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Thursday, July 19, 2018

City court shows the way for trial in cases of sexual assault on minors

8-year-old victim, who was too scared to depose, finally opens up and nails the culprit when the judge and lawyers create a ‘child-friendly’ atmosphere.

Written by Meghna Yelluru | Mumbai | Updated: December 11, 2014 1:24:10 am
In this case, three minor girls levelled charges of molestation against their neighbour. In this case, three minor girls levelled charges of molestation against their neighbour.

An eight-year-old is seated on a kindly woman’s lap, clutching a bar of chocolate the “aunty” has just given her. “Aunty” encourages her to respond to the “uncle” sitting across them. The man is a defence lawyer, the “aunty” a special Protection Of Children from Sexual Offences Act (POCSOA) court judge.

The case involved a man accused of molesting three children and ended, last month, with the accused being convicted and sentenced to three years’ imprisonment. Details of the evidence and depositions accessed by The Indian Express indicate that the POCSOA trial was conducted in an environment especially crafted for the comfort of an eight-year-old victim and key witness.

While Section 33(4) of POCSOA requires the special court to create a “child-friendly” atmosphere, mandates that aggressive questioning and character assassination be avoided and every effort made to “ensure dignity of the child” at all times, the good news is that courtrooms, staff and the legal system are showing their ability to adapt.

In this case, three minor girls levelled charges of molestation against their neighbour. The prosecution’s case was that the girls, all residents of a Chembur slum and aged between eight and 10 years, were molested in April last year by the convict when the trio went to play with his son. The mother of one of the victims deposed that her daughter had confided in her that the accused had exposed himself and touched her inappropriately.

Of the other two victims, one turned hostile during the trial, telling the court the accused touched her forearm. Another spoke of being touched inappropriately, but did not completely support the prosecution’s case. It was then the turn of the eight-year-old victim to depose.

On July 24 this year, the day the trial began, the girl had refused to depose.

According to the evidence, the judge observed, “Witness is getting scared.” The judge also noted that the prosecutor shook hands with the girl and “appreciated her smile”. However, when questions related to the accused were put forward, “the victim is looking uneasy and scratching the chair by her nails. She is continuously keeping mum and staring at the prosecutor…” The girl’s deposition was then deferred.
Before the final judgment, however, the court brought the girl back this October for her statement to be recorded.

According to the defence and prosecution lawyers, Judge Chanda Nathani walked down from her raised chair and rearranged the entire court in a circle. The woman stenographer, the mother of the deposing child, the prosecutor and the defence lawyer were all asked to form a huddle, in an attempt to make the setting comfortable for the victim. The eight-year-old victim was then made to sit in her mother’s lap and the defence lawyer introduced to her as “a friendly uncle” even as the judge asked her to “answer his questions courageously”.

“The witness is rubbing her nails and scrapping her fingers on the wooden table whenever she is asked a question related to the incident or the about the accused. The witness refuses to open her mouth, She is holding her mother tight. Sometimes she is pressing her one hand with other and staring only at a place for a long time. Sometimes she is running her feet on the floor,” reads the judge’s observations in the evidence copy.

Prosecutor Sheela Jamdar explains that the detailed notes on the child’s mannerisms in court help the judge decide how to conduct the cross-examination.

Observing the girl’s discomfort, Judge Nathani finally took the eight-year-old on her own lap. “She was offered a chocolate, asked many other things just to make her feel free. But she is not opening her mouth. But this time, she is answering by nodding her head or blinking her eyes. She is allowed to sit on her mother’s lap. Much time is consumed, now it is decided to ask questions and record answers on the basis of gestures,” reads the observation.

The POCSOA allows a family member or a guardian or relative to be present in court with child witnesses.

Further, unique only to POCSOA cases, defence lawyers are even asked to keep aside their black coats while questioning the child, to ensure trust and comfort. The Advocates Act, 1961, otherwise requires lawyers to wear the overcoat at all times inside judicial premises.

Defence Lawyer Sushrut Jadhwar recalls that the only time the door opened during the in-camera proceedings was when the stenographer rushed outside to buy some more chocolates.

The observation reads that during the examination, the prosecutor Jamdar started by asking the child “who her favourite teacher was”, if she’d like to play, and if she remembered a “little bit” of the case. In the cross-examination too, defence lawyer Jadhwar started with questions such as who her best friend was.

“I had to ask once or twice before she actually started to respond,” Jadhwar says. These were questions asked before the larger questions such as “where did he take you” or “where did he touch you”, the defence lawyer says. “We have to resort to such techniques for the sake of the child. She is already traumatised to be in the place,” Jadhwar adds. “The judge then offered her two pens. She was asked to pick one colour if her answer was in the positive and the other pen if the answer was in the negative.”

In her 30-year career, Jamdar says she has seen many “insensitive” defence lawyers tear down victims’ depositions. She says POCSOA courts change the rules from a regular rape trial.

“The judge generally lashes out at the lawyer or stops him from asking questions or is requested to change the tone,” she says. She adds that as they do not have Supreme Court judgements to rely on regarding how a trial should be conducted, they do some experiments of their own. In fact, court staff have now started to stack packs of chocolates for children who come to the court.

“Since I retire in the next few days, I was thinking of leaving my kids’ toys in the courtroom to keep children coming in engaged,” says Jamdar, who retired December 3.

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