Child rape survivor’s testimony can’t be discarded due to inability to describe act: HC

A division bench of justices Sandipkumar More and Vaishali Patil-Jadhav sentenced the accused, Anil Gaikwad, a labourer, to 10 years in jail

MUMBAI: The testimony of a six-year-old rape survivor cannot be discarded merely because the child is unable to describe the sexual acts in detail, the Bombay High Court said on Monday, setting aside a trial court’s acquittal of a 32-year-old man from Chhatrapati Sambhajinagar who was accused of kidnapping and raping the girl in 2012.

A division bench of justices Sandipkumar More and Vaishali Patil-Jadhav sentenced the accused, Anil Gaikwad, a labourer, to 10 years in jail.

A division bench of justices Sandipkumar More and Vaishali Patil-Jadhav sentenced Anil Gaikwad, a labourer, to 10 years in jail. The Aurangabad sessions court had earlier acquitted him, giving him the benefit of the doubt. Although medical evidence supported the rape charge, the trial court had held that the six-year-old girl was unable to clearly describe the sexual acts.

Striking down the trial court’s order, the high court bench said that a child of such a “tender age” cannot be expected to narrate sexual acts with precision. “The inability of a minor victim to describe the sexual act in clear terms cannot be a ground to discard her testimony, especially due to tender age when she is not capable of understanding the same,” the bench said.

Doctors at a government hospital in Chhatrapati Sambhajinagar later confirmed that the girl had been raped, and found bleeding and injuries around her genitalia. Based on the girl’s revelations, the police registered an FIR against Gaikwad and arrested him.

During the trial, the prosecution examined nine witnesses, including the child. However, in April 2017, the trial court acquitted Gaikwad primarily on the ground that the child had not clearly described the sexual acts he had committed.

The Maharashtra government then challenged the acquittal in the high court. On Monday, the high court set aside the trial court’s order, saying that the child’s testimony was consistent with her police statement, even though her evidence in court was recorded four-and-a-half years after the incident.

“This testimony coming from a child cannot be lightly brushed aside,” the high court said, adding that it cannot be tested on the same parameters as that of an adult. “In her evidence, she specifically takes the name of the accused and describes the incident as per her understanding. A child of such tender age cannot be expected to have any motive to falsely implicate the accused,” the bench added.

The judges also held that the child’s testimony was credible and trustworthy and was corroborated by medical and other evidence on record, “leaving no shadow of doubt to discredit the prosecution case”.