While hearing an appeal filed by a person convicted under Section 376(2)(f) of the IPC the Bombay High Court observed that
because the victim was very young (3 years), she cannot be expected to reveal details of her ordeal.
The sentence is upheld as the prosecution has proved the offence beyond a reasonable doubt.
Background of the case:-
On 12.09.2014, the victim was playing outside a dhaba that was run by the victim’s grandmother.
Later, the victim came home with a mobile phone. The accused informed the grandmother of the child that the phone belonged to him.
Victim’s grandmother carried on with her work.
After some time, the grandfather of the victim came and enquired about the whereabouts of the girl.
A search ensued, but the victim was nowhere to be found.
Victim’s grandmother heard some noises from the agricultural fields and went there to take a look.
The victim was found from the agricultural field, and the grandmother saw the accused running away from the field.
The victim was taken to a hospital where the Doctor who examined her told the family that the injuries sustained by the victim might be due to sexual assault.
Next day the victim told her family that the person who had given her the mobile phone took her to the agricultural field where he removed his clothes and slept on her.
An FIR was filed, and the Doctor who conducted the medical examination of the victim opined that the injuries were consistent with recent sexual assault.
Proceedings before the Court:-
The counsel of the appellant submitted that the grandmother would not have been able to witness the incident as the agricultural field was quite far from her house.
It was also argued bajra crop is quite thick; therefore, the crime could not have taken place in the field.
Learned counsel for the appellant stated that the victim went to the field to answer nature’s call and sustained injuries.
Decision of the Court:-
The Hon’ble Court observed that in cases of sexual assault on children, there are usually few or no signs of violence as children are unable to resist.
It was further observed that in most cases, it is impossible to penetrate the vagina of a child as the vagina is tiny.
Usually, the penis is either placed between the thighs or within the vulva. So, usually, the hymen remains intact.
The Court held that for conviction under Section 376, even slight penetration is also sufficient.
It was also mentioned that the benefit of the doubt could not be given to the accused,
just because the victim on her private parts has sustained no injuries.
As the victim was very young, she was only able to disclose the incident on the next day.
Therefore it cannot be said that there was a delay in filing of the FIR, observed the Court.
Hon’ble Court held that the accused deserved no leniency and the order passed by the trial Court was upheld.
