While hearing a sexual assault case, the Bombay High Court has opined that there is a need for introspection of all stakeholders dealing with issues of women, particularly minors.
The Court was hearing a bail plea filed by the alleged accused under sections 354 (assault or criminal force), 363 (kidnapping), and 376 (punishment for rape) of the Indian Penal Code and sections 8 (sexual assault) and 12 (punishment for sexual harassment) of POCSO Act.
The FIR was registered by the complainant in 2018, who also happened to be a passer-by. He he was stranded at a signal on his bike, when he noticed an auto-rickshaw with black curtains on all sides and could overhear a girl crying. When inquired, the auto-rickshaw driver responded by saying that his vehicle had passengers, however, as the cries of the girl still continued, he pulled out the curtains and noticed that a man (the accused) was forcing himself upon a girl (survivor).
The survivor has submitted that she was 16 years old when the incident took place, however, the court observed that “not a single document is included to establish that the girl is of 16 years, particularly when the case of the Applicant is that she is more than 18 years. The Investigating Officer did not bother to conduct any ossification test.”
She referred to the entire incident in great detail before Justice Bharati Dangre and stated that she knew the auto-rickshaw driver for nearly six months and another person, to whom she referred to as the person who committed the sexual assault on her, was alleged to be the brother of the auto-rickshaw driver. She admitted that she was also given some alcohol to consume.
The accused, on the other hand, said that the girl was into “flesh trade” and everything happened with her consent and that she was in a conscious state.
Court’s observations
The court asked the Additional Public Prosecutor’s about the present status of the survivor and was informed that she continues to stay at platform number 1 of Andheri Railway Station. To this, the court said, “It is surprising, rather shocking to note that a girl, who had met with a sexual assault and ravaged is left on a railway platform in such a manner.”
Justice Dangre further observed, “There are legislations, which mandate the State in consonance with the imperative mandate contained in the Directive Principles of State Policy, to ensure that the youth is not exploited.”
The court sternly remarked that proper care had not been given by the executive branch to help the survivor. “It appears that the Investigating Officer of the present offence is not aware of any of the provisions of the law, which would have ensured the girl to be taken to some rehabilitation home or correction home and particularly, when it is the case of the prosecution that the girl is a minor, the assistance of the Juvenile Justice Board should have been taken, but nothing has been done”, read the order.
The court directed the investigating officer to trace the survivor and take necessary corrective steps. Justice Dangre said, “Further, it is also necessary to subject her to ossification test, if no document is available with her as proof of her age. The medical papers also revealed that the DNA analysis of the foetus, which was aborted, was also done. Learned A.P.P. should also throw some light on the report of the DNA analysis.”
Until there is some clarity on this, the court has directed the applicant/accused to wait.
The order may be read here:
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