January 30, 2021 2:41:38 am
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 has confirmed the conviction of a 20-year-old man, who was a “child in conflict with law” when he raped the minor.
The court 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 believe for conviction of the appellant man.
A single judge bench of Justice Vibha V Kankanwadi made the observations on January 25 after it was argued by the appellant man that the victim did not properly depose in the court.
The bench was hearing an appeal by the 20-year-old man, who was nearly 17 years old “in conflict with law” at the time of incident on August 11, 2017 and was convicted of raping the minor. The complaint was lodged by the mother on August 13, 2017.
Advocate R V Gore for the appellant submitted that it was not a penetrative sexual assault and sought reduction in the 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 five-six years old and had deposed almost 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.”
Stressing on the importance of testimony by the mother in present case, Justice Kankanwadi noted, “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.”
Therefore, the court 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, yet, the other evidence, including mother’s testimony was required to be considered.
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 10 years rigorous imprisonment to five years. The HC also set aside his conviction under Section 6 of the POCSO Act.
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