Silence of Differently-Abled Rape Victim Cannot Suppress Truth; Courts Must Focus on Substance Over Manner of Expression: Sikkim HC [Read Judgment]

Sikkim: The Sikkim High Court has upheld the conviction of a man for the rape of a woman with an intellectual disability and cerebral palsy, holding that the testimony of a differently-abled victim cannot be discarded merely on account of her inability to name the accused or articulate the offence with precision.

A Division Bench comprising Justice Meenakshi Madan Rai and Justice Bhaskar Raj Pradhan observed that what is important is understanding what such a victim has to say, rather than how she expresses it, and that failure to do so would allow the truth to be suppressed in her silence.

The Court dismissed an appeal challenging the conviction and sentence of ten years of rigorous imprisonment under Section 376(2)(l) of the Indian Penal Code, 1860, imposed by the Fast Track Court, South and West at Gyalshing. The conviction related to the rape of a woman certified to have 70% multiple disabilities, including intellectual disability and cerebral palsy.

On 02.09.2022, an FIR was lodged by the victim’s sister-in-law, stating that the victim, aged 25 and differently-abled since birth, had been sexually assaulted by the appellant, who was known to the family as a carpenter and mason working at their residence. The victim’s niece was an eyewitness to the incident. She noticed the appellant, in a drunken state, asking the victim to fetch alcohol and following her towards the school ground. Alarmed, she followed them and witnessed the assault. The appellant was thereafter escorted from the scene to the police station.

The primary issue before the High Court concerned the evidentiary weight to be accorded to the victim’s deposition. When examined as a witness, the victim identified herself and correctly recognised her mother and sister-in-law. However, she remained silent when asked whether she knew the appellant by name. She demonstrated the nature of the assault by gesturing towards her breasts and crotch and stated that she had been touched twice. She confirmed that her niece had witnessed the incident. She also stated that the assault had occurred at home and, when shown the appellant on screen, indicated that she could identify him but did not name him.

Counsel for the appellant argued that the victim had failed to identify or name the appellant; that the medical evidence did not establish him as the perpetrator; that the niece’s testimony was contradicted in cross-examination; and that no injuries were found on the appellant’s body. Reliance was placed on Raju & Others v. State of Madhya Pradesh (2008) 15 SCC 133 and Santosh Prasad alias Santosh Kumar v. State of Bihar (2020) 3 SCC 443 to contend that the testimony of the prosecutrix, where materially contradicted and unsupported by independent or medical evidence, cannot sustain a conviction.

The Court distinguished both decisions on facts and proceeded to assess the totality of the prosecution evidence. On the appreciation of testimony in such cases, the Court relied on the Supreme Court’s ruling in Patan Jamal Vali v. State of A.P. (2021) 16 SCC 225, which held that the testimony of a prosecutrix with a disability cannot be considered weak or inferior merely because such a person interacts with the world differently from able-bodied individuals. As long as the testimony inspires judicial confidence, it is entitled to full legal weight.

The Court held that the victim’s silence and inability to name the appellant could not be treated as a failure of identification. It noted that when her statement was recorded, the appellant was visible to her on a screen in the courtroom, and her reluctance to name him could be attributed to the intimidating circumstance of facing him. Read as a whole, her deposition clearly conveyed that she had been sexually abused and that her niece had witnessed the incident, which was sufficient to inspire judicial confidence.

The medical evidence, presented by Dr. Sonica Rai, recorded fresh injuries on the victim’s private parts, including a torn hymen, fresh lacerations, swollen labia, and bleeding, confirming sexual assault. The doctor also confirmed in cross-examination that the bleeding was not menstrual. The forensic report of the Regional Forensic Science Laboratory, admitted without objection and held admissible under Section 293 of the Code of Criminal Procedure, 1973, confirmed the presence of human blood in the victim’s vaginal swab and wash, corroborating both the medical findings and the prosecution case. Reliance was also placed on Santosh v. State (NCT of Delhi) (2023) 19 SCC 321 to affirm the admissibility of the forensic report without examination of the expert.

On the issue of the appellant’s identity and presence at the scene, the Court noted that the victim’s mother, sister-in-law, niece, and father all confirmed that the appellant had been working at the house at the relevant time. The niece’s account of following the appellant and the victim to the site of the assault was found credible and withstood cross-examination. PW-7, a co-villager, heard the niece raise an alarm and confirmed that he had brought the appellant directly from the site to the police station. The Court also noted that the appellant, in his statement under Section 313 Cr.P.C., did not deny his presence at the scene.

Regarding the “defence marks” found on the appellant’s arm, the Court observed that while these could have resulted from being beaten by the niece’s brother after the incident, this only served to further establish the appellant’s presence at the place of occurrence at the relevant time, rather than exculpate him.

The Court emphasised that when a crime is committed against a differently-abled victim, every piece of evidence must be scrutinised meticulously, as the victim may not be able to describe the incident coherently. A court’s inability to understand the victim’s manner of expression must not result in a failure of justice. The inability to name the perpetrator cannot be a ground to discard the prosecution’s case when ocular evidence is corroborated by medical and forensic evidence.

Upholding the conviction, the Court confirmed the sentence of ten years of rigorous imprisonment and a fine of ₹25,000, with simple imprisonment of one year in default. It also confirmed the set-off under Section 428 Cr.P.C. and upheld the recommendation of compensation of ₹4,00,000 to the victim under the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021. The appeal was dismissed.

For the Appellant: Ms. Gita Bista, Advocate (Legal Aid Counsel)

For the Respondent: Mr. Yadev Sharma, Additional Public Prosecutor

Case Title: Rinzing Sherpa v. State of Sikkim [Crl. A. No. 9 of 2024]

[Read Judgment]