Bombay High Court

When it comes to judicial decisions, you cannot get a more strange and inexplicable decision than this case. In this case, the Bombay High Court, decided to reduce the life imprisonment (for the remainder of his life) of a rapist to 10 years. The court based its decision on the ground that the woman, although mildly mentally retarded, was in a position to know the consequences of having physical relations with the man and had chosen to go with him to the spot where the sexual intercourses took place.

A division bench of Justices Milind Jadhav and Ajay Gadkari maintained that since the case involves a woman with mild mental retardation, the matter should be considered with utmost sensitivity.

The court upheld the conviction of Anil Ramesh Kolhe for rape based on the DNA evidence despite the man contending that the sexual intercourse was consensual.

However, the bench noted that though the survivor was suffering from mild mental retardation, she accompanied the convict knowing the consequences of her actions and, thus, life sentence would be harsh.

“The victim’s testimony suggests that being aware of the consequences of having physical relations with the appellant, she continued the same and at least on five occasions she went along with him to the secluded spot of incident. This clearly shows that though on the one hand she is suffering from mild mental retardation, but on the other hand she was in a position to know the consequences of her acts. Therefore, we are of the considered opinion that the sentence of life imprisonment for the remainder of his life, imposed by the trial court on him is harsh and not determinative of the offence in the facts of the present case,” the bench said.

As per the prosecution case, the appellant had committed rape on the victim at least five times at a secluded place near Kasara town in Thane district. He claimed that it was a love affair between him and the victim and the sexual intercourse was consensual.

Her mental condition was assessed by the courts below and the judgement of the Bombay High Court notes as below:

“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”.

The court further notes that “PW-3 (the victim) 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 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”.

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The offence came to light only after a few months when someone in the victim’s house doubted that she was pregnant and she was taken to a hospital where her pregnancy was confirmed.

Subsequently, a First Information Report (FIR) was lodged against an unknown person and during probe it the appellant was arrested.

The victim, subsequently, gave birth to a male child, whose DNA matched with that of the appellant and the victim.

The special court in Kalyan district on January 28, 2016 sentenced Anil Ramesh Kolhe to life imprisonment for the remainder of life.

The High Court noted from the statements of the victim, that apart from narrating the entire incident of rape, she expressed her desire to marry the appellant but her family disallowed the same.

It further took into account the mental health report of the victim, which concluded that she had mild mental retardation.

“Reading of the medical evidence coupled with the evidence of the victim shows that though she was major, she was capable of understanding the consequences of her acts, however considering her mental condition or disability which is certified and does not stand disproved, appellant took advantage of the victim and committed the offence,” the bench opined.

The Bombay High Court reiterated the observations of the Supreme Court 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, her privacy and personal integrity has been shattered by the appellant,” the bench observed while upholding the conviction.

The Bombay High Court commuted the life sentence imposed on the appellant to 10 years jail term. It also enhanced the fine amount to ₹50,000.

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