Why the FIR doesn’t tell you the whole story

A complex picture emerges from the analysis of a year of Mumbai sessions court rulings on sexual assault: false cases foisted by parents, wide variation in the sentences, societal prejudices and vulnerabilities at play, and a tendency for investigating high-profile cases with greater rigour

December 22, 2015 12:54 am | Updated 12:27 pm IST

Over half of all sexual assault cases decided by Mumbai’s sessions courts in 2015 involved either parents filing cases against young couples who had eloped, or the breach of promise to marry, an analysis of court data shows. Among the rest of the cases, men preying on children playing outdoors in slums formed the largest category, but many of these cases were poorly prosecuted, the data showed.

In July 2014, The Hindu>analysed all 500 cases involving sexual assault that had been decided by Delhi’s six district courts in 2013 to present for the first time a more complex picture of the nature of rape cases that were coming before the police and courts than the media narrative, based almost entirely off First Information Reports (FIRs), would seem to tell. Over the last month, a similar analysis was done of all 142 cases decided by Mumbai’s two sessions courts hearing sexual assault cases in Fort and Dindoshi this year. These cases included those filed under the Indian Penal Code (IPC) Sections 354 (molestation), 363 (kidnap), 366 (kidnapping a woman for marriage), 376 and 377 (rape) and sections of the Protection of Children from Sexual Offences (POCSO) Act.

Parents on the prowl One-quarter of all cases involved parents filing cases of kidnap and rape against young men whom their young daughters had eloped with; several of these were inter-caste and inter-religious couples, and many recounted parental opposition to their relationship. These 33 cases followed a similar pattern; following the registration of the FIR, in which the girl was described as a minor even though it would eventually be proved in court she was of age 18, or nearly 18, the couple would usually be retrieved from another part of the State or even another State by the police, and the boy would be arrested and the girl would be sent to a children’s shelter. “I ran away in the middle of the night with him and we got married and stayed with his relatives in Assam,” a complainant in one such case said. “When the police brought us back, I said I am an adult, but they gave me two options — go back to your parents or go to Dongri [children’s home]. I went to Dongri but it was such a terrible experience till he was acquitted that if I wasn’t strong and already pregnant with our baby, I would have given up.”

Several senior police officers I spoke to were unwilling to comment on the record on such cases, noting that they were usually criticised for being sexist if they spoke of elopement cases. “If the parents approach us saying their daughter has run away with a boy from the neighbourhood, we have to register a complaint of kidnap of minor and later when she says she had relations with the boy, we add the rape charge. Then it is for the court to decide whether it was rape or not,” one sub-inspector said, explaining why most such FIRs followed a similar script. The media reports what the FIR says, he added.

The element of subjectivity Mumbai trial court judges — like their Delhi counterparts — rarely convict in such cases, particularly if the girl does not support the prosecution’s case throughout the trial. In six cases, however, the judge chose to take a strict view of age, convicting for kidnap in two cases, rape in two cases and under the POSCO in two since the girl was under 18, irrespective of her consent. This is an area of great subjectivity; other judges presented with similar cases chose to take a lenient view if the girl was over 15 or 16 years of age, noting that the facts implied that she was aware of the meaning of her decisions. “Since the law says we have to pronounce the boy guilty if she is a minor, earlier we would reduce the sentence if it was clear this was a case of elopement,” one trial court judge explained to me. “But now with the new law, that is not allowed.”

The Criminal Law (Amendment) Act, 2013, passed by Parliament in the wake of the December 16, 2012 Delhi gang rape set a minimum sentence of 10 years for rape in the case of minors to take discretion in sentencing out of the hands of judges.

Another fifth of cases involved breach of promise to marry. Here, too, courts are unlikely to convict but there is substantial variation between judges; in four of 25 such cases, judges handed down convictions. In one such case the man was already married, in another he had refused to marry the woman, and in a third he married someone else; in these three cases, the courts ruled that the woman’s consent for sex had thus been fraudulently obtained. In the fourth case, the girl was a minor. In seven of the remaining 21 cases which led to acquittals, the complainant told the court that since the accused had since married her, she did not want to pursue the case.

Societal prejudices at play Such cases need to be seen in the context of societal condemnation of premarital sex, says a report by the women’s rights law group, Majlis. Analysing 644 cases since 2008 in which they had studied or intervened in, Majlis found that 20 per cent of the cases involved breach of promise to marry. In a quarter of such cases, the complainant was pregnant, highlighting the vulnerability of her situation, Majlis noted.

Thirteen cases involved alleged sexual abuse by close family members including the father or stepfather, mostly of minor girls. Eight of these resulted in convictions. Of the five acquittals, in three the complainant and her mother turned hostile in court. Of the remaining two, the court did not believe the testimony of the child and her mother in one, while in the other, the three-year-old complainant was unable to explain her injuries or the spot of the attack to the court, the judge held.

Around 16 cases involved men allegedly preying on children in slums and on footpaths, often luring them away with sweets while they were playing outside unsupervised. “My husband works till night and I work till evening. When I reach home, I have all the housework to do. There are always children playing outside, so I send my kids also. What else could I have done?” the mother of one such victim from a Govandi slum tearfully recounted. At least two such cases involved the rape of a male child.

Let down by lapses While the majority of these cases involving neighbours and children resulted in convictions, many them were indifferently investigated and prosecuted; in one case, a 16-year-old homeless girl said she had been gang-raped, but from the hospital to the police, little attempt was made to collect evidence or correctly identify the accused, and all five boys were acquitted. In another case involving the alleged rape of a nine-year-old boy in a slum by his 60-year-old neighbour, the man was acquitted despite the child and his mother’s evidence as well as medical evidence because the police had failed to have the child’s statement recorded before a magistrate.

Public prosecutors The Hindu spoke to said that they were often confronted with next to no usable evidence with which to prosecute a case when it wasn’t high-profile. “Just look at the difference in the thickness of the file (of evidence) I have in a case that has got media attention and all the rest,” one prosecutor said. “Maximum two prosecution witnesses are called in such cases, while you will see more than 10 in high-profile ones,” the prosecutor said. Judges on their part will sometimes convict with little corroboration and at other times place a high burden of proof on the prosecution, the prosecutor said. In six cases, the complainant was named in full in the final judgment.

In all, fewer than five of all cases involved alleged sexual crime by strangers.

rukmini.shrinivasan@thehindu.co.in

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