Compliance with the mandatory procedure under Section 119 of the Indian Evidence Act and the need for the evidence to inspire confidence.

JUDGMENT

(Prayer: Criminal Appeal filed under Section 374 (2) Cr.P.C. to set aside the judgement order passed by the Magalir Neethimandram (Fast Track Mahila Court) Tiruppur in S.C.No.158 of 2016 vide his order dated 21.01.2020.)

1. The appeal has been filed against the judgement of the learned Sessions Judge, Tiruppur, passed in S.C.No.158 of 2016 dated 21.01.2020. The appellant along with his wife was tried for the offence under Section 307 and 502(ii) of IPC.

2. The Trial Court acquitted the appellant's wife for the offences charged against her. The appellant was found guilty for the offences under Section 307 and 506(ii) IPC. The appellant was sentenced to 10 years R.I and directed to pay a fine of Rs.2000/- for the offence under Section 307 IPC and sentence to undergo 5 years R.I for the offence under Section 506(ii) IPC.

3. The case of the prosecution is that P.W.1, victim is deaf and dumb and when she was five years old, her parents took her to the appellant for treating her by adopting meditation techniques and to cure her illness; that the appellant and his wife took a sum of Rs.1,89,000/- for the purpose of the treatment and demanded further sum without giving proper treatment; that they caused harm to P.W.1, victim by attacking her with weapons and had poked her all over the body with needles and caused injuries on the head; that the appellant and his wife also attacked the private parts of the P.W.1, victim.

4. The case was registered in Crime No.132 of 2005 for the offences under Section 384 and 307 of IPC on the file of the respondent police, on the complaint given by the P.W.2, father of the victim. P.W.5, the Sub Inspector of Police, registered the FIR and P.W.6, Investigation Officer, took up the investigation. The charge sheet was filed before the learned Judicial Magistrate No.1, Tiruppur in P.R.C.No.1 of 2008. Thereafter, on committal by the learned Judicial Magistrate No.1, Tiruppur, the case was tried by the learned Sessions Judge, Tiruppur, in S.C.No.158 of 2016. The prosecution examined P.W.1, victim, P.W.2, the father of the victim, P.W.3, Mahazer witness, P.W.4, Dr.Kesavamoorthy, who treated the victim, P.W.5, the Sub Inspector of Police who registered the FIR and P.W.6, Investigation Officer and marked Exs.P.1 to P.6, to establish its case. The learned Sessions Judge found that the prosecution had established its case beyond reasonable doubt and convicted the appellant for the offences under Section 307 and 506(ii) I.P.C.

5. Heard, Mr.K.Sukumaran, learned counsel for the appellant and Mr.S.Balaji, learned Government Advocate (Crl. Side) for the respondent.

6. The learned counsel for the appellant submitted that the prosecution has not established its case and admittedly, P.W.1, victim suffered from speech and hearing impairment. Her deposition does not disclose as to how and in what manner her evidence was recorded by the trial Court. The Trial Court had not followed the procedure prescribed under Section 119 of the Indian Evidence Act. The learned counsel further submitted that in any event, the complaint by P.W.2, the father of the victim, is hearsay and could not have been the basis for initiating the prosecution. The Investigating Officer, P.W.6 has admitted in his evidence that he recorded the 161 statement of the victim only by the gestures shown by her and further, admitted that he had not recorded the said fact in the 161 statement. The Investigation Officer has further admitted that none of the allegations made by P.W.2, father of the victim in the FIR was confirmed by P.W.1, victim when she was examined by her. The learned counsel further submitted that the evidence of P.W.2, father of the victim, confirm that the victim is deaf and dumb. P.W.4, the Doctor, did not treat P.W.1, the victim for the alleged injuries suffered by her. The Doctor would admit in the cross examination that P.W.1, the victim was brought to him only for the treatment of puss oozing out from the ear of the victim and not for