#UnnaoCase: Ex-BJP MLA Kuldeep Singh Sengar and aide booked under POCSO and IPC for rape

After heavy debates revolving around the age of the victim, a court in Delhi framed the charges against Sengar and Shashi Singh.

WrittenBy:Gaurav Sarkar
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A Delhi court on Friday framed charges against ex-Bharatiya Janata Party legislator Kuldeep Singh Singar and his aide Shashi Singh under various section of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act. 

On Wednesday, which was Day 1 of arguments, District Judge Dharmesh Sharma heard out both the prosecution and the defence who put forth their own respective points to prove the age of the victim in the Unnao rape incident. Today, Sharma rejected Sengar’s discharge application. “In view of the aforesaid discussion, I find no merits in the discharge..” 

The court prima facie framed charges against Sengar under Section 120 (b) of the IPC (criminal conspiracy),  Section 363 (punishment for kidnapping), Section 366 (kidnapping, abducting or inducing…), Section 109 (abatement) and Section 376(i) (rape) read with Sections 3 and 4 of POCSO. 

The court also framed charges against his aide Shashi Singh under Sections 363, 366 and 109 read with Section  376 of IPC, and Section 17 read with Sections 3 and 4 of the POCSO Act. 

“Let charges be framed accordingly,” said Sharma. 

After the charges were framed, Sengar and Shashi Singh were asked to come in front of the judge and he asked both of them whether they accept the charges framed against them. “This will now be the foundation of the case,” said Judge Sharma. Judge Sharma told Singh that she was accused of criminal conspiracy in which a minor girl was enticed with a job opportunity and took the victim to Sengar’s house, without the permission of her parents, where she was raped.

Nahi maante hai,” said Singh. “CBI ke paas humaare khilaaf kya hai?” She said the CBI is lying and blaming her. She also said she has been in jail for the past 14 months and that she had children who needed to be taken care of.

Judge Sharma then told Sengar that he had threatened to kill the victim. Sengar responded: “Sab jhooth hai…” Judge Sharma reminded him that as of now, it was only the charges that were being framed. “Accused is innocent until proven guilty,” he remarked.

Speaking with Newslaundry after the charges were framed, Poonam Kaushik, general secretary of Pragatisheel Mahila Sangathan and the counsel for the victim and her family, said: “They (accused) have been charged for POCSO and for what has been submitted by CBI and of course by the counsel for the survivor and family … that has been found valid and accordingly they have been charged.”

She continued: “What we can say is that the prosecution is able to put forward before the court of law that there is a valid case to be tried under the sections of which the FIR has been lodged by the CBI. I want to say that this Unnao case actually reflects what is the Hindutva of Yogi and BJP: upper caste, patriarchal, chauvinistic and meant only for the powerful.”

The Supreme Court last week transferred four out of five cases related to the Unnao rape case from Lucknow to Delhi. At the same time, it assigned District Judge Dharmesh Sharma to hear arguments and frame charges in the case. The top court also passed directions to complete the trial within the next 45 days.

Heavy debates punctuate Day 1 of arguments

Judge Dharmesh Sharma began hearing the arguments on Wednesday, August 7, at 11 am at Courtroom Number 201 at Tis Hazari Court. There was heavy police presence outside the courtroom and journalists were told they would not be allowed to enter until the hearing began. Previously on Monday, there was a largescale protest by media professionals outside the court premises when they were initially not allowed to enter at the time when Kuldeep Singh Sengar and his aide Shashi Singh was presented in the court for the first time. 

Public prosecutor Ashok Bhartendu, representing the CBI, began his arguments by giving a “broad overview” of the incident that occurred on June 4, 2017, at about 8 pm. He narrated to the court how the victim was allegedly lured into going to Sengar’s house on June 4, 2017, on the pretext of a job that was offered to her. There, Bhartendu said, she was raped by him.

He moved on to how the woman’s father was “beaten in one of most cold-blooded manners” by Sengar and his supporters, after which he was wrongfully arrested under the Arms Act “in order to ensure he doesn’t get proper medical facilities and gets confined behind the bars”. On April 9, 2018, the father died in judicial custody. “Now, after that, all of a sudden the whole system got activated because of the intervention of media and all,” said Bhartendu.

Consequently, the CBI registered a fresh FIR in April 2018.

“It is categorically stated in our chargesheet which we filed before special judge court in Lucknow [that] as per the chargesheet during the investigation we found that the allegations made by the prosecutrix and her mother in respect to the June 4, 2017, incident—that was true,” he said.

Bhartendu argued that the woman’s statement recorded by the court should be relied upon in this case and that the accused persons be put on trial. His view was supported by advocate Dharmendra Kumar Mishra and advocate Poonam Kaushik, general secretary of Pragatisheel Mahila Sangathan and counsel of the victim and her family.

When Judge Dharmesh Sharma asked Bhartendu to give the court copies of some of the judgements he had just cited, a humorous moment emerged between the two as Bhartendu was unable to do so. “CBI is a poor institution,” he said, smiling. “CBI has to remain with their hands folded as far as logistics are concerned. It is unfortunate we cannot provide you with a copy.”

Bhartendu elaborated on how Sengar and his aide Shashi Singh had hatched a “criminal conspiracy” and had an agreement between themselves to lure the victim on June 4, 2017.

“How are you suggesting there was an agreement?” asked Judge Sharma.

“There are material evidences,” said Bhartendu, referring to the woman’s statement under Section 164 of the Code of Criminal Procedure.

“The charge against the accused(s) is that they kidnapped her (prosecutrix) from her lawful guardian,” he said. “On the fateful day of June 4, 2017, the prosecutrix was a minor. She was less than 18. And there is a catena of judgements where the Supreme Court says consent of a minor is immaterial. In the eyes of the law, consent given by minor has no value.”

He added: “These facts are yet to be proved before a court.”

Bhartendu said the victim “openly” came out about the incident for the first time almost two months after it happened. “The kind of intimidation can be drawn very clearly out of it. And such things are sufficient at this point of time to make a presumption on the part of this honourable court.”

The defence then took over the floor to make their arguments. New-Delhi based criminal lawyer Tanveer Ahmed Mir, representing Sengar (Accused No. 2), began with suggesting that a notification under the POCSO Act was not required. He also said that the defence counsel had filed an application (appended with documents) for Sengar’s discharge.

“The case against Accused No. 2 is outrightly false,” began Mir. “It is a very grotesque example of false, implications, an indictment in a criminal charge, and based on an admitted case, as drawn and culled out during the course of the investigation…” He said the case was actually one of “prior animosity” between the two families and that the prosection’s case did not put Sengar “under the realm of strong suspicion”. 

“We would make an endeavour that the case is one of discharge,” he said and elaborated some previous Supreme Court judgements as well as the guidelines that indicate that this case is one of discharge. However, Judge Sharma asked him to “shorten your arguments”.

Mir replied: “My argument, with all my respect … which is why I paraphrased my case. Throughout, this case is one of false indication. Whether this will entitle the court to discharge … that is left to the court. But I am duty-bound to show certain vital…”

Mir pointed out that the FIR in reference to the June 11, 2017 incident (which is when the woman was allegedly sexually assaulted for the second time) was registered on June 20, 2017. In the context of the consequent statements of both the victim and her mother, he argued: “None of these, at any point of time … is there any disclosure that the victim was lured/enticed/subjected to sexual assault on June 4 by Accused No. 2.”

Mir said any statement given prior to the June 11 incident and its consequent FIR registration would be of “great relevance” in seeking to sustain a proposition that what is being submitted to the court does not hold any water. He questioned how the mother of the woman, whose 164 statement was taken later during the same month, “did not know that there was a sexual assault on June 4, 2017, as well”.

“The question, your honour, is that this entire bogey affair crashes down like a pack of cards the moment you are in the domain of a police station recording an FIR,” said Mir. “I feel, as an officer of this court, that it is difficult to digest that the person before a law enforcement agency … will not report a prior sexual assault. Men and women may lie but documents will not lie.”

He submitted to the court that for a charge under POCSO to be framed against the accused, “two bridges have to be crossed”. “One is the age … there has to be strong evidence to show that as on date of commission of the offence, the victim is below 18 years of age.” Second, he said, since POCSO was a special provision, no charge under Section 376 (punishment for rape) could be framed.

Mir put forth various documents to establish that the victim was a major. “At the stage of charge, to trigger a charge under POCSO, we have to show that prima facie girl is a minor.”

Public prosecutor Ashok Bhartendu said the CB agreed with Mir’s suggestion that they did not have any medical proof of the June 4, 2017 incident. “The incident that had taken place on June 4 … CBI got authority on April 12, 2018—almost one year after the incident. We are yet to get that sort of medical technology that if a sexual offence was committed one year back … yes, we don’t have any medical evidence to establish that on that particular day … that is because of limitations of medical examinations.”

“One must appreciate the way the investigation has been done,” he said. “CBI has not tried to hide anything from the court.”

Restrictions to the media

Mir also sought a total media gag which was dismissed by the court, who said that the media could not be disallowed to attend the proceedings of the case. However, at the end of the day’s proceedings, Judge Sharma passed an order issuing guidelines to the media:

“The media is restrained as also refrained from reporting the names and addresses of the family members of the victims/survivors … as also the complainant and other witnesses cited and to be examined during proceedings/trial.” The court said that the media shall “refrain from reporting the testimony of any witness, wholly or partly, and refrain from appreciating such evidence or giving any opinion on the merits of the case during the course of this inquiry/trial as the case may be”.

Additionally, the court said mediapersons would not be allowed to record proceedings in “audio-visual mode” either inside or outside the court room. The court also said that it would take a decision at a later stage as to whether hold “in-camera” proceedings.


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