Children less than 12 years of age are “asexual” and normally take time to recognize that disguised love, affection or warmth by perpetrator is sinful: Tis Hazari Courts, Delhi

Tis-hazari

Tis Hazari Courts, Delhi: Dharmesh Sharma, Principal District & Sessions Judge, found a 28-year-old man guilty of committing aggravated penetrative sexual assault on a minor aged 11 years old.

Court remarked,

“The children often find it difficult to express themselves for variety of reasons, and when someone close to the family subjects them to sexual abuse, they are reluctant to discuss sexual abuses with their parents as they are unsure as to how their parents would react.

The children less than 12 years of age are “asexual” and they normally take time to recognize that the disguised love, affection or warmth by the perpetrator is wrongful or sinful, and on becoming aware of its implications, the next stage is that of putting up resistance and reporting the incident to the near and dear.”

Accused a 28-year-old man committed aggravated penetrative sexual assault repeatedly with prosecutrix Miss ‘A’ who was 11 years old.

Analysis, Law and Decision

Court stated that it is well settled that the sole testimony of the victim of sexual assault can be relied upon to convict the accused without independent corroboration provided that the testimony is of “sterling quality” leaving no shadow of doubt over its veracity.

Child’s competency

The prosecutrix was about 11 years of age at the time of the incident and she stated that she was studying in 7th Standard and the MM made observations that victim-child was replying to her queries without any fear, force or pressure. Likewise, when the victim-child was examined in the Vulnerable Witness Deposition Room, the Special Judge raised some preliminary inquiries and based on the responses, it was categorically observed that the prosecutrix was able to understand the questions put to her and she was well oriented and giving rational responses. As she was 12 years of age and understood the sanctity of oath, she was administered the oath.

Testimony of the Prosecutrix

Prosecutrix testified that the accused used to indulge in dirty talks with her and used to call her to the roof where he used to remove her clothes as well as his own clothes and used to insert his hand/finger into her private part and used to insert his penis into her mouth and he also attempted to insert his male organ or hand into her private part.

Minor also added that the said act took place for 2-4 days and he asked her not to disclose the said incident and threatened her or else he would take her somewhere far away from her mother.

The testimony of the prosecutrix is not to be appreciated from an adult point of view, but from the mindset of a child.

Conclusion

The Court found the testimony of prosecutrix to be unimpeachable and beyond reproach.

Further, the statement of the prosecutrix right from the starting point till the end was natural and consistent with the case of prosecution qua the accused. The testimony of the prosecutrix read as a whole left an impression that in her girlish manner she narrated the incidents of sexual assault in a very cogent and reliable manner and there were no inconsistencies that would go to the root of the matter and make her testimony unreliable.

In Court’s opinion, the prosecution case fell within the scope and ambit of Section 506 IPC that the prosecutrix was threatened with the harm that caused alarm or fear in the mind of the prosecutrix was also made out.

The accused was also held guilty and convicted for the offence punishable under Section 5 (l) read with Section 6 of the POCSO Act. The prosecution had also been able to make out a case against the accused under Section 506 IPC.[State v. Mustkim, SC No. 517 of 2017, decided on 15-2-2022]


Advocates before the Court:

Atul Kumar Shrivastava, Addl. PP for the State assisted by Deepika Sachdeva, Counsel for Delhi Commission for Women.

Abhijit Ashok Bhagat, Legal Aid Counsel from DLSA (West) for the accused.

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.