MUMBAI: A little girl aged three and half, not even introduced to her own organs cannot be expected to give an exact description of relevant parts, said Bombay high court upholding a conviction and 10 years’ rigorous imprisonment given by a Mumbai special trial court to a man for a November 2017 rape and offence under Protection of Children from Sexual Offences Act (POCSO).
Justice Bharati Dangre dismissed an appeal filed in 2019 against the conviction and directed the accused to complete his sentence.
Quoting an unknown author, Justice Dangre said, "Little girls dance their way into your heart, whirling on the tips of angel wings, scattering gold dust & kisses in our paths'. One such little girl, 'X', born on 9/6/2014 underwent a harrowing experience, barely 3 years five months, when she was sexually outraged by a man residing in her neighborhood whom she referred to as 'uncle', her friend’s father."
"Gande uncle hain" (bad uncle) the gilr had said.
The HC noted that she specifically answered a query on what had happened. He had taken her to his house in the same neighbourhood, when she and siblings were playing and she rushed home and told her mother.
Given the nature of the crime, she had to depose at a tender age. A special Judge under Protection of Children from Sexual offences Act (POCSO) had said, "she gave answers after a long time. She gave answers by coming near me or in my ear." She fiddled with things on the table while giving answers.
The prosecution had examined eight witnesses, including the tiny tot, to bring home the guilt.
"There is no reason to disbelieve the victim girl as she has deposed before the Court and attributed the specific act to the accused", said the HC. The girl is "not capable of understanding the consequences of the act to which she has fallen prey and that it amounts to an offence". said Justice Dangre, finding no reason why the mother should "tutor" her.
The lawyers for the accused said the guilty verdict was "fallacious’" and failed to factor in "ommissions and contradictions" in deposition of the child and her failure to identify the accused or his photograph.
Justice Dangre found no merit in the submission of the lawyers of the accused of inadequate evidence in his identification. Justice Dangre said the girl was "well acquainted with the accused. The landlady said children used to play in the house of the accused and he “used to take care of them."
The HC said, "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 cause."
The next day a medical examination was done and after an FIR was registered, the police arrested the accused.
The HC in its judgment uploaded on Thursday said, "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 which he has done, resulting in a trauma which remained unexpressed but may leave a long lasting impact upon her and by imposing adequate sentence."
(The victim's identity has not been revealed to protect her privacy as per Supreme Court directives on cases related to sexual assault)
