3.5 Yrs Old Girl Not Introduced To Own Organs, Not Expected To Give Exact Description Of Private Parts, Identify Accused From Photo: Bombay High Court

Observing that a three-year-old child cannot be expected to give an exact description of her private parts or identify the accused based on a photograph, the Bombay High Court upheld the 10 -year sentence of the child’s neighbour under the Protection of Children from Sexual Offences Act (POCSO).

Justice Bharati Dangre upheld the neighbour’s conviction by a Special Court for offences punishable u/s. 376(2) and Section 6 of the POCSO Act for raping the victim girl by penetrating his finger into the vagina.

“A little girl of 3 ½ years who is not even introduced to her own organs, cannot be expected to give exact description of her private parts, but in her statement recorded u/s.164, she has categorically stated that XXXX’s father had touched her at the toilet place by his nails,” the judge observed.

The Court relied on medical evidence and the mother’s statement that her daughter was bleeding.

It was the prosecution’s case that on November 6, 2017 the accused took the child to his house while she was playing with her siblings and fingered her. The little girl rushed to her mother and took off her panty and went to toilet where she was unable to pass urine and shouting in pain and agony. When asked, she told her mother that her friend’s father had put his finger.

A complaint was lodged after the parents took the child for examination to a government hospital. The prosecution examined 8 witnesses during the trial including the victim, her mother and the gynaecologist among others.

In her deposition before the trial court the victim said her friend’s father was their neighbour but was unable to identify the accused. “Witness if of very tender age. She is giving answers after long time and she gave answers by coming near to me or in my ear. She was fiddling with the things on table while giving answers,” the trial judge noted about the child’s testimony.

The man was found guilty by the special court and assailed that order before the High Court.

Advocate Mallika Sharma instructed by Advocate Anjali Patil for the accused submitted that non-identification of the accused and non-examination of her siblings would prove fatal to the prosecution’s case.

However, the court disagreed. The judge observed that “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.”

Another argument by the accused was difference in the place of the act. Whether it was the anus or the “place of urination.” However, the court relied on medical evidence and observed,

“The little girl further says that he is a bad uncle, “गंदेअंकल है“. When she deposed before the Court, she clearly stated that finger was put in her private part, as a result of which lot of blood came out. She was not surely in a position to exactly describe the incident, on account of her simplicity and purity, not yet spoiled by mundane affairs,” the judge noted.

‘Little girls dance their way into your heart, whirling on the tips of angel wings, scattering gold dust & kisses in our paths,’ Justice Dangre quoted an unknown passage.

Case Title: Mahadev Gaur Bishwas v. State of Maharashtra & Anr

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