How, despite extreme limitation of age and understanding of body, prosecution proved attempt to rape on a child of three

highcourtIn a rare judgment, the Gujarat High Court has held out against giving benefit of doubt to an accused simply because the victim of rape (or attempted rape) is too young to describe what happened to her. Excerpts from the Gujarat High Court judgment, delivered on May 4-5, 2015, by Justice Ravi R Tripathi and Justice Sonia Gokani:

The complainant is the legal guardian and mother of the prosecutrix-victim, who was aged three years on October 4, 2011. An FIR in this regard had been registered with Halol Police Station of Panchmahal district on October 5, 2011. The complainant, wife of Mohmmed Hanif has alleged that, though she was married, her husband left her for another woman, and was residing at Godhra. She along with the prosecutrix viz., minor daughter, were residing in a rented house of one Juberbhai Makrani at village Baska. The accused-respondent resided in the same locality leaving three houses from the house of the appellant, who also had a daughter aged three years.

Prosecutrix and the daughter of the accused, both being of the same age, they were playing together.  Being single mother, whenever she had to go for work, she used to keep her daughter with the respondent and his wife Nayna. On the date of incident, October 4, 2011, she had gone to market leaving prosecutrix at the house of the respondent with Naynaben. In the evening, when complainant was bathing the prosecutrix, she noticed some redness and swelling on the private parts of the prosecutrix and upon asking the prosecutrix, she was informed that the respondent had inserted his finger in her private parts, while she had gone to his house.

It was also noticed that the prosecutrix was unable to pass urine and she had severe pain in her private parts as well as in her stomach. This incident had happened when the wife of the respondent went to attend nature’s call. The complainant had spoken to the women folk in the neighbourhood who all went together to the house of the respondent; however, he denied of occurrence of any such incident. The next morning, she went to Halol Police Station and also to get medical treatment at hospital for her daughter. Thus, FIR came to be lodged for the offences punishable under section 354 IPC.

The prosecutrix was initially referred to Referral Hospital at Halol and, thereafter, she was referred to SSG Hospital at Baroda where she was admitted as an indoor patient for 10 days. Her condition had worsened during the treatment; however, she gradually improved, as she was taken for counseling for her mental trauma to Child Guidance Clinic and Indian Council of Social Welfare thereafter.

After the complaint was investigated, charge-sheet was placed before the Court concerned. After hearing both the side extensively, it convicted the accused under 354 IPC and sentenced him to undergo rigorous imprisonment for a term of two years and directed to pay fine of Rs. 10,000, out of which 50 per cent was to be paid to the prosecutrix.

The trial Court, however, acquitted the accused of the charges under sections 376 and 511 IPC. This resulted into giving rise to these two appeals.

Shilpa Shah’s argument

Learned advocate Shilpa Shah appearing for the appellant forcefully submitted that the acquittal for the offence under section 376 read with section 511 IPC has no sustainable basis. She urged that it was a clear case falling under section 376 IPC. The Court ought to have appreciated the limitation of the young girl who was barely three years old and who would have no clue with regard to the male genital. The Court has held this to be a case of outraging the modesty of a woman only on account of insufficient expression. She urged that it is a baseless allegation that for monetary gains, a false complaint has been made. She is a single mother left by the husband and also not accepted by her own parents because of her choice marriage, who was heavily banking upon the neighbourhood while earning her livelihood. Therefore, in this background, the Court may consider the gravity of entire factual matrix. She urged that the convict is 30 years of age and the prosecutrix is barely three years’ old. It was only with the help of Child Guidance Clinic of Maharaj Sayajirao University that the victim has slowly moved back to normalcy.

According to her, the only ground of acquittal is because the victim has stated that it was insertion of the finger (where in fact, what she stated was finger like). After the complaint was given by this witness, additional statement also was recorded wherein she has stated that the daughter had told her that the Anchal’s father had put finger with nicker (“chaddi wali angli ”) in her urinary track. She was to be kept at Sir Sayajirao Gaikwad [SSG] Hospital, Vadodara for ten days as an indoor patient. She was also taken to the Child Guidance Clinic, run by the Indian Council of Social Welfare, MS University Campus, Vadodara, for treatment, on reference from SSG Hospital.

It is to be noted that women are neighbours and Khairunisa Shaikh being the maternal aunt enjoyed greater confidence of the complainant, particularly when she was deserted by both the sides – her husband and her own parents. She also knew the details of the earlier incident which happened a month back and she was instrumental in convincing the complainant not to take recourse to formal lodgment of the complaint in connection with the sexual harassment. Except one, rest have also said that the girl had also identified the victim when they went with the complainant and even otherwise had named the accused as “Anchal’s father”. They had also seen the private part of the victim.

The circumstances under which, and the terms in which, the complaint was made, are relevant facts. In the instant case, as could be noticed, the child is too young to complain. It is only when she returned and while taking her bath on that evening she cried and complained of severe pain in the private part and on examination, the complainant found swelling. At that stage, when the mother enquired of the reason, explanation that came from the child was of insertion of “chaddi wali angli” by Anchal’s father.

Children have limited vocabulary, they would always equate unknown objects with known and familiar things. Description necessarily shall have to be in their familiar words. A male genital to which a child is unfamiliar with is described as a “finger with knicker”. Had it been merely the act of fingering, child would not make it complicated in its expression. They are known for their simple and elementary ways of communication on account of their young age, innocence and constraint with vocabulary. Such specific expression coupled with other oral evidences lead to only conclusion that the prosecution succeeded in proving that such act of the accused is “an attempt to rape.”

Every time when a child is a victim of rape by an adult male, the expression of rape is extremely difficult. Plethora of judgments hold that even the slightest penetration is sufficient to make out an offence of rape. The depth of penetration is hardly material, although the child has explained it as penetration of finger of nicker (“chhadi wali angli”). This is indicative of a male organ and the same cannot be construed as merely fingering into the private part of a child. Victim has not stated that it is insertion of the finger, but, what she has stated is insertion of a part, which was “finger like”.

Considering the extreme limitation of her age and understanding of human body, it is required to be held that the prosecution succeeded in proving that the act is covered under the provisions of Section 376 read with Section 511 of the Indian Penal Code. Had the totality of evidence of mother was viewed, benefit of doubt under Section 376 read with Section 511 of IPC may not have been given.

High Court judgment

In our opinion, the evidence of the complainant mother is found trustworthy. There was no question of examining a three years’ old child before the Court of law. There are sufficient evidences on record which with the aid of Section 8 of Evidence Act can lead to the guilt of accused conclusively under section 354 and Section 376 read with Section 511 of the Indian Penal Code.

Unimpeachable testimony of the single mother, coupled with evidence of maternal aunt of the complainant and other neighbours do not indicate anywhere any previous enmity or any other motive for the purpose to disbelieve their versions. In further statement, accused speaks of her having borrowed money now and then and on account of non-grant of the same, having lodged a false complaint, appears to be a completely baseless allegation.

No mother would like her child to undergo any adverse publicity on account of such incident. More particularly, the complainant when was already deserted by her husband who married another lady and her marriage with her husband when was not approved by her own parents, she has no support or shelter of her own family on both the sides. In such a situation, no person would invite further trouble or criticism by lodging any false complaint of such a kind.

Medical evidence further corroborates the version of the complainant-mother. Had she taken initiative at the time of earlier incident which happened a month prior to the incident in question, this incident could have been avoided as her silence appears to have emboldened the appellant-accused and the same has resulted into an attempt to rape the minor once again.

Learned advocate Shilpa Shah submitted that not only that he has committed an offence, but has also committed breach of trust of the child, being a girl of tender age. Learned advocate emphatically submitted that no leniency is required to be shown, more particularly in light of the fact that newspapers are flooded with similar such incidents taking place in the society and any leniency shown to the accused in the matter of awarding punishment may carry a message which will not be in furtherance of the interest of justice.

Learned advocate submitted that as provided in Section 511 IPC read with Section 376 of IPC, the punishment that is required to be imposed is minimum 10 years imprisonment, as the offence is to be considered in light of the provisions of Section 376 (F) IPC.

The Court after careful consideration is of the opinion that it will be in the fitness of things, if the accused is awarded imprisonment of seven years for the offence punishable under section 376 read with Section 511 of IPC. Besides that, taking into consideration the provision for imposing of fine, the Court is of the opinion that he shall be liable to pay a fine of Rs. 5,000. In the event the amount of fine is deposited, a sum of Rs. 3,000 be paid by way of compensation to the prosecutrix, over and above the amount earlier granted by the trial Court towards compensation. In addition to that, this Court is of the opinion that the State shall work out the amount of compensation payable to the prosecutrix as per the policy of the State and the same shall be paid to the prosecutrix at the earliest but not later than three months from the date of receipt of copy of this order.

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