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The Madras High Court recently emphasised that the Court has to ordinarily believe the child in cases of child rape, rather than be influenced by misconceptions that children lie or that they may be tutored. In this regard, Justice S Vaidyanathan observed,
“In cases of rape victims, the Court has to believe what is reported by the child. There are misconceptions that children lie or that they are tutored by parents to make false complaints against others. Such myths should not affect the manner in which the Court responds to cases of child sexual abuse.“
In the case at hand, the judge proceeded to note,
“…the victim, at the time of occurrence, was a child, hardly aged 5 years. It is common knowledge that a child is prone to tutoring. But, it does not mean that on account of the said apprehension, a child should always be viewed with suspicion and her evidence should be rejected.”
The Court was dealing with an appeal filed by one, Ganapathy, against a trial court verdict sentencing him to ten years rigorous imprisonment and a Rs 2,000 fine for the rape of a five year old girl in 2011. Since the Protection of Children from Sexual Offences (POCSO) Act, 2012 had not been enacted at the time, Ganapathy was convicted for rape under Section 376 of the IPC.
Ganapathy challenged the trial court’s conviction and sentence on various grounds, including a two day delay in lodging the police complaint regarding the child rape and witnesses turning hostile in the case.
On an examination of the case records, however, the High Court found no merit in these grounds. On the question of delay, the Court was informed that the parents of the minor child had first approached local panchayatdars over the incident, before approaching the police. In any case, the Court observed,
“…one cannot expect the victim to rush to the Police Station with a complaint, because, rape of a girl will have adverse effect not only on the body of the victim, but also on her modesty. In a village situation, when it is alleged that a girl of tender age is raped, neither the girl nor her parents would be tempted to rush to the Police Station, immediately. It is a natural human conduct of the parents of the victim to have some reluctance to rush to the Police station and to make the entire event public, as it will have worst consequences on the future of the child. Thus, in the considered view of this Court, the delay has been duly explained and the said delay does not create any doubt at all in the case of the prosecution.“
As regards the contention that certain witnesses having turned hostile during cross examination, the Court pointed out,
“…because the said witnesses turned hostile, it does not mean that the entire incident which is alleged to have taken place is false, more particularly, when the minor victim girl has withstood the cross-examination, by narrating the events, after understanding the same.“
The Court further relied on the case of Shamim v. State(NCT of Delhi), wherein, it is held that, minor contradictions in statements of witnesses cannot be treated as fatal, unless such contradictions shook the root of the matter.
Minor victim’s testimony convincing, High Court
The consistent stance of the minor victim throughout the course of the case was particularly appreciated by the Court, which also noted that Section 118 of the Indian Evidence Act allows for treating child witnesses as competent witnesses if their testimony inspires the Court’s confidence.
Since the minor victim was examined medically days after the incident, the Court did not find any irregularity in no external injury being reported by the medical examiners. The Court, however, pointed out, that the girl had told the medical examiners that she was experiencing pain in her thighs when she tried to get up. It further took note of testimony given during the chief examination of a medical examiner that “the pain suffered by the victim while getting up, cannot be imitated.“
The Court ultimately concluded that,
“There is no reason as to why a five year old girl is going to lie, more particularly, when she has withstood the cross-examination on 11.06.2013, after two years from the date of the alleged incident on 26.09.2011. That apart, parents will not try to expose the child, unless the incident is so harsh. In this case, on a careful scrutiny of the evidence of P.W.3, we find that her evidence is so convincing and the same cannot be rejected at all. In fine, finding no merit in this Appeal, this Court holds that the prosecution has proved that the Appellant/Accused has committed rape on P.W.3 – minor victim girl.”
In this regard, the High Court also placed reliance on the law laid down in the Supreme Court’s judgment in State of Madhya Pradesh vs. Ramesh, and the Madras High Court judgement in Sekaran v. State by Inspector of Police, Vellore District.
The judge also found no merit in the allegation forwarded by the accused that the rape case had been foisted on him as a result of the enmity between the parties. The Court observed,
“… it is appropriate to cite an Apex Court decision in the case of Puranchand vs. State of Himachal Pradesh, (2014) 5 SCC 689, wherein, it is held that the version of the victim girl who was suffering the trauma of rape and was provoked to take the extreme step of consuming poison, cannot be doubted ignoring, even the fact that a girl would put herself to disrepute and go to the extent of supporting her parents to lodge a false case merely due to some enmity with the family of the accused, putting her honour at stake in a precarious mental state.“
The Court, therefore, dismissed the appeal and upheld the trial court’s conviction and sentence for rape, while also noting that partial penetration would be sufficient to make out an offence of rape. The Court held,
“Undoubtedly, a rape on a child is graver than a rape on an adult woman. Thus, the penetrative sexual assault by penetrating the penis into the vagina, is nothing but a rape as defined under Section 375 I.P.C…
…In the result, the Criminal Appeal fails and accordingly, the same is dismissed. The conviction and sentence imposed by the trial Court on the Appellant are confirmed. “