Embarrassed by the nature of questions asked during her cross-examination, a 5-year-old victim of sexual assault took the help of a baby doll that was given to her “in order to keep her occupied”, to answer questions.
The case at hand was registered against a 23-year-old man named Hunny. He was booked under sections 323 and 363 of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences (POCSO) Act.
By an order dated April 19, 2016, Hunny was sentenced to suffer 5-year rigorous imprisonment and fined Rs. 5,000.
He filed an appeal before the Delhi High Court and the case came up for hearing before Justice SP Garg.
The case was first registered based on the statement of the victim child’s brother, who himself was only 10 years old, at the time of the incident.
According to the prosecution, the victim and her 10-year-old sibling were going to school on July 21, 2014, around 9 am.
The appellant, Hunny, kidnapped the girl after distracting her brother with a Rs. 10 note.
He then took her to Police Colony, Narela, and sexually assaulted her and also slapped her.
Thereafter, the victim was spotted by her neighbour at Gol Chakkar in Pratap Nagar and was brought home to her parents.
After the victim’s brother told the Court that the accused was wearing a pink shirt and blue jeans at the time of kidnapping, the victim was cross examined.
Following dialogue occurred during the cross examination that was recorded in-camera.
Q: Beta kya hua tha (Dear, what had happened?)
A: Ek ladka mujhe pakad kar le gaya tha. (A boy had taken me away.)
Q: Beta, kab pakad kar le gaya tha? (When did he take you away?)
A: Jab bhai mujhe school chodne gaya tha. (When my brother was coming to drop me to school.)
Q: Beta, phir kya hua? (What happened then?)
The court observed (The victim did not answer despite repeated questions. She was holding the baby doll in her hands and she started putting one of her finger of right hand in the lower wear of the doll).
The doll was taken on record as Ex. P1. (Hereinafter referred to as ‘doll’ for the sake of convenience).
Q: Beta, kya uss ladke ne aapke saath wahi keya tha jo abhi aap doll ke saath ker rehe ho? (Beta, did that boy do the same thing that you are doing to the doll?)
A: Haan (the child started scratching the vaginal region of the doll with her nails). (Yes)
Q: Beta, kya uss ladke ne aapko waise hi nakhun mare the jaise aap doll ko maar rahe ho? (Beta, did the boy scratch like you are scratching the doll?)
A: Haan (The child had all of a sudden become numb and was not responding to further questions. She was again made comfortable by the Ld. Addl. PP and the Ld. Advocate from DCW). (Yes)
Q. Beta, phir kya hua? (Beta, what happened then?)
A. Woh mujhe bus mein Pratap Bagh chod gaya. Uss ladke ne mujhe gaal par thapad bhi mara tha.
Court observation: The Ld. Addl. PP has asked questions w.r.t the clothes being worn by the witness at the time of incident and as to whether the accused having removed the same and the place where the same was done. The witness, despite repeated questions, has answered only to the effect that the accused had put her skirt in her school bag.
Thereafter, the victim correctly identified the accused and was unable to answer certain questions which, the court observed, were too difficult for the child to understand and respond too. She was also asked whether she was being coaxed by her parents to say all this, which she denied.
Justice Garg observed: “Scrutinizing the testimony of the tiny child, it stands established that the appellant had kidnapped ‘X’ when she had accompanied her elder brother to the school. No discrepancies or infirmities have emerged in her cross-examination.
True, the child was hesitant to respond to some questions put at the time of recording her statement. Obviously, the child was reluctant to answer embarrassing questions which were derogatory in nature. The court can understand shyness of tender aged girl to answer dirty or vulgar questions. She has given answers to other questions. Nevertheless, she had categorically pointed out as to what the appellant had done with her by referring it to the doll in her hand. She had conveyed as to what was done by the appellant with her. Nothing more can be expected from a child aged around five years considering her limited understanding.”
The CCTV footage submitted before the court also corroborated the prosecution’s case as it showed a boy matching the said description kidnapping the victim who was in school dress.
Noting that the trial court had already taken a lenient view and sentenced the accused for a minimum period of 5 years, the court dismissed the appeal.