Nothing is an offence which is done by a child under seven years of age. This presumption of law, doli incapax, under section 82 of the IPC, rests on the premise that a child is incapable of committing an offence. The same presumption of innocence, however, does not apply to a victim of rape if she is under seven years of age and is yet to come to terms with her gender identity. Moreover, she is expected to depose in the court of law like any other witness of age in almost a similar environment. Justice to such victims often eludes and neither major criminal laws of the country nor the POCSO Act, which specifically deals with sexual assault cases of children of age less than 18 years, provides any relief.
A research study of hundred cases of rape of minor girls has revealed that nothing has changed even after the enactment of the special Act, Protection of Children from Sexual Offences (POSCO) in the year 2012. This is besides the point that the difference between the special Act and the major laws has reduced to a minimal after certain amendments in existing laws to bring in consistency in its major provisions.
In six cases, the age of the child victim was less than six years and conviction could be procured only in two cases; rape in one case and kidnapping in the other, against a total of nine convictions out of the hundred studied cases. The major reasons of acquittal were victims’ statements not being recorded by the police, parents turning hostile, inconsistent statements by lady doctors who conduct medical examinations, parents not consenting for victims’ medical examination, forensic examination reports not being produced in the court etc.
The law permits medical examination of the minor victim only on guardian’s consent. Therefore more emphasis needs to be laid on the oral evidence. However, it was found that comparatively less importance was given to uncorroborated oral evidence in cases where consent for medical examination was withheld by the parents. Now, if the penetration is not complete and hymen is not torn, the case further gets weakened as the child is not in a position to explain the act of rape according to legal requirements. At the most, she complains about pain or fondling of private parts by the accused to her mother, who also is complainant in most of such cases.
If the parents don’t give consent for medical examination of the child for any societal pressure or other reasons and themselves turn hostile in the court, who is to be blamed for not dispensing justice?
Another fundamental issue that needs attention is that the scrutiny of evidence in such cases is generally done at par with cases where the victim is fully aware of the criminal act. In one of the cases, when the defence council asked the lady doctor, who conducted medical examination on complaint of rape, ‘whether the injury (of redness of vulva and pain) could be caused due to infection’, the doctor conveniently answered ‘yes’. Asking such questions during cross-examination is a routine procedure and often the medical doctors, who conduct MLCs, fail to depose firmly in the court of law and justify their findings
But then this is how an adversarial system of criminal justice is supposed to work when two adversaries i.e., prosecution and defence, are pitted against each other and the judicial magistrate acts like an impartial referee. The truth is supposed to emerge out of the arguments put forth by the two advocates. However, the experience has been far from satisfactory and the credibility of the criminal justice system (CJS) eroded. The Supreme Court has also criticized the passive role played by the judges in a number of cases and emphasized the importance of discovering truth.
Despite having section 29 of the POCSO Act which says that ‘the special court shall presume that the person prosecuted under sections of penetrative sexual assault has committed or attempted to commit the offence unless the contrary is proved’, in all cases under study, it was the prosecution who was asked to prove the case beyond reasonable doubt. The law of presumption was not invoked even in a single case. Similarly, the Code of Criminal Procedure (CrPC) as well as POCSO say that all cases of rape shall be investigated by women police officers. However, only one case was investigated by a woman officer; the other five, all by male officers.
The Justice Malimath Committee constituted to suggest measures to reform the Indian CJS, clearly stated in its report that the adversarial system of dispensing justice had not worked satisfactorily in India and some beneficial features of inquisitorial system should be incorporated by modifying the prevailing adversarial system. A few high courts and state governments had also agreed with the Committee’s suggestion. In an inquisitorial system, (as applicable in China, Russia, Japan, Scotland etc.) judicial magistrate investigates criminal offences and searches for the truth. In Germany, a breach of the Judges’ duty to actively discover truth would promulgate a procedural error which may provide grounds for an appeal. Italy uses a blend of two systems.
Some elements of inquisitorial system are already present in the Indian law. Section 176 of the CrPC says that custodial death or disappearance and custodial rape shall also be inquired into by the judicial magistrate in addition to the inquiry or investigation held by the police. Thus, based on similar premise, investigative powers can be given to the judicial magistrates in cases of rape of children under seven years of age so that truth is unearthed and justice dispensed with. The investigative judicial (woman) magistrate could be assisted by a medical doctor and a child specialist. The report of such magistrate could be treated as a final piece of evidence and the accused person shall be given an opportunity to state his version with evidence, if any, before the verdict is pronounced.
Though, the sample size of research study was not large enough and to be representative of the whole population to generalize the conclusions, it is sufficient to throw many questions for an open debate by the civil society. Having a separate law like POCSO Act, does not seem to be sufficient to dispense justice to a spectrum of victims who are not even capable of comprehending the ghost of sexual violence. Such offences need radical changes in the prevalent CJS. Let the inquisitorial system of criminal justice step-in in cases of sexual exploitation of children who cannot speak for themselves.
(The writer is additional director general of police in Chhattisgarh and pursuing post- graduate degree in law from distance education course of national law university, Jodhpur)
Also | Read our #LetsTalkAboutRape series here