Testimony of mentally-challenged rape victim as basis for conviction: What the Kerala HC held

Last week, the Kerala High Court reiterated that mentally-challenged persons were not competent to testify in terms of Section 118 of the Indian Evidence Act if they were unable to comprehend the questions posed to them [Kandamuthan v. State of Kerala]..The Single Judge Bench of Justice PB Suresh Kumar gave the benefit of the doubt to the accused on finding that there was no other evidence to substantiate the testimony of the mentally challenged woman who was allegedly raped..The woman had accused her brother’s father-in-law of sexual assault and rape, offences under Sections 376(2)(f) and 376(2)(l) of the Penal Code. An Additional Assistant Sessions Court in Palakkad district had confirmed the guilt of the accused and had accordingly sentenced him to imprisonment for ten years imposed a fine of Rs.1 lakh, and a further rigorous imprisonment of one year upon default on the fine imposed..In the appeal before the Kerala High Court, the accused challenged the evidentiary value of a mentally-challenged rape victim’s testimony in court..Relying upon the explanation to Section 118, the counsel representing the accused argued that the deposition of the complainant-victim could not be relied-upon by reason of a mental incapacity.Section 118 of the Evidence Act reads thus:"All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.".Interpreting the explanation, the High Court expounded:."In short, the competency of a person to give evidence in a proceedings is to be assessed by the court by considering the question as to whether the person is prevented from understanding the questions put to him or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."Kerala High Court.The Court allowed the appeal for two reasons. Firstly, the victim was not in a position to comprehend the questions posed to her during cross-examination. Secondly, there were loopholes in the evidence tendered by the prosecution..It was found that the woman’s testimony could not be relied upon because she was “not in a position to give rational answers to the questions put to her” and because she was “so childish and the gestures are child-like not and at all matured”. Based on these facts, Justice Kumar held,."I do not think that it is safe to convict a person on a charge of rape solely based on the evidence in the nature of one given by the victim lady in the case on hand.".Since the 2013 amendments to Section 375 does away with the requirement upon the prosecution to prove the rape victim’s incapacity to signify consent, the Court examined the reliability of the other witnesses whose statements were recorded. The woman’s siblings, who were also her caregivers and interpreters, were recorded to have “turned hostile”. .Moreover, the Court found loopholes in the testimony of a Counsellor and in a report of the medical examination. The Court stated that the latter had not listed the medical examiner’s reasons for drawing such a conclusion, as was required under the Criminal Procedure Code..In light of the above, the appeal was allowed, with the Court stating that the accused was entitled to the benefit of doubt..Advocates T M Muhamed Hafees and K Anand appeared for the accused while Special Government Pleader Ambika Devi S and Senior Public Prosecutor Pushpalatha MK represented the State..[Read the judgment]