Judicial Handling of Intellectually Disabled Rape Victims’ Testimony

Before recording the prosecutrix’s evidence, the then Presiding Officer speaks to her informally in court. He notes in the deposition:

“I asked some questions to the victim; she gave correct answers to some questions and she knows what is the meaning of oath. Therefore, oath is given to her.”

However, the actual questions and answers are not recorded on the order‑sheet or in the deposition, nor is there any indication of the nature or complexity of the questions.

In examination‑in‑chief, the prosecutrix briefly describes the incident and identifies the accused as the assailant. Her testimony is formally in order: oath administered; narrative given; identity fixed.

Then comes cross‑examination.

Under a series of leading questions, she begins to say “yes” to almost everything:

• Yes, her mother has filed a false case to take money from the accused.

• Yes, she was raped by some other person.

• Yes, she was raped by her grandfather.

• She denies only the suggestion that she is deposing falsely; to all other suggestions, including damaging ones, she gives affirmative answers.

No one objects at the time. The prosecutor does not seek re‑examination. The then Judge records the evidence and closes the prosecution.

A successor‑Judge now has to write the judgment. Reading the cross‑examination, he feels uneasy: is this a truthful, highly incriminating confession about multiple sexual assaults, or a mentally challenged young woman mechanically agreeing to every suggestion?

Two competing instincts arise:

• Instinct of fairness to both sides: If she did not really understand, can the defence be allowed to benefit from such admissions?

• Instinct of procedural finality: Once a competent witness has been sworn, examined‑in‑chief and cross‑examined without objection, can the successor go back and “re‑test” competence?

From this illustration arise four practical questions for trial judges and advocates:

1. Can the victim be recalled at the stage of judgment to test her mental capacity by a fresh voir dire under Section 118 Evidence Act, via Section 311 CrPC?

2. Can the court, at this late stage, send her to a medical board for psychiatric evaluation?

3. Which provisions legitimately support such steps?

4. What is the sounder course in terms of “fair trial” and “actus curiae neminem gravabit”?

II. Legal Framework: Competence and Recall

1. Section 118 Evidence Act – Competence is the Court’s Call

Section 118 of the Evidence Act presumes that “all persons shall be competent to testify”, unless the court considers that they are prevented from understanding questions or from giving rational answers by tender years, extreme old age, disease of body or mind, or similar causes. The explanation clarifies that even a lunatic is not incompetent unless his lunacy prevents such understanding and rational answers.

Contemporary doctrine and case law emphasise that:

• Persons with mental disabilities, including mental retardation, can be competent witnesses if they understand questions and can communicate rational answers.

• The assessment is functional and fact‑specific—the label “mentally retarded” does not automatically disqualify; the judge must look at how the witness actually responds.

• Courts frequently conduct a brief preliminary examination (voir dire) to test understanding of truth/falsehood, basic facts, and capacity to respond; if satisfied, they proceed to record substantive testimony.

The Bombay High Court in Suresh Yellaji Yerewar v. State of Maharashtra stressed that even a deaf, dumb and mentally retarded prosecutrix was not automatically incompetent; she should have been produced before the court so that the judge could decide her competence under Section 118, and the failure to do so benefited the accused because it deprived him of cross‑examination.

2. Section 311 CrPC – Very Wide, Yet Not Unlimited

Section 311 CrPC empowers any criminal court, “at any stage of any inquiry, trial or other proceeding”, to summon any person as a witness, or recall and re‑examine any person already examined; and it makes it mandatory to do so if such evidence appears essential to the just decision of the case.

The Supreme Court and several High Courts have laid down that:

• The power is wide and exists to discover the truth and render a just decision, not to help any party mend its case.

• Applications (or suo motu action) under Section 311 cannot be allowed merely to fill lacunae, repair defective cross‑examination, or repeatedly harass a prosecutrix.

• Strong, specific reasons must be recorded to show that the additional or clarificatory evidence is truly essential; vague dissatisfaction with the existing record is not enough.

Madhya Pradesh High Court decisions illustrate both ends of the spectrum:

• In one case, recall of a prosecutrix was allowed after she filed an affidavit in bail proceedings exonerating the accused—treated as a “material development” justifying recall.

• In a later case, recall was refused where the only basis was an affidavit contrary to earlier deposition, the Court reiterating that Section 311 cannot be used to fill gaps or give an unfair advantage to either side.

III. Critical Analysis of the Illustration

1. Is there a “competence problem” or a “credibility problem”?

In the illustration, competence was formally addressed:

• The predecessor‑Judge interacted with the prosecutrix, found that she understood some questions and the meaning of oath, and then administered oath.

• She thereafter narrated the incident in chief and answered cross‑questions coherently, though often by saying “yes” to leading suggestions.

The absence of a detailed note of the voir dire is a procedural weakness. Bombay High Court has cautioned that when the witness is mentally retarded, it is desirable that the questions and answers in the preliminary interaction are recorded, or at least that the nature of questions and the basis of the judge’s satisfaction are clearly reflected. Failure to do so makes later appellate review difficult.

However, the real discomfort in our case flows not from incoherence, but from the opposite: a disturbingly consistent pattern of agreeing with almost every suggestion, however self‑damning or contradictory. That pattern raises a nuanced question:

• Was she incapable of understanding the questions such that she never should have been sworn (competence)? or

• Was she capable but highly suggestible, so that her answers are unreliable and require corroboration (credibility)?

Section 118 is concerned with the first; the law of appreciation of evidence with the second. This distinction is crucial.

In most appellate decisions, courts treat mentally challenged prosecutrices as competent once they demonstrate the basic ability to answer questions intelligibly; doubts about suggestibility then go to weight and the need for corroboration, not to admissibility.

Critical view: In the illustration, the successor‑Judge’s unease is understandable, but it arguably belongs to the realm of credibility, not competence. If the record shows that she was able to understand simple questions and narrate events, the better course is to evaluate her admissions cautiously, test them against the totality of evidence, and look for corroborative or contradictory material, rather than seeking to reopen competence at the judgment stage.

2. Recall under Section 311: Correcting the Court’s act or filling a lacuna?

One plausible argument is that the court itself did not follow best practices at the initial stage:

• The voir dire questions are not on record.

• There is no indication that the court considered appointing an interpreter, support person, or adapting the mode of questioning, which appellate courts increasingly expect in cases involving mentally challenged witnesses.

From the maxim actus curiae neminem gravabit, one might say: the court’s own deficient procedure should not prejudice either the victim or the accused. Therefore, a narrow recall to properly test competence could be justified as a corrective to the court’s earlier lapse.

Against this stands the counter‑argument, supported by Supreme Court and High Court precedent:

• Section 311 is not meant to give successive “innings” in cross‑examination merely because previous questioning has had unfortunate consequences for one side.

• The defence in our illustration has already secured extensive admissions. If the court now recalls the prosecutrix primarily because it is uncomfortable with those admissions, it risks being seen as attempting to undo an effective cross‑examination.

• The victim would face another round of questioning, possibly more aggressive, thereby compounding trauma.

Critical assessment: A successor‑Judge who, at the judgment stage, recalls the prosecutrix only to test competence is on thin ice unless:

• There is something in her existing answers that clearly shows she did not understand even very basic, neutral questions (for example, she cannot state her age, location, or simple concepts), or

• New, objective material (such as a contemporaneous psychiatric report overlooked earlier) casts genuine doubt on the earlier satisfaction under Section 118.

Absent such material, recall risks being characterised as an attempt to “improve” the prosecution’s position by diluting its own witness’s admissions—exactly what Section 311 prohibits.

A more defensible, but still exceptional, use of Section 311 here would be:

• To recall her as a court witness,

• To put a short, carefully structured set of competence‑testing questions under Section 165 Evidence Act,

• While strictly limiting further cross‑examination to those issues.

Even then, the order must painstakingly record why this is “essential to the just decision” and not merely a reaction to inconvenient answers.

3. Medical board at judgment stage: helpful or illusory?

There is, notably, no explicit provision in CrPC authorising a post‑evidence psychiatric examination of a witness solely to test testimonial competence. Section 164A CrPC concerns medical examination of the victim at the investigation stage for purposes of evidence of sexual assault; it does not deal with late‑stage mental capacity assessments.

Case law where mentally retarded victims were examined by psychiatrists or medical boards generally involved:

• assessments made reasonably close to the incident,

• led as prosecution evidence to establish an aggravated form of rape involving a mentally ill or retarded victim,

• and relied upon during appreciation of evidence, not as a retrospective validation of competence at the time of testimony.

Moreover:

• Competence under Section 118 is fundamentally a judicial determination, although medical opinion is a relevant aid.

• A board examining the prosecutrix years later can at best offer a general description of her intellectual functioning; it cannot conclusively state what her understanding and responsiveness were on the day she testified.

Critical view: Ordering a medical board at the stage of judgment primarily to decide whether the earlier deposition was competent:

• adds delay,

• risks re‑traumatisation,

• yields limited probative value, and

• may be perceived as judicial abdication of a decision that Section 118 squarely vests in the court.

It would be more principled to:

• accept that competence was (perhaps imperfectly) assessed at the time of testimony,

• acknowledge the evidentiary frailty caused by vague references to “mental retardation” without proper proof, and

• factor that into the final appreciation of evidence, including benefit of doubt where appropriate.

A narrowly tailored psychiatric reference might still be justified in a different scenario—e.g., where the mental illness is an ingredient of an aggravated rape provision, and no medical evidence was ever led. But even then, the court must be clear that the expert opinion is taken under Section 45 Evidence Act, not as a substitute for the Section 118 enquiry.

4. Fair trial: whose fairness?

Fair trial is often invoked for the accused, but in sexual offences involving vulnerable victims, it must be balanced with:

• the victim’s right to be heard with dignity, and

• society’s interest in effective prosecution of sexual violence.

Permitting repeated recall of a mentally challenged prosecutrix can itself amount to unfairness and re‑victimisation. High Courts, while recognising the breadth of Section 311, have warned that prosecutrices cannot be repeatedly called back for cross‑examination on slender grounds like change of counsel or subsequent affidavits.

In the illustration, the defence has already enjoyed full cross‑examination and secured several admissions. The core risk now is not denial of a fair trial to the accused, but misuse of those admissions without adequate safeguards of understanding. That risk can, in large measure, be handled at the stage of appreciation:

• by scrutinising whether the admissions are consistent with other evidence,

• by testing whether they are logically probable,

• and by giving due weight to the possibility of suggestibility and pressure in a mentally challenged witness.

On balance, the fairest course to both sides is usually:

• not to reopen evidence at the judgment stage,

• but to transparently acknowledge the deficiencies in how competence and mental condition were handled,

• and to let those deficiencies inform a cautious, reasoned evaluation of the prosecutrix’s testimony.

IV. Practical Takeaways for Judges and Advocates

1. At the time of recording evidence

• Insist on a proper voir dire for any witness alleged to be mentally retarded or otherwise mentally challenged; record at least the gist of questions and answers that satisfied you about competence.

• Consider appropriate accommodations—interpreter, special educator, simplified questions, breaks—especially in sexual offence cases involving intellectual disability.

• Do not rely on stray labels (“mentally retarded”) without exploring what that actually means for the witness’s ability to understand questions.

2. During trial – for both sides

• Prosecutors should be alert: if cross‑examination of such a witness yields sweeping, mechanical admissions, they should promptly request clarification or re‑examination to test understanding, rather than remain passive.

• Defence counsel should remember that the more they rely on admissions from a vulnerable witness, the more closely an appellate court will scrutinise how those answers were obtained.

3. At the stage of judgment

For the successor‑Judge in a case like the illustration:

• Default approach (recommended):

  • Do not recall the prosecutrix or order a fresh medical board.

  • Make a speaking order (within the judgment) recording:

    • that competence was already judicially affirmed;

    • that Section 118 presumes competence unless incapacity is clearly shown;

    • that Section 311 cannot be used to improve cross‑examination or erase inconvenient admissions;

    • and that you will therefore treat the existing testimony as admissible, but will carefully weigh its reliability in light of her mental condition, the pattern of admissions, and corroborative material.

• Exceptional approach (with detailed reasons):

  • If, and only if, the record positively suggests that she did not grasp even simple questions, consider a narrow, court‑controlled recall under Section 311 read with Section 165 Evidence Act, making it clear that:

    • the purpose is limited to clarifying competence and a few foundational facts,

    • supplementary cross by either side will be strictly limited,

    • and the recall is being ordered to cure an earlier judicial lapse, not to fill a party’s lacuna.

V. Concluding Perspective

The illustration highlights a recurring tension in criminal adjudication:

• the desire to correct one’s own unease about the record, and

• the duty not to use procedural powers to tilt the scales after both sides have played their innings.

Section 118 tells us that competence is a threshold judicial decision, not a moving target to be re‑tested every time a witness says something uncomfortable. Section 311 tells us that recall is a surgical tool, not a general licence to reopen trials.

For judges and advocates, the real craft lies less in dramatic recall applications and more in:

• conducting a careful, recorded competence inquiry at the outset,

• structuring sensitive but robust cross‑examination, and

• writing judgments that candidly recognise the limits of what can safely be inferred from the testimony of mentally challenged prosecutrices.

Used that way, both provisions—Section 118 and Section 311—serve their true purpose: not to generate more evidence, but to ensure that whatever evidence is on record is the product of a process that is fair, humane, and legally sound.