'NO AID OF INTERPRETER, NO VIDEOGRAPHY': Gauhati High Court Acquits Man In Rape Case Involving Mentally Disabled Victim, Rules S.164 CrPC Statement Inadmissible Due To Procedural Non-Compliance

"If the statement of the victim is to be regarded as one under sub-section 5 A of Section 164 CrPC, the condition stipulated in the provisions thereto must be strictly followed, as indicated by the use of the word ‘shall’ therein..." Gauhati High Court, in a significant ruling, unequivocally held that the statement of a temporarily or permanently mentally or physically disabled victim under Section 164 of the Code of Criminal Procedure, 1973 (CrPC) cannot be treated as examination-in-chief if the mandatory procedural safeguards, including assistance of an interpreter or special educator and videography, are not strictly complied with.

A single bench of Justice Sanjeev Kumar Sharma set aside the conviction and sentence of an appellant in a rape case, emphasizing that such non-compliance renders the statement inadmissible as substantive evidence, thereby failing to establish lack of consent.

The appellant, P. Rohmingsanga, a former Church Elder, challenged his conviction and sentence of 10 years rigorous imprisonment for rape under Section 376(2)(l) of the Indian Penal Code, 1860 (IPC) by the Sessions Judge, Lunglei Judicial District, Mizoram. The prosecution arose from an FIR lodged by the mother of the victim, Ms. X, alleging that the accused had sexual intercourse with her mentally retarded daughter. The FIR was lodged after a delay, following a legal notice from the accused to the victim's family.

The primary question before the court was whether the conviction for rape could be sustained given the alleged mental disability of the victim and the manner in which her statement was recorded. The court also examined if lack of consent was adequately proven, particularly in light of procedural non-compliance with Section 164(5A) of the CrPC and the applicability of Section 114A of the Indian Evidence Act, 1872.

Appellant Admitted Intercourse, Claimed Consent

The High Court noted that the appellant had categorically admitted to having sexual intercourse with the victim, once, both in his defence evidence and in his statement under Section 313 CrPC. However, he maintained that it was a consensual act, asserting that the victim's alleged mental retardation was not readily discernible.

Assessment of Victim's Mental Capacity and Consent

The prosecution relied on two disability certificates and the evidence of a Clinical Psychologist (CW2) to establish the victim's mental retardation. One certificate, issued in 2009, mentioned 40% mental retardation, while another in 2021 diagnosed 'mental illness' and 40% 'mental disability'. CW2 assessed the victim's mental age at 8 years 8 months (IQ 63, mild intellectual impairment) and social age at 9 years (SQ 60, mild deficit in socio-adaptive functioning), concluding 'mild intellectual disability' (50% disability).

Expert Opinion on Capacity to Consent Deemed Essential

The court found that neither the medical experts who issued the certificates nor the Clinical Psychologist were examined to explain the implications of these terms concerning the victim's capacity to understand the nature of the act or give valid consent. The assessment by CW2 was also conducted nearly two years after the incident, which held its own significance.

"A 24 year old woman assessed to have a mental age of 8/9 years cannot be straightaway equated with an actual 8/9 years old girl, as she has 24 years of lived experience as well as physical and social development, exposure to adult social environment and emotional maturity levels quite ahead of an actual 8/9 nine years old child."

The bench observed that a 24-year-old woman assessed with a mental age of 8-9 years cannot be equated with an actual child of that age, given her life experience and physical/social development. The court emphasized that the sexual autonomy of a woman is a valuable right and cannot be stripped away merely on vague presumptions based on psychological test scores. Specific expert opinion on the victim's capacity to understand the nature of the act and consent was deemed the minimum requirement from the prosecution.

Strict Compliance with Section 164(5A) CrPC is Mandatory

The High Court meticulously examined the recording of the victim's statement under Section 164 CrPC, which the trial court treated as her examination-in-chief under Section 164(5A)(b) CrPC. Section 164(5A) mandates that if a victim is temporarily or permanently mentally or physically disabled, the Magistrate "shall" take the assistance of an interpreter or special educator, and the statement "shall" be videographed.

Procedural Flaws Render Statement Inadmissible

The court found that the Magistrate did not engage any interpreter or special educator, nor was the statement videographed. There was no indication that the Magistrate was even aware of the victim's alleged mental state or had perused the FIR and disability certificates, which would have necessitated such an enquiry. The trial court recorded the deposition prior to the psychological assessment by CW2, thus lacking material to justify treating the S. 164 statement under S. 164(5A)(a).

Lack of Consent Not Established

Given these grave procedural non-compliances, the High Court concluded that the statement recorded under Section 164 CrPC could not be admitted as substantive evidence in lieu of examination-in-chief under Section 164(5A)(b). Consequently, there was no legally admissible statement from the victim before the court asserting lack of consent. The cross-examination and re-examination, not being based on an admissible examination-in-chief, were therefore of little consequence.

Section 114A Evidence Act Inapplicable

The court also ruled that Section 114A of the Evidence Act, which presumes absence of consent when sexual intercourse is proved and the woman states before the court that she did not consent, was inapplicable. This was because no examination-in-chief of the victim was recorded and her Section 164 CrPC statement was inadmissible as substantive evidence.

Distinction from Precedent

The High Court distinguished the Supreme Court's decision in Chamanlal Vs. State of Himachal Pradesh ((2020) 17 SCC 69), noting that in that case, there was specific medical evidence that the victim was not in a position to understand the good and bad aspects of sexual acts, and the accused had not claimed consent. In the present case, such specific expert evidence regarding the capacity to consent was absent, and the defence claimed consensual sex.

Acquittal Granted

In light of the fundamental flaws in the prosecution's case and the inadmissibility of crucial evidence due to non-compliance with statutory mandates, the High Court was constrained to hold that the prosecution had failed to prove its case with legally admissible evidence. The impugned judgment and sentence were accordingly set aside.

The Gauhati High Court's ruling underscores the critical importance of strict adherence to procedural safeguards enshrined in Section 164(5A) CrPC when dealing with vulnerable victims, particularly those with mental disabilities. The failure to provide an interpreter or special educator and to videograph the statement, as mandated, was held to be a fatal flaw, leading to the inadmissibility of the statement as substantive evidence and ultimately resulting in the acquittal of the appellant due to unproven lack of consent. This judgment reinforces the principle that procedural regularity is paramount, especially when departing from standard evidentiary rules.

Date of Decision: 31 July 2026