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1, 2, 3, 4, Death

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Written by Milind Ghatwai | Bhopal | Updated: September 16, 2018 2:00:55 am

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Chief Minister Shivraj Singh Chouhan said those who rape minor girls were “not humans”, but “pishaach (devils)” and “didn’t have the right to live”.

LOG samjhaate rahe nabbe din tak kuchch nahin hoga (People kept reassuring us nothing would happen for 90 days),” says Radhabai Kol, 62. Ninety days is the usual deadline for police to file a chargesheet. Radhabai’s son Rajkumar, 33, was sentenced to death in five — the fastest trial in the 12 death sentences handed out by Madhya Pradesh (MP) courts since February this year in the cases of rape of minors.

In December 2017, MP became the first state in the country to pass a Bill providing for the rapists of girls aged 12 or below to be hanged till death. The minimum punishment, the Bill stated, would be a 14-year rigorous imprisonment or life term till death. This would go up to 20 years rigorous imprisonment in cases of gang rape of girls aged 12 or less. The government passed the Bill after the latest National Crime Records Bureau (NCRB) report showed that MP witnessed the highest number of rape cases in the country in 2016.

Speaking on the Bill, Chief Minister Shivraj Singh Chouhan said those who rape minor girls were “not humans”, but “pishaach (devils)” and “didn’t have the right to live”.

After MP, Haryana, Rajasthan and Arunachal Pradesh passed similar legislation, while J&K and Delhi resolved to do so. Even as MP’s Bill was pending with the President, in April this year, the Centre issued an ordinance providing death for the rape of minors, including many provisions of MP’s legislation. In July, the Lok Sabha passed the Bill, which also puts a two-month deadline on the trial of rape cases, a six-month time limit for disposal of appeals, and says there will be no provision for anticipatory bail for a person accused of rape or gang rape of a girl under 16 years.

Rajkumar’s (top right) parents Radhabai and Purushottam (top) say their son was not given a fair chance. (Express Photo by Milind Ghatwai)

An autorickshaw driver, Rajkumar was accused of taking a four-year-old girl he drove to school to a secluded spot on July 4, kissing her and penetrating her with his finger. The complaint was lodged on July 6, after the girl’s aunt told police she complained of pain while relieving herself. The aunt said the girl accused the “auto wale bhaiyya” of slapping her and threatening to beat her up if she told anyone.
Rajkumar was sentenced on July 27. In his Independence Day speech, Prime Minister Narendra Modi cited the “five-day” Katni trial as a case that should be “publicised” so that “people with demonic mentality get scared”.

The Kotwali Police Station, overseeing a population of about 2.5 lakh, is located in a single-storey building near the town’s main square. Of its sanctioned posts of nearly 170, including sub-inspectors and assistant sub-inspectors, around 40 are vacant. The Investigating Officer in the Rajkumar rape case, SHO Shailesh Mishra, 53, is not sure of the number of cases he is handling. A wall outside his cabin has pictorial messages on ‘good touch’ and ‘bad touch’ for children.

The girl’s aunt visited the police station late in the night of July 6, he recalls. The FIR was registered at 11.35 pm. Sub-Inspector Manju Sharma, who recorded the minor’s statement, says she got the girl to open up through small talk. “I said, ‘Let’s go relieve ourselves’, but she said it hurts. Later she identified Rajkumar as the man who drove her to school,” Sharma says. The girl was then referred to the Katni district hospital for a check-up. The doctor there recorded “redness and abrasions near vagina. Sign of penetration but kindly co-relate with circumstantial evidence” before referring the case to the NSCB Medical College, Jabalpur, for expert examination. When the gynaecologist at NSCB told the parents the girl would have to be anaesthetised, they refused.

Rajkumar, who drove an autorickshaw ferrying schoolchildren, had been employed by the girl’s family just two days earlier. He was arrested on July 7 from Panna Tiraha in Katni, about 2 km from his home. Wife Sulochana says they came to know only on July 8, when she was alerted by the owner of the autorickshaw. “I thought my husband was doing night duty,” she says. The family, including Sulochana and Rajkumar’s two children (11 and 9), and his parents, live in a corner of a cowshed. In return, the cowshed’s owner requires them to look after the 40 cows at the shed.

The family moved here two years ago. Rajkumar, who has been working as an auto driver since his teens, paid a rent to the three-wheeler owner and earned around Rs 150-250 daily. The parents of the schoolchildren he ferried paid the owner. The first lawyer Rajkumar’s family approached backed out, under an informal understanding among lawyers in district courts across the state not to represent the rape accused. In some cases, the bar association officially passes a resolution, like in the Mandsaur gang rape (which resulted in death for two on August 21, after a trial of two months).

Says Santosh Paroha, the vice-president of the Katni District Bar Association, “No one should represent accused involved in such crimes. We did not pass a resolution but it was decided when lawyers spoke to each other. Next time we will pass a formal resolution.” So, like in other cases where a family can’t find or afford a lawyer, Rajkumar was provided one under the free legal aid programme. The lawyers for this are sourced per district from a panel, which has a validity of one year. The bar association asks members who are willing to offer legal aid and registers their names with the district legal aid office.

The MP State Legal Services Authority decides the pay for these lawyers. Advocates get Rs 2,000-3,000 per trial in lower courts; Rs 4,000-6,000 if they appear in a Sessions Court trial, or in Special Cases under the Narcotic Drugs and Psychotropic Substances (NDPS) Act and SC/ST (Prevention of Atrocities) Act; and Rs 5,000 for appeals against a death sentence and Rs 4,000 for appeals against life imprisonment in the high court.

The money is the same irrespective of the duration of the trial, and is paid after the trial is over. The rates were last revised in 2014.
Says social activist Anurag Modi, “Not only do the legal-aid advocates don’t get enough money, no one helps them collect proof. The presence of such lawyers is only cosmetic.” There are 35 lawyers on the roster of the Katni District Legal Services Authority, with 20-odd cases currently referred to it.

Cases get assigned to lawyers going by who is free. Rajkumar got B M Singh Rathore, 52, a lawyer with 20 years of practice. He does not have an office and operates from Bar Hall No. 2 at the District and Sessions Court. He also operates from a corridor in the old court building, where two rickety chairs are chained to his table. He says there are months when he has 10 clients at a time and days when he has none. Because trials last long, advocates like him make about Rs 50,000 per trial, he says.

Rathore says he got a call on July 20, the same day that the chargesheet was filed against Rajkumar in the Special Court that deals with cases under the POCSO (Protection of Children from Sexual Offences) Act. One of the courts operating on the District and Sessions Court premises, the Special Court was set up four years ago, and has hundreds of cases before it, with no exact record.

The Special Public Prosecutor in Rajkumar’s case was District Prosecution Officer Dharmendra Singh Taran, a lawyer with 14 years of service. He says he gets about 20 cases every month, has handled 300-400 POCSO cases in the past four years, and secured both life and 10-year sentences in them.

With 12 death sentences already in the past seven months in rape cases of minors, Rajendra Kumar, the Director of Public Prosecution, MP, links the “improved conviction rate” to the government tracking and “rewarding” prosecutors. About eight months ago, the government introduced the ‘eProsecution MP’ App, to track the daily activities of the 1,000-odd government prosecutors across the state. Two months ago, it also devised a “reward system” to motivate the prosecutors to ensure speedy trials. “Though there’s no monetary award yet, these achievements will be recorded in their annual confidential report,” Kumar had told The Indian Express earlier.

For two days after charges were framed against Rajkumar, the court was closed. Between July 23 and July 25, 20 witnesses were examined, and on July 26, Rajkumar’s statement was recorded. The verdict was given at 3 pm on July 27. “I did not even get time to speak to the accused,” complains Rathore. Adding that Rajkumar wasn’t given sufficient opportunity to defend himself, he says, “I have never seen witnesses turning up so fast. Often they do so only when summons are served.”

In Rajkumar’s case, among the prosecution witnesses were the victim and her four family members, the autorickshaw owner, another autorickshaw driver, a patwari, the doctors, and six police personnel. IO Shailesh Mishra says he went out of his way to ensure the witnesses deposed. “I had no reason to be in court but I was there for the full five days. We used our resources to get the witnesses from Jabalpur and Satna, and requested them to treat their deposition as priority. They didn’t disappoint,” he says.

Prosecution Officer Taran admits police normally don’t do this, adding that it’s often hard to ensure presence of policemen themselves for deposition. None of the witnesses against Rajkumar was an eyewitness. The complainant stuck to her version and the others either identified the accused or the scene of the crime or about their presence during the seizure of clothes, etc. The Katni doctor testified what she had mentioned in the referral letter to the Jabalpur hospital, and the gynaecologist at Jabalpur testified that the victim complained of pain. The court noted that both doctors mentioned redness and abrasions, and signs of penetration. There was no other medical evidence. The semen sample of the accused had been collected but it was not needed.

While Rathore was given a chance to cross-examine the witnesses, he couldn’t produce any from the defence side as no one turned up from Rajkumar’s family. He says he tried to contact his wife but was unsuccessful, and that by the time he got through, it was already July 26. So he just told her to remain present in court on the day of the verdict. When asked about Rathore’s claim that the medical report was inconclusive, Taran says it “is almost positive”.  Taran says he sought the maximum possible penalty because the offence was “despicable”. “There was no remorse on Rajkumar’s face. He looked like a drug addict.”

Attributing the quick conviction to teamwork, he says, “What’s wrong with a quick trial? There is a provision in the CrPC and there are court judgments about speeding up trials.” The capital punishment to Rajkumar, he adds, is “a historic judgment”. “Why would a four-year-old accuse someone of doing something he did not do? Good he was given death sentence or he could have harmed others.” Rathore, who says he is yet to be paid his remuneration, claims he is waiting to get copies of witness statements to pass along to Narendra Nikhare, the laywer who would be defending Rajkumar in the high court now. The dairy owner for whom Rajkumar’s family works has arranged for the advocate.

Nikhare says he will represent Rajkumar for free because he thinks he did not get a fair chance. “I am sure the death sentence will be commuted to at least life.” Of the 12 recent death sentences in rape cases, only in one has death been confirmed by the high court, while in another, it has been commuted to life (see box). Referring to the spate of death sentences, advocate Avinash Sirpurkar, an amicus curiae in the high court, says, “I don’t think this has ever happened in the history of MP.” Advocates on legal aid panels are usually inexperienced, he adds.

While the minor’s family refuses to talk, Rajkumar’s parents are stunned at how their life has turned upside down in under a month.
Before they were employed by the dairy owner, the two, along with Rajkumar’s family and their two other sons, lived in a slum in Ram Manohar Lohia ward. The neighbours, who don’t want to be identified, say Rajkumar and his brothers often fought with each other. “We complained to the police many times,” says a former neighbour, who also accuses the brothers of consuming liquor and ganja.
SHO Mishra says two cases, one each under the Arms Act and gambling, are pending against Rajkumar. The wife knows of only one.
As Rajkumar’s mother Radhabai breaks down, father Purushottam, 68, says it was all over before they could even understand what was happening. Wife Sulochana admits her husband was given to drinking, but she can’t believe he could rape anyone. “If he had actually raped the gudiya, would she have gone to school the next day with him?” she adds.

Struggling to tell her children what has happened, Sulochana has only told them Rajkumar is in jail. However, she says, the other children keep taunting them. “‘Tere papa ko faansi lagne wali hai (Your father is going to be hanged)’, they say.”

***

Fast-tracked

ORDER IN 22 DAYS
INDORE: Naveen alias Ajay Gadke, 26, accused of raping and killing a 3-month-old girl on April 20. Given death on May 12. No advocate defended him, was provided legal aid. Avinash Sirpurkar, an amicus curiae in the high court, says he does not think Gadke got a fair chance.

ORDER IN 27 DAYS
SAGAR: Naresh Devsingh Parihar, 40, was accused of raping a 10-year-old girl on July 18. Sentenced to death on August 14. Says defence lawyer Manohar Garg, “I did not get time. Justice should be done, but not so early.”

ORDER IN 37 DAYS
GWALIOR: Jitendra Kushwah, 25, accused of raping and killing a 6-year-old girl on the June 20-21 night. Sentenced to death on July 27. Advocate Ravindra Gurjar who defended Kushwah says that though the bar association did not pass any official resolution, there was an understanding not to defend him.

ORDER IN 47 DAYS
SAGAR: Bhagirath alias Naran Patel, 40, accused of raping a 7-year-old girl on May 21. Sentenced to death on July 7. Advocate Pushpendra Singh Thakur admits he was reluctant to defend Patel. “The statement of the accused was recorded in my absence. I did not get enough time,” he says.

ORDER IN TWO MONTHS
MANDSAUR: Irfan alias Bhaiyyu Mewati, 20, and Asif Mewati, 24, accused of raping and leaving a 7-year-old girl dead on June 26. Sentenced to death on August 21. The case witnessed protests across MP. The local Bar association passed a resolution not to defend the duo. Advocate Deendayal Bhavsar, who represented Asif, says public sentiments were against the accused. “We could not produce a single witness.”

ORDER IN 3 MONTHS, 12 DAYS
CHHATARPUR: Touheed Shoukat, 19, accused of raping a 2-year-old on April 24. Sentenced to death on August 6. Says Mahendra Kumar Sharma, who defended him under the legal aid programme as no lawyer agreed to represent him, “I could not even visit the scene of the crime, more than 62 km away, because I did not have money. The father of the accused is a fakir.”

ORDER IN FIVE MONTHS
DHAR: Karan alias Fatia Bharat, 19, accused of raping and killing a 4-year-old girl on December 15-16, 2017. Sentenced to death on May 17, 2018. The labourer from Manavar could not afford a lawyer and was provided one, advocate Nasir Khan, under the legal aid programme. Questioning the need for “trials at this speed”, Khan says, “When the accused is already in jail as an undertrial, why the rush?”

ORDER IN EIGHT MONTHS
SAGAR: Rabbu alias Sarvesh Sen, 22, accused of raping and killing a 14-year-old girl on December 7, 2017. Sentenced to death on August 20.

SHORTEST TRIAL: 4 DAYS
DATIA: Motilal Ahirwar, 24, accused of raping a 7-year-old girl on May 29. Sentenced to life on August 8.

CASES DECIDED BY HIGH COURT

SAGAR: Sunil Adivasi, 22, accused of raping and killing a 9-year-old girl on April 13, 2017. Sentenced to death on June 19, 2018. On August 17, the HC commuted the death sentence to life imprisonment.

SHAHDOL: Vinod alias Rahul Choutha, 22, accused of raping and murdering a 4-year-old on May 13, 2017. Given death on February 28. The HC confirmed the death sentence on August 8.

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