On March 11, 2014, 16-year-old Malathi (name changed) did not come home from school. Her panicked father filed a missing persons complaint, and a police search party traced the girl to Nandi Hills in Karnataka. She been kidnapped and raped over a period of three days.
Malathi’s father filed a complaint against two men, aged between 20 and 25; one of them allegedly raped her and the other man allegedly took pictures of her. In May 2015, he also demanded compensation for his daughter under the victim compensation scheme. But at some point after the trial got underway, the victim turned hostile. Now, the Karnataka High Court has ruled that the victim is not eligible for compensation.
Is that a fair assessment? Malathi's lawyer says that this order does not take into account the circumstances that seemed to have forced the victim to turn hostile – circumstances that are prevelant in several cases of sexual violence. Malathi’s family lived in a village – the same one where the accused and their families lived, too. And Malathi’s family was ostracised for going to the police. “Her father passed away three years after the trial started, he could not bear the reactions and ostracisation. She had to drop out of her studies. Her mother is sick. During the investigation, even medical aid that is supposed to be given to the victim was not given. In her village, she has faced ostracisation,” Malathi’s lawyer Pushpakantha says.
The case
Malathi’s complaint to the police alleged that the two men had kidnapped her and raped her under the pretext of marriage. TNM spoke to advocate Pushpakantha, who is the victim’s lawyer for the compensation process in the Karnataka High Court. She shares that during the course of the investigation, the survivor cooperated with the probe and gave her statement to the police. The report obtained by the police after her medical examination had shown rape.
The compensation process
On May 22, 2015, the victim’s father made a request for compensation for his daughter. Under NALSA’s Victim Compensation Scheme for rape victims, a minimum compensation of Rs 4 lakh, and a maximum limit of Rs 7 lakh has been prescribed. This applies to victims and their dependent(s) who have suffered loss or injury, as the case may be, as a result of the offence committed; and those who require rehabilitation.
Three members of the District Legal Service Authority – a civil and city sessions judge, a member secretary of the DLSA and an advocate – form a committee to decide the amount of compensation that is to be paid to the victim. Ideally, the process is to be completed within 60 days. However, the committee took three years to sanction a compensation – on March 24, 2018, the committee granted her a compensation of Rs 3 lakh.
No compensation after years
Just when the amount was to be handed over to the victim, a committee member of the DLSA wrote to the authorities stating that since the victim had turned hostile during the trial of the case, she was not entitled to the amount.
Advocate Pushpakantha points out an important loophole. “In April 2017, my client’s statement was recorded. Her father’s statement was also recorded. Based on that statement, the DLSA had first held her eligible for compensation. How did the committee then approve the amount? Did they not know already that she had turned hostile? There must have been a reason,” the advocate asks.
On May 23, 2019, the DLSA set aside the order granting her compensation. Pushpakantha alleges that there must have been pressure from the accused’s family.
The appeal for compensation
Pushpakantha then moved the Karnataka High Court to appeal the setting aside of the order: “It is submitted that the petitioner turned hostile because of her father's emotional blackmail, disrespect in society and friends, mental agony by the relations and society and mental torture by the accused family constrained the petitioner and her father to turn hostile. It is submitted that due to this mental agony and disrespect the society meted out, her father died on 10.5.2018.”
In court, the defendant’s counsel cited para 6(3) and 7(10) of the Victim Compensation Scheme to deny her compensation.
Para 6(3) states: “The victim/claimant shall cooperate with police and prosecution during the investigation and trial of the case.” Para 7(10) states: “If a victim or his dependents have obtained an order sanctioning compensation under this scheme based on false/vexatious/fabricated complaint which is so held by the trial Court, the compensation awarded shall be recovered with 15% interest per annum.”
Justice Alok Aradhe, who was the Karnataka High Court judge hearing the case, ruled against Pushpakantha’s appeal and refused to sanction compensation.
‘What about medical records?’
Pushpakantha says the court did not take cognisance of the medical records of the rape survivor that showed sexual assault. “The medical records were placed as evidence before the court. Why can’t the judge convict the accused on the basis of the medical report?” Pushpakantha asks.
“The Supreme Court has laid down guidelines for compensation. The aim of the scheme itself is rehabilitation. In fact, the High Court judgment points out that ‘The order passed by the State Legal Services Authority appears to have been passed without affording an opportunity of hearing to the petitioner,’ but then goes on to say ‘the principles of natural justice have no application.’ If the judiciary does not give natural justice, who will?” Pushpakantha asks.
The lawyer now plans to file another appeal before a division bench of the Karnataka High Court seeking proper compensation for her client.