Will the lack of interpretation of 'ganda kaam' let the alleged Muzaffarpur child rapists go scot-free?
“He came to my room and gave me something to drink and I started to lose consciousness… Then I realised he had torn my clothes and was biting me with his teeth, and he did “ganda kaam” with me and I was in pain…”
For a 12-year-old, who has seen violence and threats and been locked away in a windowless prison for months, this is a coherent description of sexual assault.
For the court of law, with defence lawyers intent on getting their clients run scot-free, however, it’s a “vague statement”, where the victim has apparently not clearly explained what exactly was the act done by the accused — does it amount to rape or assault?
In my seven years of reporting from the court, one thing I have realised — much to my disgust — is that in a sexual assault case, it is usually the victim who is put through the rigours of the “trial process” — the accused only has to deny all allegations and question the testimony and sincerity of the victim. With the criminal justice system being what it is, it is the victim who has to stand her ground, repeat the incident again and again and try to make a roomful of sceptical men understand that she simply doesn’t have the language — or the strength — to give an exact description of "the act".
Last year, the news cycle spent several weeks on the Muzaffarpur shelter home sexual abuse case.
The horror of nearly 40 girls in a government-funded shelter home being repeatedly assaulted, threatened, drugged and sexually abused for the ‘entertainment’ of a strongman and his cronies. Stories surfaced of some girls reportedly “going missing” from the shelter home — and possible murder to cover up the abuse.
The fact that politically connected persons, including a Cabinet minister in the state of Bihar, were involved in the cover-up of the abuse, was further fuel to the fire. The media looked into every aspect of the allegations, the courts stepped in, the alleged strongman, Brajesh Thakur, and his co-accused were moved to jails outside the state, and the trial itself shifted to Delhi.
And all patted themselves on the back for a job well done.
Months later, the special POCSO court is trying to frame charges against the accused — and the ordeal of the girls will start on a new path.
33 victims have recorded their statements before the police, and many also recorded testimonies before a magistrate in Bihar. The report of the Tata Institute of Social Sciences, which kicked off the entire controversy, is also part of the court records. Thanks to the intervention of the Supreme Court, some of the girls have even given statements to psychologists and counsellors sent through NIMHANS.
What is apparently lacking though is the language available to the girls to “clarify” what exactly they went through.
A huge group of court reporters gathered in the courtroom of Additional Sessions Judge Saurabh Kulshrestha on Monday afternoon to hear final arguments from the defence lawyers on the framing of charges against the accused. The hour-long hearing allowed the defence lawyers to pull apart the statements of the victims in detail.
What I saw in that courtroom was the readiness of the legal system to defend the accused, with even the judge apparently helplessly asking the CBI prosecutor to help him decide whether to frame charges under the stricter POCSO section 6 — which allows for a maximum life term for penetrative sexual assault, what we understand in layman terms as "rape" — or for the lighter section 10 — which carries a five to seven year jail term for sexual assault, which can include a number of acts.
“She has not even identified the accused directly,” “She has only said ‘galat kaam kiya, nothing about what was done” and the most damning — “The medical evidence doesn’t show sexual assault”— when the medical examination of these girls didn’t happen till months after the alleged incidents of assault and rape. How do we expect there to be "medical evidence" of injury and assault months after the incident?
The girls, aged between 12 and 18, went through immense trauma over a long time. The statements have been recorded months after the assault, amidst a huge media circus surrounding the children. The girls met a stream of counsellors, police personnel, media persons and others, repeating their stories at every stage. Some of them say they were unconscious and only remember waking up injured and in pain, to find themselves at the receiving end of physical abuse by the shelter home staff for raising the issue.
The CBI charge sheet itself says that at least two girls may have been murdered to keep them quiet.
Data from the National Crime Records Bureau (NCRB) shows that 48,060 POCSO cases were registered in the country in 2016, out of which 30,891 were sent to trial. 2016 saw a conviction rate of around 30% all India, while Delhi courts had a conviction rate of 18.49% in 2016. Data for 2017-18 is not yet available.
It is easy enough to stand in an air-conditioned courtroom in Delhi and question why the statements of all the girls don’t match up exactly. Given what we have seen of the criminal justice system, what I predict is that the trial court will frame charges under the harshest sections — for murder, sexual assault, and drugging a child for sexual exploitation— and then, the system will kick into gear.
The accused will contest the charges in the higher courts, the girls and their families will come under immense pressure — from the associates of the abusers on one side, and from the prosecution on the other.
The CBI PP on Monday told the court that at least one of the girls, who had positively identified some of the accused and was raped repeatedly — has been ‘restored back to her family’ and is now refusing to come to court to testify. The rest of the girls have traded one prison for another — they are now under ‘secure’ shelter of the Bihar government and the counsellors. These girls will be brought before the court and will be brutally and pointedly questioned by the lawyers for the defence. Perhaps the family members will be pressured — perhaps they will be bribed.
In the end, it will all hinge on whether any of the girls is strong enough to hold her ground amidst the barrage and keep the finger pointed at the accused. Whether any of the overworked and underpaid prosecutors and counsellors will be able to prop up the girls and ensure that they can speak, despite the trauma.
And most importantly, whether the girls be able to use the clear language the legal system requires from the accuser — will they be able to answer the who, when, how, and where of it all?
Or will the trial, like the Monday hearing, loop around the question of just how to interpret “ganda kaam”?
(The court decision is expected on Monday)