Anil Ramesh Kolhe v. State of Maharashtra & Ors.

5. Case of the prosecution is that around 7 to 8 months prior to 08.05.2014 in the old railway cabin near Thakurwadi, Kasara, Taluka Shahapur, Appellant committed forcible sexual intercourse on more than one occasions with the victim having complete knowledge that she was mentally retarded. In defence, case of Appellant is that victim is not mentally retarded and physical relationship with her was with her consent and out of love affair.

6. PW-3 victim has deposed before the trial court. In her deposition, trial court initially asked her preliminary questions to assess her capacity to understand the questions and thereafter answer the same. Trial court after considering the answers given by victim to the preliminary questions, came to the conclusion that victim is competent and able to depose before court and thereafter recorded her deposition. PW-3 in her deposition has stated that she was acquainted with Appellant; he met her near Kasara Railway Station as he resided in Kasara itself. She stated that Appellant took her to a lonely place in the forest and used to sleep on her; she further stated 5 of 16 that she told the Appellant not to sleep on her as she was pregnant from him and according to victim such incident occurred five times with Appellant. Victim has identified Appellant in court and had also confided in her sister-in-law and the doctor in Civil Hospital Thane, where she was referred for examination. In cross-examination, PW-3 has stated that, she knew the Appellant, liked him and also wanted to be married. She has deposed that she has knowledge about the fact that physical relations are to be kept after marriage. She has further stated that even after having physical relations with Appellant she did not feel it to be bad. She stated that even on the date of her deposition she was ready to get married to the Appellant but her family members opposed the alliance. From the deposition of PW-3, what is pertinent to note is that she has deposed and answered questions put to her in a rational manner. On reading of the victim’s evidence as a whole, it clearly appears to us that though she may have some mental condition, she was quite aware about her actions. This is fortified when the trial court at the end her deposition recorded as under:- “ During recording of examination-in-chief and crossexamination. I found that witness is competent to understand the questions, most of times and she answered rationally but once or twice she could not understand question and gave answers rationally. It was difficult to understand her pronouncation but APP and defence counsel have taken proper efforts to understand the same and court also understood the same after taking some efforts.” 6 of 16

7. Evidence of PW-4 and PW-5 therefore assumes significance. PW-4 - Dr. Priyanka Ashwith Mahajan is a Psychiatrist Medical Officer working in Thane Civil Hospital. Victim was admitted in the hospital on 10.05.2014. On 12.05.2014, PW-4 examined victim and evaluated her mental condition. PW-4 has stated that as per her clinical examination victim was suffering from moderate mental retardation. In cross-examination however PW-4 has stated that she has not issued certificate stating that victim was suffering from moderate mental retardation.

8. Evidence of PW-5 on the above aspect is relevant. PW-5 - Dr. Sanika Abhijeet Dakshikar is M.D. in Psychiatry and working in the Psychiatrist Department of J.J. Hospital. She has deposed that on 27.01.2015 victim was brought to the hospital for evaluation of her I.Q. test as well as mental evaluation test. According to PW-5 victim was examined by a panel of three specialist Doctors namely Dr. Sagar Mundada, Junior resident doctor, PW-5 – herself and Dr. V.P. Kale. Victim was examined for clinical examination as also for history and I.Q. test and the final diagnosis of victim was “mild mental retardation”. She has deposed that victim has I.Q. of 60 whereas in the case of normal person I.Q. is between 90 - 120.

9. PW-5 has relied upon Exhibit-31 which is the Mental Health Report issued by the panel of doctors stated above which bears her 7 of 16 signature as one of the empanneled doctor. In the report, it is stated that from the history of the victim, psychological evaluation, serial observations, mental status examination, the victim though conscious and fairly co-operative but having intelligence below average is opined to have “mild mental retardation”.

10. Reading of the aforementioned medical evidence coupled with the evidence of PW-3 victim shows that though victim was major, she was capable of understanding the consequences of her acts, however considering her mental condition/disability which is certified and does not stand disproved, Appellant took advantage of the victim and committed the offence.

11. DNA extracted from blood samples of the male child born to victim matches with the DNA extracted from blood samples of Appellant and victim. DNA Report dated 27.01.2015 at Exhibit-22 and is not disputed. That apart, evidence of Appellant himself shows that he had admitted to having physical relationship with the victim.

12. From a careful scrutiny of the evidence given by the two doctors who are expert witnesses, it is clearly discernible that victim was suffering from mild mental retardation. Oral evidence of these witnesses is corroborated and supported by the Mental Health Report dated 26.01.2015 of the victim which is placed on record vide Exhibit-

31. PW-5 - Sanika Dakshikar in her evidence has opined that victim 8 of 16 was suffering from mild mental retardation; her I.Q. was 60 and I.Q. for a normal person is between 90 – 120; hence mental age of victim is of a 12 year old girl. Mental Health Report - Exhibit-31 has been issued by Grant Medical College and Sir J.J. Group of Hospitals, Department of Psychiatry, Report by Mental Health Experts to the Superintendent of the Hospital after detailed examination of the victim. This medical evidence is supported by oral evidence given by PW-1 and PW-2, who are close family members of victim. Alleged acts of Appellant of having physical relationship with victim on one and more occasion thus stand proven with the victim giving birth to their child. As alluded to hereinabvoe and clearly discernible from the evidence on record, victim was indeed suffering for mild mental retardation when Appellant had physical relations with her. Hence, on the reading of the evidence the case of Appellant cannot be accepted completely. Prosecution has proved its case beyond all reasonable doubts that victim was and is suffering from mild mental retardation. That apart, deposition of PW-3 victim herself clearly refers to the acts committed by Appellant and the court cannot be oblivious to understand the import of the deposition of the victim; the deposition of victim clearly proves that Appellant had sexual intercourse on one and more occasion with her. It is also proven beyond reasonable doubt that Appellant and victim are the biological parents of the male child born to the victim and this proves that the victim got pregnant because of 9 of 16 the act committed by Appellant with her.

13. The aforesaid discussion leads to the inevitable conclusion that prosecution has proved its case beyond all reasonable doubts that the Appellant has committed the act of rape on the victim who was and is suffering from mild mental retardation.

14. The defence of Appellant if considered shows that, the Appellant knew the victim but it has come on record that he was not aware that the victim was suffering from any form of mental disability much less mild mental retardation. Trial court has sentenced the Appellant to life imprisonment. The Appellant has not denied or run away from the act committed by him on the victim. It is his defence that, Appellant and the victim had a love affair and therefore their acts were consensual.

15. In the case of Moti Lal Vs. State of M.P.1, the Supreme Court while considering a case under Section 376 IPC, referred to the observations of Vivian Bose, J. in Rameshwar Vs. The State of Rajasthan[2] and has observed that a woman or a girl who is raped is not an accomplice; that corroboration is not the sine qua for conviction in a rape case; that it is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any evidence including the evidence of a doctor; 1 2008 ALL MR (Cri) 2583 (S.C.)

10 of 16 that in a given case even if the doctor who has examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix; that in normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police; the Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family and only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case.

15.1. In the present case, it is seen that the victim is a helpless, mild mentally retarded married woman whose privacy and personal integrity has been shattered by the Appellant. In paragraph 8 of the above judgment, the Supreme Court has held as under:-

15.2. Thus, from the above, it is seen that rape is not merely a physical assault but it destructs the whole personality of the helpless woman. In the present case, the victim is helpless mild mentally retarded girl and thus, the present case requires to be dealt with utmost sensitivity. As seen, evidence of the victim in the present case inspires confidence and also stands corroborated in material particulars on the basis of testimony of the medical evidence.

16. Perusal of the evidence of the victim clearly suggests that the victim was aware about her proximity and the consequences of her proximity with Appellant. The entire deposition of the victim including her cross-examination further suggests that being aware of the consequences of having physical relations with the Appellant, the victim continued the same and as per her testimony, atleast on five occasions she went alongwith the Appellant to the secluded spot of incident. This clearly shows that though on the one hand the victim is suffering from mild mental retardation, but on the other hand the victim was in a position to know the consequences of her acts and 3 1996(2) SCC 384 12 of 16 despite that went alongwith the Appellant. Therefore, we are of the considered opinion that the sentence imposed by the trial court on the Appellant sentencing the Appellant for life imprisonment for the remainder of his life is harsh and not determinative of the offence in the facts and circumstances of the present case.

16.1. In this context, hence we would usefully refer to the observations of the Apex Court in the case of Adu Ram Vs. Mukna and Ors.4, on the aspect of proportionality in prescribing liability according to the culpability of the criminal act in the given facts and circumstances of the present case. We may usefully quote paragraph Nos.11 to 17 to persuade us to consider reducing the sentence awarded to the Appellant to 10 years of rigorous imprisonment under Section 376(2)(l) IPC. Paragraph Nos.11 to 17 of the said judgment read as under:-

17. Considering the factual background of the present case and the evidence of the prosecution and defence witness discussed hereinabvoe, in our considered view, while maintaining the conviction of the Appellant, we deem it appropriate to sentence the Appellant / original accused for committing the offence under Section 376(2)(l) IPC for a period of 10 years rigorous imprisonment. The fine amount awarded by the trial court also stands enhanced to Rs.50,000/- and in default of non-payment, Appellant is directed to further undergo rigorous imprisonment for one year. To that extent the impugned Judgment and Order dated 28.01.2016 passed by the Court of Additional Sessions Judge, Kalyan shall stand modified.

18. Criminal Appeal No.816 of 2017 stands partly allowed in the aforesaid terms. [ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.]