Failure Of Investigating Officer To Note Victim's Intellectual Disability Not Fatal If They Are Competent To Testify: Kerala High Court

The Kerala High Court has held that the failure of an investigating officer to identify or record the intellectual disability of a victim during investigation does not vitiate the prosecution case, provided the court is satisfied that the victim is competent to testify and capable of giving rational answers.Justice A Badharudeen was delivering the judgment in a criminal appeal challenging the conviction for rape under Section 376 of the Indian Penal Code (IPC). The prosecution case is that the accused and another man repeatedly sexually assaulted a partially handicapped minor girl over a period of about three months prior to August 20, 2011. During trial, the first accused died and proceedings continued only against the appellant.The Sessions Court found the second accused guilty based primarily on the testimony of the victim and medical evidence indicating vaginal penetration. He was sentenced to seven years' rigorous imprisonment and a fine of ₹50,000.The appellant approached the High Court challenging the conviction and argued that the victim was mentally challenged and that the investigating officer failed to note this fact or obtain medical evaluation regarding her mental fitness at the time of recording her statement. It was further contended that this lapse undermined the credibility of the prosecution case.The Court examined Section 118 of the Indian Evidence Act and its corresponding provision, Section 124 of the Bharatiya Sakshya Adhiniyam, 2023. Both provisions establish that all persons are competent to testify unless they are incapable of understanding questions or giving rational answers due to factors such as tender age, old age, or mental or physical infirmity.The Court relied on the decision of the Supreme Court in Ramesh P. v. State rep by Inspector of Police [AIR 2019 SC 3559], and noted that judges may conduct a voir dire examination to assess a witness's capacity to testify. If the witness demonstrates the ability to comprehend questions and give coherent answers, the testimony is legally admissible and can be relied upon.The court thus reiterated that even a person with mental disability is not automatically disqualified from giving evidence. The decisive factor is whether the witness can understand questions and respond rationally.“A lunatic or a person of unsound mind also is not incompetent to testify unless, due to lunacy or because of unsound mind, he is prevented by lunacy or unsound mind to understand the questions put to him or of giving rational answers to the questions. Here PW2 is a victim partially handicapped and little bit mentally challenged. But she could not be classified as a lunatic.” Court notedThe Court observed that during both examination-in-chief and cross-examination, the victim consistently described the acts of sexual assault and answered questions coherently.The investigating officer's inability to recognise the victim's intellectual disability during the investigation, the court said, actually indicated that she had answered questions normally when her statement was recorded.“The challenge raised by the learned counsel for the appellant/2nd accused that failure on the part of the Investigating Officer to notice the fact that PW2 is a mentally challenged girl would go to the root of the matter, would not have force to be acted upon. Therefore, this contention is rejected.” Court observedAfter reviewing the evidence, including the victim's testimony, medical findings showing signs of vaginal penetration, and supporting witnesses, the High Court concluded that the offence was proved beyond reasonable doubt.The court therefore affirmed the conviction and sentence imposed by the Sessions Court and dismissed the appeal.Case Title: Appukuttan v State of Kerala Case No: Crl.A 1085/ 2017Citation: 2026 LiveLaw (Ker) 127Counsel for Appellant: V A JohnsonCounsel for Respondent: Ambika Devi S (Spl. GP), Vipin NarayananClick Here To Read/ Download Judgment

Failure Of Investigating Officer To Note Victim's Intellectual Disability Not Fatal If They Are Competent To Testify: Kerala High Court

Anamika MJ

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