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Title:  T. Kaliammal         

                Versus

         The State of Tamil nadu and Ors.      

Date of Decision: 26.06.2023.           

Coram: THE HONOURABLE MS. JUSTICE P.T. ASHA.

Citation: W.P.(MD) No.3252 of 2020 and W.M.P.(MD) No.2758 of 2020.

Even though a special court had ended all proceedings in the case when the accused passed away while the trial was still ongoing, the Madras High Court recently awarded compensation of 14 lakh to a minor, mentally challenged rape survivor. Justice PT Asha noted that the local special court had done the physically and mentally handicapped survivor and her family more disservice by dismissing the case.

Introduction:

The petitioner, who is the mother of a mentally challenged daughter, who has been ravaged and impregnated by a “wolf in sheep’s clothing”, old enough to be her father, has knocked at the doors of this Court seeking compensation for this wrong inflicted on her daughter. The family comes from indigent circumstances. The mother is an agricultural coolie and the father works as a Watchman in a private company. They are blessed with two children, a son aged about 18 years, who is undergoing his B.Com course at Mano Arts College in Thoothukudi District and a daughter, who is the victim. The victim is mentally as well as physically challenged. Since the husband is employed at Chennai, the mother and children are living alone. Being an agricultural coolie, the petitioner is forced to leave the daughter alone W.P.(MD) No.3252 of 2020 and go for her work. The accused, who is about 55 years of age and a neighbour, had taken advantage of the victim’s physical and mental disability and has committed aggravated penetrative sexual assault on her not once, but on several occasions. The condition of the victim is such that she was not even in a position to narrate the ordeal to her mother. It was only when she had become pregnant, that the mother came to know about the same and immediately, a complaint was lodged at All Women Police Station, Kadambur, Tuticorin, and an FIR too was registered under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). The petitioner has moved this Court for a mandamus to terminate the pregnancy, provide police protection to the petitioner and her family members and to provide reasonable fair and compensation to the victim.

Legal Analysis:

The judge stated that despite the prohibition under Section 362 of the Code of Criminal Procedure (CrPC), the High Court has the authority to right this injustice. “This closure is yet another move that has done the victim significant injustice and, in some ways, demonstrates the indifference shown to the victim’s plight. The bar under Section 362 of the Code of Criminal Procedure would go into effect once the case was closed, making it impossible for the victim to seek additional compensation from the Court. Therefore, the petitioner contacted this Court appropriately. The Court stated that it had the authority to right this mistake. The Thootkudi District Legal Services Authority (DLSA) was also criticised by the court for how it handled its efforts to have the lawsuit dismissed.

The mother of a the victim girl who was discovered to have been regularly raped and impregnated by their 55-year-old neighbour had petitioned the court for just compensation. The case was already concluded by the special court since the defendant passed away while the trial was ongoing. The victim’s pregnancy was ended per the High Court’s directives, and she was given an interim settlement of Rs. 1 lakh. The District Legal Services Authority indicated in a counter-affidavit that the High Court’s request for compensation might be dismissed because the special court had concluded the case. The authority was criticised by the High Court for its callous and insensitive behaviour. “The fifth respondent has washed its hands of the issue and prays that the writ petition be dismissed instead of helping the Court attempt to rehabilitate and recompense the victim, who is a mentally and physically handicapped girl. It’s best to say as little as possible about the counter, said Justice Asha. The Court further determined that the victim was qualified to receive the maximum amount of compensation that may be paid under the various compensation plans. The Protection of Children from Sexual Offences Act (POCSO Act) established the Tamil Nadu Child Victim Compensation Fund, and the court ordered the Thootkudi District Legal Services Authority (DLSA) to pay the victim’s compensation amount from that fund.

Judgement:

This Hon’ble Court by exercising jurisdiction under Article 226 of the Constitution of India directs that a compensation of a sum of Rs.14,00,000/- (Rupees Fourteen Lakhs only) be paid to the victim. This sum shall be deposited in an interest-bearing account with the mother as the guardian. The mother shall be permitted to withdraw interest every month. The said sum shall be utilised only for the up keep and the rehabilitation of the victim. The District Child Protection Officer shall visit the home of the Victim once in three months and submit a report to the District Legal Services Authority, Thoothukudi. The District Legal Services Authority shall ensure compliance of the above. In case, the report would state that the amounts are not being used for the welfare of the victim, then an application shall be made to this Court for modifying the orders by the District Child Protection Officer. In case, the mother requires substantial amount for the benefit of the victim, she can make an application to this Court for appropriate order. The amount of Rs. 14,00,000/- shall be paid from and out of the Tamil Nadu Child Victim Compensation Fund by the fifth respondent within a period of four weeks from the date of receipt of a copy of this order and report compliance to this Court.

Conclusion:

This is a tragic case in which the accused aggravated penetrative sexual assault against the victim, a minor with mental disabilities, not just once, but multiple times. Unfortunately, he had already passed away before he could get any legal penalty. The Special Court closed the matter as charge abated without complying with Section 33(8) of the POCSO Act and Rules 7(1) and 7(2), The judge also directed the DLSA to ensure that the money was used only for the victim’s rehabilitation.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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