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Gujarat High Court turns down "benefit of doubt" given to man accused of attempting to rape three year old girl

By Our Representative
In an important judgment of far-reaching significance, the Gujarat High Court has refused to give benefit of doubt to a 30-year-old person accused of attempting to rape a three-year-old girl because the child could not identify genital organ before the investigators. Even as finding the accused, belonging to village Baska in Panchmahals district, guilty molesting the girl with finger, the sessions court had ruled that it was not rape.
High Court judges Ravi R Tripathi and Sonia Gokani did not find the sessions court view tenable, ruled that "in the fitness of things", awarded the accused imprisonment of seven years for the offence punishable under section 376 read with Section 511 of IPC (attempt to rape). Asking the rapist to pay a fine of Rs. 5,000, of which Rs 3,000 be paid as compensation to the victim, court also directed Gujarat government to to work out state compensation payable to her.
The judgment was delivered on May 4.
The incident dates back to October 4, 2011, when the three-year-old daughter of a poor single woman, abandoned by her husband, was sought to be raped. On that date, like earlier, the mother went to the market leaving her to Nayanaben, wife of Pratapsinh Lalsinh Rathod. In the evening, when complainant was bathing the girl, she noticed redness and swelling on her private parts. The child told her mother that Rathod  inserted his finger-like thing in her private parts.
The daughter was unable to pass urine and complained of severe pain in stomach. The mother talked over with neighbouring women, and on the next day, went to Halol Police Station to file a complaint. The referral hospital in Halol transferred the girl immediately to the SSG Hospital at Vadodara, where she was admitted as an indoor patient for 10 days.
Later, the girl was taken for counseling for her mental trauma to the Child Guidance Clinic and the Indian Council of Social Welfare in Vadodara. On hearing Rathod's side, the sessions court convicted the accused under 354 IPC (assault or criminal force to woman with intent to outrage her modesty) and sentenced him to undergo rigorous imprisonment for just two years.
Finding the punishment lenient, and considering it a case of attempted rape, advocate Shilpa Shah, appearing for the state, said the sessions court "ought to have appreciated the limitation of the young girl who was barely three years old and who would have no clue with regard to the male genital."
The sessions court called it a "case of outraging the modesty of a woman" because of "insufficient expression" on the part of the small girl. Disputing this, Shah said, the "only ground of acquittal is because the victim has stated that it was insertion of the finger, where in fact, what she stated was finger like."

The mother, said Shah, had already stated that "the daughter had told her that the Anchal’s father had put finger with nicker (“chaddi wali angli”) in her urinary track", adding, she had told about this to her maternal aunt, Khairunisa Shaikh, who she trusts most.
Shah further said, "A male genital to which a child is unfamiliar with is described as a 'finger with knicker'. Had it been merely the act of fingering, child would not make it complicated in its expression. Such expression coupled with other oral evidences lead to the conclusion that the prosecution succeeded in proving that the accused of attempting rape.”
The High Court in its order said the testimony of the single mother was "unimpeachable". Then, there was the evidence of thematernal aunt and other neighbours, which do not indicate anywhere any previous enmity or any other motive between the accused and the victim's family. It added, "No mother would like her child to undergo any adverse publicity on account of such incident."

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