Trial court must ascertain what child victim means by ‘rape’ when there is no medical evidence: Telangana High Court

The Telangana High Court recently observed that when there is no corroborating evidence in a rape case involving a minor, the trial court must ascertain what the victim girl means by the word ‘rape’. [Kathula Vasu v. State of Telangana].“When the victim is a child and in one word, she states that ‘rape’ was committed, it would become imperative in such cases when there is no other corroborating evidence, to know from the victim girl as to what is meant by her narration of ‘rape’,” the Court said.Justice K Surender said that when the victim states that she was subjected to rape, the court may seek clarification from the victim by putting questions as contemplated under Section 165 of Indian Evidence Act.“The said understanding of the victim as to what is meant by word ‘rape’ by the Court concerned is for the reason of the specific requirements given under Section 3 of the [POCSO] Act of 2012 as to what constitutes penetrative sexual assault and what constitutes ‘rape’ under Section 375 IPC,” the judgment stated..The Court made the observations while setting aside the conviction of an accused under Section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act. Instead, the Court convicted the accused under Section 8 (sexual assault) of the Act and sentenced him to three years jail..The convict had appealed against a trial court judgment by which he was sentenced to undergo rigorous imprisonment of 20 years for rape of the minor girl. His counsel argued there was no corroborative medical evidence in the case.On the contrary, the prosecution argued that the victim's statement was sufficient to convict the accused. It was also submitted that since the rape had occurred 20 days before the lodging of complaint, the question of finding medical evidence did not arise..Looking into the victim’s statement in which she mentioned that the accused pressed her chest and “forcibly committed rape” on her, the Court said,“The use of word ‘rape’ by the victim girl in the present circumstances cannot be made sole basis for the Court to assume or draw inference that penetrative sexual assault had taken place”..The Court said it is understandable to accept a victim’s statement on rape when she is a married woman or understands what constitutes rape. However, in the instant case, the Court opined there was nothing on record to show that the victim “had knowledge” about sexual act or what constitutes ‘rape’."When there is no corroborating medical evidence or any other oral corroborative evidence, the Court has to place reliance on the testimony of the victim. If the testimony inspires confidence of the Court, the sole testimony can be made basis to convict the accused. However, in the cases where a statement is made that the accused had committed ‘rape’, the Court has to be cautious before concluding that the offence of rape has been committed.".It added that the finding of court would result in sending a person to life imprisonment in such cases. Courts have to be more cautious and a duty is cast upon them to infer from the admissible evidence on record regarding the allegation of rape, the judge said.Concluding that prosecution had failed to prove the offence of aggravated penetrative sexual assault, the Bench said that it cannot be held that the victim was raped.However, since the victim had mentioned about accused pressing her chest and waist, the Court said it clearly fell within the definition of sexual assault under POCSO Act.Advocate MV Venu represented the petitioner..[Read Judgment]