Non examination of a person who is incompetent to testify

The Kerala High Court on 4 January 2011 in Valliyoth Karunan Vs. State of Kerala, 2011 (1) KLT 478 : 2011 (1) KLJ 400 : ILR 2011 (1) Ker. 524 : 2011 (1) KHC 427 2011 CriLJ 1269 : 2011 (2) RCR (Cri.) 71 held that “no lacuna in the prosecution evidence can be thrust on account of non-examination of a person who is incompetent to testify.

Justice Thottathil B. Radhakrishnan observed that “the non-examination of the victim, who is Schizophrenic has such state of mind that prevents her from understanding the questions put to her and from giving rational answers to those questions by reason of the disease of the mind, is not fatal to the prosecution, going by the proved situation of the victim”.

The name of the accused has been recorded in the medical examination report prepared by the doctor who recorded having found to fresh tear to the victim’s hymen. After adverting to and considering the legal evidence on record, the trial judge found the accused guilty. That has been confirmed in appeal. Examining the material evidence and the findings of the courts below, the question considered by the High Court is whether those findings, conviction and sentence call for interference in revision.

During trial, the victim was called to tender evidence. She could not speak anything. She was disoriented. The psychiatrist was examined in support of report which showed the mental condition of the victim. She suffers from Schizophrenia and cannot remember past incidents. It is in this background that the evidence was considered by the courts below.

The continuous presence of the accused and his proved involvement even in attracting the attention of the neighbours, the mother and the sister of the victim to the toilet wherein the victim bolted herself and his accompanying the victim and others to the hospital are pointed out by his learned Counsel as strong circumstances which point to his innocence, for otherwise, he could have fled the scene of occurrence and had every chance of escaping even suspicion.

His learned Counsel further argued that the victim being a Schizophrenic, there is abundant chance of her having hallucinations and also fanciful thoughts, including about sex, and this would have led to the injury to her hymen. He pointed out that there is no evidence at all, or even any allegation, of any struggle and of the victim having suffered any injury on account of that.

He heavily relied on the fact that the chemical examination of the undergarments of the victim, recovered from the toilet, did not contain any scientific evidence regarding the presence of semen though the first information statement proceeds as if there was completion of sexual intercourse, including ejaculation. Reliance was also placed on the fact that there was no chemical examination of the vaginal smear of the victim.

While dismissing the Revision Petition the Court held that the accused does not stand with any allegation against any of the witnesses including the mother and sister of the victim or even the victim, of having had any animosity towards him or any other reason for foisting the charge on him, who going by the materials, was a married man with two children aged around 11 and 6 years. He stood with a case of total denial of the allegations against him, but does not deny his presence as discernible from the material evidence.

PW4, for whom the victim worked as a maid, gave evidence about the victim proceeding to Parassinikadavu temple in the morning of the date of occurrence and the fact that there was no one in her house when the victim reached the toilet in that house and was found to have bolted herself therein.

PW5 and PW6 testified of having seen the victim when she enquired in the shop of PW5 about the availability of bus. PW13 testified that he saw the victim in the company of the accused at about 7 p.m. in the lane near his house which is in the neighbourhood of the residence of PW4. It is not a matter of much dispute at the hands of the accused that he accompanied the victim to the house of PW4.

The evidence of the other witnesses from the neighbourhood, as also the mother and sister of the victim, is to the effect that their attention was attracted and they came over to the residence of the PW4 on the basis of information given by the accused that the victim had bolted herself in the toilet and is not opening its door.

The chain of events proved on the basis of the oral and circumstantial evidence till the opening of the bolted door of the toilet in PW4’s house is that, on her return from the Temple, the victim boarded the auto rickshaw of the accused and was in his company till she locked herself in the toilet. The neighbours, the mother and the sister of the victim, on opening the toilet door, found her unconscious. She was taken to the hospital. There is really no serious challenge to this chain of events as emanating on the basis of the legal evidence on record. Even the cross-examination does not proceed unfolding a more probable defence version.

Vaginal tear coupled with such bleeding that prompted the medical officer not to rule out a case of rape, is sufficient in such a case, to evidence the invasion to the victim’s body, to sustain a charge under Section 376 IPC, unless that possibility is ruled out by cogent and more dependable legal evidence.

The medical evidence on record does not, in any manner, indicate that the victim had induced the injury to the hymen of her own, though there is a suggestion put on behalf of the accused that the recorded injury could be the result of some foreign object. That suggestion does not, by itself, shake the credibility of the opinion of the expert that the injury was attributable to rape.

Equally, the absence of other injuries on the victim’s body is also not decisive. Use of physical force to overcome any resistance by the victim may not always be necessary.

# See State of Maharastra Vs. Prakash, 1993 Supp. (1) SCC 653, State of Maharastra Vs. Priya Sharma Maharaj, 1997 (4) SCC 393.

# Facts of the Case

The revision Petitioner stands convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 25,000/- in default of which, to undergo simple imprisonment for a further period of two years, he having been found guilty of an offence punishable under Section 376 of the Indian Penal Code. Such conviction and sentence imposed by the trial court is confirmed in appeal. Hence this revision.

The allegation against the accused is that he raped the victim, aged about 28 years then. The scene of occurrence is alleged to be the lane near a public road. The prosecution version is that, the victim, a maid servant was returning from a Temple; that she came to a shop and enquired about the availability of bus and then went in the auto rickshaw of the accused, leading to her being raped by the accused.

The accused then accompanied the victim to the residence of PW4, where the victim entered a toilet which is not attached to the house and bolted from inside; the accused informed the mother of the victim and few neighbours that the victim has locked herself up in the toilet; thereupon the neighbours forced the toilet open and found the victim unconscious; she was taken to the local hospital and from there to the Medical College hospital where she was admitted and treated; the victim told the doctor who examined her that it was the accused who ravished, which led to the injuries that were recorded by the doctor.

More particularly so, when the victim is a mentally challenged person. Even in this aspect, there cannot be any hard and fast approach either way. It would depend on the emotional status of the victim at the time of assault. A predominant sense of fear that the assailant, or the event by itself, may induce on the victim would be sufficient to incapacitate the victim from resisting to the onslaught to her person. Such a situation would not lead to any inference of consensual sex. At any rate, the accused does not have such a defence version. His plea of total denial of the entire transaction and the bundle of allegations against him rules out any such probability.

# The non examination of the victim is not fatal to the prosecution, going by the proved situation of the victim.

The psychiatrist, categorically established that the victim is Schizophrenic; has such state of mind that prevents her from understanding the questions put to her and from giving rational answers to those questions, by reason of the disease of the mind. Coupled with that is the fact that the trial court had attempted to examine her, but found her incompetent to testify, being prevented from understanding the questions put to her. Therefore, in terms of Section 118 of the Evidence Act, she was incompetent to testify. No lacuna in the prosecution evidence can be thrust on account of non-examination of a person who is incompetent to testify.

# Mange Vs. State of Haryana, 1979 (4) SCC 349, dealing with the case of a deaf and dumb minor, who was not examined at trial.

Advocates B.V. Joy Sanker and Jacob Chacko appeared for the petitioner and Public Prosecutor for the respondent.