A person suffering from mental disorder or mental sickness deserves special care, love and affection; Supreme Court

Feeling aggrieved and dissatisfied with the impugned preferred by the State and has quashed and set aside the under Sections 376 and 506 of the IPC and consequently has 10 000 ­ and in default of payment of fine further six months R.I. under Section 376 IPC and four years R.I. with fine of Rs.5 000 ­ and in default of payment of fine further three months R.I. under Section 506 IPC the original accused has accused with the allegations that on 1.4.2008 his wife Dhaneshwari Devi telephonically informed him at Shimla that months ago accused had sexual intercourse with her forcibly and without her consent. That the accused threatened the weakness she did not disclose about the incident to anyone including her mother. That the prosecutrix was got medically examined and as per the Medical Officer the prosecutrix was medically examined at IGMC Shimla as well as PGI Chandigarh Prosecutrix gave birth to a female child on 19.6.2008 at KNH Shimla. Blood samples of the prosecutrix the baby and the After completion of the investigation the Investigating Officer 2.1 To prove the case against the accused the prosecution prosecutrixProsecutrixLaboratory Technician Jitender Kumar Dr. Sarla Chand Dr. Rakesh Kumar Radiologist Dr. Ramesh Kumar Assistant Professor Department of Psychiatry Dr. Jeeva Nand ChauhanNand Singh Sr. Lab Technician KNH Shimla PW13) Dr. Monika SharmaASI Takpa DorjeSI Sunder Singh Dr. Rama Malhotra PGI Chandigarh on behalf of the prosecution statement of the accused under The learned trial Court acquitted the accused mainly on the the prosecutrix was not mentally unsound to understand the Feeling aggrieved and dissatisfied with the judgment and order of acquittal passed by the learned trial Court the State preferred appeal before the High Court and by the impugned on record more particularly the medical evidence the High Court for the offences under Sections 376 and 506 IPC by observing that the IQ of the prosecutrix was 62 and that she had mild Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the 5. Ms. Radhika Gautam learned Advocate has appeared for the appellant and Mr. Sarthak Ghonkrokta Advocate has 5.1 Ms. Radhika Gautam learned Advocate appearing on behalf facts and circumstances of the case the High Court has materially erred in reversing the acquittal and convicting the accused in an appeal against acquittal. It is submitted that were not required to be interfered with by the High Court in exercise of the appellate jurisdiction in an appeal against 5.2 Learned counsel for the appellant­accused has made the the time the prosecution claimed the incident occurred and offered to take care of the child but refused to marry the as such there is a delay of 8 months from the date of incident in filing the FIR. It is submitted that the prosecutrix it is not believable that the parents were not aware of the prosecutrix seems to know. It is submitted that one says she asked her many questions which she spoke in Hindi and the Phari and he had to use the interpreter. It is submitted that the prosecutrix as well as the mother sister and father of the told her about it whereas the testimony of the mother sister and As rightly observed by the learned trial Court the prosecutrix was a person capable of understanding her welfare and quite 5.3 Making the above submissions and relying upon the 2014) 15 SCC 596 it is submitted that the High Court has clearly erred in reversing the order of acquittal passed by the behalf of the appellant accused that out of seven years imprisonment the accused has already undergone four years 6. While opposing the present appeal the learned Advocate Court and has rightly convicted the accused for the offences under Sections 376 and 506 IPC more particularly when the prosecutrix was suffering from mental disease and as per the medical evidence she was not in a position to understand the 6.1 Learned counsel for the State has made the following to come to the right conclusion. It is submitted that in the evidence on record more particularly the medical evidence such the accused had taken undue advantage of the mental condition of the prosecutrix and therefore even if there is any material contradiction the benefit shall not go to the accused and the benefit must go in favour of such a victim who is suffering from a mental disease and not in a position to with the prosecutrix and because of that the prosecutrix was pregnant and delivered a baby child. Accused is not now disputing that the child does not belong to him. Despite the the consent of the prosecutrix. It is submitted that thus the and therefore the same may be considered in favour of the same can be reduced only by giving a special reasons. It is submitted that in the present case as such the High Court has suffering from mental sickness and the accused has taken should be dealt with an iron hand and no leniency should be 6.2 Making the above submissions it is prayed to dismiss the At the outset it is required to be noted that by the she was suffering from mental illness and she was not in a is also required to be noted and it is not in dispute that the accused had sexually intercourse with the victim and that the a case of consent. Thus the accused as such came with a false on record has found the accused guilty for the offences under appellant­accused that in an appeal against order of acquittal acquittal passed by the learned trial Court. Therefore the first thing which is required to be considered in the facts and Before considering the appeal on merits the law on the Cr.P.C. and the interference by the High Court in an appeal In the case of Babu v. State of Kerala 9 SCC appeal against acquittal under Section 378 Cr.P.C. set aside a judgment of acquittal in a case where two views are probable one. While dealing with a judgment of acquittal the had failed to take into consideration admissible evidence and or had taken into consideration the evidence brought on record Balak Ram v. State of U.P3 SCC 219 Shambhoo Missir v State of Bihar4 SCC 17 Shailendra Pratap v. State of U.P 2003) 1 SCC 761 Narendra Singh v. State of M.P10 SCC 699 Budh Singh v. State of U.P9 SCC 731 State of U.P. v Ram Veer Singh13 SCC 102 S. Rama Krishna v. S. Rami Reddy 5 SCC 535 Arulvelu v. State 10 SCC 206 Perla Somasekhara Reddy v. State of A.P16 SCC 98 and 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227 the Privy accused to the benefit of any doubt and the slowness of an v. State of Punjab AIR 1957 SC 216 M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 Khedu Mohton v. State of Bihar 1970) 2 SCC 450 Sambasivan v. State of Kerala5 SCC 412 15. In Chandrappa v. State of Karnataka4 SCC 415 this reconsider the evidence upon which the order of acquittal is 2) The Code of Criminal Procedure 1973 puts no limitation 3) Various expressions such as ‘substantial and compelling reasons’ ‘good and sufficient grounds’ ‘very strong circumstances’ ‘distorted conclusions’ ‘glaring mistakes’ etc. are not intended to interfere with acquittal than to curtail the power of the court to 4) An appellate court however must bear in mind that in case of acquittal there is double presumption in favour of the accused competent court of law. Secondly the accused having secured his acquittal the presumption of his innocence is further reinforced evidence on record the appellate court should not disturb the 16. In Ghurey Lal v. State of U.P10 SCC 450 this Court reiterated the said view observing that the appellate court in accused should bear in mind that the trial court’s acquittal demeanour of the witnesses and was in a better position to 17. In State of Rajasthan v. Naresh9 SCC 368 the Court 18. In State of U.P. v. Banne4 SCC 271 this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High ii) The High Court’s conclusions are contrary to evidence and iii) The entire approach of the High Court in dealing with the iv) The High Court’s judgment is manifestly unjust and case when both the Sessions Court and the High Court have A similar view has been reiterated by this Court in Dhanapal v 19. Thus the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the court’s acquittal bolsters the presumption of his innocence held to be perverse has been dealt with and considered in “20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration so outrageously defies logic as to suffer from the vice of irrationality.4 SCC 635 Excise and Taxation Officer­cum­Assessing Authority v v. CCE 1994 Supp. SCC 665 Gaya Din v. Hanuman Prasad It is further observed after following the decision of evidence or thoroughly unreliable evidence and no reasonable person would act upon it the order would be perverse. But if could be relied upon the conclusions would not be treated as 9.4 In the recent decision of Vijay Mohan Singh v. State of Karnataka 5 SCC 436 this Court again had an occasion by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 on record. However the High Court while reversing the acquittal acquitting the accused. Confirming the judgment of the High evidence independently and come to its own conclusion Ordinarily the High Court would give due importance to the proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and Court reversed the order of acquittal passed by the learned trial evidence on record however the High Court did not record its by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court after being satisfied perverse and suffered from infirmities this Court declined to interfere with the order of conviction passed by the High Court While confirming the order of conviction passed by the High Court “8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat 9 SCC 225 viz. first High Court has rendered a well­considered judgment duly appeal We think not. In our view in such a case the approach an appellate court which has reversed the order of acquittal passed by the trial court should be to satisfy itself if the approach of the trial court in dealing with the evidence was is free from those infirmities if so to hold that the trial court judgment warranted interference. In such a case there is the appellate court in the order of acquittal was not justified the acquittal alone has to stand. Having regard to the above grievance of the learned counsel appearing on behalf of the Court refused to set aside the order of conviction passed by the conclusion arrived at by the learned Sessions Judge on several Sessions Judge was not justified in discarding the Court therefore was fully entitled to reappreciate the evidence and the eyewitnesses and opined that reasons adduced by the trial evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an 31.3. In Atley v. State of U.P. AIR 1955 SC 807 in para 5 this the judgment of the trial court being one of acquittal the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion of course judgment of acquittal passed by the trial court which had the to the riders that the presumption of innocence with which the appellate stage and that the appellate court should attach due in mind and comes to a contrary conclusion the judgment cannot cited at the Bar namely Surajpal Singh v. State AIR 1952 SC 52 that the High Court was not justified in reviewing the entire 31.4. In K. Gopal Reddy v. State of A.P.1 SCC 355 this Court has observed that where the trial court allows itself to be reasons and takes a view of the evidence which is but barely 10. Having gone through the impugned judgment and order passed by the High Court and also the judgment and order of acquittal passed by the learned trial Court we are of the firm Court is justified and as such has not committed any error in and 506 IPC. Being the first appellate Court and as observed hereinabove in the aforesaid decisions the High Court was reasoning given by the learned trial Court. In the facts and 11. So far as the merit of the appeal is concerned on re­ the deposition of doctors examined as PW11 Dr. Ramesh Kumar and PW22 Dr. Rama Malhotra the High Court has specifically found that the IQ of the victim was 62 which was position to understand the good and bad aspect of sexual coupled with the fact that the accused is found to be the case of consent. Therefore considering the evidence on record said to commit rape” if with her consent when at the time of giving such consent by reason of unsoundness of mind is unable to understand the nature and consequences of that to position to understand the good and bad aspect of sexual assault. The accused has taken disadvantage of the mental ‘Hindi’ and that she was only knowing ‘Phari’ and therefore in of the accused is concerned the aforesaid aspect has been explained by PW22 in her cross­examination. In the cross­ examination PW22­ Dr. Rama Malhotra has specifically stated with respect to language known by the victim in that case also it entire medical evidence on the mental status of the victim Therefore the High Court is justified in reversing the order of acquittal and convicting the accused for the offences under he has already undergone four years RI out of seven years RI awarded to him and is married and has two children and accused has taken undue advantage of the mental sickness illness of the victim. A person suffering from mental disorder or mental sickness deserves special care love and against the impugned judgment and order passed by the High the present appeal fails and deserves to be dismissed and is

Summary: Even if there might be some contradictions with respect to language known by the victim, in that case also, it cannot be said to be the major contradictions to disbelieve the entire   medical   evidence   on   the   mental   status   of   the   victim. They are not to be exploited; Supreme Court held in Chaman Lal v. The State of Himachal Pradesh (Cr. Appeal No. 1229 of 2017) The father of the prosecutrix lodged an FIR against the accused   with   the   allegations   that   on   1.4.2008,   his   wife Dhaneshwari Devi telephonically informed him at Shimla that their daughter (prosecutrix) is pregnant.  It was alleged that the prosecutrix told her mother that when she used to go to jungle to graze goats and cattle, accused also used to go to jungle to graze cattle and goats.  The prosecutrix told her mother that three four months ago, accused had sexual intercourse with her forcibly and   without   her consent. The   accused   threatened   the prosecutrix not to disclose the incident to anyone.  Due to fear and due to forgetting the same and further due to mental weakness, she did not disclose about the incident to anyone including her mother.   The prosecutrix was got medically examined and as per the Medical Officer   the prosecutrix was carrying a pregnancy of 31 weeks.  Her age was stated to be 19years.  Prosecutrix was alleged to be mentally retarded.  She was medically examined at IGMC, Shimla as well as PGI, Chandigarh Prosecutrix gave birth to a female child on 19.6.2008 at KNH, Shimla.   Blood samples of the prosecutrix, the baby and the accused were taken for DNA test.  As per report, accused was the biological father of the female child.  The accused was arrested. After completion   of   the  investigation,  the   Investigating  Officer submitted the charge-sheet against the accused for the offences  under Sections 376 and 506 IPC.  The accused pleaded not guilty and therefore he came to be tried by the learned trial Court for the aforesaid offences. Feeling aggrieved and dissatisfied with the judgment and order of acquittal passed by the learned trial Court, the State preferred appeal before the High Court and by the impugned judgment and order and on re-appreciation of the entire evidence on record, more particularly the medical evidence, the High Court has reversed the order of acquittal and has convicted the accused for the offences under Sections 376 and 506 IPC by observing that the prosecutrix was not in a position to understand the good and bad aspect of the sexual assault. On re-appreciation of the entire evidence on record the High Court came to the conclusion that the IQ of the prosecutrix was 62 and that she had mild mental retardation. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the High Court convicting the accused for the aforesaid offences, the original accused has preferred the present appeal in the Supreme Court. The court was of the opinion, that “Having gone through the Impugned judgment and order passed by the High Court and also the judgment and order of acquittal passed by the learned trial Court, we are of the firm opinion that in the facts and circumstances of the case the High Court is justified and as such has not committed any error in reversing the order of acquittal passed by the learned trial Court and convicting the accused for the offence under Section 376 and 506 IPC Being the first appellate Court and as observed hereinabove in the aforesaid decisions the High Court wan Justified in r appreciating the entire evidence on record and the reasoning given by the learned trial Court. In the facts and circumstances of the case, the High Court has acted within the parameters of the law and down by this Court in the decision referred to hereinabove.” Merely because the victim was in a position to do some household works cannot discard the medical evidence that the victim had mild mental retardation and she was not in a position to understand the good and bad aspect of sexual assault. It appears that the accused had taken disadvantage of the mental illness of the victim. It is required to be appreciated coupled with the fact that the accused is found to be the biological father of the baby child delivered by the victim. Despite the above, in his 313 statement the case of the accused was of a total denial. It was never the case of the accused that It was a case of consent.