Delhi High Court reiterated the position of law on the reliability of evidence given by child witnesses while upholding a conviction for child rape. The Single Bench of Justice Hari Shankar also explained the threshold to establish 'penetrative act' under section 3 of POCSO, and went on to comment upon the heinous character of crimes of such nature.
In the present case the appellant had enticed the prosecutrix (who shall remain unnamed) from the custody of her mother on the pretext of buying clothes for her and had taken her, with him, to a house where he had repeatedly raped her, also threatening to eliminate her, were she to disclose the incident to anyone.
The counsel for the appellant accused had argued that since the MLC report mentions only slight tearing of the hymen, it can be termed a penetrative sexual act under section 3 of the POCSO Act. The court, however, rejected this claim and opined that penile penetration, even without reaching the hymen, would be sufficient to answer the definition of ―penetrative sexual assault‖, as contained in Section 3 of the POCSO Act and, consequently, even if the hymen were intact, that would not belie the allegation of penetrative sexual assault having been committed by the accused. The court relied upon the Supreme Court's judgment in Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635, which clearly holds that injury, or rupturing of the hymen, are not necessary concomitants to commission of penetrative sexual assault.
On the issue of reliability of a child witness, the court cited the catena of cases to note the following guiding principles:
1. There is no absolute principle, to the effect that the evidence of child witnesses cannot inspire confidence, or be relied upon.
2. Section 118 of the Indian Evidence Act, 1872 discounts the competence, of persons of tender age, to testify, only where they are prevented from understanding the questions put to them, or from giving rational answers to those questions, on account of their age.
3. The Court has to ascertain, for this purpose, whether (a) the witness is able to understand the questions put to him and give rational answers thereto, (b) the demeanour of the witness is similar to that of any other competent witness, (c) the witness possesses sufficient intelligence and comprehension, to depose, (d) the witness was not tutored, (e) the witness is in a position to discern between right and wrong, truth and untruth, and (f) the witness fully understands the implications of what he says
4. The presumption is that every witness is competent to depose, unless the court considers that he is prevented from doing so
5. The appellate court would interfere, therewith, only where the record indicates, unambiguously, that the child was not competent to depose as a witness, or that his deposition was tutored.
While upholding the sentence given the Trial Court, the Single Bench of Justice Hari Shankar noted that rape is, on every occasion and without exception, a crime of power, more than one of lust, and, when committed on a child, is a brute and unrelentingly savage expression thereof. No clemency or mercy, whatsoever, can be shown to the perpetrator of such an act, especially when the perpetration is in full possession of the senses and faculties of the perpetrator.
The court upheld the conviction under sections 363, 366, 376(2)(i) and 506 of the IPC, and section 6 of the POCSO Act. The appellant accused is sentenced to 10 years of rigorous imprisonment add a total fine of Rs. 18,000. The victim is also granted a compensation amounting to Rs. 5 lakh.
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