NW18 3.5-Years-Old Cannot Be Expected To Give Description Of Her Private Parts: Bombay High Court Upholds POCSO Conviction

A single judge bench of the Bombay High Court comprising Justice Bharathi Dangre has recently observed that a 3.5-year-old child who is not even introduced to her private parts cannot be expected to give an exact description of her private parts while upholding a conviction in a POCSO case.

“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 Sanya’s father had touched her at the toilet place by his nails. 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 court observed

The appellant had filed an appeal against the order passed by the Special Court convicting the man under Section 6 (Penetrative Sexual Assault) of the POCSO Act and Section 376 (Rape) of the Indian Penal Code.

Justice Bharathi Dangre observed that the girl could not be protected from the sexual offense but the wheels of justice have been turned to her

“Though the little girl could not be protected from the sexual offence committed upon her, the wheels of justice have been turned to her, by convicting the appellant for the wrong which he has done, resulting into a trauma which has remained unexpressed but may leave a long lasting impact upon her and by imposing adequate sentence” the bench noted

The case pertains to an incident that took place while she was playing with her siblings, with her mother around. Subsequently, she was taken to the house by the accused and he fingered her, as a result, she started bleeding. The little girl rushed to her mother and went to the toilet. She was unable to urinate and was touching her private part while shouting in pain and agony.

The mother noticed blood coming out and when she inquired, the victim disclosed to her that it was the accused, who had put his finger in the place of urinating, which was paining. When the father of the girl returned and was informed about the incident, the parents took the girl to the hospital and an FIR came to be lodged.

The court while upholding the sentence of rigorous imprisonment of 10 years and fine of Rs. 25000 said 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” the order reads.

Further, the high court also observed that “There is no reason to disbelieve the victim girl as she has deposed before the Court and attributed the specific act to the accused and the girl is relatively ingenuous, not capable of understanding the consequences of the act to which she has fallen prey and that it amount to an offence. There is no reason why the victim girl has attributed the act of sexual violence to the accused and there is also no reason why the mother should tutor the child of tender age to be a participant in such an churlish act, of which she complained” the order stated.

Case title: Mahadev Gaur Bishwas vs State of Maharashtra & Anr