In the summer of 2013, a 16-year-old young woman, who lived with her grandparents in Jaunpur, in Uttar Pradesh, visited her parents in Thane, near Mumbai, for the first time. The young woman had lived in Jaunpur since she was six months old—her mother, pregnant with a second child at the time and unable to take care of her daughter, had handed her over to her grandparents. Through her childhood, the young woman told me, she had dreamt of visiting Mumbai—a big city—where she could play with her siblings and be pampered by her ma and baba. She told me she had seen her father only once before—when she was about six years old, he had visited Jaunpur for a relative’s wedding. “Ma would come for a few days and return to Mumbai. It was never like a mother visiting her daughter, but like a guest visiting you during vacations,” she said. In 2013, she went to Mumbai, excited to meet her parents and siblings. Less than a year later, in April 2014, she filed a complaint at the Rabale police station, in Thane district, accusing her father of raping her five times since she came to stay with her parents. More than two years later, in December 2016, a Special Court established under the Protection of Children from Sexual Offences Act (POCSO Act) acquitted her father, and directed that perjury proceedings be initiated against her.
That summer vacation changed everything for the then 16-year-old complainant. “This was supposed to be just a month-long visit and I was to return to Jaunpur to prepare for my board exams,” she told me, when I met her on 26 February 2017. But in Thane, she added, her father told her to stay back. Since the filing of the complaint, in April 2014, the complainant has been staying with her aunt and uncle—the mother’s younger sister and her husband. Her uncle, who is associated with the Vishwa Hindu Parishad (VHP)—a prominent Hindu nationalist group—arranged a meeting between the complainant and me at the Thane district office of the VHP. The complainant and I were taken to a small room inside the office, where we spoke for over an hour, while her uncle and another VHP member guarded the room.
According to the complainant, her father raped her five times in the months between August 2013 and April 2014. The complainant resided with her family in a small pukka house in the slums of Navi Mumbai. On 1 March 2017, I went to the address stated in the judgment, but found that her family had vacated it. The house comprised one room with a mezzanine floor. The complainant had told me her father would wait for her siblings to climb up the mezzanine floor to sleep and her mother—ailing with multiple health complications—to consume her sleeping pill. He would then allegedly gag her and rape her. “Woh kehte, agar kissi ko bataogi toh sab ko maar dunga”—He would say, if you tell anybody, I will kill everyone, the complainant told me in between quiet sobs.
On 28 April, the complainant told me, a neighbor entered their house when she heard her mother crying. But when the neighbour attempted to speak to the complainant’s mother, her mother snapped at her. The next day, the complainant continued, the neighbour spoke to the complainant. When the neighbour met her, the complainant had stormed out of her house crying, following an argument with her mother. During this interaction, the complainant said she told the neighbour about the alleged incidents of rape. The neighbour immediately informed the complainant’s grandparents and took her to the Rabale police station, in Thane distrisct, to register a complaint.
In her complaint, the complainant stated the circumstances of her allegations in detail: she stated that her father raped her five times, and that the first incident occurred on August 2013 and another on Rama Navami—a Hindu festival celebrating the birth of the Hindu god Rama, which fell on 8 April in 2014. The complainant described these in detail. She elaborated on how her father would send her mother and siblings out of the house and commit the offence, and the circumstances that led up to the filing of the complaint. However, in November 2016, when she was summoned to depose before the court, the complainant faltered, and the consequences were unforgiving.
A witness deposition consists of two parts: the examination-in-chief, conducted by the public prosecutor, and the cross examination, conducted by the defence advocate. In her examination-in-chief, the complainant reiterated the allegations against her father as stated in her original complaint, on the basis of which the first information report was registered. Through most of her cross-examination, the complainant detailed the same account. According to paragraph 13 of her deposition sheet, she testified, “It is true to say that when my father raped me for the first time, my mother was at home that day.” But towards the end of her testimony, according to the sheet, the complainant said that she had falsely accused her father—however, the record also notes that she immediately retracted this statement. “It is true to say that I have filed a false case of rape against my father. Now I say that it is not true I have filed a false case of rape against my father. It is not true to say that my father never threatened me.”
I asked the complainant why she said that she filed a false complaint. “I had never seen a court room before. I was terrified,” she told me. She continued, “My undergarments which I had worn on the day my father had gagged and raped me for the last time were shown to everyone in the court. I wanted to just be done with this ordeal. I rambled something.” She added that she grew tired of the allegations made by the defense advocate. “The lawyer kept asking me if I was lying. I was so fed up, I said yes,” she said.
The complainant’s contradiction led to her father’s acquittal and her facing the ire of the court. In its 18-page judgment, pronounced on 22 December 2016, the court turned the complainant from an alleged rape survivor to an accused, facing the charge of perjury. Mridula Bhatia, the presiding judge of the court, observed that the complainant had “misused the provisions of POCSO Act” and subjected her father to “hardship,” “mental agony,” and “trauma.”
A close look at the statements of the witnesses examined, and the complainant’s deposition revealed several problematic aspects of both the trial and the investigation preceding it. For instance, in the third paragraph of the complainant’s deposition sheet, after recording her testimony that her father “locked the room from inside and committed rape on me,” the judge recorded that “Victim has burst into smiles [sic] at this stage.” When I asked the complainant about this, she denied having smiled in the court. “I was trembling in the court. I could not hold my tears back. The lawyer [prosecutor] asked me to take a few minutes break and then speak,” she told me.
Further, Pankaj Kawale, the defence advocate subjected the complainant to myriad questions including her supposed involvement with seven different men. I spoke to Kawale in court and over the phone, but he was unwilling to speak with me about the case. He used these names to suggest that the complainant’s father was opposed to her talking to these boys. The complainant answered that she did not know four of those boys, and denied the allegations about all of them. It is worth noting that neither the judge nor the public prosecutor objected to these questions, despite the existence of Section 146 of the Indian Evidence Act of 1872, which prohibits questions about the “general immoral character, or previous sexual experience” of a witness during the prosecution for the offence of rape.
A more worrisome aspect of the trial was the prosecution’s decision to examine only two witnesses—the complainant and the investigating officer (IO). The chargesheet, which I gained access to, reflected that the IO had recorded the statements of ten witnesses, including the complainant’s mother and grandparents; the neighbour who accompanied her to the police station; and her maternal uncle.
The mother’s statement to the police read: “My daughter had confided in her grandmother. Following which, I had asked her what was the matter. She was hesitant to share. So I confronted my husband. In the beginning, he denied. But when I insisted, he confessed and also said he will not repeat his mistake.” She went on to state that she decided to stay silent as she feared this incident would bring dishonour upon her family. The neighbour who accompanied the complainant to register the FIR corroborated what the complainant and her mother told the police. The neighbour stated that on the day of Ram Navami, she heard the complainant “cry loudly and plead to her father to leave her alone.” The neighbour added that she asked the complainant about the cries when the latter stepped out of her house a few hours later, but the complainant said “it was nothing and she was playing with her father.” Her statement continued: “A few days later, when I asked her again, she confided in me. She said she was being repeatedly raped by her father.”
This omission to examine the complainant’s mother and her neighbor, both of whom were key witnesses who expressly supported the complainant’s version of events, is unusual, to say the least. I made several attempts to speak to SE Phad, the public prosecutor at the court, but she did not discuss the case with me. Rohini Salian, a senior criminal lawyer and former special public prosecutor, said the prosecution should have relied upon other key witnesses. “The survivor clearly did not retract her entire statement. In all fairness, the prosecution should have examined other witnesses to bring out the truth. This is not an unusual situation.” She added, “There are several judgments where the court has convicted people just on the basis of other witnesses even when the survivor has turned hostile in the court.”
Another significant issue was the failure to record the complainant’s statement before a magistrate as prescribed under Section 164 of the Code of Criminal Procedure. Shrikant Shinde, an assistant police inspector who was the investigating officer of the case, said that a statement recorder before the magistrate would have “not helped much.” “Witnesses retract statements for multiple reasons. We cannot prevent them from changing their statements in the court.” This was the only statement that Shinde was willing to give on the record. Salian, on the other hand, said that a statement before a magistrate is recorded precisely to avoid such a situation. “A statement on oath or a video-recording of a statement makes it easier for the prosecution to put out a stronger case.”
The remarks of and language used by Mridula Bhatia in the judgment are also telling. The judge began her observations on the case by stating that the complainant’s “demeanour, mannerisms, and body language totally belied her deposition of examination-in-chief.” The judge found it “very striking” that the complainant did not remember the dates of her abuses as, “any such incident would definitely leave an indelible memory in the mind of any daughter.” The observation appeared to ignore the fact that the complainant specifically alleged that her father raped her on the day of Rama Navami, and that the first incident occurred in August 2013.
The judge further noted that it was “very surprising that she did not inform her sister about the said incident” and that it was “striking as to how she did not inform her mother about the incident first”—before telling her grandparents. Both these observations highlight the failure of the court to appreciate a crucial aspect of the case—the precarious circumstances in which the complainant was brought up. She had lived away from her parents throughout her life met her siblings for the first time when she came to Thane. “I could not speak to anyone. I was hesitant to open up to my mother and my sisters,” the complainant told me. She added that her father would not let her step out of the house alone. “He would shadow me everywhere, even to the common toilet in the adjoining lane.” In her complaint, she had also stated that her parents had a strained and abusive relationship. “My mother was scared of my father. He would beat her up,” the complainant had told the police. In her examination-in-chief, the complainant testified that, when her grandparents spoke to her mother after the first instance of alleged rape, her mother “was so scared of my father that she told them that she is not aware of anything.”
The complainant told me that every time she tried to approach her mother for help, she would be brutally beaten up—by the mother for “lying,” and by the father for revealing his truth. “I had tried telling this to both the police and the court. But no one paid any attention,” she told me.
This case is emblematic of how judicial processes have overlooked the horror to which survivors of sexual violence are subjected. At the time that she filed the FIR, the complainant was 16 years old—a “child,” as defined by the Juvenile Justice (Care and Protection of Children) Act, 2015. The act mandates that after the registration of a case of sexual offence against a child, the child must be produced before a Child Welfare Committee (CWC) constituted under the act. The complainant told me that she was never produced before a CWC, but custody over her was immediately granted to her aunt and uncle.
During our conversation at the VHP office in Thane, the complainant broke down several times. After discussing her allegations against her father, she spoke about her life after the filing of the complaint. “The only two times I could step out last year was when I visited my grandparents and another time to the court. I am locked inside the house each time my uncle and aunt have to step out,” she said, hesitantly. The complainant expressed her desire to pursue her education, but said that her uncle is opposed to the idea. When I spoke to him, the complainant’s uncle claimed the decision to discontinue her education was taken in her “interest.” “If we let her go out of the house, she would start mingling with people and soon people will find out about this incident,” he said, before adding, “No one can know about all this till she is married.”
Amid all this, the decision by the court to direct that perjury proceedings be initiated against the complainant only worsened the situation. The judge’s failure to correctly apply the law was evident from the fact that the judge quoted a provision from the POCSO Bill, 2011. This provision stated that a child above the age of 16 years could be sent to a Juvenile Justice Board for remedial action in case of the child instituting a false complaint. However, when the bill was passed into law, this provision was amended— Section 22 of the POCSO Act clearly stipulated that “no punishment shall be imposed on a child”—defined in the act as any person below the age of 18 years—in case of a false complaint.
To understand the phenomenon of retracting testimonies, a closer look at the relationship between the complainant and the accused is also essential. Data released by the National Crime Records Bureau in 2015 shows that out of the 45,505 incidents of rape of women and children reported that year, the survivors knew their abusers in as many as 41,439 cases—close to 91 percent. According to Persis Sidhwa, a lawyer with Majlis Law, a Mumbai-based organisation working with survivors of sexual violence, “In such situations, it becomes easy to exert pressure on the survivors. And in the cases of incest, the abuser is most likely the only earning member of the family. Once he is sent behind bars, every member, who is dependent on his income, suffers.” Sidhwa added, “In the absence of any support base, most survivors have to succumb to family pressure.”
To the complainant, nothing is more worrisome than the effect on her education. “Tomorrow if they send me to jail and my relatives refuse to keep me with them, how would I support myself? I have not even completed my schooling,” she said. The criminal justice system, it appears, has no answers for her.
Sukanya Shantha is a Mumbai-based independent journalist who writes on law and social justice.