In this article Vidisha Indalkar, a student from D.E.S’s Shri Navalmal Firodia Law College, Pune discusses on the Kathua rape case and the POCSO Amendment.
Our country has been overly tolerant with the huge number of rape cases taking place. The principle of proving the crime beyond all reasonable doubt has done more harm than good, especially to the rape cases. Sex offenders walk free more often than not causing loss of faith in Indian judicial system. The time taken to try a case is another phenomenon that affects the material evidence to the case in a way that certain indispensable facts making the case are done away with before it sees the light of the day. Although, the Kathua minor rape case that shook the nation has made some landmark changes to the judicial system. Among the thousands of rape cases that take place, after the 2012 Nirbhaya gang rape case this is the one that has considerably made a difference to the Indian society.
The brutal Kathua gangrape-murder case, for which eight people have been charged, has polarised the state socially, politically and on communal lines. The nomadic tribes of Gujjars and Bakarwals move to the mountains along with their livestock from the plains of Jammu during summers and come down during the harsh winters.
The brother-in-law of the victim’s biological father and his wife had lost their three sons and a daughter in a road accident in Mansar a few years ago. To bring them out of pain and agony her biological and his wife decided to give our youngest daughter to them when she was barely even a year old.
The biological father said she used to jump into his lap whenever his family visited her foster father’s home. The victim knew she was a foster child and who her real family was but she never wanted to return to them as she loved her new house.
They had no enmity with anyone in Rasana. Both families were devastated and wanted to be given justice by publicly hanging the culprits. He said that instead of seeking justice for his daughter some people were trying to make it a Hindu versus Muslim issue.
Accused: Sanji Ram; Deepak Khajuria; Tilak Raj; Anand Dutta; Parvesh Kumar; Vishal Jangotra; A Juvenile
Dates: 10 Jan 2018 – 17 Jan 2018
Victim: 8-year-old female
Attack types: Kidnapping, Murder, Gang-Rape
- Sanji Ram Maternal uncle of one of the accused provoked and induced said JCL to take revenge from the Bakarwals who had earlier beaten him.
- All of them later conspired to kidnap the victim and used a family members’ prescription to get sedatives.
- On 10th January, 2018 one of the accused heard the voice of the girl who was enquiring from one Veena Devi about her horses when he was on the roof of his Mamu (accused Sanji Ram’s) house. He immediately rushed downstairs, took 03 Manars and keys of Devisthan and told the victim that he had seen her horses. He led her to the jungle and also called accused Mannu who was already waiting for his signal. Sensing some trouble the victim tried to flee away. The accused stopped her by catching hold of her neck and covered her mouth with one of his hands and pushed her and she fell to the ground.
- Later on, they took the girl and kept her inside Devisthan under the table over two Chatayees (plastic Mats) and then covered her with two Darees (cotton thread Mats).
- Thereafter, both JCL and accused Mannu left Devisthan after locking it. On the next day, parents of victim reached Devisthan and enquired from accused Sanji Ram about the whereabouts of her missing daughter and in reply the accused Sanji Ram told her that she will be back as she might have gone to some relative’s house. For the following 7 days, the victim was sedated and raped by all the accused
- After committing the barbaric act of rape on the minor victim the accused Deepak Khajuria kept her neck on his left thigh and started applying force with his hands on her neck in order to kill her. As accused Deepak Khajuria was unsuccessful in killing her another accused killed her by pressing his knees against her back and strangulated the girl by applying force on both the ends of her Chunni.
- Thereafter, accused, in order to make sure that the victim is dead, hit her twice on the head with a stone. As per the conspired plan, the dead body was to be transported and disposed of in the Canal.
- Investigations revealed that next day on 17th January 2018 dead body of the victim was recovered on the basis of information provided by Jagdish Raj, who had seen the same while in search of his missing sheep in the nearby forest.
Precautions for trial
In order to make the trial fast-tracked, the Supreme Court said proceedings will be held every day and there will be no adjournment. The trial will be conducted in camera, the top court said in its order. The Supreme Court said the trial will be held according to the provisions of Ranbir Penal Code, which is applicable in Jammu and Kashmir.
The accused in the case have sought a CBI investigation, which is pending in Jammu and Kashmir High Court. Chief Justice of India Dipak Misra, who was part of the three-judge bench hearing the case, however said, “No other court will hear any case on this issue as we are monitoring it”.
Situation on Jammu
The murder had triggered a backlash in Jammu. Rallies were held to show support for the accused, which was attended by two ministers. They had to step down later. The lawyers in Jammu held protests at court premises and stopped police officers from entering the court for hours to file the charge sheet. Deepika Rajawat, the advocate representing the child’s family, said members of the Jammu and Kashmir High Court Bar Association had threatened her, demanding that she does not appear in the case. The association denied the allegation.
Earlier, the Bar Council of India gave a clean chit to the Jammu lawyers. After an on-the-ground investigation, it told the Supreme Court that the Jammu lawyers did not obstruct justice and their demand for a CBI investigation into the matter is “justified”. The Supreme Court transferred the trial in the Kathua rape and murder case to Pathankot district in Punjab.
State wise protest
Thousands joined in marches, carrying placards and forming human chains in Delhi, Mumbai, Bengaluru, Goa, and across Kerala. Protests were also held in Rajasthan’s Ajmer, Gujarat’s Surat, Punjab capital Chandigarh, and Bhopal, the capital of Madhya Pradesh. Nearly 2,000 protesters, including activists who participated in the “Not in My Name” protests last year, gathered at Parliament Street in the heart of Delhi. Swati Maliwal, the 2chief of Delhi Women’s Commission, announced a hunger strike.
In Mumbai, a section of Bollywood, including actor Priyanka Chopra and producer Ekta Kapoor asked fans to join the protests, which started at Carter Road in the posh Bandra area. “Everyone should come. Whatever religion, gender or belief you belong to. For humanity, for justice,” Ekta Kapoor tweeted. In an open letter, a group of 49 former civil servants have asked Prime Minister Narendra Modi to reach out to the families of the children targeted in Kathua and Unnao and “seek their forgiveness”.
- The Centre, in its letter, submitted to Supreme Court has said that it has started the process to amend Protection of Children from Sexual Offences Act (POCSO Act) to ensure maximum punishment of death penalty in child rape cases between the age group of 0-12 age.
- The federal government passed the bill in both the houses. The minimum term of rigorous imprisonment for the rape of a girl under 16 has been extended to 20 years from 10 years, which may be extended to a lifetime imprisonment.
- The perpetrators of rape of a girl child under 12 years of age may undergo 20 years of rigorous imprisonment, extendable to a lifetime of imprisonment or death; in the case of gang rape, life imprisonment or death is made effective.
- The investigation time limit has been set to two months, paving way for a speedy trial. The provisions for anticipatory bail for the rape accused have been denied. Setting up of fast-track courts is in due consideration of the Union Cabinet.
- A national database and profile of sexual offenders is to be maintained by the National Crime Records Bureau and will be sent to the states and UT’s for tracking and monitoring incidents of sexual assault.
- Indian President Ramnath Kovind on Sunday approved “the criminal law amendment ordinance, to provide stringent punishment, including a death penalty, for those convicted of raping girls below 12 years”.
After the declaration of the POCSO Amendment, there was a huge national debate initiated my many child foundations. The amendment’s main provision was that anybody who rapes a minor below the age of 16 years gets a death penalty. Various judges and other officials condemned the law for the sole reason that when any girl is raped from now on the murderer will not consider keeping the girl alive after having raped her as the penalty for both is the same. As mostly the offender is close to the family or knows the family well there will be fear of the girl pointing out the culprit. It was said that there no proper research conducted before the enactment of the law and was hastily passed under pressure. Rather than setting a deterrent punishment there should’ve been a law passed that is preventive in nature was the general opinion of the protestors.