Incomprehensible For A Child To Understand Sexual Act, Can’t Be Tutored: Madras High Court Upholds Rape Conviction, Enhances Sentence

Justice Anand Venkatesh noted that a child witness would broadly fall under two categories- one where the child is a witness to the incident and the second where the child itself is the victim.

"In cases falling under the first category, the chances of tutoring a child cannot be ruled out and hence, the Court must be very careful while dealing with the evidence of the child in those cases. However, in cases that are falling under the second category, the child cannot be tutored since it is incomprehensible for a child to understand a sexual act. Therefore, the child will be able to understand about the incident only if it had really gone through the same," said the court.

It added that this was the reason why the Apex Courts have repeatedly held that the evidence of sexual assault victims should be dealt with more sensitivity.

The court was hearing an appeal preferred against the conviction and sentence rendered by the Sessions Judge, Tiruppur District. Along with the appeal against the sentence, the State had also preferred an appeal to enhance the punishment. The Sessions Court had sentenced the man to undergo three years rigorous imprisonment and ordered him to pay a fine of Rs. 10,000.

The prosecution case was that the appellant had committed penetrative sexual assault on the victim girl who was his neighbour and was 5-year-old at the time of the incident. The accused, during the appeal, contended that there were doubts about the very date of the incident as different dates were given in the complaint and evidence. He added that the case was made up due to previous enmity. He also contended that the competency of the victim child to give evidence was not properly determined by the trial court.

The court noted that though there were discrepancies in the date of the incident, the report of the doctors made it clear that the incident had occurred. 

"In the considered view of this Court, the discrepancy in the date of incident does not really go to the root of the matter," said the court.

With respect to the competency of the victim to give evidence, the court noted that since there were no precise rules, it was left open to the judges to decide the degree of intelligence and knowledge which will render a child a competent witness.

"Through a catena of decisions, it is now too well settled that in order to determine the competency of a child witness, the Judge has to form his or her opinion. While doing so, it is left to the Judge to test the capacity of a child witness by adopting any method and there is no precise rule laid down to check the degree of intelligence and knowledge, which will render a child a competent witness. A child will become incompetent only in cases where the Court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner."

In the present case, though the bench was not satisfied with the procedure adopted by the trial court, it said that it was too late in the day to call the victim to court as she has become a major now and her mental capacity would have changed.

With respect to the allegation of false complaint, the court noted that it was for the defense to lay the foundation for the same during cross-examination.

"However, the defence has not even put a single question to P.W.1 - the father of the victim girl to establish that there was a previous enmity between the parties. The attempt made by the accused person to come up with such a version, when he was questioned under Section 313(1)(b) of the Cr.P.C., will be of no avail to him since it is his ipse dixit and it has not been tested during the process of recording the evidence. Previous enmity between the parties is not a matter of assumption or surmise and it has to be established by the accused person," it added.

The court noted that since the offense was committed before POCSO Act came into force, the conviction was under Section 376(2)(f) of the IPC. Noting that the sentence imposed was less than the minimum punishment provided under Section 376(1) of the IPC, the court enhanced the imprisonment to seven years.

"When a child has been sexually abused, the Courts should never show leniency on the accused and it has to be necessarily dealt with sternly and severely. In the light of the above discussions, the sentence imposed on the accused by the Trial Court requires interference of this Court. Accordingly, the term of imprisonment shall be enhanced to seven years rigorous imprisonment," said the court.

Case Title: A Muthupandi v. State

Citation: 2023 LiveLaw (Mad) 120