Law is juvenile needs to grow up

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Law is juvenile needs to grow up

Sunday, 09 February 2020 | MUSBA HASHMI

Law is juvenile needs to grow up

In 2013, a five-year-old girl was abducted, gangraped and left mistaken to be dead by culprits. Six years later, on January 18, the rapists were sentenced for 20 years. MUSBA HASHMI looks into the reasons why it took so long for the Judiciary to serve justice

Just after four months of the spine-chilling Nirbhaya case that shook the nation to the core, Delhi saw another Nirbhaya but a much younger one. She is as brave as one can be and fought for her life till she won. Gudiya (name changed) was just five when she was abducted from her home in Gandhi Nagar, East Delhi, on April 15, 2013 gangraped and left for dead. The quest for justice spanned the same period as the one for Nirbhaya and the little braveheart has finally got justice after six years.

April 15 was just another day for Gudiya as she went down from her apartment to play in the colony lawns. It was then that Manoj Shah and Pradeep Kumar, who used to live in the basement of the same building, lured her into Manoj’s rented room where she was gangraped, brutalised and left by the two, who believed her to be dead.

“When she didn’t return for a couple of hours, we went searching for her but couldn’t find her. Her mother informed the police and an FIR was filed. After two days of searching, she was found in the basement of our building in a horrific condition — unconscious, tied and bleeding. There was a cut on her neck and bottles and candles had been inserted into her private parts,” Gudiya’s father Rajesh (name changed) tells you with a heavy voice.

Rakesh went to the Bachpan Bachao Andolan (BBA) for help in seeking justice. The BBA team took up the matter and assured legal, financial and medical help.

Due to the fear of being caught, the two had tried to murder the girl and assuming she was dead, they had left. Gudiya was taken to the All India Institute of Medical Sciences where six corrective surgeries were performed on her. After a lengthy stay in the ICU, she was finally released to the Young Women's Christian Association for further care and protection.

The culprits were arrested a week later from Bihar and a chargesheet filed on May 24. Later in July, the Delhi court framed charges for raping a minor, unnatural offence, kidnapping, attempt to murder, destruction of evidence, wrongful confinement and aggravated sexual assault under the Protection Of Children Against Sexual Offences (POCSO) Act.

Things took a U-turn when Pradeep moved the court claiming to be a juvenile at the time of the incident. In 2017, he was declared a juvenile and the case transferred to Juvenile Justice Board.

However, in 2018 the Delhi High Court, after an intervention by BBA, declared Pradeep an adult and the bail order, given on the basis of juvenility was cancelled. This year on January 18,  the court announced the two guilty and awarded them 20 years’ imprisonment.

“Pradeep produced false certificates of juvenility in court. The matter was taken up by us in High Court. We challenged the order and intervened to get a bone ossification test done. Also when we got through the certificate produced by him, it was from the school’s principal and not a photocopy of the register that students fill at the time of admission. As per the law, one has to submit the school leaving certificate or the copy of the register where you have entered your birth date during the time of the admission. Therefore, the certificate was not accepted at the High Court. Later, the bone test revealed that he was around 22 years old at the time of committing the crime,” Sampurna Behura, Director (legal), Bachpan Bachao Andolan, tells you.

It seems that the culprits are now taking the alternate route by faking juvenility and seeking mercy. Is there a way to stop it? “A section of the POCSO Act says that when an accused is arrested and claims to be a juvenile, a bone ossification test is mandatory. The police also has to take out school documents or the birth certificate to validate the offender’s claims. If this procedure is followed, the offender cannot make any false claims. In Gudiya’s case, the police could have conducted the test. It is just a tool used by the convict to appeal for less punishment. The accused cannot provide false information and if they do, the court can hold them liable. That’s what happened in Gudiya’s case too. In such cases, the mindset of the judge has to change from being accused centric to victim centric and POCSO in itself is a victim centric law where the burden of proof lies on the accused,” Behura says.

Since it took seven years for the judgement to come, Behura has a lot to say on that. “India has one of the strongest laws in the world when it comes to child abuse. We have prosecution and victim compensation schemes. Gudiya’s case is a landmark one as it brought changes in the law. For instance, the Doctrine of Presumption would apply in all cases of a missing child. The police has to now register an FIR within 24 hours. If the police will do this many cases can be prevented. Also, a missing children portal has come up. Special Juvenile Police Units are to be formed in all districts. Each police station must have a trained Juvenile Welfare Officer. All this happened because of the Gudiya case. But yes, justice is delayed. Giving a judgement in six years where the survivour has to go to the court again and again is like revictimising her. The mandate of the Act is to get justice in all POCSO cases in one year. But the problem is that chargesheets are not filed on time, regular case hearing doesn’t happen, many times, the judges go on leave, there is lack of victim protection and because the protection mechanism is not in place the culprits are able to create a threat atmosphere around the victim. All this leads to delay in cases. In the Gudiya case, four years went by in deciding whether the culprit is a juvenile. It's high time that the Judiciary should look into its responsibility and justice should be delivered on time,” she tells you.

The other reason why Gudiya’s case took so long is because there are a lot of cases in Delhi and no sufficient POCSO courts to attend to them. After the recommendation of BBA, 11 special courts were set up in Delhi to attend to POCSO cases.

Gudiya’s family and the BBA team is now challenging the judgement and will move the High Court to demand life imprisonment for the culprits.

However, things haven’t gone too well for Gudiya and her family. These seven years have been a constant struggle to make the society realise it’s never the victim’s fault. “It was a tough time. We had to change so many places as we were not getting a home anywhere. Anyone who knew about the case wouldn’t let us stay in their area. Now I live outside Delhi and my daughter goes to school there. We had seen so many hardships and had to face the indifference of family and friends. The fight becomes even more difficult because the society doesn’t support the survivour. More so, because people are still living in a shell. This mentality of not blaming the culprit is wrong and there should be no place for this sick thought process,” Rajesh says.

Even after so many years, Gudiya is still under psychological therapy. “Back then, she was too young to understand what has happened to her. But now since she is attaining puberty, we are well-prepared to provide her with therapy and care. She is doing fine now but as for the therapy is concerned, she will be needing it for a longer period,” Behura says.

Much to your horror, a report of Kailash Satyarthi Children Foundation ‘Children Cannot Wait’ says that based on the number of POCSO cases pending in courts till 2016, provided there is no additional new case, some States will take more than 50 years to dispose of the pending cases. Moreover, the POCSO Act, 2012, calls for trials to be completed within a year in cases related to sexual abuse of children. However, a latest National Crime Records Bureau (NCRB) report shows that by the end of 2018 as many as 1,08,129 registered POCSO cases, which is 90.35 per cent of the total cases filed, remained pending in the courts. These facts are enough to show how justice is being delayed in such cases. No wonder that Nirbhaya’s convicts are yet to be hanged.

Advocate Siddh Vidya who has been handling such cases for a while now says that the need is to have better infrastructure to ensure any claim of juvenility accurately. “There are specific procedures laid down in law for ascertaining juvenility. There is a board and Committee which decides age of accused on the basis of physical appearance and some documents, if available, viz matriculation or other matriculation certificate, birth certificate issued by the school, panchayat and corporation. In the event of absence of documents medical examination is to be done. This is required in such cases where the age of a person claiming to be juvenile cannot be ascertained by his/her physical appearance as well as by documents. Accused of rape take advantage of this. They claim to be juvenile and get the matter delayed since the process by which juvenility can be proved, can be claimed at any point of time. Even after disposal of matter , offenders try to take shelter from this provision. Further, as per law in case of any medical ambiguity benefit  of doubt is to be given to the accused. Due to such provisions even  those culprits who have attained age of 18 years get benefit of doubt. Furthermore, unfortunately the judicial process is very slow. Culprits claim juvenility and in case of concrete proof of their age they enjoy benefit of doubt. The need is to have better infrastructure for ensuring that any claim of juvenility is decided fast and accurately,” she tells you.

There are cases wherein accused claiming to be juvenile are apparently adults but having matriculation certificates from school which prove them to be juveniles. This is a matter of experience that even today there are parents who deliberately hide the age of their child at the time of admission in school for getting benefits in different competitive exams.

There is misuse of law as well. There are many who are behind bars despite there being scientific evidence as the law considers the version of victim sufficient for conviction. “In a matter which we handled, a school teacher was convicted despite there being a DNA report in his favour which proved that the victim girl was not impregnated by him. He tried to commit suicide in jail, his children are out of school. In that matter prosecution did not bother to take DNA samples of other persons who could have perhaps impregnated the victim girl. Entire investigation was focused on proving that teacher guilty but no effort was taken by the prosecution to find out who impregnated a 13 year old girl," she tells you.

She adds that unless the police and judiciary is not made well-equipped with best infrastructure and sensitised, any amount of law and punishment would not achieve result, so far as pendency of matters and speedy disposal of matters are concerned.

Pooja Sareen, an advocate and a POCSO expert says that lack of awareness among the parents and the children is the reason behind the increased number of crimes.

“There are different types of crimes that the parents should know about. Knowledge is power. Many cases go unnoticed because either the child or the parent is living in oblivion, unaware of what happened was wrong. First, paedophilia. It is a psychiatric disease wherein an adolescent experiences a primary or special sexual appeal to prepubescent kids. Someone who’s identified with paedophilia ought to be at the least 16 years old and at least five years older than the prepubescent child. Such incidents are not reported, though they happen often, especially in boarding schools, close vicinity of houses or by grown up cousins. Second, sodomy. It is a crime not reported most of the times. It refers to male child expoitation — Male to male abuse and exploitation. In such cases, most of the survivors don’t speak up at all.  Moreover, only one small section is dedicated to this offence  in our constitution — Section 377 of the Indian Penal Code. Third, infant sexual abuse. It is rising at an alarming rate in India. Ironical is that the criminal regulations in India are insufficient in a lot of respect to cope with such sensitive and critical problems,” she tells you. Any kind of exploitation to children is not only limited to physical or sexual abuse, but it affects them mentally and emotionally as well.

Handling such cases is no child play. “Children usually take time to open up and talk about the incident. There are always chances that the defence may mislead them with the sexual connotations as they are not well-versed with the sexual terminologies and are not able to comprehend instances,” she says.  

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