A witness with intellectual challenges can testify if able to comprehensively understand and respond to questions; conviction for rape upheld based on sufficient evidence.

JUDGMENT :

A. Badharudeen, J.

The judgment in S.C.No.667/2012 on the files of the 1^st Additional Sessions Court, Palakkad dated 26.05.2017 is under challenge in this appeal, filed by the sole accused.State of Kerala is the respondent.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the prosecution. Perused the prosecution records.

3. Precisely, the prosecution allegation is that accused Nos.1 and 2 had committed rape on a partially handicapped girl in her house, at the house of the 1^st accused and at the house of the 2^nd accused for a period of 3 months prior to 20.08.2011. Thus the prosecution alleges commission of offence punishable under Section 376 of Indian Penal Code (' IPC ’ for short hereafter), by accused Nos.1 and 2.

4. Before commencement of trial, the 1^st accused died and thereafter the learned 1^st Additional Sessions Judge proceeded with trial against the 2^nd accused after complying the pre-trial formalities. During trial, PW1 to PW13 were examined and Exts.P1 to P13 as also M.O1 and M.O2 were marked on the side of the prosecution. No defense evidence was adduced despite being given the opportunity to do so. Thereafter the learned Sessions Judge found on appreciation of evidence that the 2^nd accused committed the offence punishable under Section 376 of IPC and he was sentenced to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period 3 months.

5. The learned counsel for the appellant/2nd accused argued that even though PW2, the victim is a mentally retarded and partially disabled girl, the Investigating Officer had failed to take note of this aspect at the time of recording her statement during investigation. That apart, no medical consultation also was done to see her mental fitness. It is also pointed out that, otherwise, the evidence available is wholly insufficient to prove the guilt of the accused. Therefore, the entire prosecution is vitiated and in such view of the matter, the appellant/accused is liable to be acquitted after setting aside the verdict impugned.

6. The learned Public Prosecutor vehemently opposed the contention raised by the learned counsel for the appellant/accused in this regard and pointed out that failure to notice the intellectual disability of PW2 by the Investigating Officer is not at all fatal to the prosecution case. According to him, as regards to the evidence of a person with intellectual disability, such person also is a competent witness to testify in a case of sexual assault when the person is capable of giving rational answers to the questions put to him/her during examination. In this regard, he has placed a decision of this Court reported in [2025 KHC 1600 : 2025 KHC OnLine 1600 : 2025 KER 15443 ], Chakochan v. State of Kerala . He has also placed a decision of the Apex Court reported in [2019 KHC 6676 : 2019 (2) KLD 445 : 2019 (10) SCALE 158 : AIR 2019 SC 3559 : 2019 CriLJ 4635 : 2019 (20) SCC 593 : 2019 SCC OnLine SC 927], Ramesh P. v. State rep. by Inspector of Police , where the Apex Court considered Section 118 of the Evidence Act which would deal with competency of a child witness and in paragraph 15, the Apex Court held as under:

“15. In order to determine the competency of a child witness, the judge has to form her or his opinion. T