‘Can’t expect 4-yr-old to describe assault precisely’: Delhi HC overturns rape acquittal

“We are also unable to comprehend to 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 court said.

“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 added.

The Delhi Police, represented by Additional Public Prosecutor Aman Usman, had moved the HC against the judgment of April 10, 2010, in which a trial court had acquitted the accused of rape but convicted him for assault or criminal force to woman with intent to outrage her modesty.

The man was sentenced to rigorous imprisonment of a year and six months.

APP Usman submitted that the trial court had “erred in acquitting the respondent of the offence under Section 376 IPC while simultaneously convicting him under Section 354 IPC on the very same set of facts and evidence”.

The court had erroneously held that the prosecution had failed to prove rape merely “because the victim had not expressly used the word “penetration” in her testimony”, Usman argued.

Usman told the court that even though the investigating agency had failed to collect the blood group of the victim, which prevented a conclusive determination that the blood stains belonged to the victim, blood-stained clothes including a bedsheet were recovered from the house of the accused.

“…The learned Trial Court proceeded mainly on the premise that the prosecution had failed to establish penetration merely because the prosecutrix did not expressly depose to the same. Such an approach overlooks that the testimony of a child victim cannot be assessed with undue emphasis on technical or anatomical terminology,” the HC said.

“The medical evidence on record unequivocally corroborates the prosecution case and completely belies the findings returned by the learned Trial Court. The gynae examination of the victim was conducted at the hospital. The MLC…(establishes) the existence of injury to her genital parts,” the court said.

The HC also said that the trial court had failed to appreciate the medical and forensic evidence and had assessed each circumstance in isolation.

“The evidence on record reveals the ordeal of a child, barely four and a half years of age, who was betrayed and sexually assaulted by a neighbour, whom she used to call “Bhai” and would ordinarily have trusted. Her prompt disclosure of the incident to her mother (PW-7), her consistent narration before the Magistrate (PW-14) under Section 164 CrPC and her testimony before the Trial Court inspires confidence,” the court said.

“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. In the present case, the testimony of the prosecutrix stands amply corroborated by medical evidence…,” it added.

Arguments on the quantum of the sentence will be heard on September 10.