In a serious case of child sexual abuse, iProbono panel lawyer Faraz Maqbool successfully assisted the prosecution to represent Mahima*, now 17, before a POCSO[1] Court in New Delhi. The defendant, Mahima’s father was found guilty of ‘aggravated penetrative sexual assault’ and ‘criminal intimidation’ and sentenced to 12 years rigorous imprisonment[2]. The court also ordered the District Legal Services Authority to award INR 600,000 in compensation to ensure Mahima’s rehabilitation.

Mahima was 8 years old when she was sexually abused for the first time by her father. She lived in a one-bedroom apartment with her parents and younger sister. Her mother was the sole breadwinner, employed as a teacher at a government school. Between 2012 and 2014, Mahima was abused multiple times by her father, which finally led to her writing a letter to her mother, describing what she had suffered over the past two years. When confronted, Mahima’s father denied all allegations and subsequently, a First Information Report (FIR) was registered in June 2014. 

In her testimony, Mahima provided a detailed description of the abuse. Her deposition was consistent with statements she provided earlier to the police and magistrate. The defense argued that the case was registered due to marital discord between the parents – there were allegations of domestic abuse and subsequently, the marriage was dissolved under Muslim personal law. The Defendant claimed that his wife was conducting an extra marital affair and since he had found out about it, his daughter was tutored into falsely implicating him on charges of sexual assault. Defense lawyers also contended a delay in registration of the FIR — six days had lapsed between the time Mahima’s mother found the letter and reported the incident to the police. They argued that if the child was sexually abused multiple times over the course of two years, she would have confided in her mother and reported the alleged incidents sooner. It was virtually impossible, they argued, that neither the mother or the younger sister was aware of what was happening under the same roof. The defense also alleged that the NGO that counseled the child before registration of the case had played an active role in tutoring the child. Finally, the letter that Mahima wrote could not be produced as evidence as it was torn up by the Defendant. This proved to be an obstacle to the prosecution’s case. 

Faraz argued that it is established in law that a six-day delay in registering an FIR is inconsequential in sexual offences. The young child was constantly threatened with physical pain and even death, which discouraged her from disclosing the abuse to her mother. There was no material evidence on record to substantiate the claim that Mahima was tutored by either the NGO or other parties. 

The court observed that Mahima vividly described the sexual abuse both in court as well as before the investigating authorities and recognised that such detailed descriptions from a 10-year-old child (at the time of registration of FIR) cannot be mere figments of her imagination. After careful scrutiny of the child’s statements (and the words used by her), the Court was convinced that Mahima is a competent witness and nothing on record suggests that she was tutored or influenced. 

The trial judge also noted that although the child survivor’s testimony alone was sufficient in convicting the accused, it was strengthened by the mother’s deposition. Arguments that a false case was filed because of marital discord between the parents or an alleged extra-marital affair were brushed aside by the court as a ‘sham’, ‘baseless’ and mere ‘afterthoughts’. On the basis of medical evidence corroborated by testimonies of prosecution witnesses, the Defendant was convicted under Section 6 of POCSO for aggravated penetrative sexual assault and Section 506 of the Indian Penal Code for criminal intimidation, and compensation for the welfare of the child and her rehabilitation was awarded.  

Based on the Victim Impact Report, prepared by the Delhi Legal Services Authority, the accused could not afford to compensate the survivor and the Special Court, exercising powers under Section 33(8) of POCSO, paid the final compensation. In determining quantum, the interim compensation already paid to the child at an earlier stage of the trial was also considered. 

Mahima’s case shows the resistance of trial court judges to agree without scrutiny to often-used defenses raised in sexual offence cases. These include how the defense questioned the character of key witnesses or accused NGOs and other non-state actors of prejudicing trial outcomes. The criminal defense bar has an ethical responsibility to present a fair defense on behalf of an accused to build a criminal justice system that ensures the rights of both the victim and the accused. 

[1] Protection of Children from Sexual Offences (POCSO) Act, 2012

[2] Rigorous Imprisonment is defined under Section 53 of the Indian Penal Code as imprisonment with hard labour. 

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