Unnao Case : Investigation Suffered From Patriarchal Approach; Lacked Sensitivity; Unfair To Victim & Family, Says Court

In the judgment convicting ex-BJP member and UP MLA Kuldeep Singh Sengar in the infamous Unnao rape case, the Delhi Court termed the testimony of the survivor unblemished, truthful and to be having sterling quality.

"The testimony of PW-10 (AS) has been unblemished, truthful and has been proved to be of 'sterling quality' to arrive at a conclusion that she was sexually assaulted by accused Kuldeep Sing Sengar at his evidence at Village Makhi on 04.06.2017", observed Additional District Judge Dharmesh Sharma, Tis Hazari, Delhi. Based on school records, the Court found that she was a minor, aged nearly 16 years, at the time of the crime.

The judge had recorded the evidence of the survivor at AIIMS hospital New Delhi, where she was undergoing treatment for the near-fatal injuries sustained in a road accident on July 28. The accident happened when a truck collided with a car in which the complainant, her lawyer and her aunts were travelling. Two of her aunts were killed in the accident and her family had alleged foul play. A separate crime has been registered for this incident, in which Sengar is facing charges of criminal conspiracy.

Delay in reporting occurred as girl was under threat

The Court found that the delay of 2 months and ten days in reporting the crime to police has been satisfactorily explained by the complainant. It found that she was threatened by Sengar to keep quiet. The Court also recorded that no sooner the incident was reported, a "vicious tirade" against the father and uncle was "orchestrated" by Sengar.

"The instant case manifest the multitudes of restrictions and taboos with which women in rural areas are brought up, grow and survive. It epitomizes the fear ingrained in the mind of young girl in the country side or elsewhere against reporting the issues of sexual assault by powerful adults", the Court observed.

The judge added :

"In my considered opinion, the investigation has suffered from patriarchal approach or inherent outlook to brush the issues of sexual violence against children under the carpet apart from exhibiting lack of sensitivity and humane approach. It appears that somewhere investigation in the instant case has not been fair qua victim of crime and her family members".

Investigation unfair

The Court specifically noted that the investigation has not been conducted by a woman officer as mandated by Section 24 of the Protection of Children from Sexual Offences Act 2012. The successive statements of the victim girl had been recorded by calling her at the CBI office "without bothering for the kind of harassment, anguish and re-victimization that occurs to a a victim of sexual assualt", the court observed.

The Court slammed the CBI for the delay of over one year in filing the chargesheet, after they had taken over the investigation from UP police in April 2018. The chargesheet was filed only on October 3, 2019.

Character assassination of complainant

The Court also found that the CBI had "selectively leaked" vital information from the statements of witnesses with an attempt to put a cloud over the case of complainant. Also, there was non-examination of huge data retrieved from the mobile phones of Kuldeep Singh Sengar and Mahesh Singh (uncle of the survivor).

It further observed that the defense had attempted to "demolish the character" of the complainant and had also attempted to mount an attack on the case of gang rape committed on her by Sengar and aides, trial of which is yet to commence.

The defense had put up a case that the complainant had an affair with Naresh Tiwari, an accused in the gang rape case. The Court said that even if that is assumed to be true, that by itself was no ground to assume that she had any motive to falsely implicate Sengar.

Sengar's evidence of alibi - that he was not present elsewhere during the time of crime- was not proved even by preponderance of probabilities, the Court found. The defense witnesses have turned out to be "tainted and interested witnesses" who have gone out of the way to support Sengar due to his political might. The Court noted that the statements of defence witnesses were contrary to their versions recorded by the investigating officer.

"The case also reflects that that there is nothing wrong with the letter and spirit of POCSO Act but its not so effective implementation at ground level due to multitudes of stereotypes outlook towards commission of sexual assault towards women and children", the judge remarked in the end.

The Court found Sengar guilty of offences under Section 376 of the Indian Penal Code and Sections 5(c) and 6 of the POCSO Act.

The woman's father was allegedly framed in an illegal arms case and arrested on April 3, 2018. He died while in judicial custody a few days later, on April 9.

The trial in the case was fast-tracked after being transferred to Delhi from UP on orders from Supreme Court. 

The apex court, taking cognisance of the rape survivor's letter written to then Chief Justice of India Ranjan Gogoi, had on August 1 transferred all five cases registered in connection with the Unnao rape incident from a Lucknow court in Uttar Pradesh to the court in Delhi with directions to hold trial on a daily basis and completing it within 45 days.

The trial in the other four cases -- framing of the rape survivor's father in illegal firearms case and his death in judicial custody, conspiracy of Sengar with others in the accident case and a separate case of gang rape of the rape survivor by three others -- are ongoing in the court.

During the trial in the rape case which was held in-camera, thirteen prosecution witnesses and nine defence witnesses were examined. The mother and uncle of the rape survivor were the main witnesses in the case.