Absence of the word “penetration” in a child victim's testimony cannot be a ground for acquittal of rape accused, the Delhi High Court recently held while convicting a man for raping a four-and-a-half-year-old child.
The trial court had acquitted accused Munna Kumar of rape charges and convicted him only under Section 354 of Indian Penal Code (IPC) for outraging the child's modesty.
However, a bench of Justices Navin Chawla and Ravinder Dudeja of High Court held that the trial court committed a grave error by insisting on technical language from a toddler.
"The testimony of a child witness cannot be assessed on the touchstone of technical, legal or medical terminology, but must be appreciated by considering its substance, the surrounding circumstances and the natural manner in which the child of such a tender age narrates such a traumatic incident of rape. 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."
Hence, it set aside the 16-year-old trial court decision and convicted the accused.
According to the prosecution, on August 10, 2008, the victim visited the accused, her neighbour, who used to tutor her. She later returned home bleeding from her private parts.
The child deposed that the accused removed her underwear, took off his pants, laid her on the bedding, and caused her severe genital pain.
The High Court noted that her account was fully corroborated by the medico-legal certificate which documented a 1.2 cm tear of the hymen. Forensic reports confirmed the presence of human semen on the child’s seized underwear.
However, the trial court acquitted him of rape citing the absence of the word "penetration" in the testimony of the child-victim.
This led to the appeal before the High Court.
The High Court said that the evidence on record 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.
"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 underscored.
The Court rejected the accused's unsubstantiated defence of false implication, holding that investigative lapses such as the failure to match blood groups could not dismantle an otherwise cogent case.
Thus, it convicted the accused and listed the matter for September 10 to hear arguments on the quantum of sentence.
Additional Public Prosecutor Aman Usman with advocate Manvendra Yadav appeared for the State.
[Read Judgment]