It was noted that a special educator present during the recording of the survivor’s statement found that she had “speech and mild intellectual” disability, but was capable of communication, and had indicated that she was physically abused on two occasions.
“Failure to name the appellant as the aggressor should not be given undue weightage lest truth gets suppressed in her silence. The inability of a differently abled victim in not being able to name the appellant as the aggressor cannot be a ground to discard the prosecution’s version, as the ocular evidence is corroborated by the medical and forensic evidence, which confirms rape upon the victim,” the order read.
Bhaskar Raj Pradhan and Meenakshi Madan Rai noted that the accused was examined by the trial court, where he admitted that he had worked in the survivor’s house.
The high court also affirmed the trial court’s direction, in its order of March 2023, to pay the compensation of Rs 4 lakh to the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021.
‘No one else but accused’
- The high court pointed out that the prosecution’s evidence “overwhelmingly” confirms the presence of the accused at the place of occurrence at the relevant time.
- The Sikkim High Court also mentioned that it could not have been “anyone else” who had committed the offence.
- The high court noted that the accused was examined by the trial court, where he admitted that he had worked in the survivor’s house.
- He also stated that the woman was not completely “disabled” and could perform household chores, the high court noted.
- The Sikkim High Court found “no hesitation” in upholding the conviction of the accused, considering the nature of the injuries suffered by the survivor, who was a differently abled woman.
- Dismissing his appeal, the high court confirmed the sentence, the directions, as well as the recommendation for compensation of Rs 4 lakh to the Sikkim Compensation to Victims (or their Dependents) Scheme, 2021.
‘Woman with cerebral palsy’
The Sikkim High Court noted that the survivor was a woman with “intellectual or developmental disability and cerebral palsy”. She was identified as a person suffering from 7o per cent “mental retardation” with permanent multiple disabilities.
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The high court noted that Section 2(r) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the Disabilities Act) defines “mental retardation” as a condition of arrested or incomplete development of the mind of a person which is specially characterised by subnormality of intelligence.
It was further added that the victim was also suffering from cerebral palsy.
“Cerebral palsy” has been defined in Section 2(e) of the Disabilities Act, which suggests a group of nonprogressive conditions of a person characterised by abnormal motor control posture resulting from brain insult or injuries occurring in the prenatal, perinatal, peri-natal or infant period of development.
Niece witnessed the assault
The survivor’s sister-in-law lodged a complaint in September 2022, stating that the survivor, who was 25 years old and “mentally unstable since birth”, was witnessed by her daughter getting sexually assaulted by the accused.
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After investigation, the investigating officer filed the final report alleging commission of an offence under Section 376(2)(l) IPC (rape) by the 27-year-old accused.
Subsequently, in March 2023, the special judge framed a singular charge against the accused that in the evening he had raped the survivor, who was a “specially abled” woman (hearing and speech impaired) at the school ground, thereby committing an offence.
Arguments
Appearing for the accused, advocate Gita Bista argued that the survivor had not named his client and had alleged that the assault on her was at home and not at the playground.
It was further added that the medical opinion does not establish the accused as the aggressor, and the evidence of the survivor’s niece is contradicted by her admission in cross-examination.
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It was contended that no injury was seen on the body of the accused during his medical examination.
Representing the state, Additional Public Prosecutor Yadev Sharma submitted that the medical evidence confirms the prosecution’s story.
Bhaskar Raj Pradhan and Meenakshi Madan Rai noted that the accused was examined by the trial court, where he admitted that he had worked in the survivor’s house.