The Burden of Innocence 2: The Pitfalls Of Time
The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted by the Government of India to provide an extremely strong legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography. This, while safeguarding the interest of the child at every stage of the judicial process, by incorporating child friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
With 472 million children below the age of eighteen as per the 2011 Census, India had the largest population of children in the world when POCSO was enacted. Yet, with a conviction rate of less than 30%, the POCSO Act is anything but effective.
This series looks at how in practice, POCSO is simply not child-friendly on many fronts. The ecosystem is skewed in favour of the accused who walk free seven out of ten times.
An Unbruised Mayil*
Suganya* was teaching her class on 15 June 2016 when she spotted one of her students sitting moody and upset. She called the child and enquired.
15-year-old Mayil confided in her that her mother was going to take her to Vellore.
Vellore, more than a hundred kilometres away from her home was where Mayil’s mother had relations.
Her father, Raja, a call taxi driver, being busy, Mayil had accompanied her mother to a family function a few weeks back.
There, one of her mother’s distant relatives, Ramesh*, aged 62, took an interest in Mayil as per police accounts.
He spoke to her mother Kannamma*, who arranged for Mayil* to be left alone with him in the manager’s room in the marriage hall which he owned.
There she was sexually abused.
Now, almost two weeks later, her mother was talking of taking her back to Vellore. The child did not want to go.
The teacher on learning this reported it to the principal who then called up the Child Help Line 1098 as required under the POCSO Act by which all institutions are mandated to report cases of child abuse as soon as they come to know about it.
The Indian Council for Child Welfare (ICCW) took up the issue and one of its project coordinators, filed a complaint with the police based on which an FIR was registered on 16 July 2016.
The next day, on 17 July 2016, Kannamma, the mother of the victim, was taken into custody, placed under arrest and charged as accused number 2 for pushing her child into prostitution.
Accused number 1, Ramesh, being based in Vellore gave the police a miss and become an absconder. The girl’s medical examination was completed the very next day on 18 June 2016.
Her mother’s bail application showed the 15-year-old survivor as a “dull student” who held a grudge towards her because of her attempts to discipline her. This, the plea said, was the reason she (Mayil) made up the fake story.
The bail pleas also talked about the young girl’s “love affair with another boy” that the mother had opposed - another reason for the grudge.
Ramesh’s bail pleas talked about the survivor making up the story as she was to be married to her maternal uncle because of which she would have had to “leave the boy she loved.”
Her intransigence was what made her mother to bring her to the 62-year-old Ramesh who would “instruct her to respect elders.”
The “boy” was never named in the half a dozen bail and anticipatory bail pleas both the accused combined moved.
Unreliable Medical Reports
The accident register at the hospital mentions - “Patient gives a history of handling of breasts by the person,” mentioning the last contact as being on 26 June 2016. “The person has attempted entry into the vagina with his penis,” it would add.
It concluded - “As of Examination on 18/07/2016, possibility of sexual intercourse cannot be ruled out.” But the Certificate of Examination of sexual offences issued read - “No obvious external injuries. Hymen intact. Vagina admits one finger without difficulty.”
“Medical examinations can’t prove anything conclusively after as little as 48 hours of the incident in many cases,” says a judge of one of the Mahila Courts which decides on POCSO cases on condition of anonymity. “For medical examination to give conclusive evidence, reporting has to take place at the earliest,” he adds.
“Sometimes, the accused holding overpowering position within a family can force children not to open up as they are afraid that nobody will believe them,” says Priya G a Clinical Psychologist who interacts often with victims of POCSO related cases.
In the case of Mayil, her mother held considerable power over her and her family. And Mayil would eventually open up to her teacher but three weeks had passed since the incident.
That the report said - “No obvious external injuries. Hymen Intact” – was held up by the defense lawyer of accused number 1, Ramesh in the multiple anticipatory bails he moved and eventually got.
Kannamma was granted bail on 18 October 2016 on the condition of producing a bond of Rs 10,000. The successful bail plea was moved after just 89 days in jail.
Raised for consideration to the lords was the fact that accused number 1 was still absconding. Meanwhile the defense lawyers got the case transferred to Vellore citing that the incident had taken place there.
In the absence of conclusive medical or material evidence, the fate of Mayil’s case hung on her testimony.
The prosecution was in for a surprise when the girl submitted an affidavit in writing, that the case was false. She blamed those who registered complaints on her behalf as having acted without her knowledge.
“I love my mother,” she wrote. “I did not think my mother would be put into prison. I thought my teacher and headmaster would only advise her to not beat me for studies and put an end to the coaching torture.”
She did not write anything about the sexual abuse she had said she suffered in Vellore.
“In cases when family members are arrested for abuse, everyone will blame the child for their ill fate. The child will eventually weigh in to save the family. The guilt of breaking up the family will make them say whatever it is that their family wants,” says Priya G.
In Mayil’s case one of the accused was her mother, lodged in jail for long. Her guardian, her father Raja, presented her in court with the handwritten victim affidavit which blamed the child helpline coordinator and the teachers for filing the case without the child’s knowledge or intention.
With the last possible ground for conviction also lost, both the accused were acquitted.
Valarmathi Turning Hostile
As The Lede reported in Part 1 of this series, Valarmathi turning hostile in court saying she did not want the case to continue is significant for the case, the inspector admits.
But how much weight her statement alone would have in deciding the case is yet to be seen. It is what is making the officers nervous of another possible conviction slipping towards acquittal.
But all is not lost yet in Valarmathi’s case.
The investigating officer says she has medical evidence in the form of DNA test results which could settle without doubt the question of paternal identity.
Medical reports being undeniable evidence could often be the deciding factor.
But like in Mayil’s case, medical reports in most cases are never conclusive nor dependable.
“Medical reports, witness testimonies & material evidences presented by the investigating team and the statement of the child are the three things on which POCSO cases are lost or won on,” says the inspector.
Though none of the three can be considered in isolation and the totality of the case is always looked at, the statement of the child has the distinction of being given special value by the POCSO Act itself.
But a child’s testimony comes with its own problems. It being a child’s testimony being the first problem.
(We will tell you why in Part 3 of this series with the story of Divya*)
(*Names have been changed to protect identity)