Child law test in rape case

Source:- telegraphindia.com

New Delhi, March 2: The Supreme Court today said it would refer to a medical board a unique case of whether a 38-year-old cerebral palsy-affected rape victim could be considered a “child” because of her mental condition to determine adequate compensation.

The first such case to have come up for consideration before the apex court stood out for another reason – the judges decided to go ahead and hear the matter despite the accused having died last year during trial.

Normally, the trial abates if an accused dies during the pendency of a case.

Today, the bench of Justices Dipak Misra and R.F. Nariman said they would examine whether the victim was entitled to compensation under the Protection of Children from Sexual Offences (Pocso) Act which sets no ceiling on the amount to be paid in such cases.

Under the Code of Criminal Procedure (CrPC), the damages to a rape victim have been capped at Rs 3 lakh.

The victim is the daughter of a 60-year-old medical practitioner in Delhi’s Defence Colony.

Her mother had last year filed a petition in the Supreme Court pleading that the rapist be tried under Pocso. Under this child protection law, the maximum punishment for rape is a life term. Under the IPC, the offence can be punished with jail terms up to seven years.

Appearing for the victim today in the court, her counsel Aishwarya Bhati told the bench that although the biological age of the woman was 38 years, her mental condition was that of a child aged four to five years.

The victim is entitled to compensation under Pocso if the medical board decides to consider her a child because of her mental illness, Bhati argued.

The lawyer also contended that the death of the accused, Santosh Yadav, in judicial custody last year could not “extinguish” the rights of the victim.

Sidharth Dave, the lawyer appearing for the government, did not oppose the plea. But he said that since the victim had already been given Rs 3 lakh, any further compensation under Pocso could be awarded only after deducting the amount paid earlier.

Justice Misra, who was heading the bench, said the court would first refer the case to a medical board to determine whether the victim’s mental condition was such that she could be treated as a “child” within the meaning of Pocso.

According to the prosecution, the woman was raped in July 2014 in her house when no other family member was present.

Pocso, a special law passed in 2012, prescribes a child-friendly trial procedure in which defence lawyers cannot directly ask victims questions and can do so only through the presiding officer in court.

Also, the suspect or his counsel cannot see the child, who sits in a separate room from where her statements are recorded.