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Written by – Enakshi Ganguly Thukral
Today the man who raped baby N was convicted. He was sentenced to life imprisonment based on the nature of the crime he committed and the gravity of the injuries that baby N had sustained.
On the 29th of October, baby N will be admitted into hospital for the fourth operation.
A year and a half ago 3 year old N and her parents arrived at our office with her parents with a plastic bag hanging from the side of her stomach to collect her urine and faeces as a result of her first of a series of colostomy operations. She had been brought to us by members of YP Foundation.
That was the beginning. Over the last year as we in HAQ walked with baby N and her mother on their journey to get justice, there were several times when we felt lost and defeated. N’s story is one that many child victims and their families go through every day. But on Monday 13 October 2014, baby N’s story became a story of hope.
N was playing outside her home when she was picked up by a man in October 2012 and when she was found in the hedges, although she was alive, she had grievous injuries on her body and in her private body part. Since her vagina and rectum had been torn as were her insides by the violence had endured, she had to undergo colostomy procedure, a common surgery in individuals with trauma to their lower intestines.
Child victims of sexual assault are entitled to victim compensation from the District Legal Services Authority. But the compensation can be received only into a bank account. Since N’s family lived in an “illegal jhuggi”, they had no proof of residence, which meant a bank account could not be opened, getting victim compensation was almost impossible. They needed the money urgently.
Baby N had to wear a plastic bag which had to be changed 5-7 times a day. Sometimes even more. Each bag cost Rs. 20—which means the family had to have at least Rs. 200 a day for the plastic bags and medicines. The parents are daily wage labourers and because baby N needed care and attention the mother could not go to work. The father works only intermittently and is recovering from severe mental illness.
The burden of managing the family, as well as the judicial process is on N’s mother, who is barely 27 years old, and a mother or three children.
So while HAQ supported N and her family to meet the expenses of the first operation, we also had to support her in her difficult journey of preparing “legal identity proof” that finally enabled her to receive the compensation.
The family was in complete trauma, and indeed continues to be so. The extended family makes snide comments and blames the child—a three year old and her mother for what has happened. N’s maternal grandmother scolds her mother for having left the village and come to Delhi—a choice she made because of her husband’s mental illness. Receiving the compensation made it worse. The relatives, who were no help in any case, now began to harass them for money and even began to intimidate them to leave their jhuggi.
N who was a very reticent and quiet child, slowly began to open up and gain confidence. Despite her young age, the time that had elapsed since the incident, the unfamiliar surroundings of the court, in April 2013, she gave a spoke very clearly and answered all the questions asked of her. She was even able to recognise the accused. Prior to this on 26.11.2012, 3 year old N recorded her 164 statement before a Magistrate while she was not just in tremendous pain from her injuries but also undergoing complex and painful corrective surgeries for perineal tear of her vagina, perineal body and rectum. She was very scared but was able to identify the accused.
Moreover, there was clinching medical evidence in the form of DNA tests of samples establishing the perpetrator Surjeet’s identity and connection with the commission of the offence. The accused had been apprehended by the public while attempting to lure away another minor girl of an even younger age than N in the same neighbourhood. The accused had also admitted to have committed the rape of a minor girl 10-15 days ago .
The order of the sessions judge on 04.2.2014 acquitting the accused due to lack of evidence therefore came as a shock to all of us. What the judge had to say took us all aback (the bold is the authors:
“No doubt the prosecutrix identified the accused in the dock during the course of her testimony but it is to be noted that her testimony was recorded after about six months of the date of incident. She had been produced before the Ld. Magistrate on 26.11.2012 for recording of her statement u/s.164 Cr.PC. The record of proceedings of the Ld. Magistrate (Ex.PW20/A) shows that the mother of the prosecutrix had accompanied the prosecutrix to the chamber of Ld. Magistrate and the Ld. Magistrate had tried to make her comfortable but even then the prosecutrix could not say anything about the incident of rape or the identity of the assailant. This had happened just after about one month & 20 days of the incident and during all this period, she was with her parents and hence no occasion for her to be under any fear. Even otherwise, there is nothing on record that the assailant has scolded or threatened or beaten her either before the incident or after it. This gives rise to a doubt that she may have been tutored how to depose in the court. How could she describe the incident in court and identify the accused when she could not say anything before the Ld. Magistrate.”
Not only did the Sessions Judge suggest that the victim had been tutored, despite N’s blood sample on the accused’s underwear, he said that that the evidence had been implanted on the accused. He goes further to say that a witness too was planted.
The loss of the case, combined with the aggression that the family was facing from relatives, the medical condition of N and the constant attention that was required was too much for the family. In desperation unknown to the HAQ team, N’s mother placed N in what she thought was a boarding school but was actually an orphanage. She even moved closer to the location of the orphanage so that she may be able to see her child as often as was allowed by the institution. Needless to say the mother was heartbroken.
It was providential that at a meeting called by I- Probono, we met with Swathi Sukumar who heads the organization in India and we got them on board to help baby N. With the support of I Probono an appeal was filed in the High Court. On 13 October 2014, the Delhi High Court not only overturned the verdict of a fast-track court, which had acquitted the accused S, but also pulled up the trial court for the manner in which the victim was examined.
The High Court observed –
“One cannot gloss over the fact that ‘N’ was brutally raped… Obviously ‘N’ had been lured to a secluded spot, hidden from public gaze, where she was raped. The focus of the trial was not on how ‘N’ was enticed to the secluded spot. ‘N’ was not an adult, and therefore, accountable for her conduct of how she reached a secluded spot”.
The court also expressed surprise at the questions put to the child during the recording of the initial statement under Section 164 CrPC by the magistrate.
Actually the recording by the Magistrate of N’s statement reflects complete insensitivity. N was three years old and traumatised. She had never been to a school.
The magistrate asked her her age, whether she went to school. What is more she asked a three year old the difference between truth and lie and has recoded this-
“Prosecutrix is unable to tell the meaning of the word „truth‟ nor is she able to distinguish between truth and lie”.
The magistrate had concluded that the child was not competent to make a statement.
Reacting to this the High Court said –
“The Magistrate ought to have first ascertained whether ‘N’ studied in a school before having questioned her i.e. ‘N’ about the school in which she is studying. The questions regarding the school put to ‘N’ by the Magistrate completely threw ‘N’ off-balance. What surprises us is that the learned magistrate overlooked the fact that ‘N’, who was less than three years of age, would not be studying in any school. ”
Thereafter the Magistrate threw a googly at ‘N’ by asking her whether she understands the meaning of word “truth‟ and what is the difference between truth and lie. How could a two and half year old child explain the meaning of word “truth‟ and state difference between truth and lie. It is very difficult, even for adults, to respond to abstract questions asking them to explain the conceptual difference between truth and lie. What to talk of a two and half year old child.
The High Court said, said that the magistrate took a “casual and cavalier” approach towards the victim. Citing various studies done regarding children’s understanding and communication, the High Court said that it takes children longer to process words, so it is essential to give them time to think and respond to the questions.
Based on the arguments presented and the evidence before it the High Court held Surjeet guilty and decided to hear arguments on his sentence on October 27.
Further, noting N’s medical condition, the High Court, in its order, also directed the health secretary, Delhi government, “to ensure that Baby ‘N’ receives the best possible medical treatment, and if necessary at a reputed private hospital for which the expenses shall be borne by the state”.
N’s case ended in justice from the High Court. This is a big win. But the struggles of daily life continue, made harder by the assault and rape she faced. As if the medical condition as a result of her assault was not enough, Baby N while playing with her siblings fell into a pot of hot water and was burnt badly. She is recovering slowly. But it is a long haul for N and her family, and also for us who are trying to support them.
At the same time Baby N’s story is yet another example of the nature of trauma that victims and their families have to endure in their search for justice. Not only is the process slow and tedious, it is also painful and traumatic. The system of investigation and judicial process as it unfolds, expects the child to recollect and repeat the sequence of events several times, leading to re-victimisation. Little surprise therefore that parents and child victims choose to keep quiet.
What makes it worse is what the victims and their families endure in their daily life. Many child survivors and their families are asked by landlords to vacate the house. Instead of cooperating with children and helping them to cope with the trauma and return to ‘normal’, children are subtly pushed out of school. Changing schools is even harder. Traumatised by the abuse, most survivors of CSA fall behind in academics, making admission to another school difficult unless the principal is apprised of the circumstances and admission sought on sympathetic grounds, hoping he/she will respect confidentiality.
Making laws is not enough. It is about how these laws are interpreted and implemented that determines justice.
For now, Baby N has got some justice. But there is a long road ahead for baby N before she is totally healed physically and mentally.
(Enakshi Ganguly Thukral is the Co-Director of HAQ: Centre for Child Rights, New Delhi)