Justice Dangre made a point to mention how challenging it was for the special judge to record the version of events provided by the minor victim during the trial. The judge had a difficult time keeping the victim’s attention span and age in mind.
The Bombay High Court, in upholding the conviction of a rapist under the Protection of Children from Sexual Offenses Act (POCSO Act), noted that a girl younger than three and a half years old cannot be expected to give a precise description of her private parts.
Therefore, Justice Bharati Dangre dismissed the accused’s appeal of his conviction by a special judge in Mumbai for penetrative sexual assault in violation of Section 6 of the POCSO Act and for rape in violation of Section 376 of the Indian Penal Code (IPC).
“A little girl of 3 ½ years who is not even introduced to her own organs, cannot be expected to give exact description of her private parts, but in her statement recorded u/s.164, she has categorically stated that her friend’s father had touched her at the toilet place by his nails. The little girl further says that he is a bad uncle, “गंदेअंकल है“. When she deposed before the Court, she clearly stated that finger was put in her private part, as a result of which lot of blood came out. She was not surely in a position to exactly describe the incident, on account of her simplicity and purity, not yet spoiled by mundane affairs. This guileless innocent girl did not realize its seriousness, and that is why the doctor before whom she appeared for medical examination, deposed that she was normal, being unaware of the seriousness of the act forced upon her,” the Court observed.
“It cannot be expected from a little girl, barely four years old, to focus on the photograph and identify the person, specifically as a child of that age may not be able to focus on a point due to underlying anxiety or being distracted by external stimuli. In the case of this girl, the stressful situation, she was facing, may also be one of its cause”, the High Court said.
Justice Dangre reached this conclusion after reviewing the special judge’s record, which clarified that the victim was unable to disclose the incident openly because she was whispering in her ears and fidgeting with objects on the table while responding.
“I do not think more responsible behaviour can be expected from a little girl of this age, and it must have been an ardous task for the Special Judge to extract her version, but she clearly described the act committed by the accused and denied that she was giving false statement,” the High Court observed.
The prosecution claimed that in November 2017, the victim was sexually abused by the accused, a friend’s father who lived nearby.
She was taken to the house by the accused in the afternoon hours, while she was playing with her siblings and her mother was nearby, and he fingered her, causing her to start bleeding. The little girl ran to her mother, removed her panty, and went to the toilet. She was unable to pass urine and was screaming in pain and agony while touching her private parts. When the mother noticed blood coming out, the victim revealed that the accused had put his finger in her vagina.
The accused was arrested and charged the next day after a first information report (FIR) was filed, and the trial was concluded after the examination of eight witnesses. The trial court convicted him, prompting his appeal to the High Court. The High Court stated that there was no reason to doubt the victim’s testimony before the trial court, where the act was attributed to the accused.
“Though the little girl could not be protected from the sexual offence committed upon her, the wheels of justice have been turned to her by convicting the appellant for the wrong which he has done resulting into a trauma which has remained unexpressed but may leave a long lasting impact upon her, and by imposing adequate sentence” the judge said in the 13 page order.
The court stated that the testimony of the child and the medical evidence proved the accused’s guilt. Justice Dangre added that by convicting the accused, the courts were attempting to impose an appropriate punishment for causing trauma to the victim, which could have potentially long-lasting effects.
