A recent decision of the Bombay High Court may have expected an impossibly high consistency from a minor rape victim's testimony, opines Madhavi Nalluri.
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A recently reported decision of the Bombay High Court, while seemingly not as outrageous as the infamous 'skin to skin' decision of the same high court which was reversed by the Supreme Court, is disturbing and needs reconsideration.
The case involved the sexual assault of a minor girl and the resultant conviction of the accused persons by a special Protection of Children from Sexual Offences (POCSO) Act, 2012 judge under Sections 376(2)(f)(n) and 506 read with Sections 34 of the Indian Penal Code, and under Sections 4, 6 and 8 of the POCSO Act.
The victim in this case was an orphan who after the death of her father was residing with her maternal aunt's family which included the maternal aunt's husband (accused) and the girl's maternal uncle (accused).
The crime came to light when the victim, a student of primary school, was found crying by her class teacher and upon enquiry the teacher learnt of the sexual assault including rape committed by the accused on the minor girl.
“The court notes record that the child victim is the star witness and her evidence is not rendered doubtful or unreliable after cross-examination.
The teacher as well as the school principal who deposed as prosecution witnesses testified to the fact that the minor girl reported that not only was she sexually assaulted but also made to do all household chores and any failure on her part to do so would result in her being starved by the accused persons including her maternal aunt and being made to sleep in the toilet.
The high court records that the testimonies of the prosecution witnesses are unshaken on the points of disclosures made by the victim to them.
The court further notes that the star witness is the victim herself and that the medical evidence is not of much help to the prosecution as there is a huge gap between alleged incidents and medical examination.
The court, therefore, looks at the testimony of the victim to decide upon the correctness of the conviction of the accused by the trial court.
While examining the statements of the victim, the court notes that the factum of penetration has not been stated by the victim in her testimony in court (although it is noted that the accused person did touch the victim's private parts with his male genitalia) and the same has been recorded in the statement given by her under Section 164 of the Code of Criminal Procedure.
It is on this count that the court sets aside the conviction for rape (under Section 376 (2)(f)(n), read with Section 34 of the IPC) and penetrative sexual (under Sections 4 and 6 of the POCSO Act) and modifies the trial court judgment by reducing the sentence to five years of rigorous imprisonment.
The judgment gives very limited insight into the actual findings of the trial court.
At first blush, the decision may not exhibit any flaws, however, a closer look reveals the narrow and limited view taken by the court without fully appreciating the attendant facts and circumstances of the case.
The court notes record that the child victim is the star witness and her evidence is not rendered doubtful or unreliable after cross-examination.
However, at the same time, it examines the statements of the child victim in a manner that fails to take into account the state of mind of the victim who was in Class 5 at the time when the atrocities were committed against her.
By comparing the statement of the victim under Section 164 of the CrPC and evidence before the trial court in a technical manner, the judgment lacks the sensitivity and child-friendly approach that is required of a court dealing with POCSO Act matters.
Also read: Age of consent, marriage and the POCSO Act
Nor does such a pedantic view take into account the fact that the victim is an orphan and dependent on the accused person's family for her survival and likely to be under the pressure and influence of the accused persons.
Another factor that ought to have been weighed with the court is the relationship between the victim and the accused, i.e., that of trust, the accused being family members.
“Nor does such a pedantic view take into account the fact that the victim is an orphan and dependent on the accused person's family for her survival and likely to be under the pressure and influence of the accused persons.
The court lost sight of the fact that testifying to the horrific acts committed on her is mentally disturbing and traumatic for a victim, more so when she is a child, and in the process facts and details may be missed or omitted.
It ought to have seen the testimony of the victim as a whole. Nitpicking of the minor girl's testimony was not warranted.
It has been held in many cases that a witness cannot be expected to state each and every detail related to the incident in the same words every single time. More so when the victim is a minor.
The ordeal of a child witness is well captured in the progressive decision of the Delhi High Court, where the court notes that: "The dynamics of child sexual abuse are the same internationally. First and foremost, it is essential to understand the manner in which the children recount. Children do not disclose in one go but do so in piecemeal. To accord the same treatment to a child as one would to an adult would result in grave injustice."
“It has been held in many cases that a witness cannot be expected to state each and every detail related to the incident in the same words every single time. More so when the victim is a minor.
In such circumstances, and when the prosecution witnesses' testimonies in the present case were unshaken, which includes the narration of rape by the victim to them, the court ought not to have fixated on the inconsistency and disregard other evidence.
If such a view is allowed to serve as a judicial precedent it will erode years of efforts taken to sensitise the judiciary to adopt child-friendly procedures and approach to law in POCSO Act cases.