Can’t outright reject testimony of mentally challenged: HC
A mentally challenged person is not incompetent to testify unless prevented [by his or her condition] from understanding the questions. JUSTICE VM DESHPANDE
MUMBAI: Observing that evidence given by a mentally challenged person cannot be outright rejected, the Bombay high court (HC) recently upheld a 10-year prison term given to a 21-year-old for raping a minor.
In 2017, Shaktiman Sondawale, 21, a bus conductor from Nagpur, had been convicted of raping a 12-year-old mentally challenged girl. He had appealed to the court to reject the prosecution’s case on the ground that the survivor is mentally challenged and her account could not be trusted.
The incident took place between December 1, 2015 and January 1, 2016. After the girl started complaining of stomach ache, her relatives took her to the hospital on May 6, 2016. The medical examination revealed that she was four-and-a-half months pregnant.
The pregnancy was terminated a week later at a government hospital. However, the foetus was preserved for DNA testing.
A complaint was registered by the girl’s family and Sondawale was booked under relevant sections of the Indian Penal Code and Protection of Children from Sexual Offences (POCSO) Act. On June 29, 2017, a special POCSO court at Nagpur convicted Sondawale on the basis of the foetus’s DNA test which proved Sondawale was the father.
Sondawale then challenged the conviction in the high court. He pointed out that the survivor had turned hostile and refused to support the prosecution’s case. He also said that her account should be altogether rejected owing to her mental condition.
Justice VM Deshpande, however, rejected his contention on February 1. He said that the Indian Evidence Act holds “all persons competent to testify.” A mentally challenged person is not incompetent to testify unless prevented [by his or her condition] from understanding the questions, Deshpande noted.
In this case, the bench said, the survivor had verified her ability to testify in the trial court. The court dismissed Sondawale’s petition and upheld the POCSO court verdict.