New Delhi [India], September 3 (ANI): Observing that a four-and-a-half-year-old child cannot be expected to describe a sexual assault using “technical, legal or medical terminology”, the Delhi High Court has overturned the acquittal of a man in a 2008 rape case, holding that the trial court adopted an unduly narrow approach by insisting on an express assertion of “penetration” by the child victim.
A division bench of Justice Navin Chawla and Justice Ravinder Dudeja said the testimony of a child witness must be assessed in its substance and in the context of the child’s age, trauma and natural manner of narration, rather than on whether she used precise anatomical or legal language.
“The Court must remain sensitive to the fact that a child of four years is incapable of understanding or articulating the legal ingredients of the offence and cannot be expected to describe the act in precise language,” the High Court said.
The bench was hearing an appeal filed by the State against a 2010 trial court judgment which had acquitted Munna Kumar of the rape charge under Section 376 IPC but convicted him under Section 354 IPC for outraging the modesty of the minor.
Setting aside the acquittal, the High Court held Kumar guilty under Section 376(2)(f) IPC and said the evidence established beyond reasonable doubt that he had committed penetrative sexual assault upon the child. The court will hear him on the quantum of sentence on September 10 and has issued non-bailable warrants since he was not present before the court.
The case dates back to August 10, 2008, when the child, then aged about four-and-a-half years, allegedly went to Kumar’s room for tuition. According to the prosecution, she returned home late in the evening complaining of pain and bleeding from her private parts.
The trial court, however, had held that the prosecution failed to establish rape as the child had not specifically stated that penetration had taken place. It had observed that her statement about being made to lie down and suffering pain was insufficient by itself to establish the offence under Section 376 IPC.
“We are also unable to comprehend the reasoning of the learned Trial Court that the offence of rape remained unproved merely because the prosecutrix did not expressly use the word ‘penetration’ in her testimony,” the bench said.
It added that the child had consistently stated that the accused removed her clothes, removed his own clothes, made her lie down, lay on top of her and caused pain in her private parts, following which she started bleeding and immediately narrated the incident to her mother.
“Her narration of the incident, though expressed in childlike language, clearly conveys the occurrence of penetrative sexual assault and cannot be discarded merely because she did not use the specific expression ‘penetration’,” the court held.
The bench further criticised the trial court for examining the evidence in isolation rather than considering the cumulative effect of the ocular, medical and forensic material.
According to the High Court, the child’s testimony was corroborated by medical evidence showing a torn hymen and a 1.2 cm tear, as well as forensic reports recording the presence of human semen on the underwear of the minor victim.
The court said the absence of active bleeding when the child was medically examined the following day could not mean that she had never bled, particularly when the evidence showed that she had first been taken to a private hospital before being referred to DDU Hospital.
The bench also noted that blood and semen were detected on certain articles recovered from the accused’s room. While the investigating agency had failed to establish the blood group of the victim and accused, the court held that such investigative lapses could not override the otherwise cogent medical and scientific evidence.
“The presence of semen on the underwear of a four-year-old victim is a circumstance which strikes at the very core of the respondent’s defence,” the court observed.
Rejecting the defence contention that the child had been tutored, the court said her statement that her parents and a lady advocate had instructed her before giving evidence was, by itself, insufficient to conclude that she had been prompted during her deposition.
The High Court also found no material suggesting any credible motive for the victim’s family to falsely implicate Kumar. It noted that the accused himself had taken inconsistent stands regarding the alleged reason for false implication.
In particularly strong observations, the bench said the case revealed the “ordeal of a child, barely four and a half years of age, who was betrayed and sexually assaulted by a neighbour, whom she used to call ‘Bhai’ and would ordinarily have trusted”.
The court said a child of such tender age could not be expected to describe a traumatic sexual assault with “clinical precision” and that what mattered was whether the substance of the testimony was natural, truthful and consistent.
Holding that the trial court had misdirected itself in appreciating both the oral and scientific evidence, the High Court said its findings suffered from a “manifest mis-appreciation” of the medical and forensic material.
It consequently set aside the 2010 judgment acquitting Kumar of rape and the sentence imposed for the lesser offence under Section 354 IPC. The matter will now be taken up on September 10 for hearing Kumar on the question of sentence. (ANI)
Delhi HC says child rape victim cannot be expected to describe assault with ‘clinical precision’, reverses acquittal
