Testimony of a disabled victim without following proper evidential procedures cannot sustain a conviction, leading to modification of charges due to inconsistencies and procedural failures.

JUDGMENT :

M. NIRMAL KUMAR, J.

1. The appellant was convicted vide judgment dated 11.12.2018 in S.C.No.51 of 2016 by the learned Sessions Judge, Fast Track Mahila Court, Dharmapuri (trial Court) and sentenced to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.5,00,000/- (Rupees five lakh only) as compensation to the victim/PW2 by the appellant within one month from the date of judgment as per Section 357(3) of Cr.P.C. Challenging the same, present Criminal Appeal filed.

2. Case of the prosecution is that PW2, a deaf-dumb is the victim and PW1 is her mother. On 18.11.2015 at 05.00 p.m., the victim/PW2 went to Kaveriyappa mango grove to collect orchid for tying garland, at that time, the appellant pulled her, forcibly took her into mango grove, pulled her down and committed rape. The victim/PW2 a deaf-dumb girl suffered with pain cried for help, came home, found mother not available unable to disclose and explain to others. She was living with her blind grandmother. From 18.11.2015 to 27.11.2015, the victim's mother/PW1 was in Bangalore since she was sick and taking treatment. When PW1 came back on 27.11.2015, the victim/PW2 cried and disclosed the incident. Thereafter, PW1 along with her relatives went to the appellant's house and questioned him, but he denied. Then, a village panchayat held where the appellant refused to marry the victim/PW2, thereafter, PW1 along with her relatives went to the respondent Police Station and lodged a complaint (Ex.P1) to PW13, who registered FIR (Ex.P18) for offence under Section 376 IPC on 28.11.2015 at 10.00 a.m, took up investigation, visited the scene of occurrence at 12.00 noon, prepared Observation Mahazar, Rough Sketch (Ex.P19) in presence of PW12 and another, on the same day, at about 02.30 p.m., arrested the appellant in presence of PW7 & PW8. Thereafter, the statement of victim/PW2 recorded at about 04.30 p.m., in presence of PW4, a Teacher from Deaf-Dumb Government School, Elakiyampatti. The victim/PW2 produced before Doctor/PW5, Government Hospital, Dharmapuri, who examined the victim and gave Accident Register (Ex.P3) and Medical Report (Ex.P4) confirming the evidence of sexual intercourse. The appellant produced for medical examination and the Doctor/PW6 examined the appellant and gave report (Ex.P7).

3. PW1 and PW2 both appeared before PW9, Judicial Magistrate, Pennagaram and gave statements (Exs.P8 & P13) under Section 164(5) Cr.P.C. Ex.P13, the statement of the victim recorded in presence of PW11, a Qualified Teacher holding diploma in Special Education in hearing-impaired and working as Teacher in Deaf-Dumb Government School, Elakiyampatti. On collecting evidence and materials, the Investigating Officer altered Section from 376 IPC to 376(i) IPC by alteration report (Ex.P20) on 09.01.2016 and charge sheet filed before the trial Court.

4. During trial, the prosecution examined PW1 to PW13, marked Exs.P1 to P20, no material objects produced. On the side of defence, no witness examined and no document marked. On completion of trial, the trial Court convicted the appellant as above.

5. Learned Senior Counsel for the appellant submitted that in this case, PW2 is the only witness to speak about the occurrence proper. The victim claims that on 18.11.2015 at