Delhi HC berates trial court for complete lack of sensitivity in rape case
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Delhi HC berates trial court for complete lack of sensitivity in rape case

Meera Emmanuel

The Delhi High Court recently cautioned against adopting a cut and dry approach when it comes to dealing with rape cases, more so when the victim is a minor.

While reversing the trial court’s acquittal of a man accused of raping a minor, the Court observed,

Sexual offences carry with them a great deal of shame, embarrassment and guilt for the victim and the other family members. It is not easy, and it requires courage and confidence for the victim to speak up and disclose the offence. This is more so when the victim and other witnesses are small children and have been threatened with dire consequences.

Unfortunately, the Ld. ASJ has shown complete lack of sensitivity and understanding of human behavior in this regard while appreciating the evidence.

The Division Bench of Justices Vipin Sanghi and IS Mehta was prompted to issue the warning after taking note of the trial court judge’s complete lack of sensitivity to human feelings and limitations in rejecting the testimony of a 11-year-old rape survivor and her minor sisters who witnessed the rape.

The trial court had acquitted the rape accused citing contradictions and inconsistencies in the testimony of the prosecution witnesses, including the minor sisters of the victim.

The crime took place in February 2013, when the accused visited the victim’s house on a night when her older brother and mother were not home. The accused raped the victim after waking her up and covering her mouth and thereafter threatened her not to speak of the incident.

The victim informed her brother of the rape after he returned home that night. The victim’s brother also testified that when he returned to the house, he encountered the accused making his way out of the house. The criminal complaint was registered 2-3 days later after their mother was told of the incident upon her return.

A major factor which led the Delhi High Court to set aside the trial court’s finding that the testimony of the prosecution witnesses was not credible, was the fact that the rape was recounted by the minor victim in lurid detail. This, despite the fact that the minor witnesses were not expected to be familiar with such sexual activity.

It is evident from the statement of the prosecutrix, that she had no earlier experience of sexual activity. She stated in Ex. PW1/A that on account of penetration by the accused into her vagina, she suffered considerable pain and, thereafter, some hot fluid “garam paani” was discharged. This refers to the act of ejaculation of semen by the accused– a phenomenon with which she was not conversant. It is on this account that she described the ejaculation of semen as the discharge of “garam paani” when her statement was recorded under Section 164 Cr.P.C. She described the offence by stating that the accused raised her legs while committing the act.

This, again, is a graphic narration of the incident by the prosecutrix which she would not have given had she not actually been subjected to rape. The prosecutrix and PW-2 and PW-7 are all minors. Their statements have to be approached with caution. Their statements are duly corroborated and rule out the possibility of tutoring.

Even otherwise, the High Court noted that minor witnesses cannot be expected to recount the event in perfect detail at their young age.

The Ld. ASJ, in our view, has taken an absurdly hypothetical view of the matter. It is well settled that minor aberrations and inconsistencies naturally creep in the statements of witnesses. That cannot be a reason to discard the, otherwise, credible and consistent testimonies of the witnesses.

The Ld. ASJ failed to appreciate that PW7 was merely 8 years old at the time when her statement was recorded… the statement of PW7 was recorded, nearly 2 years after the incident. When the incident took place, she was still very young. To expect such exacting recollection and memory from anyone, much less a child, who is barely 8 years of age, is to live in an unrealistic world.”

After examining their testimonies in detail, the High Court ultimately concluded,

Insofar as the incident is concerned, the statements of PW1 [prosecutrix], PW2 and PW7  are consistent and credible. In our view, the minor embellishments and inconsistencies with regard to the subsequent developments which took place before the police was called are not sufficient to raise any doubt on the case of the prosecution which has remained intact.”

Another ground cited by the trial court to acquit the accused was that there were doubts as to whether the prosecutrix was actually below 12 years old at the time. Such reservations were based on information relayed to the police when the offence was initially reported by a phone call.

During this phone call, the police was told that the victim was a 15-year-old girl. However, it was noted that the consistent stand taken by the prosecution, the victim, and her family was that the victim was only 11 when the rape occurred.

Apart from concluding that there was sufficient material on record to prove that the victim was indeed below 12 years old when the rape took place, the High Court emphasised that such minor inconsistencies should not derail the focus from the crime itself. It was observed,

The approach of the Ld. ASJ in dealing with the aspect of the age of the prosecutrix is completely flawed. Firstly, we may observe that whether the prosecutrix was below 12 years of age or above 12 years of age, and less than 18 years of age – or even above the age of 18 years, is not relevant insofar as the offence of rape is concerned. The law deals with rapes involving below 18 years of age under the special enactment, namely, the Protection of Children against Sexual Offences Act (POCSO ACT)…

…However, from the discussion found in the judgment, it is evident that the ld. ASJ appears to be reeling under the impression that unless the age of the prosecutrix is established to be under 12 years, the offence of rape would not be made out…

we may observe – at the cost of repetition, that the offence of rape does not get obliterated even if the prosecutrix is assumed to be above the age of 12 years. The only consequence – of the prosecutrix being found to be below 12 years of age, is that the rape, if established to have been committed, would tantamount to aggravated sexual assault as defined in Section 5(m) of the POCSO Act.”

Therefore, the Court set aside the trial court’s judgment and convicted the accused under Sections 5 and 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, after observing,

The Ld. ASJ, unfortunately, has shown complete lack of sensitivity to human feelings and limitations. The cut and dry approach demonstrated by the Ld. ASJ has led to serious miscarriage of justice. We find that the reasoning given by the Ld. ASJ is, even, otherwise, absurd…

The impugned judgment, in our view, suffers from serious infirmities. The approach of the Ld. ASJ in appreciation of evidence has led to a grave miscarriage of justice. The approach of the Ld. ASJ is not judicious, as in the formation of his opinion, he has got influenced by wholly irrelevant and minor embellishments and inconsistencies, which are bound to creep-in in any case.”

Read the judgment:

Delhi-HC-NCT-Delhi-v-Sumit-Kumar-Oct-12-2018.pdf
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