January 29, 2021 6:17:29 pm
Observing that “the relationship of a mother and her minor daughter would always be of confidence and that mother has divine powers to understand the feelings of the child without being conveyed in words”, the Aurangabad bench of the Bombay High Court upheld the conviction of a 20-year-old man, who was a ‘child in conflict with law’ while raping the minor.
The bench held that as the victim, who was only four-and-a-half years of age at the time of the offence, was unable to explain what the ‘child in conflict with law’ had done to her, the incriminating testimony of the mother was sufficient to uphold the conviction of the appellant.
A single-judge bench of Justice Vibha V Kankanwadi made the observations on January 25 after the appellant argued that the victim had not properly deposed in court. The observation came on an appeal by the convict, who was almost 17 and a ‘child in conflict with the law’ at the time of the incident on August 11, 2017. He was convicted by a lower court for raping the minor after luring her and her sister to his house on the pretext of giving them chocolates. The complaint was filed by the minor’s mother on August 13, 2017.
The Special Court in Jalna convicted him under Section 376 (2) (i) (committing rape on a woman who is under 16 years of age) of the Indian Penal Code, along with Section 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act, 2012, among others.
Arguing for the appellant, advocate RV Gore submitted before the HC bench that it was not a penetrative sexual assault and sought reduction in punishment. He said that the victim did not specify as to what exactly happened with her and the offence cannot be made out as the victim merely said that “something happened and she started crying in pain”.
The judge noted that the victim was an innocent girl of 5-6 years at the time of the incident and had deposed two years after the incident. “May be due to the environment of the court, though precautions might have been taken by the Special Court while recording her evidence, she could not have given proper answers…ultimately what the girl can convey to her mother immediately after the incident could not have been conveyed to somebody else,” the bench observed.
Stressing the importance of testimony by the mother in the case, Justice Kankanwadi said, “The relationship of a mother and a daughter would always be of confidence and the mother would be having her own skill to extract about the things which have happened with her child. It will not be an exaggeration, if it can be observed that the mother has that divine power to understand the feelings like happiness or sorrows of the child and many times, she understands it without being conveyed in words.”
The bench added, “She (mother) understands the mood of the child from his or her appearance and/ or actions also. She can understand the agony that the child undergoes and she would be the first person to offer security to the child. The child, after getting that security, would open up and would convey what he or she wanted or went through. Mother of (a) deaf-and-dumb or even mentally challenged child can understand his/her language.”
The HC held that in the present case, even if the child was not able to tell the trial court as to what had happened with her on the day of incident, the other evidence, including her mother’s testimony, was required to be considered.
The bench said, “Before considering the other evidence once again, it is required to be observed that the child-in-conflict with law will not get any kind of advantage, when the victim in this case was not able to convey the happenings that had happened with her on the day of incident.”
As the convict had been in detention for more than three years and that the trial court had considered him as an adult while convicting him, the HC commuted the punishment from ten years of rigorous imprisonment to five years. The bench also set aside his conviction under Section 6 of the POCSO Act.
The court junked the appeal, observing that the convict is a few months away from completing 21 years of age (nearly 20 years and 8 months old). It directed that he be sent to a special home at Yerawada in Pune (Yerawada Industrial School) and be provided reformative services, including educational and skilled development services till he attains 21 years of age.
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