“The picture which emerges from the testimony of PW11 clearly shows that she was never ravished by anyone in the school.”Excerpt from a judgment by a Mumbai court
The PW11 in this case is a three-year-old child whose parents filed an FIR against the trustee of the school she was studying in after she confided in her mother that he had sexually assaulted her. While the court acquitted the French national for want of substantive evidence, certain choice words used in the order, however, have evoked strong reactions.
The problematic term being- ‘ravished’. This was used to describe the act of sexual assault that the child had complained about. Senior advocate Abha Singh points out that while courts have used the word ‘ravish’ to describe sexual assault in the past, that doesn’t make it acceptable.
“It’s outdated, anachronistic and yet they use this word. But I think they shouldn’t have used this word for a child. Because when POCSO talks of aggravated sexual assault, penetrative sexual assault, then why are they using the word ravished? They could have used the word sexually assaulted. I mean there could’ve been a better word for a child than to use ravished.”Senior Advocate Abha Singh
Senior Advocate Rebecca John too believes that the term reeks of misogyny when used instead of sexual assault.
“Never say the word ravished, you say sexually assaulted. The language of the court has to change. Understanding of the offence will come only once the language changes. When you say ravished, you already have a pre-conceived notion of what the offence is, which is actually completely different from the nature of the offence. It shows a very regressive mindset. A word like ‘ravish’ displays complete insensitivity, misogyny.”Senior Advocate Rebecca John
The case came to light around May 2017 after the three-year-old girl’s parents filed an FIR in Mumbai's MIDC police station in Andheri, alleging that their child was sexually assaulted in school by the founder and trustee of the school. The parents also alleged a teacher’s involvement in the case.
They claimed that their child was being sexually assaulted for months and only spoke up about the ordeal after her mother spotted bruises on her body. Following this, both the accused were arrested by the Mumbai police.
While recording her deposition, the judge asked a detailed set of 87 questions to the three-year-old, whose answers appeared to be inconsistent. When initially asked if the ‘boy teacher’ (the school trustee) would take off her pants and touch her private parts, the minor says ‘no’. During the latter part of the questioning, when asked, “The boy teacher used to come in the classroom and he used to touch you at the private part and this was the secret between you and accused no 2 (the teacher)? The girl nodded and said, “Yes”.
Apart from this, the minor was also asked questions related to the time she spent at the school, including her teachers, a tree house located at the school, lunches, among other details. The court then observed that,
“Considering the testimony of PW11, it is difficult to believe that victim no 1 who could amazingly recollect so many minute details of her days in ‘school’ could have a faded memory only in respect of the incident as per prosecution.”
Quoting past cases, senior advocates point out that even if a minor does turn hostile, the onus of proving their innocence lies on the accused.
“There was recently a POCSO case in high court, and in that, the minor had turned hostile. She said that she had “forgotten”. The court asked whether she is forgetting or whether she is choosing to forget because she’s been terrorised or scared. So, even if the child wasn’t ready to depose and turn hostile, they upheld the punishment. Even if the minor had retracted. In fact, the high court has said that the POCSO onus is on the accused even if the minor retracts.”Senior Advocate Abha Singh
In such cases, circumstantial evidence then comes into play. However, advocate Rebecca John adds that constant repetition of questions tends to confuse the minor.
“This is not even a 16 or 17-year-old minor, this is a three-year-old baby. You cannot ask the same question 30 different times and then get 30 different answers and say nothing is proved. You may not be able to get enough to convict the accused, but you cannot do it in a way that you condemn the child.”Senior Advocate Rebecca John
The court observed that “…no accused can be convicted if the witnesses do not support the prosecution case or give quality evidence, as in the present case where the evidence of the victim is unreliable and untrustworthy…,” thus acquitting the accused.
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