Saturday, 27 May 2017

How to appreciate evidence of mentally challenged girl victim of sexual abuse?

In the instant case P.W. 17 is a mentally challenged girl who was an inmate of Kalyani Sanstha and over whom the accused No. 1 had total dominion. Having regard to the physical, sexual and emotional trauma the victim underwent, the learned Judge had an onerous task of ensuring that the victim was able to understand the import of the questions asked by the defence Counsel and that she was able to give correct answers. It has to be borne in mind that the criminal trial is not a dual between the prosecution and the defence but as held by the Apex Court in (Ritesh Tiwari v. State of U.P.), MANU/SC/0742/2010 : (2010)10 S.C.C. 677 "every trial is a voyage of discovery in which truth is the quest". The learned Judge therefore cannot be faulted for interjecting and asking or explaining the questions to the witness in her endeavour to discern the truth. On the contrary, the judge would have failed in her duty had she chosen to remain a passive or silent spectator.
84. It is pertinent to note that in answers given to question Nos. 76 till 162 the witness had admitted almost all suggestions put to her. Some of the questions and answers reproduced verbatim read as under:--
"Q.76: Is it correct to say that during quarrel you girls used to tear clothes of each other.
Ans: It is correct.
Q.77: Is it correct that during quarrel you girls used to beat each other with sticks?
Ans: It is correct.
Q.78: Is it correct to say that the girls used to put sticks in the urinal organs of each other?
Ans.: It is correct to say that girls used to put sticks in the urinal organs of each other.
Q.82: Is it correct that you did not know Mayekar?
Ans: It is correct.
Q.97: Is it correct that you have been taught by Tarte Madam to tutor girls against Nanabhau Karanjule?
Ans.: It is correct.
Q. 123: Kiran your friend used to take you to the temple of Shankar for the purpose of marriage?
Ans: It is correct.
Q.125: Kiran used to put his urinal organ in your urinal organ and used to squeeze your chest?
Ans. It is correct.
Q. 127: Only Kiran used to do dirty work with you and no other person correct?
Ans.: It is correct."
85. In the like manner P.W. 17 has admitted that she is deposing against the accused No. 3 Mayekar and accused No. 2- Nanabhau at the instance of Madam Tulpule. She has admitted that P.W. 18 and another girl, (who has not been examined) used to insert fingers into the private parts of the other girls. She has admitted that every day they were being tutored as to what is to be deposed in the Court. She has farther admitted in the cross examination that Sunanda Tarte had stayed with them at Khanda Colony for about one month. She has stated that she like to wear good clothes and use make up and also liked to dance. She has admitted that she had danced with Turpule, Athale and Dighe when they visited Khanda Colony. She has admitted that she was not allowed to leave the sanstha and that she used to sneak out. She has admitted that nothing as deposed by her in the examination in chief had happened. She has admitted that none of the 10 accused persons had done any 'dirty work' with her. She has admitted that she was not medically examined by the doctor. She has deposed that Mavle Aaji (A10) was providing them food and used to take care of them whenever they were admitted in the hospital. She has stated that Mavle Aaji (A 10) used to beat them whenever they used to make noise and that she had called them Nalayak only for that reason.
86. It is evident that the questions at Serial Nos. 123 to 127 were aimed at establishing that the victim was having illicit relationship with one Kiran and that she was habituated to sexual intercourse. Needless to state that the victim was not facing a trial. Furthermore, her moral character was not in question and could not have been in question in view of omission of Clause 4 of section 155 of the Indian Evidence Act. It is also to be noted that the victim who was a mentally challenged girl and an inmate of Kalyani sanstha, could not have left the premises as per her own sweet will, without permission of the accused or the CWC members. The learned trial Judge totally lost track of these facts and consequently subjected the victim to humiliation and degradation by allowing the defence Counsel to ask such questions in uncontrolled cross-examination.
87. It is pertinent to note that the evidence of P.W. 6 reveals that P.W. 18 was suffering from mild mental retardation. The evidence of P.W. 6 as well as the preliminary questions asked by the learned Judge indicate that this witness could give rational answers and that she was a competent witness. A plain reading of the evidence of this witness indicates that in her examination-in-chief she had consistently stated that the accused No. 1 had sexually abused her. However, in her cross-examination she had admitted almost all the suggestions thereby giving an indication that she had literally negated the allegations levelled against the accused.
88. The question which therefore arises is whether the entire evidence of this witness should be treated as effaced in view of the answers given by her in the cross examination. At this stage it would be advantageous to refer to the decision of the Apex Court in (Khujji v. State of MP), MANU/SC/0418/1991 : 1991(3) S.C.C. 627, wherein the Apex Court has reiterated the well settled principles laid down in the previous decisions in (Bhagwan Singh v. State of Haryana), MANU/SC/0093/1975 : (1976)1 S.C.C. 389, (Ravindrakumar Day v. State of Orissa), MANU/SC/0176/1976 : (1976)4 S.C.C. 233 and (Sayyad Akbar v. State of Karnataka), MANU/SC/0275/1979 : (1980)1 S.C.C. 30, that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him. The evidence of such witness cannot be treated as efface or washed off the record altogether. But the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
89. We are conscious of the fact that P.W. 17 is not a hostile witness. Nonetheless, it has to be borne in mind that this witness, though a competent witness, was a mentally challenged girl with IQ level below average. She was subjected to long drawn and strenuous cross-examination spilled over several days by battery of lawyers. It was virtually a battle between a mentally challenged girl and skilled lawyers. The observations made by the learned trial Judge also indicate that the witness was confused and was unable to understand the questions asked in the cross-examination. The tenor of the answers given by this witness fortifies the observations made by the learned Judge. A plain reading of evidence of P.W. 17 also indicates that this witness was subjected to repetitive questioning as to the details of the occurrence. It is evident that the witness was either utterly confused, nervous or anxious due to her mental disability coupled with dexterous cross-examination or that she was frustrated because of repeated and long drawn strenuous cross-examination by skilful defence lawyers, in unfamiliar and unfriendly Courtroom environment. Under the circumstances we are not inclined to discard the evidence of this witness altogether but our endeavour is to scrutinize the evidence carefully and find out whether substratum of her evidence is consistent and credible and accept the part of the evidence which is found to be dependable.
Confirmation Case No. 03 of 2013, Criminal Appeal Nos. 426, 416, 452, 508, 528, 600 of 2013, 896 of 2014 and Criminal Application No. 191 of 2014 in Appeal 452 of 2013
Decided On: 11.03.2016
 State of Maharashtra and Ors.
 Ramchandra Sambhaji Karanjule and Ors.
Hon'ble Judges/Coram:
R.V. More and Anuja Prabhudesai, JJ.
Citation: 2017 ALLMR(CRI) 1347
Read full judgment here: Click here
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