New Delhi, Sep 3 — The Delhi High Court has held that the absence of the word "penetration" in the testimony of a child victim cannot be a ground to acquit a rape accused, observing that a child cannot be expected to describe a traumatic sexual assault using technical, legal, or medical terminology.
Setting aside the acquittal of a man in a 2008 rape case involving a four-and-a-half-year-old girl, a Division Bench of Justices Ravinder Dudeja and Navin Chawla held that the testimony of a child victim has to be assessed by considering its substance, surrounding circumstances, and the natural manner in which the child narrates the incident.
The High Court observed that the trial court had adopted an "unduly narrow approach" by concluding that penetration was not established merely because the child had not expressly used the word.
"We are also unable to comprehend the reasoning of the learned Trial Court that the offence of rape remained unproved merely because the prosecutrix did not expressly use the word ‘penetration’ in her testimony," the Justice Dudeja-led Bench said.
The High Court was hearing an appeal filed by the state against the April 2010 judgment of the trial court, which had acquitted Munna Kumar of the charge under Section 376(2)(f) of the IPC but convicted him under Section 354 IPC and sentenced him to one year and six months’ rigorous imprisonment.
The case arose from an incident of August 10, 2008, when the minor victim, then aged about four-and-a-half years, went to the accused’s room for tuition. According to the prosecution, she complained of pain and was found bleeding from her private parts. The victim, in her testimony before the trial court, stated that the accused had removed her underwear and his own clothes, made her lie on the bed and caused pain to her private parts. She also indicated her genital area while describing the incident. She further stated that blood started oozing from her private part after the incident.
The High Court recorded that the victim had narrated the incident immediately to her mother and had consistently spoken about the occurrence in her statement recorded under Section 164 Cr.P.C. and before the trial court.
"Her narration of the incident, though expressed in childlike language, clearly conveys the occurrence of penetrative sexual assault and cannot be discarded merely because she did not use the specific expression ‘penetration’,” the bench said.
It observed that a child of four years was incapable of understanding or articulating the legal ingredients of the offence and could not be expected to describe the act with precision.
"The testimony of a child witness cannot be assessed on the touchstone of technical, legal, or medical terminology, but must be appreciated by considering its substance, the surrounding circumstances and the natural manner in which the child of such a tender age narrates such a traumatic incident of rape," it said.
The Delhi High Court also relied on medical and forensic evidence corroborating the victim’s account. The medical examination recorded that her hymen was torn, with a 1.2 cm tear, while the forensic reports confirmed the presence of human semen on the victim’s underwear.
The High Court rejected the argument that the absence of active bleeding at the time of medical examination weakened the prosecution case, observing that the incident had occurred several hours before the examination and that the child had first been taken to a private hospital. It also held that the investigating agency’s failure to determine the blood group of the victim and the accused was merely an investigative lapse and could not outweigh the otherwise cogent medical and scientific evidence.
It further recorded that the accused had offered no explanation for the presence of blood and semen on articles recovered from his room and had not put any suggestion to prosecution witnesses regarding the presence of semen on the child’s underwear.
Rejecting the defence argument that the child had been tutored, the Delhi High Court said there was nothing on record to establish that her parents or the advocate had prompted her during her deposition. It also referred to a Supreme Court’s judgment, where it was held that even the silence of a traumatised child victim cannot automatically benefit an accused when other medical and circumstantial evidence establishes the offence.
The High Court observed that the trial court had failed to appreciate the cumulative effect of the ocular, medical, and forensic evidence and had instead assessed each circumstance in isolation.
"The courts recognise that a child of such tender age cannot be expected to describe the act with clinical precision; what is material is whether the substance of the testimony is natural, truthful, and consistent," the judgment said.
Holding that the prosecution had proved its case beyond reasonable doubt, the Delhi High Court set aside the trial court’s judgment and convicted Munna Kumar under Section 376(2)(f) IPC. It also directed that the convict be produced before it on September 10 for hearing on the quantum of sentence. As he was not present during the hearing, the Justice Dudeja-led Bench ordered issuance of non-bailable warrants against him.