The Delhi High Court has observed that the testimony of a child victim of sexual assault cannot be assessed by placing undue emphasis on technical, legal or medical terminology.

A Division Bench comprising Justice Navin Chawla and Justice Ravinder Dudeja held that what matters in such cases is the substance of the minor's testimony, the surrounding circumstances and the natural manner in which a child of tender age narrates a traumatic incident.

The Court made the observation while allowing the Delhi Police's appeal against the acquittal of a man accused of raping a four-and-a-half-year-old girl.

He was acquitted in 2010 of the charge of rape under Section 376 of Indian Penal Code, but was convicted only for assault under Section 354.

Overturning the trial court order, the Court held that the prosecution was able to prove beyond reasonable doubt that the man committed penetrative sexual assault upon the minor.

It added that the investigative lapses, including the failure to determine the blood group of the prosecutrix and the accused, did not detract from the cogent, reliable, and corroborated evidence which was available on record.

The Court held the man guilty and convicted for the offence punishable under Section 376(2)(f) of IPC.

While doing so, it emphasised that a child of such tender age cannot be expected to understand or articulate the legal ingredients of an offence or describe the alleged sexual act with precision.

“The testimony of a child witness cannot be assessed on the touchstone of technical, legal or medical terminology, but must be appreciated by considering its substance, the surrounding circumstances and the natural manner in which the child of such a tender age narrates such a traumatic incident of rape,” the Court observed.

It added that while a child witness of tender age is easily susceptible to tutoring, but it cannot, by itself, be a ground to reject her evidence.

The Court emphasised that a careful scrutiny of the child witness must be done and Court must apply its mind to the question whether there is possibility of a child witness being tutored.

The Bench noted that the victim in the present case was only four-and-a-half years old when the incident occurred and that her statement before the Trial Court was recorded more than a year later. Despite this, the Court said, that she was able to remember the material facts concerning the sexual assault.

Further, the Court found that the Trial Court had proceeded on the premise that the offence of rape was not proved because the child had not expressly used the word “penetration” in her testimony.

Disagreeing with the said approach, the Court observed that the child's narration, though expressed in childlike language, clearly conveyed the occurrence of penetrative sexual assault.

“Her narration of the incident, though expressed in childlike language, clearly conveys the occurrence of penetrative sexual assault and cannot be discarded merely because she did not use the specific expression "penetration,” it held.

The Bench also held that the Trial Court had “misdirected itself” in appreciating both the ocular and scientific evidence and had adopted an unduly narrow approach while examining the ingredients of rape.

The matter has been listed for September 10 for hearing the man on the question of quantum of sentence.

As the convict was not present before the Court, non-bailable warrants were directed to be issued for his production.

Counsel for Appellant: Mr. Aman Usman, APP with Mr. Manvendra Yadav, Adv

Counsel for Respondent: None

Title: STATE v. MUNNA KUMAR

Click here to read order