Six Year Old Not Expected To Know Culprit's Full Name: Bombay High Court Upholds Rape Conviction

A division bench of Justice Vibha Kankanwadi and Justice YG Khobragade sitting at Aurangabad held the fact that the child's mother provided the full name from the nickname given by the child does not mean that the accused is being implicated in the crime.

“it cannot be expected from a girl of six years that she would tell the full name of the other person, who is residing in the nearby area. She would know that person with the first or last name/surname or may identify that person by the name of the person's child/children i.e. father of a particular boy/girl. Giving full name of the accused by the mother from the said nickname therefore cannot be viewed from an angle of implication of the accused.”

The appellant was held guilty of offences under Section 376(2)(f) (rape by a relative, guardian or teacher, or a person in a position of trust or authority) of the IPC and Sections 3(1)(xii) (exploit a woman of scheduled caste or tribe sexually) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

According to the prosecution, the incident happened in 2012 when the victim was 6 years old. One evening, she came to her house crying and injured. She disclosed that a person took her to the riverbank while she was playing in the courtyard, threatened her, and raped her.

Her mother registered the case the next day, but the child did not give a statement at the time as she was in shock. After three days, in her statement to the police, the child disclosed the name of the perpetrator as “Satya”. Thereafter, her parents gave the full name as Satish Nandre, the present appellant.

He was convicted and sentenced to rigorous imprisonment for fifteen years. Hence the present appeal.

The appellant argued that prosecution failed to prove that the child was not tutored to depose against him. The prosecution supported the conviction arguing that the evidence is corroborated with the medical evidence.

The court noted that the child in her testimony described the incident and identified the present accused.

In her cross examination, the defence lawyer asked her if the police had told her to take the name of the accused. The trial judge rightly intervened and made her understand the lawyer’s question, the court opined.

The court said that the purpose of cross examination isn’t just to extract admissions by confusing the witness but to ascertain the truth, the court observed.

“it is the duty of the prosecution, defence as well as the Court to ascertain the truth from any witness including the child witness and it is the duty of the Court to see that the witness understands the question. When such misleading questions are asked or sometimes a pressure tactic is also used on the witness, the Presiding Officer of the Trial is supposed to intervene”, the court held.

The court found no fault with the late disclosure of the name of the accused by the child observing that she was in severe pain due to the incident. Although no oath was administered to the child, the court found her testimony trustworthy and reliable.

The mother in her testimony said that her daughter disclosed the name of the perpetrator as “Satya” as she knew him as he was their neighbour. The mother could not say how many people named Satya reside in the village. The child did not give the full name of the culprit to her, she testified.

However, the court said that just because the mother gave the full name from the nickname, doesn't mean that the accused is being implicated.

In the cross examination, the mother was not questioned regarding any reason for falsely implicating the accused, the court noted. The court added that the defence did not explain what the probable reason for implicating him is.

The court further said that the defence did not prove any tampering of evidence. The court noted that the appellant belongs to the Patil community while the girl belongs to the Adivasi Bhil community. Therefore, the HC concluded that the conviction is proper under the Atrocities Act.

The court said that the trial judge wrongly stated section 376(2)(f) of the IPC in his judgment as none of the categories apply to the appellant. The court stated that this offence would be punishable under section 376(1) of the IPC.

The court held that there is no question of leniency in sentencing to the accused as he has committed a heinous crime.

Case no. – Criminal Appeal No. 792 of 2015

Case Title – Satish s/o Ramesh Nandre v. State of Maharashtra and Anr.