Mother has divine powers to understand feelings of child: Bombay High Court while upholding conviction for rape

While upholding the conviction of an accused for the rape of a minor girl, the Aurangabad Bench of Bombay High Court observed that a mother has "divine powers" to understand the feelings of the child without being conveyed in words..This observation was made when it was argued before Justice Vibha Kankanwadi that the victim did not properly depose in court. Noting that the victim might not have done so owing to the environment of the court, though precautions might have been taken, the Court held,"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. 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 want or went through. In the extreme childhood of any child, his or her mother would understand the language of the child even if he or she may not be talking properly...".Thus, the Court held that the accused would not get any advantage if the victim had not been able to convey the incident properly. In this case, it was mentioned that the other evidence produced by the prosecution had to be considered..The Court was hearing an appeal against the conviction of the appellant, who was a 17-year-old child in conflict with law at the time of the incident. He was convicted for committing rape a four-year-old child after taking her home on the pretext of giving her chocolates..The Special Court had convicted the appellant under Sections 376 (rape) and 511 (committing offences with life imprisonment punishment, in the present case, attempt to rape) of the Indian Penal Code and Sections 6 (aggravated penetrative sexual assault) of the Protection of Children from Sexual Offences (POCSO) Act..Modifying the sentence handed down by the Special Court, the High Court set aside the conviction under Section 6 of the POCSO Act. The Court also held that the act was an "attempt" to commit rape."In absence of details of happening inside the house, medical evidence also not clearing it and said statement by P.W.-1 that victim had told her that Child-inconflict with law had “tried” to penetrate his penis, we will have to infer that there was no complete act of ‘penetration’, and therefore, it is “attempt”. Further, when Child-in-conflict with law had removed knicker of the victim and it appears from the testimony of P.W-1 that there was discharge of semen; it can definitely be inferred that Child-in-conflict with law had intention to commit rape on victim. Therefore, the said act is definitely “sexual assault” defined under Section 7 of the POCSO Act.".Once established that the act was sexual assault, considering the fact that the victim was below 12 years of age, the Court concluded that the offence was punishable under Section 9(m) of the POCSO Act, punishable under Section 10. The conviction under Section 376(2) IPC was upheld..The Court also noted that while sentencing the appellant, the Special Court failed to consider Section 42 of the POCSO Act, which provides that an offender shall be liable to punishment only under the POCSO Act or under the Indian Penal Code, for the offence that provides for greater punishment. The judgment states,"When this Section 42 of the POCSO Act covers Section 376 of Indian Penal Code in its entirety, then by virtue of this alternate punishment, the child-in-conflict with law, after he has been found guilty of such offence, should have been either punished under POCSO Act or under Indian Penal Code, as provides for punishment, which is greater in degree. He has awarded punishment under both, which is wrong.".Between punishment under Section 376 of IPC and Section 10 of POCSO, the Court noted that the punishment under the former section was higher (10 years imprisonment).However, considering the fact that the offence was committed made by a child in conflict with law, in accordance with the provisions of the Juvenile Justice Act, the sentence was reduced to five years of rigorous imprisonment..The Court also directed that the appellant, who was 20 years old, be placed in a special home till he completes 21 years of age. The order states,"Till completion of his 21 years of age, he be kept in a place of safety i.e. Pandit Jawaharlal Nehru Government Special Home at Yerwada, Pune (Yerwada Industrial School). The Superintendent of Pandit Jawaharlal Nehru Government Special Home at Yerwada, Pune (Yerwada Industrial School) is directed to keep away the child-in-conflict with law from other children in the Institution.".[Read judgment here]