3-year-old child cannot be expected to describe private parts: Bombay High Court upholds POCSO conviction

A girl, who is less than 3.5 years of age, cannot be expected to give exact description of her private parts, the Bombay High Court observed while upholding conviction of a person under the Protection of Children from Sexual Offences Act (POCSO Act) for raping the minor. .Single-judge Justice Bharati Dangre, therefore, dismissed an appeal filed by the accused challenging his conviction by a special judge in Mumbai for penetrative sexual assault under Section 6 of the POCSO Act and for rape under 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 said..Justice Dangre noted how difficult it was for the special judge to record the version given by the minor victim during the trial, due to the victim’s age and lack of focus.“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 noted. .Justice Dangre concluded this after noting the special judge’s record which clarified that the victim had not been able to disclose the incident openly, but was whispering in her ears, while fiddling with things on the table while answering. “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’s case was that in November 2017, the victim had been sexually outraged by the accused, her friend’s father who lived in the neighbourhood.In the afternoon hours, while she was playing with her siblings, with her mother just around, she was taken to the house by the accused and he fingered her, as a result of which she started bleeding. The little girl rushed to her mother and took off her panty and went to toilet. She was unable to pass urine and was touching her private part and shouting in pain and agony. The mother noticed blood coming out and when she inquired, the victim disclosed to her that the accused had put his finger in her vagina.After a first information report (FIR) was registered the next day, the accused was arrested, chargesheeted and the trial was concluded after examination of 8 witnesses.The trial court convicted him leading to the appeal before the High Court. .The High Court noted there was no reason to disbelieve the victim’s deposition before the trial court where the act had been attributed to the accused.“The girl is relatively ingenuous, not capable of understanding the consequences of the act to which she has fallen prey and that it amounts to an offence. There is no reason why the mother should tutor the child of tender age to be a participant in such a churlish act of which she complained,” the Court concluded. The Court said that the deposition of the child along with the medical evidence established the guilt of the accused..Justice Dangre also said that by convicting the accused, the courts were trying to impose adequate punishment to the accused for causing trauma to the victim which could possibly have a long lasting impact. “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..[Read Judgment]