The absence of an examination of a four-year-old rape victim is not fatal to the prosecution's case, according to the Delhi High Court

The absence of an examination of a four-year-old rape victim is not fatal to the prosecution’s case, according to the Delhi High Court

17 JUNE 2022

The absence of an examination of a four-year-old rape victim is not fatal to the prosecution’s case, according to the Delhi High Court

The Delhi High Court has maintained a man’s life sentence for rape on a 4-year-old minor child in his immediate family. “The allegation that;  the victim child  not examined cannot be fatal to the prosecution case for the reason that;  the victim too young, just 4 years old at the time of the crime, and being of such delicate age she was not in a position to offer any statement,” the court concluded.

An appeal filed by the accused, one Mukesh, contesting the POCSO Judge’s verdict dated; November 28, 2019, and order on point of sentence dated November 29, 2019, was heard by; a division bench consisting of Justice Mukta Gupta and Justice Mini Pushkarna.


The accusation against the accused is that; he molested his 4-year-old niece at the victim’s parents’ home. According to the victim’s mother’s deposition, she lived at the provided residence with her husband and two children, one of which, the victim roughly four years old. They had all gone to sleep after supper on the day of the event, and the victim was sleeping with her. However, the accused had brought the victim to sleep with him in the middle of the night. When she heard her baby crying at 10:00 p.m., she urged the accused to deliver her kid to her, but he refused.

She got concerned and informed her spouse of her suspicions. When her husband approached the accused and lifted the blanket over him, they discovered the;  accused naked and the victim’s underpants and nickers had been taken. The victim’s mother took her back with her. Following that, the victim’s father called the cops. During this moment, the accused fled the home. Following that, the victim’s parents proceeded to the police station, where they; escorted by the police to the hospital, where the victim’s medical examination was done.

The culprit captured after some time, and police took one pillow, three blankets, one shirt, and one bedsheet from him. The victim’s mother also disclosed that; while she and her husband’s statements  recorded by the police, her daughter’s testimony had not been. Similarly, while she and her husband’s statements had been recorded by the magistrate, her daughter’s statement could not be recorded due to her age.


The accused argued forcefully that; the victim’s mother and father had become hostile and that; their statements could not be considered. The accused further claimed that; the prosecution could not be regarded to have established a case against him since the victim had not been examined.

The court, however, in refusing to accept the accused’s arguments, stated that; while the victim’s parents become hostile, they did not retract their statement that; the police come to their home on the day of the incident and that; her daughter and the accused taken to the hospital for medical examination by the police. Similarly, while the victim’s mother recanted her previous statement and stated that;  the accused’s clothes were not seized in her presence during cross-examination, she did not recant her statement; regarding the identification of the seized clothes that; belonged to the accused and her daughter, as well as other seized items such as blankets and pillows, as the Court pointed out.

Furthermore, the Court stated that; the DNA on the blanket matched the DNA of the accused, which obtained through a medical test. Semen also discovered on the accused’s blanket and clothing.”The law is unambiguous in this regard, stating that; hostile witness evidence does not have to be completely dismissed. It can be accepted if his account is determined to be; trustworthy and compatible with the prosecution or defense case “, the court remarked.

On the issue of the victim’s lack of examination, the court decided that;  the fact that; the victim’s child not examined and not fatal to the prosecution’s case since; she young and unable to offer a statement.

“The argument advanced by the learned counsel for the appellant that; the victim child  not examined cannot be fatal to the prosecution case since; the victim was too young at the time of the occurrence, barely four years old. She unable to make any statements because of her young age. The learned Trial Court correctly concluded that;  the victim’s young age, along with her lack of maturity to comprehend what; heinous/wrongful conduct perpetrated against her,  the reason she not questioned or called as a witness “The court took notice.

The accused also asked the court for leniency, requesting that the sentence be reduced.

“Regarding the appellant’s request for leniency by decreasing his sentence, the accused’s actions, given that;  he already married with six children and connected to the parents of the underage victim, do not inspire any cause for leniency in his favor. Within his intimate family, the accused perpetrated the horrible crime of rape on a four-year-old girl. This Court sees no reason for lessening the appellant’s sentence “, the Court decided.

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