Bombay HC relies on maternal instinct of a woman to convict her daughter’s rapist
Aurangabad bench of the Bombay high court (HC) on January 25 has held that a mother has divine powers to understand her children, confirmed the conviction for rape of a child in conflict with the law. The court held that as the victim who was only four and a half years old at the time of the offence, was unable to explain what the child in conflict with the law, had done to her, the incriminating statement of the mother was sufficient to believe that her daughter was raped.
As the convict had been in detention for more than three years, the bench commuted the punishment for the offence of rape from ten years of rigorous imprisonment to five years. Since the convict was a few months shy of turning 21 years of age at the time of passing of the judgement, the court directed that he be sent to a special home for children in conflict with the law and be provided reformative services including educational and skilled development services till he attains the age of 21.
A bench of justice Vibha Kankanwadi while hearing an appeal against the conviction of a 20-year-old man by a special court in Jalna for offences punishable under various sections of Protection of Children from Sexual Offences (Pocso) Act and Indian Penal Code (IPC) for raping a four-and-a-half-year-old in 2017, was informed by advocate RV Gore that the man was 17-years-old and a child in conflict with the law at the time of the offence but was convicted as an adult, hence the appeal was filed seeking reduction of his sentence to be in line with that of a minor.
The special court had sentenced the child in conflict with the law to 10 years rigorous imprisonment and to pay fine of ₹10,000 and in case of default undergo rigorous imprisonment for two years for the offence punishable under Section 376(2)(i) read with Section 511 of the Indian Penal Code. Further, he has been sentenced to suffer rigorous imprisonment for a term of 10 years and to pay fine of ₹10,000/-, in default of payment of fine, to undergo rigorous imprisonment for two years for the offence punishable under section 6 read with section 18 of the Pocso Act.
The offence had occurred on August 11, 2017, when the child in conflict with the law had induced the minor and her sister with chocolates and taken them to his house which was adjacent to the house of the minors. In his house, he ravished one of the minors. The mother of the two minors was alerted by the cries of the younger daughter and when she knocked on the door of the child in conflict with the law, he opened the door and ran away. The mother then brought the two daughters back home and found the sticky substance on the private part and thighs of the elder daughter. While the daughter was unable to explain exactly what the child in conflict with the law had done to her, she realized that an attempt was made by the accused to rape her daughter. The mother and father of the two minors then complained with the police and the child in conflict with the law came to be arrested and tried and convicted based on the statement of the mother.
Gore sought a reduction in the sentence based on the fact that there was no penetrative sexual assault and as the victim merely told her mother that something happened and started crying in pain cannot be the ground for the sentence meted out by the special court.
After hearing the submissions, the bench observed that the deposition of the minor may have been influenced by the court environment and hence while recording her evidence she may not have given proper answers. The court also held that what the girl could convey to her mother immediately after the incident could not have been conveyed to somebody else and hence the statement of the mother would have a bearing before the special court.
“The relationship of a mother and a daughter would always be of confidence and the mother would be having her 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. She 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 also after getting that security would open up and would convey what he or she wanted or went through,” observed the court.
While setting aside the conviction under section 6 of Pocso Act, the court said that as the child in conflict with the law had been in detention for three years and as it was a case of attempt to rape it was commuting the conviction under IPC to five years. Further, the court held that as the man was not 21-years-old he should be kept in the Yerwada special home till he attained the age of 21.