Rarely perhaps does one see the police distributing chocolates and people bursting crackers upon the award of capital punishment by a judge. But such was the scene following the initial applause at the Chengalpet Court where the killer of seven-year-old Hasini was sentenced to death.
While the judiciary and the police congratulate each other for delivering justice to the girl within a year of the brutal rape and murder that shocked Chennai, there are at least 328 such Hasinis in the Chengalpet Court alone, waiting for their turns to be heard. Dozens of more such miserable victims await justice in the courts across Tamil Nadu.
Ironically, Hasini’s father, who broke down on hearing the death sentence, said such fate should not befall any other girl or any other family. But many legal practitioners who deal with such cases are unanimous in admitting that the justice delivery system everywhere in the country is flawed, woefully loaded in favour of the culprit.
Sherin Bosko, co-founder of Nakshatra, an organisation that works for child rape victims said justice is a far cry for more than 80 per cent of childrape cases in Tamil Nadu, due to typical delays in various stages of the process. “An army of corrupt officials, including the police, public prosecutors and defence lawyers work in settling these cases through Katta Panchayat. A majority of the culprits convicted by the court were those who could not bribe the victims due to the poor financial situation of the latter, or failed to break the victims’ will power,” she says.
However, Sherin also acknowledged the determination of a few police personnel and legal practitioners, whose swift action has resulted in the speedy trial of many cases, including the Hasini’s.
Alarming delays in POCSO cases
The Prevention of Children from Sexual Offenses act Protection of Children from Sexual Offences Act (POCSO), 2012 mandates that the trial of child rape cases must be completed within a year. But with a few exceptions such as the Hasini case, this seems to be largely on paper.
According to statistics from the Chengalpet Mahila Court, 75 cases of child rape are pending, with the oldest one registered in 2013. “As many as 53 cases were returned for want of documents and 200 cases are in the First Information Report (FIR) stage in Chengalpet Mahila Court,” said V Kannadasan, who assisted the prosecution in Hasini’s case.
It is no better in the capital city as 77 cases languish in the Chennai Mahila Court while 180 cases rot at the FIR stage. Procedurally, after an FIR is filed in a rape case, the police conduct investigations to gather evidence and eyewitnesses to the case. The case reaches the court, only after the police file a charge sheet. But this itself often takes an inordinately long time.
Four years after 14-year-old Hema* was sexually assaulted by her 24-year-old neighbour in 2014 near Madhavaram, but the trial has only reached the ‘cross examination’ stage at Tiruvallur Court.
The incident still haunts Hema. The girl had not found the courage to report the assault to her mentally unsound mother or her alcoholic father. She was five months pregnant when the family found out.
An otherwise happy girl, Hema turns quiet and nervous every time she faces the accused. Every encounter is a dark reminder of her helplessness.
Her first cross examination was conducted only in December 2017, after repeated adjournments by the defence lawyer. “The delay is only keeping the nightmare of the incident alive in her mind. She has to remember every minute detail, during the one-and-a-half hour cross examination,” said Sherin Bosko.
When victims give up
Delays in the justice mechanism in child rape cases escalate trauma among victims and their families, who often give in to ‘offers’ from the accused. Parents who fight the legal battle for years, turn hostile when victims get into a ‘marriageable’ age.
In relation to a 2016 case, where a 11-year-old girl from Alandur was raped by her neighbour, a few people claiming to be friends of the defence lawyer (lawyer for the accused) tried to mediate. “They visited my house and offered us a large amount and assured us that the accused would marry my daughter, if we turn hostile. We asked them to get out as it would be a betrayal for my daughter,” said Bhavani*, the victim’s mother.
But not many are as brave as Bhavani, nor as hopeful. A parent, who had turned hostile said, “Nothing can undo the incident. It was an ordeal to visit the court repeatedly and fight a never-ending battle. As the accused said he would marry our daughter, we obliged.”
There are other situations too, where the victim’s family turns hostile, as seen in a 2014 case. Charges under the POCSO Act were filed against a 70-year-old man from Teynampet who raped his seven-year-old neighbour. The stepfather of the child was allegedly bribed by the senior citizen, who convinced his wife to turn hostile in the case.
During the chief examination, the mother told the Chennai Mahila Court that the police and her former mother-in-law (her deceased husband’s mom) had filed a false complaint against the senior citizen. The child was made to say the same, resulting in the acquittal of the alleged offender.
“Section 22 of POCSO enables us to punish people (except children) for false accusations. Why don’t the public prosecutors invoke the clause in such cases?” questions Sherin.
Will things change?
There are umpteen number of cases that languish in the initial stages of the trial. A 12-year-old girl with physical and mental disabilities was raped by a 45-year-old headmaster in Red Hills in 2016. Police had filed the charge sheet within six months and the case was registered in the Tiruvallur Court.
“Not even one hearing has happened till date in this case. The headmaster has been threatening the family, urging them to turn hostile. When the law says that there must be speedy trial in child rape cases, why is the prosecution not doing its work?” asks Sherin.
It is a fact known by all but seldom raised that public prosecutors do not just remain mum in such cases, but also pressure victims’ families to turn hostile ‘for the good of the victim.’
What is the way out from this vicious circle then? Legal practitioners feel that strict enforcement of POCSO act would ensure speedy trial. In April 2017, in response to a PIL seeking directions for implementation of the law, filed by Advocate Gaurav Bansal, the Supreme Court ordered the state governments to appoint special public prosecutors to ensure speedy trial in POCSO cases.
V Kannadasan further avers, “Amendments should be carried out to POCSO act, pertaining to the release on bail of the accused. The accused should not be given bail for a set time frame, like those accused in the Narcotics Drugs and Psychotropic Substances Act are issued no bail for 180 days.”[*Names of the victims and their parents have been changed to protect identity]