. ( 2. ) INDISPUTABLY, the accused Baura (hereinafter referred to as the accused)is a congenitally deaf and dumb person. He was one amongst the eight persons who were jointly tried upon the charges of the offences punishable under Sections 148 and 302 and in the alternative 302 read with 149 of the IPC. On an appraisal of the evidence on record, the learned trial Judge came to the conclusion that only two of them viz. co-accused Prahlad Singh and the accused were involved in the joint assault resulting into death of Halkori but, according to him, they only shared a common intention to cause grievous hurt by means of lathies. He, accordingly, convicted Prahlad Singh of the offence punishable under Section 325 read with 34 of the IPC and sentenced him to undergo R. I. for 3 years and forwarded the case of the accused to this Court with the observation that, in his opinion, no separate report (presumably formal reference) was necessary. The unfortunate consequence was that, in absence of a formal order of reference, it remained unnoticed for a considerable period and cognizance of it could be taken by a coordinate Bench of this Court while deciding Prahlads appeal, registered as Cri. Appeal no. 959/89 vide judgment dated 23/10/01. However, in accordance with the direction contained therein when the record of the appeal was placed before another Bench for consideration on reference, it took the view that no further proceeding was permissible in the appeal and directed to place record of the appeal along with the record of reference (that was yet to be registered) before the appropriate Bench. ( 3. ) IT is true that the procedural error of technical nature was not fatal yet, the non-observance of the prescribed procedure for making a reference under Section 318 of the Code had resulted into an inordinate delay in the hearing of this reference. ( 3. ) IT is true that the procedural error of technical nature was not fatal yet, the non-observance of the prescribed procedure for making a reference under Section 318 of the Code had resulted into an inordinate delay in the hearing of this reference. All that can be said is that it is a sad reflection of the system of administration of justice that the reference is being heard after a period of more than 19 years. ( 4. ) A bare perusal of the record would reveal that the plea of not guilty could not be recorded even by way of communication through gestures. Examination of the accused under S. 3i8 of the Code was also not possible as no interpreter could. be employed to communicate with him for the purpose of recording answer to the questions based on the incriminating circumstances on record. However, the fact of the matter is that the accused was represented by a defence counsel who did not prefer to raise, at any stage of the proceedings, any objection regarding incapability of the accused to understand the proceedings. Moreover, a joint trial of as many as 8 persons including the accused was conducted and they were defended by the counsel of their choice only. The trend of cross-examination further reflected that the defence counsel on his behalf was able to question the witnesses as per instructions of the accused who, at the relevant point of time, was aged about 30 years. This apart, the fact that the person is deaf and dumb does not necessarily mean that he cannot understand or cannot be made to understand the proceedings before a Court, though the disability is undoubtedly a serious handicap to the communication either way (State Vs. Nooka AIR 1960 mysore 315 referred to ). ( 5. ) IN the light of these facts and circumstances, it was not possible to hold that the accused was not able to understand the proceedings. His non-examination under S. 313 of the Code had also not resulted into any prejudice to him. For this, reference may be made to a decision of the Division Bench of this Court in State of M. R vs. Parma 2001 (2)MPLJ 319. ( 6. His non-examination under S. 313 of the Code had also not resulted into any prejudice to him. For this, reference may be made to a decision of the Division Bench of this Court in State of M. R vs. Parma 2001 (2)MPLJ 319. ( 6. ) ADVERTING to the merits of the case, it may be observed that the finding of guilt under S. 325 read with 34 of the IPC was recorded by learned trial Judge in the face of ocular testimony of the first informant Premnarayan (PW8) and bhagwan Singh (PW2), Prahlad Singh (PW7), Kalyan Singh (PW9) and Tantu singh (PW11) that drew adequate support from the medical evidence given by dr. N. K. Paleeth (PW13) and autopsy surgeon Dr. D. K. Satpathy (PW14 ). The prosecution version, as against the accused, was that being member of an unlawful.-assembly, he assaulted Halkori with a lathi in furtherance of the common object to kill him. However, learned trial Judge, observing that on one hand, existence of the unlawful assembly was not established and on the other, the injuries received by co- acused Prahlad and Vishnu had remained unexplained, proceeded to opine that it was a case of free fight and, accordingly, Prahlad and the accused were liable for their individual acts only. ( 7. ) ADMITTEDLY, legality and propriety of findings forming basis of acquittal of all the accused of the offences charged with were not subjected to challenge by the State. The eyewitnesses named above were unanimous in asserting that Prahlad was the first to deal a blow on the head of Halkori with the blunt side of a pharsa and the second blow on Halkoris head was struck by the accused with a lathi. Dr. D. K. Satpathi (PW14) clearly opined that cause of Halkoris death was cardiorespiratory failure as a result of head injury and its complications. According to him, the head injury comprising of a fracture of skull in a total length of 20. cm was caused by hard and blunt object. In the light of the overwhelming evidence, the accused was rightly held guilty of the offence under S. 325 read with 34 of the ipc. He, therefore, deserves to be convicted accordingly. ( 8. ) FOR determination of an appropriate sentence, while calculating the actual period undergone by the accused as well as co-accused Prahlad, a disturbing feature has come to light. He, therefore, deserves to be convicted accordingly. ( 8. ) FOR determination of an appropriate sentence, while calculating the actual period undergone by the accused as well as co-accused Prahlad, a disturbing feature has come to light. It has been noticed that though sentenced to suffer imprisonment for a period of 197 days, Prahlad had actually suffered detention of only 7 days. A bare perusal of the corresponding judgment would reveal that reduction of the period of impugned custodial sentence from 3 years to the period already undergone was primarily based on an apparently incorrect fact recorded by the learned trial Judge that Prahlad had remained in custody during the period from 24/9/83 to 7/4/84 i. e. 197 days whereas, in fact, after being arrested on 24/ 9/83, he was remanded to judicial custody on 25/9/83 but was released on bail on 29/9/83 and, thereafter, though arrested under a warrant issued by the Committal court on 7/4/84, he was again enlarged on bail. ( 9. ) THE record also revealed that the accused has remained in custody for a period of 2 months and 5 days (from 21/10/83 to 25/11/83 and 30/6/04 to 29/7/04 ). Taking into consideration his physical incapabilities and other facts and circumstances of the case, interests of justice would be met if he is sentenced to suffer imprisonment for the period already undergone. ( 10. ) THE mistake committed by the trial Judge in calculating the period of detention undergone by Prahlad, in effect, has led to a ridiculous result inasmuch as the person who had struck the first blow with a pharsa on Halkoris head, was released only after serving a term of 7 days in custody whereas the person giving the subsequent lathi blow had to remain in custody for 2 months and 5 days. However, as reflected in the order dated 3/7/03 passed by the CJM, co-accused Prahlad has already expired on 24/11/01. ( 11. ) IN the result, the accused is convicted under Section 325 read with S. 34 of the IPC and sentenced to suffer imprisonment to the period already undergone. His bail bonds shall stand discharged. Reference answered accordingly.