The Protection of Children Against Sexual Offences (POCSO) Act 2012 seems to have gone for a toss in Meghalaya with the rising number of sexual assaults on minors and the long pendency of existing cases.
Worse than this is when the long wait ends with acquittal for the accused and when the crime is whitewashed with witnesses turning hostile. The helpless child is left unprotected under the pressures of an adult world.
The matter of a POCSO case (No. 19 of 2015) from Pynursla, East Khasi Hills, which began in 2013 with an FIR and ended six long years later in 2019, is a case in point. All the witnesses, including the estranged step-father of the child victim, turned hostile, leading to the acquittal of the accused. It is one of those cases which show up the police and judicial processes as systems which are failing the child, the POCSO Act notwithstanding. This case stands out as an example of how not to deal with a POCSO case.
Luckily in this case, some public-spirited relatives are still hoping to challenge the controversial October 31 judgment in a higher court. One of them told Highland Post that “if left unchallenged children will not be safe in their own homes as the adults will connive to exploit them.”
Who can be blamed if the law is not considered grand and majestic if this child below 12 was a victim of captive rape, which came to light only when, on her complaining of stomach pains, she was taken to the local primary health centre by her mother only to be told that she was in early stage of pregnancy? Her biological father, estranged from the child’s mother, had filed an FIR on February 5, 2013 stating that she has been raped by her step-father and that he had been told of this by his two other daughters, older sisters of the sexually molested child. The FIR also said that the child and her family were threatened. But out of the four family witnesses – the biological father, the mother and two sisters of the victim, all but one turned hostile. The one witness who remained told the special court that the family is financially dependent on the step-father, which is why the others had turned hostile.
A charge sheet was submitted on July 28, 2014 after nearly a year and a half after the FIR, when the Act says that POCSO trials should be completed within a year.
Charges were framed on June 20, 2016 under section 5 (j) (ii) (1) (p)/6 of the POCSO Act. Even after the FIR the child seems to have been allowed to stay in the same house as the accused during this entire time, which is against the idea of POCSO Act.
The child gave birth to a baby boy in Ganesh Das Hospital in November 2013. Once the baby was born, the doctor made a request for a DNA test but the victim and the family refused to undergo one. In fact the complainant, accused and the mother of the victim “informed in writing that they did not want to pursue the matter as they had compromised”. The police stood their ground but police statements are not considered enough in a court of law.
Since the witnesses turned hostile and they declined the DNA test, the court found no evidence against the accused step-father and acquitted him.
However, what stands out as a glaring failure of justice is the glossing over of who sexually assaulted the child then? On this point the judge remained silent. The judgment accepts that the witnesses overturned their statements. It did not also acknowledge that the biological father had made a written FIR in the first place which had initiated the investigation by the police. No probe was made into why the man retracted his FIR, just as all the other statements of the witnesses turned hostile were accepted at face value, which is surprising in such a serious child rape case.
Throughout the entire trial the special public prosecutor under the POCSO Act declined to cross examine the witnesses who turned hostile. In the entire episode, the welfare of the child who became a mother at 12 years of age remained forgotten and unattended.
It is learnt that she was married off by the mother after the birth of the child, who also now needs protection as the DNA test is still hanging in the air and it is a fact that only a DNA test can finally prove the innocence of the accused.
Legal experts feel that the very objective of POCSO is undermined when it is not pursued in letter and spirit.
In December 2019 the Union Minister of Law had written to all the Chief Justices of the High Courts to complete investigation in cases of rape and those registered under the POCSO Act within two months. The Supreme Court had also issued guidelines on speedy disposal of POCSO cases in 2018.