Victory at Last – 60 year old watchman convicted for sexually assaulting a four year old child in school.

Its been two long years of trials and tribulations as we journeyed the
difficult path with a very young rape survivor.  In fact, Majlis
‘Socio-Legal Support to Survivors of Sexual Assault’ Programme started with
this case.

The incident had taken place within the premises of Kalina Education
Society in Kalina in February, 2011. When the mother noticed the injury and
rushed to the police station,  instead of registering a case, recording her
complaint and sending the child to medical examination, the police
preferred to call the school principal to the police station.  The
Principal, in the presence of the lady Police Sub-Inspector threatened the
mother that if she files a complaint, her child will be thrown out of the
school. This led to valuable medical evidence being lost. The next day the
mother was asked bring to the child to school by the lady Sub-Inspector for
“investigations”.  While the mother was asked to wait outside  the school
compound, the child was interrogated alone  by the principal and teachers
in the presence of the police and was threatened.   The case was recorded
only when the mother, on the third day, at her own initiative took the
child to a private doctor,  who after noticing the injury  referred the
child to the Sion Hospital (Government Hospital).

The doctors  who examined the child called the Vakola Police Station and
directed them to record a complaint of rape. The media reports which
appeared after the case was filed,  made extremely derogatory statements
against the mother of the your girl, insinuating that it is a false
complaint which has been filed to blackmail the school authorities into
paying her a huge settlement or that the mother is insane and this is her
own illusion.

We contacted the family when we read the news reports as the school is
located literally in our backyard.  Hesitantly the mother came to us. When
we met her the first time she was crying for “Justice”. She wanted someone
to take up her case as she did not trust the criminal justice system after
her experience with the police. We are a team of lawyers representing women
in cases of domestic violence. While courts are not alien to us the
criminal trials would be a whole new experience compared to matrimonial
litigation. However, since there was no other NGO doing this kind of work,
our  enthusiastic team of young  women lawyers decided to embark on this
unmapped terrain and with this, hesitantly, started our new programme of
support to survivors of sexual assault, under the able guidance of Adv.
Flavia Agnes. Today when there is a new churning in the country and a need
for support to survivors is being articulated, we are already two years
into this programme and have learnt valuable lessons.

The school watchman was represented by none other than the reputed senior
criminal lawyer Mr. Majeed Memon, while the girl was represented by a
special public prosecutor, who did not have much experience in dealing with
rape cases.

After over 50 court dates and individual sessions, where at every step our
role was to support the child and her mother  through this ordeal, by
providing socio-legal counseling, helping the illiterate mother to
understand the legal processes and to familiarize her with court structures
and legal documents.  Our young advocate, Ms. Persis Sidhva, followed this
matter with utmost dedication providing moral support to child and the
mother so that they are not daunted by the system.

Our simultaneous role was to ensure protocols and guidelines for
investigating a child witness were adhered. Despite  resistance we
persisted. When we pointed out the Sakshi guidelines, and insisted there be
a screen between the accused and witness, the judge who was entrusted with
the matter at that time as well as the PP had never heard of them and the
judge commented, “all this can be followed only in the Hon’ble Supreme
Court and not in our trial courts”.

Finally at the fag end of the case when it was time for the four year old
child to depose in court, we were fortunate that the matter came before a
sensitive judge, P.G. Ganediwala, presiding over Sessions Court Room No.41
(Fort Area) who ensured that the questions for cross examinations are given
to her in writing and are put to the child survivor only by her. At this
point the  defense lawyer submitted a list of 100 questions which were
disallowed and only the relevant ones allowed. Our advocates were allowed
to be present during the in-camera proceedings so that the child is not
unnerved or intimidated.

The child identified the accused in court during her examination and was
able to answer questions in cross examination cogently and logically and
the evidence of the child could not be shaken in cross examination.

We were worried because the police investigations were shoddy and there
were contradictions even medical examinations. Initially the OPD had
written on the case papers that there were no injuries, but later after a
detailed investigation the gynaecologist reported injuries to the hymen.
During cross examination, the private doctor turned hostile while the
doctor at the public hospital stood firm even regarding the contradictory
medical reports.

The response of the public prosecutor was extremely demoralising as he felt
that this case  has no hope.  We submitted written arguments and case law
and prevailed upon him to submit oral arguments which he did for about
20-30 minutes. The accused lawyer Mr. Majeed Memon argued for over three
days, while we waited patiently, biting our nails.

On Monday, 25th February, 2013 the honble Session Court delivered its
verdict. It convicted the watchman for sexually assaulting the minor child
within the school premises, under section 377 of  IPC and sentenced him to
seven years of imprisonment and a fine of Rs.25,000. The State will also
provide Rs. 25,000 as compensation.

We consider this a great victory for our survivor support programme as it
gives us confidence that we are progressing on the right track.

State of Maharashtra (Vakola Police Station) versus Tillam Singh Sessions
  Case No. 452/2011 (Fort)
Article
http://www.indianexpress.com/news/court-raps-police-for-shoddy-investigation/1079745/0

*Excerpts from an Interview on our Victim Support Programme*

Q. What kind of support does Majlis extend to sexual assault victims?
A.  Our sexual assault victims support programme is relatively new.  We
have been systematically collecting the data from police stations and
following up rape cases in trial courts. Even before this we were following
rape cases but these were mostly referred to us by some local NGO or
following it up from newspaper reports. But now we follow a different
pattern of contacting police stations.

Q. What kind of support does Majlis extend to victims?
A. We are primarily a centre for legal services for women.  The help we can
offer is socio-legal, basically meeting the victim helping her to
understand the legal system, checking if the complaint is correctly
recorded and  keeping in touch with her while the case is pending.  During
  this time, if she needs any other help like changing the school (due to
stigma attached to the rape) or any other type of help like shifting her to
shelter home coordination with the Child Welfare Committee (CWC) etc. We do
that work as well.  Basically helping the victim to cope with the system.

Q.  Is each case recommended by the police or do the victims through
families / friends, etc, approach your organisation themselves?
A. Cases are refereed to us by Police as we have been working very closely
with individual police stations. We also continue to get cases when some
friend or well wisher or a local NGO refers the case to us.

Q. What are the agencies you work with, during the entire process to help
the victim get justice?
A.  We work closely with all stake holders such as the police, shelter
homes, CWC, the public prosecutors, and the courts, the victims family and
the local NGO which is helping her if any.

Q. How many victims has your organisation helped?
A. The project started as an experimental one and we followed around 10
cases last year. It takes around 1-2 years for the trial to be completed.
In 2012, we have data of around 100 rape cases that are pending trial. We
are trying to contact the victims. Some respond well but others are scared
and hesitant and so we give them time to have confidence in us and respond
when they contact us. We also follow the cases in court where the trial is
going on to see the outcome and what transpires to understand the system.
  So this year we are in touch with around 50  victims.

Q. What is the range of emotions or behavioural characteristics a rape
victim demonstrates when she first seeks help from your organisation? What
is her emotional state at the time? How do you go about counselling the
victim in such a case? Do you also counsel their families to be able to
support them better?
A. As explained earlier, we are not counsellors we are lawyers helping the
victim to cope with the system.  We also counsel women if they need but
most women say they don’t need counselling.  By the time we contact the
victim she would have gotten over the initial trauma.  So what we help to
deal with is the aftermath of the rape like a pregnancy etc. Arrange a home
for her, take her to a court visit, show her the statement she has made to
the police, if she is not comfortable on the particular day for deposing
take adjournments etc.

Q.  Do you assist in the rehabilitation of the victims who seek your
assistance?
A. Yes as and when seek the assistance.  We don’t offer financial
assistance but we are also following up with the government to start the
scheme for compensation for rape victims.

Q. Does the social/economic/educational background of the victim, affect
her in dealing with the situation differently?
A. Yes, both cases which are reported are of poor and illiterate women in
the slums.  This is what makes our programme relevant.  I don’t say rape
only takes place in these places but only these cases are reported to the
police and others are hushed up.

Q. What are the different forms of rape in the cases you have dealt with?
What are the most common of them?
A. You will be surprised.  Rather sadly most cases are those filed by a
parent against the boy friend of the victim girl, specially when she has
eloped with him and wants to marry him. In most cases, she is a minor or
she is made out to be a minor and this becomes statutory rape. Then there
are cases where the boy induces the girl to have sex with him on the
promise of marriage.  The case is filed to pressurise the  boy t marry the
girl. These cases have led to the terminology among the police, prosecutors
and judges “false cases” and “genuine” cases. Among the rest there are
cases of rapes by fathers, uncles, teachers, neighbours, relatives, other
people in authority, the local shop keeper, the school watchman, etc.

Then there are cases of kidnap and rape.  Some of these have also ended in
murder where young girls are kidnapped, raped and their bodies are thrown
in a lonely spot.  So we cannot have one strategy to deal with all rape
cases.   Sometime, in a slum when the girl is sleeping she is carried away
and raped. There are many different situation in which girls are raped and
we need a strategy that is fine tuned to deal with specific situations.

Q. Why do so many victims commit suicide after rape?
A. This is because of the stigma attached to the crime of the rape where
society makes her feel that she is culprit.  If the social stigma attached
to rape is reduced and if rape begins to be viewed only as a crime, and not
a value judgement on the girls character and conduct these will change. But
our society subscribes to the notion that rape is worse than death and
girls themselves internalise it and believe that it is better to die rather
than be raped.

Q. In your opinion, what are the loopholes in the present system of justice
as in convictions for rapists? How can they be corrected?
A.  There are many loopholes in the existing system that need to be
plugged.  A judge cannot give a judgement if the case is not investigated
properly or if the evidence and case law is not produced before the judge.
  We need good procedures and good investigative machinery to deal
effectively with rape. The gaps could be procedural, infrastructure gender
bias… but till we study the system we cannot make blanket statements.
When we entered the system we realised that the Police and Prosecution do
not speak to each other. Our first major task was to organise a meeting
between Police, Public Prosecutors, Medical Experts and Judges so that they
could share gaps and challenges and come to a minimum common understanding.
The meeting was organised in August 2012 under the aegis of a sitting High
Court Judge. This gave our programme a boost.

Q. What is your observation of police behaviour towards a victim who goes
for the first time to lodge a complaint?
A. Police usually try to dissuade the victim from filing the complaint.
  Sometimes for 2-3 days the case is not filed and crucial evidence of rape
is lost.  Many times poor women have to use the influence of social
workers, NGO or local politicians to register the case and only thereafter
the case is registered.  The victim is not sent to medical examination
immediately. Sometime she is humiliated at the police station.  Even women
police officers are not sensitive to the victim, sometimes they are worse
than men and abuse the victim.

Q. What do you feel will serve as a deterrent for lowering rape cases? Do
you think capital punishment or chemical castration are good methods of
doing the same?
A.  These measures are barbaric and medieval. Earlier there was stoning to
death in public. But  most countries do not adopt these measures.  Capital
punishment or extreme punishment will not bring down rape, it will only
bring down convictions which today are barely 9%.  I would call such
measures as only knee jerk gestures which will not help us to change the
system.

—
Majlis,
Tel: 022 26661252 / 26662394
Website: www.majlislaw.com
Facebook: majlislaw Skype:majlis.law