A single judge bench of the Bombay High Court recently observed that a child aged 3.5 years cannot be expected to give an exact description of her private parts, while upholding a conviction in a POCSO case.
“A little girl of 3.5 years, who is not even introduced to her own organs, cannot be expected to give an exact description of her private parts but in her statement recorded u/s 164, she has categorically said she was touched at the ‘toilet place’… When she deposed before the court, she clearly stated that a finger was put in her private part as a result of which a lot of blood gushed out. She was surely not in a position to exactly describe the incident, on account of her simplicity and purity, not yet spoiled by mundane affairs,” the court, comprising Justice Bharati Dangre, observed.
A plea was filed against the order of a special court convicting the accused under Section 6 (penetrative sexual assault) of the POCSO Act and Section 376 (rape) of the Indian Penal Code.
Justice Dangre observed that the girl could not be protected from the sexual offence but the wheels of justice have turned in her favour.
“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 that 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 bench noted.
The case pertains to an incident that took place when the child was playing with her siblings and her mother was around as well. The accused took her inside the house and inserted a finger inside her private parts due to which she started bleeding. The girl rushed to her mother and went to the toilet, but was unable to urinate and touched her private part while shouting in pain and agony.
The mother noticed blood oozing out and when she asked her what had happened, she told her that the accused had put his finger inside the place from where she urinated.
Soon, the parents took the girl to the hospital and an FIR was filed. The court, while upholding the sentence of rigorous imprisonment of 10 years and fine of Rs 25,000, said that, “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 causes,” the order read.
Further, the HC also observed that, “There is no reason to disbelieve the victim girl as she has deposed before the court and attributed the specific act to the accused and 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 victim girl has attributed the act of sexual violence to the accused and there is also no reason why the mother should tutor the child of tender age to be a participant in such a churlish act about which she complained,” the order stated.
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