DATE: 03/03/2026
COURT: High Court of Kerala
BENCH: Justice A. Badharudeen
FACTS:
The prosecution alleged that the appellant
(second accused, Appukuttan) and the first accused (Raman, who died before
trial) committed repeated acts of rape on PW2, a partially handicapped and
intellectually challenged minor girl (born on 16.05.1996, studying in 9th
standard at the time), over a period of three months prior to 20.08.2011. The
offences were said to have occurred at the victim’s house, the house of the
first accused, and the house of the appellant. The victim disclosed the
incidents to her teachers during counselling, leading to information reaching
her mother (PW1), who lodged the First Information Statement (Ext.P1) at Kasaba
Police Station, resulting in Crime No.407/2011 under Section 376 read with
Section 34 IPC. The appellant was arrested, and after investigation, charges
were framed. The trial proceeded solely against him following the death of the
co-accused. The Sessions Court examined PW1 to PW13, marked Exts.P1 to P13 and
M.Os.1 & 2, and found no defence evidence was adduced. By judgment dated
26.05.2017 in S.C.No.667/2012, the 1st Additional Sessions Court, Palakkad,
convicted the appellant under Section 376 IPC and sentenced him to rigorous
imprisonment for seven years with a fine of Rs.50,000 (default sentence of
three months RI).
The appellant challenged the conviction and
sentence in Crl.Appeal No.1085/2017 before the Kerala High Court, contending
that the Investigating Officer failed to notice or record the victim’s
intellectual disability during investigation, that no medical assessment of her
mental fitness was conducted, and that the evidence was insufficient to prove
the offence. The prosecution defended the conviction, asserting that the victim
(PW2) was found competent after voir dire examination by the trial court, gave
consistent and rational evidence, and that any lapse by the Investigating Officer
was not fatal to the case.
ISSUES:
The principal issues were (i) whether the
Investigating Officer’s failure to identify and document the victim’s
intellectual disability during investigation rendered the prosecution case
vitiated or unreliable; (ii) whether PW2, being partially mentally challenged,
was a competent witness under Section 118 of the Indian Evidence Act
(corresponding to Section 124 of the Bharatiya Sakshya Adhiniyam, 2023), and if
her evidence could be safely relied upon; and (iii) whether the trial court
erred in convicting the appellant under Section 376 IPC on the basis of the
available evidence, particularly PW2’s testimony, medical corroboration, and
other circumstantial material.
JUDGEMENT WITH REASONING:
The Kerala High Court dismissed the
criminal appeal (Crl.Appeal No.1085/2017), confirming the conviction of the
appellant under Section 376 IPC and the sentence of seven years rigorous
imprisonment with fine of Rs.50,000 imposed by the trial court. The court held
that the prosecution had proved the offence beyond reasonable doubt, that the
victim was a competent witness despite her partial mental challenge, and that
no interference was warranted either with the finding of guilt or the quantum
of sentence. A copy of the judgment was directed to be forwarded to the
jurisdictional court for compliance.
The court first addressed the competency of
PW2 as a witness and the alleged investigative lapse. It relied on Section 118
of the Indian Evidence Act (and its counterpart Section 124 of BSA, 2023),
which declares every person competent to testify unless prevented by tender
age, extreme old age, disease of body or mind, or similar cause from
understanding questions and giving rational answers. Citing the Supreme Court
in Ramesh P. v. State (2019) and Chakochan v. State of Kerala (2025), the court
held that intellectual disability does not automatically render a person
incompetent; competency is determined by the trial judge through voir dire
examination, focusing on the ability to comprehend questions and respond
rationally. In this case, the trial court conducted such an examination,
satisfied itself of PW2’s capacity, and recorded her evidence, during which she
gave consistent, rational, and coherent answers even under cross-examination. The
Investigating Officer’s failure to note her disability was not fatal, as PW2
had given rational answers during statement recording, and no material emerged
to show that her partial infirmity impaired her testimonial reliability. Thus,
her evidence was trustworthy and formed the core of the prosecution case.
The court then evaluated the substantive
evidence and found the conviction well-founded. PW2’s testimony clearly
described repeated penetrative sexual acts by the appellant (using child-like
terms such as “paappa” for breast and “kunjamani” for vagina), identifying him
in court and detailing the locations and inducements (sweets, anklets). Her
account was corroborated by medical evidence (PW7’s Ext.P4 certificate showing
hymen torn and partial vaginal penetration) and the appellant’s potency
certificate (Ext.P13). Supporting testimony came from PW1 (mother), PW4 (class
teacher who received the disclosure), PW5 (headmaster proving age), and police
witnesses establishing investigation and scene of occurrence. No defence
evidence contradicted these facts. The court rejected the defence contention of
insufficient proof, holding that PW2’s reliable deposition, medical
corroboration, and absence of motive to falsely implicate the appellant
established rape beyond reasonable doubt. The sentence was deemed proportionate
given the gravity of the offence against a vulnerable minor victim, warranting
no reduction or interference.
ANALYSIS:
The Kerala High Court's decision provides a
clear and principled reaffirmation of the testimonial competence of victims
with intellectual disabilities in sexual offence cases, while underscoring that
procedural lapses during investigation do not automatically vitiate a
prosecution when the core evidence remains reliable. By upholding the
conviction under Section 376 IPC, the court emphasized that Section 118 of the
Indian Evidence Act (and its successor Section 124 of the Bharatiya Sakshya
Adhiniyam, 2023) does not disqualify a witness merely on account of partial
mental infirmity; instead, competency is a judicial determination made through
voir dire examination, focusing on the witness's ability to understand
questions and furnish rational, coherent answers. In this instance, the trial
court's careful voir dire satisfied it of PW2's capacity, and her consistent,
detailed testimony, delivered in child-like but intelligible language was
deemed trustworthy despite her vulnerability. The court rightly held that the
Investigating Officer's failure to formally record or medically assess her
disability was not fatal, as her rational responses during the police statement
and trial negated any suggestion of testimonial unreliability. This approach
aligns with Supreme Court guidance in Ramesh P.
v. State (2019) and reinforces the protective intent of sexual
offence jurisprudence by prioritizing substantive justice over technical
investigative shortcomings.
Equally noteworthy is the court's thorough
evaluation of the evidence chain, which firmly established the commission of
repeated penetrative sexual assault on a minor victim with special needs. PW2's
vivid account of inducement, assault, and identification of the appellant was
materially corroborated by medical findings (hymen torn with evidence of
partial penetration), the appellant's potency certificate, the disclosure to
teachers and mother, and contemporaneous police documentation of the scene and
arrests. The absence of any defence rebuttal or motive to fabricate further
strengthened the prosecution case. By confirming both the conviction and the
seven-year rigorous imprisonment sentence (with fine), the High Court struck an
appropriate balance between the gravity of the offence against a particularly
vulnerable victim and the proportionality of punishment. The ruling serves as
an important precedent for handling testimony from intellectually challenged
victims, prioritizing judicial scrutiny of competency over blanket exclusion while
reminding investigating agencies of the need for sensitivity and thoroughness
in cases involving persons with disabilities, without allowing such lapses to
derail otherwise cogent prosecutions.
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