Section 133A of the Evidence Act 1950 : This section concerns the testimony of children of tender years. If the court deems a child sufficiently intelligent to comprehend the importance of truthfulness and their testimony is considered reliable, it can be accepted even if not sworn under oath. Once recorded in writing according to Section 269 of the Criminal Procedure Code (which pertains to offenses allowing arrest without a warrant), such testimony is treated as a formal deposition;
Aggravating factor : The accused, X, being Y’s biological father, significantly aggravates the offense due to the betrayal of trust inherent in his role as her protector.
Consent and Legal Definitions:
Penal Code Definition: According to Section 375 of the Penal Code, rape involves sexual intercourse without consent, or where consent is obtained through duress, coercion, fraud, or misunderstanding;
Lack of Consent: The prosecution is tasked with proving that the sexual act was performed without the victim’s voluntary and informed consent, which must be given freely and consciously, absent any form of coercion, intimidation, threat, or physical force;
Force or Coercion: Involves either the actual application of physical force, or the threat thereof, along with psychological pressure or manipulation.
Capacity to consent: Considers whether the victim had the mental and emotional capacity to consent, considering factors like intoxication, disabilities, and overall vulnerability.
Penalties: Conviction can lead to imprisonment ranging from a minimum of five years to a maximum of twenty years and may include whipping.
03Application to Scenario
In this scenario, the court is likely to determine that the defendant exploited the victim’s learning disability to commit the crime during her early childhood.
Additionally, the victim demonstrated the ability to comprehend and respond appropriately to critical questions in the case. The court would deem the victim a credible witness, capable of understanding the questions and responding in straightforward terms.
04Reference cases
Mohamed Jusoh bin Abdullah and Anor v Public Prosecutor [1947] MLJ 130
Letitia Bosman v Public Prosecutor and other appeals (No 1) [2020] 5 MLJ 277
Mohd Radhi Bin Yaakob (supra)
Mohd Jaffri bin Wazin v Public Prosecutor [2024] MLJU 1060
