State Vs. Nandan, FIR No. 72/2011, PS Bhalaswa Dairy New Delhi
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 42/2011 Unique Case ID: 02404R0214542011
Child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, according to a statistic from a survey done by the Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly three quarters of upper and middle class Indian girls are abused by a family member often by an uncle, a cousin or an elder brother. This is an unfortunate case where the prosecutrix namely ‘S’ aged about 56 years was raped by her Mausa (real brother of husband of her Mausi).
This case is a glaring example of the growing menace of sexual abuse of young children. Rape is an abominable and ghastly and it worsens and becomes inhuman and barbaric when the victim is a small female child, a five to six years old child, as in the present case who is subjected to unwanted physical contact by a perverted male adult.
In the present case the child victim ‘S’ is regularly receiving treatment till date from various hospitals at Rajasthan (where she is presently staying) and her medical record is placed on judicial record as Ex.X1 (collectively) shows that her resistance level has decreased and she is suffering from recurrent infections. The possibility of the convict having transmitted some infection and disease to the victim while committing the ghastly act cannot be ruled out.
We as a nation have failed to protect our daughters at every step. If safety and security of women is a matter of national concern then why is that we as a nation are unable to provide a safe and secured environment for them.
The child victim ‘S’ has suffered immense mental, physical and psychological pain and so has her family. The sexual assault as narrated by the child and borne out from the medical and forensic evidence is horrifying to the minutest details and the convict before this Court does not deserve any leniency.
This being the background, the ghastly, inhuman act of the convict cannot be condoned and a substantive, stern sentence if not imposed upon him would be travesty of justice. The message to be sent by the Court has to be loud and clear, and that is “do not mess with a child” and any person who meddles with the child male or female in any manner shall not be spared come what may. In my considered opinion Castration is the most befitting sentence which can be imposed on any pedophile or serial offender (as earlier highlighted by me in the case of State Vs. Dinesh Yadav, FIR No. 138/2009, PS Swaroop Nagar decided on 30.4.2011) but the hands of this Court are tied, the Statute not providing for the same since the Indian Legislators are yet to explore this as an alternative to the conventional sentencing. After all, society cannot afford to have live sex bombs, who if let loose are potential threat to the society particularly to women and children.
Coming now to the aspect of compensation to the victim, I may observe that rape of a child not only affects her alone but such an incident leaves a devastating impact on her entire family who equally suffers in silence. The victim at the time of the incident was hardly aged about six years is presently residing at Rajasthan and has not yet recovered and is under constant medical care and receiving treatment and diagnosis from various hospitals at Rajasthan including City Hospital, Mahima Hospital, Bansal Child Clinic, Healthway Hospital, Kailash Hospital, Kailash Healthcare Ltd. (as per the treatment record Ex.X1). It is cases like these which the Ministry of Women and Child development needs to target for Restorative Justice so that the medical and legal assistance, professional psychological counselling, shelter and other support is provided to the victim. The Hon’ble Apex Court has time and again observed that the subordinate Courts trying the offences of sexual assault have the jurisdiction to award the compensation to the victims being an offence against the basic human right and violative of Article 21 of the Constitution of India. It has been so observed by Hon’ble Mr. Justice S. Saghir Ahmed and Justice Kuldip Singh (Ref: Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922) that the jurisdiction to pay compensation (interim and final) has to be treated to be a part of the over all jurisdiction of the Courts trying the offences of rape which is an offence against basic human rights as also the Fundamental Rights of Personal Liberty and Life. Therefore in order to provide Restorative and Compensatory Justice to the victim who requires constant medical assistance and rehabilitation.
I hereby direct the GNCT of Delhi through Principal Secretary (Home) to grant an compensation to the tune of Rs.2,00,000/(Rs. Two lacs) to the child victim ‘S’ daughter of Chandan Gupta R/o Village Nimrana, Distt. Alwar, Rajasthan, in addition to the medical facilities for her treatment, which amount shall be used for her education, welfare and rehabilitation under the supervision of Deputy Commissioner (NorthWest), Government of NCT of Delhi [Ref.: Hari Kishan & State of Haryana Vs. Sukhbir Singh & Ors. reported in AIR 1988 SC 2127 and Bodhisattwa Gautam Vs. Subhra Chakraborty reported in AIR 1996 SC 922]. I hereby direct that a copy of this order be sent to the Principal Secretary (Home), GNCT of Delhi and Deputy Commissioner (NorthWest), Government of NCT of Delhi for information and necessary action under intimation to this Court.