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.
“Inconsistent” Kumari*
On 28 August 2015 when Mariamma* asked her then 7-year-old daughter Kumari to go to the nearby shop to run an errand, she refused.
The shop which lay opposite to Mariamma’s mother’s house on the same street was where they usually bought vegetables and other necessities. And Kumari was usually the one who ran such errands.
When she refused, Mariamma asked her daughter why. Kumari narrated what had transpired a week earlier at the shop with some hesitation.
On 21 August 2015, after her father had left for work and mother Mariamma for her computer classes, 7-year-old Kumari, alone at home, started for her grandmother’s house.
On the way, she was called inside the shop by 18-year-old Suresh*. Suresh, a student in a local Graphic Arts Institute, was the son of the owner of the shop.
He sexually abused the child. Later, he threatened the girl, telling her not to disclose the incident to anyone and warned that if she ever did, he would kill her.
Afraid, the girl did not tell anyone of what transpired until her mother asked her to go to the shop.
Her father Mani* lodged a complaint with the station after reporting the incident through the Child Line and an FIR was registered. Suresh was arrested and remanded to judicial custody on the same day.
The statement of the victim under Section 164 was recorded and the age certificate of the victim dated 04 September 2015 read – “I am of the opinion that the individual is aged above 7 years and below 9 years.”
The Accident Register dated 03 September 2015 noted that the doctor found no evidence of external injuries.
Certificate of Examination of Sexual Offences dated 03 September 2015 read – “Hymen intact, Pubic hair absent, no abnormal discharge and no signs of external injuries.”
Results of forensic analysis of vaginal smear dated 10 December 2015 did not detect any spermatozoa or any gonococci.
The victim, having bathed multiple times after the incident and considerable time having passed before these tests, any inflammations or bruises that could have existed had already disappeared.
The clothes the girl was wearing had been washed multiple times and hence no chemical traces could be found. There would thus be no material evidence to prove the crime. There were no witnesses either.
Suresh’s bail was granted on 16 September 2015, less than three weeks since he was sent to custody, on execution of a bond of Rs 25,000.
His bail conditions would be further relaxed after a month, citing his compliance with the bail conditions which required him to report daily at the district magistrate’s office in Cuddalore at 10:30 am.
Alarmed by the developments and in an attempt to put pressure on the police, Mani wrote a letter to the Commissioner of Police, Chennai on 30 November 2015 asking for a speedy follow-up on the case.
Not convinced with the then inspector’s replies he wrote that the inspector “behaves like Hitler and is not giving proper answers” for his queries as to the status of the case. He even filed an RTI to find out what exactly was being done by the police.
With none of the medical reports in the victim’s favour, the case now depended on the victim’s testimony in court.
The Burden of Innocence 2: The Pitfalls Of Time
“No cross examination of children is allowed in POCSO cases, but sometimes the defense asks questions,” says Sherin Bosko an activist and co-founder of Rape Crisis Centre, Nakshatra in Chennai.
“Cross examination of children is done but in a more sensitive manner,” insists Advocate Akila, a practicing lawyer based in Chennai.
The defense lawyers through cross examination brought out inconsistencies in Kumari’s account of the incident. She had in her statement to the police said that she was undressed outside the shop before being taken inside but in a later testimony in court she would forget the undressing part. The defense would hold it as a contradiction and inconsistency.
This, aided by the lack of any conclusive medical and material evidence, weakened the case.
The defense in turn also produced further proof in the form of Suresh’s attendance in the local institute of Graphics and Arts on the said date to prove that he was in fact not even at the shop.
The judgment eventually delivered on 26 August 2018, three years after the case was registered read – “The court is of the considered opinion that the prosecution has failed to prove charges against the accused beyond all reasonable doubt and the benefit of doubt in this case is given in favour of the accused”.
“One can’t expect consistency in narration from children,” opines Sherin Bosko, on the possibility of inconsistency deciding a case’s fate. “Moreover, they are told to forgive and forget. And then when court proceedings start, the child will have to recollect the incident again. The child would have forgotten most details by then.”
“The problem with statements presently is that they are taken on different occasions and hence won’t be identical. Even I have difficulty in recollecting incidents when speaking to police, magistrate and then during cross examination in the court. One can imagine the situation of children,” says Norlene A, Project Coordinator at Indian Council for Child Welfare.
The child has to narrate the incident at least six times is what the police say.
“When asked to narrate the incident repeatedly, children forget and start filling details and hence statements would change,” Norlene adds from experience.
Sometimes considerable time would have passed before cross examinations are conducted.
“There have been cases when cross-examination has been asked for after a period of three years,” says a Special Public Prosecutor working in one of the Mahila Courts in which POCSO cases are heard on condition of anonymity. “This has to be stopped”.
“I have personally appeared in cases where the first court hearing was after a year of the incident,” Norlene adds.
“Children will not forget what or where it happened but recollection of the incident in a chronological order can be a difficulty for them,” says Priya G. “The courts should rely more on FIR accounts rather than the testimonies in courts,” she suggests.
“Probes by lawyers confuse children. Kids don’t even understand direct questions properly. How can one expect them to be consistent in content,” she asks.
“We must also bear in mind that young children are at an impressionable age and don’t have the vocabulary to articulate their trauma nor the capacity to deal with the emotional pressures involved with speaking out and speaking up, and being examined and re-examined in a court of law,” reminds Kirthi Jayakumar, a social entrepreneur and founder of Red Elephant which works in sensitising parents and children on the issue.
“The judicial process is not victim-friendly,” she sums up the scenario.
“According to available literatures, memory starts forming after 7 years. One can recollect things retrospectively with accuracy only after that,” says Dr B Shanthi, HoD, Department of Psychiatry at Institute Of Child Health and Hospital for Children, Chennai.
“Children have an automatic tendency to forget. Some children don’t understand the seriousness of the matter so they won’t remember the incident exactly and when people keep asking, some kids have a tendency to even say nothing happened,” says Priya G, a Clinical Psychologist at the same Institute.
“Sometimes, kids are communicative. But if the abuse is by a known person and if the history of abuse is long, the kids would be so normalised by such behavior that they won’t have any clear memories,” says an Assistant Resident Medical Officer at Institute of Obstetrics and Gynaecology, Chennai, on condition of anonymity as she is not authorised to speak to media directly.
In cases where no material evidence or witnesses exists and when medical evidence proves inconclusive as happens often, the child’s account of the incident can be the only possibility of getting a conviction.
“Concessions are made for inconsistencies,” insists a Judge of a Mahila Court which decides on POCSO cases on condition of anonymity. “The court doesn’t expect parrot-like recitals or repetitions by the victims,” he elaborates.
In the case of Valarmathi* though, it will not be the small inconsistencies in statements or the medical reports which could prove to be the obstacle in ensuring conviction.
The Burden of Innocence Part I: Turning ‘Hostile’
She has turned hostile altogether. “The family doesn’t want the case to go ahead,” says the Head Constable. “The shop owner in whose shop the elder girl worked acted as mediator,” she rues.
“The DNA test results show a 99.99% match,” the Inspector says a bit emphatically, and she seems to have her reasons.
Her superior had expressed doubts at the possibility of Nallamuthu* being the aggressor. “His weak hands and lean body” made him look much older than 55.
“His fingers looked like that of a leper,” she recalls. Her superior did not see any reason why a teenager would be “enamoured by the charmless man.”
“I insisted he is the guy.” And with a “99.99% DNA match,” Nallamuthu, inspite of his denials, had fathered a child at the age of 55, with a child 41 years his younger and 14 years in age.
The court is yet to give a judgment and is still hearing the case. But a judgment is awaited soon.
The court is also where compromise-seeking accused gang up with state sponsored officers and collude to turn victims hostile.
(More on the compromise hungry prosecutors in Part 4 of the series)
(*Names have been changed to protect identity)