J U D G M E N T

This Criminal Appeal has been filed to set aside the Judgment made in S.C.No.44 of 2018 dated 16.12.2020 on the file of the Sessions Judge, Mahila Court, Perambalur.

2. The respondent registered the case in Crime No.70 of 2016 for the offences under Section 376 of IPC. After completing the investigation, the respondent police have filed the charge sheet before learned Judicial Magistrate, Perambalur. The learned Magistrate, Perambalur taken the charge sheet on the file in PRC No.24 of 2017. After completing the formalities, the learned Magistrate committed the case to learned Principal District and Sessions Judge, Perambalur, since the offences are exclusively triable by the Court of Session. The learned Principal District and Sessions Judge, Perambalur, taken the case on file in SC No.44 of 2018 and madeover to the Learned Sessions Judge, Mahila Court, Perambalur, since the offences are against woman.

3. The learned Sessions Judge after completing the formalities framed the charges against the appellant for the offences under Section

376 of IPC.

4. After framing the charges, in order to substantiate the charges framed against the appellant, during the trial, on the side of the prosecution as many as 22 witnesses were examined as PW 1 to PW 22 and 13 documents were marked as Ex. P1 to P13. Besides that 3 material objects were exhibited as MO1 to MO3 on the side of the prosecution.

5. After completing the examination of prosecution witnesses, when the incriminating circumstances culled out from the evidence of prosecution witnesses were put to the appellant by questioning under Section 313 of CrPc, wherein he denied the same as false and pleaded not guilty. On the side of the defense, no oral and documentary evidence was produced.

6. Hearing the arguments advanced on either side and considering the materials, the trial court found guilt of the accused for the offence under Section 376 of IPC and the accused was convicted and sentenced to undergo 10 years of rigorous imprisonment and pay fine of Rs.5000/- in default to undergo further period of 2 years simple imprisonment for the offence.

7. Challenging the said judgment of conviction and sentence passed by the trial court, the accused has filed the present appeal.

8. The specific case of the prosecution is that on 09.02.2016 at about 8.00 a.m, the victim went to a vacant place, situated near the appellant's house to attend nature's call. The villagers used that place for attending nature's call. At that time, on seeing the victim, the appellant took the her to a cotton field belonging to one Arumugan, son of Muthu and committed rape on the victim by pressing her breast and made her to lay on the floor and lifted her skirt, inserted his finger in her private part and inserted his private part in her mouth. When she screamed and cried, he closed her mouth with a cloth. He then held her hands forcefully and committed penetrative sexual assault. Therefore, the respondent police registered a case against the appellant for the offence under Section 376 of IPC. The trial Court found guilt of the accused and convicted him under Section 376 of IPC.

9. The learned counsel for the appellant would submit that the victim is a mentally retarded person with a low IQ level and she was also genetically suffering with Down Syndrome. The IQ level of the victim is only 25%. In support of his submission, medical certificate was produced from the Special medical officer, Thanjavur Medical College. Therefore, she cannot remember or speak, if anything had happened to her in an earlier occasion. Further, she is not even in a position to identify herself. Even the statement recorded from the victim under Section 164 CrPC was recorded only through a Psychiatrist and further, the medical evidence clearly shows that she is suffering from Down Syndrome and her IQ level is only 25%. The medical evidence also proved the same and therefore, it is not possible for the victim to make such a lengthy statem