Bombay HC accepts 6-year-old’s evidence, upholds man’s rape conviction

“The evidence of the child victim is clear and cogent in respect of the penetrative sexual assault suffered by her. There is nothing in her evidence to indicate that she is a tutored witness,” said Justice A M Badar.
Taking into account evidence of a minor girl who was allegedly raped by her neighbour when she was six years old, the Bombay High Court recently upheld the man’s conviction under the Protection of Children from Sexual Offences (POCSO) Act and under the Indian Penal Code (IPC) for rape. The court said: “The tone and tenor of evidence of minor female victim reflects that she is a witness who has attained sufficient maturity and understanding in order to enable her to give rational answers to the questions put to her.”
“The evidence of the child victim is clear and cogent in respect of the penetrative sexual assault suffered by her. There is nothing in her evidence to indicate that she is a tutored witness,” said Justice A M Badar.
The accused had challenged in the High Court a December 2015 order by a Special Judge in Pune, convicting him under the POCSO Act and the IPC.
While the special Judge had sentenced the accused to seven years under POCSO Act and seven years under the IPC separately, the High Court said Section 4 of the POCSO Act was equivalent to Section 376 (rape) of the IPC, and hence “sentence of the accused for the offence punishable under Section 376 of the IPC needs to be quashed and set aside”.
The incident took place on December 22, 2013 in Pune. The victim was then studying in Class I. The accused, who was her neighbour, took her with him to play games on his mobile phone and then assaulted her.
“One may argue that being a child witness, version of this minor female victim carries no weight and the same cannot be relied upon to base conviction in such serious offence. However, it needs to be kept in mind that as provided by Section 118 of the Evidence Act, a child is indisputably a competent witness if such child understands the questions put to her and gives rational answer,” said the court.
Pointing to certain questions that were posed to her, the court added that “all these aspects which are reflected from the cross examination of the minor female victim show that the incident which took place with her was clearly imprinted in her brain so as to enable her to recollect the same while in the witness box. There is nothing in the cross­-examination of this witness to disbelieve her version recording the incident of sexual assault on her.”
When the accused’s lawyer Satyavrat Joshi pointing out that the victim had not mentioned the date of the incident, the court said that was inconsequential.
“Such a discrepancy cannot touch the core of the prosecution case, which is in respect of the commission of penetrative sexual assault. Ultimately, the court will have to keep in mind age of the witness at the relevant time, and therefore, merely because date of the incident is not stated by the victim, her evidence cannot be doubted. She is not expected to have such chronometric sense at the tender age,” added Justice Badar.
The court further held that evidence of a doctor also showed “there was possibility of penetrative sexual vaginal intercourse with the victim.”
“It hardly needs to be mentioned that rape is a ghastly act which leaves the victim shattered for the life as it causes not only physical but emotional and psychological trauma to the victim. Sexual activities with young girls of immature age have a traumatic effect on them, which persists throughout their life leading to several disorders and complications. It is well settled that the victim of a sexual assault is not an accomplice, but she is a victim of lust of another person. Her evidence stands at a higher pedestal than that of an injured witness. Evidence of victim of rape case is required to receive same weight as is attached to evidence of an injured witness,” observed the court.
It further held that “If totality of circumstances emerging on record discloses that the victim of such crime does not have any motive to falsely implicate the accused, then, it is not required to seek corroboration to her evidence and the court generally needs to accept her evidence. While dealing with cases of sexual assault on females of tender ages, the court is expected to shoulder great responsibility and is required to deal with such cases sensibly.”

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