Mental Disability Alone Doesn't Establish Woman's Incapacity To Give Valid Consent: Gauhati High Court Sets Aside Rape Conviction

The Gauhati High Court has held that the sexual autonomy of an adult woman cannot be taken away merely on the basis of psychological test scores or an assessed mental age, and that the prosecution must lead specific expert evidence to establish that she was incapable of giving valid consent.

Justice Sanjeev Kumar Sharma observed, “A 24 year old woman assessed to have a mental age of 8/9 years cannot be straightaway equated with an actual 8/9 years old girl, as she has 24 years of lived experience as well as physical and social development, exposure to adult social environment and emotional maturity levels quite ahead of an actual 8/9 nine years old child.”

“Further, the question of sexual autonomy of the woman, which itself is a valuable right personal to the individual concerned, is also involved and such right of the individual cannot be stripped away merely on vague presumptions based on some abstract scores or numbers generated by psychological tests, which may vary under different settings. Specific evidence by way of expert opinion in that regard is the least that is demanded of the prosecution,” Justice Sharma added.

The observation was made while allowing an appeal under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the judgment of the Sessions Judge, Lunglei Judicial District, whereby the appellant had been convicted under Section 376(2)(l) IPC and sentenced to undergo rigorous imprisonment for ten years.

The prosecution case was that the appellant had sexual intercourse with the victim, who was stated to be suffering from mental retardation. The appellant admitted having sexual intercourse on one occasion but claimed that it was a case of consensual sexual intercourse between two adults.

The prosecution submitted that it had duly established the victim's mental disability and, since the appellant had himself admitted to the act of intercourse, the act amounted to rape under Section 375 IPC as the victim was not capable of giving valid consent. It further contended that, in view of Section 114A of the Evidence Act, a presumption of absence of consent arose once the act of sexual intercourse was proved.

The High Court noted that though the prosecution had exhibited disability certificates and the Court had examined a Clinical Psychologist, there was no evidence explaining whether the victim was capable of understanding the nature of the act or whether she could give valid consent.

The Court observed that the doctors issuing the disability certificates were never examined to explain the implications of the findings and that the Clinical Psychologist also “deposed nothing with regard to the victim's capacity to understand the nature of the act.”

The Court also found it significant that the psychological assessment had been carried out nearly two years after the incident.

The Court further examined the procedure adopted while recording the victim's statement under Section 164 CrPC.

It found that the statement nowhere indicated that the Magistrate had proceeded under Section 164(5A) CrPC, no interpreter or special educator had been engaged, the statement had not been videographed and there was nothing to indicate that the Magistrate had undertaken an exercise to determine the victim's competence to testify.

Holding that the requirements of Section 164(5A) had to be strictly complied with before such a statement could be treated as substantive evidence, the Court observed, “If the statement of the victim is to be regarded as one under sub-section 5 A of Section 164 CrPC, the condition stipulated in the provisions thereto must be strictly followed, as indicated by the use of the word 'shall' therein and more so, when it is sought to be treated as a substantive piece of evidence under clause (b) of sub-section 5 A, in lieu of examination-in-chief under Section 137 of the Evidence Act, inasmuch as it is a departure from or exception to the statutory rules of evidence, entailing some disadvantage to the accused, the deposition having been recorded in his absence.”

The High Court held that there was no substantive evidence of the victim either by way of examination-in-chief or by way of a statement admissible under Section 164(5A)(a) and (b) CrPC in lieu of examination-in-chief.

Consequently, it held that "lack of consent has not been established."

It further observed that since there was no statement of the victim before the Court stating that she did not consent, Section 114A of the Evidence Act had no application.

Holding that "the case of the prosecution has not been proved by the legally admissible evidence", the High Court set aside the conviction and sentence, allowed the appeal and directed that the appellant be set at liberty forthwith.

Case Name: R v. The State of Mizoram r/b Secretary to Govt. of Mizoram, Home Dept. and Anr. Aizawl

LL Citation: 2026 LiveLaw (Gau) 121

Case No.: Crl.A./36/2024

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