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Sunday, July 20, 2014

The Making of a High Profile Rape Trial

The Making of a High Profile Rape Trial

The Shakti Mills trial of Mumbai, as the court cases relating to the two gang rapes in 2013 came to be known, led to the accused being sentenced to death. This is an account by the members of a survivor support project who supported the two young women at the centre of these cases. It offers insights into the prosecution's strategy, the police investigations and the grit and spirit of the two young women and their respective mothers, and how the survivor's socio-economic profile often dictates not only how she is treated but even the outcome of the case.
The authors ( are part of the survivor support project of the Majlis Legal Centre.
The gang rape of a 22-year-old in broad daylight in August 2013 tarnished Mumbai’s image as India’s safest city for women. The historic significance of this case was that it was the first “high profile” one after the amendment to the rape laws in April 2013 Criminal Law (Amendment) Act, following the brutal gang rape and murder in Delhi, on 16 December 2012.
The trial in the August gang rape in Mumbai is known as the “Shakti Mills rape trial” and constitutes trials of two different cases, connected by the scene of the crime. There were five accused in both the cases, one among them a minor in each case but not the same minor. The first case is popularly referred to as the case of the “photojournalist” (called Simran here), the second the case of the “telephone operator” (called Suman here), a misnomer given to a IX-Standard school dropout who had barely turned 19 at the time of the incident. Both are children of single mothers.
We were closely involved in the process as part of our survivor support programme, Rahat, a collaborative venture with the Department of Women and Child Welfare, Maharashtra, and the Mumbai police. It is within this context that we have analysed the manner in which these high profile cases unfold, and examined our role as support persons in opposition to the “prosecution”.
Simran, a young intern at a prestigious magazine, decided to accompany her colleague Arvind1 on an assignment to photograph old and dilapidated structures, and the two ventured into the decrepit mill compound at Mahalaxmi (central Mumbai) in the early evening to capture the structure in the golden sunset hour. What followed has been reported widely.
Without going into the gory details, suffice it to say that the assault on the photojournalist included vaginal, anal and oral penetration and the showing of pornographic clips and forcing her to perform accordingly. As she confided in us later, all Simran could think of during the entire horrific episode was that she wanted to live, she did not want to die in the process. A clear defiance of the patriarchal notion that “rape is worse than death” and that women prefer to die rather than get raped. After each of the boys had given vent to the wildest sexual perversions they could fathom, they cleaned themselves on her socks or dupatta leaving behind ample evidence for the forensic experts to nail them. While escorting her out of the mill compound they warned the two against mentioning anything to anyone and even boasted of their “high level contacts”. A bleeding Simran was taken to the nearby Jaslok Hospital after Arvind informed a colleague in the magazine’s office.
Simran also called her mother to the hospital but did not divulge further details. Even in her wildest nightmares, Simran’s mother Mona could not have imagined that her daughter had been brutally gang-raped. The news of the gang rape spread like wildfire within the journalistic grapevine and television camera crews reached the hospital even before the police van could. Simran was soon shifted to a VVIP suite with security, to facilitate visits by dignitaries – the chief minister, the home minister, the police commissioner and several others. A bewildered Mona had to cope first with the gang rape, then the VVIP treatment and the constant hounding by the media. The government’s announcement that it would pay the hospital bills was a relief.
Media Frenzy
The incident was reported in great detail in the media. When her residential address was revealed, reporters landed there to find out whether the neighbours and the security guards “knew” that a resident had been gang-raped. Others wrote about how that fateful day also happened to be her mother’s birthday. Mona was terrified that her colleagues and friends would connect her to the incident. A young woman journalist even climbed 14 floors of the hospital through the external skirting, risking life and limb to photograph the victim. Sketches of the accused were splashed in almost all the newspapers along with the reports. Within a week, the five boys were arrested. The newspapers and television channels trained their cameras on the slum colony where they lived. The ailing grandparents, poverty stricken mothers and the frail wife with infants of one of the accused were all hounded and photographed. Even young children were not spared. The photograph of a 12-year-old boy, a school dropout who used to be in the company of the accused often (they were his mentors) and who became the first informant was published without bothering about the risk to his safety.2 One of the accused was found to be a juvenile and once again (as in the coverage of the Delhi gang rape), television anchors demanded lowering of the age of juveniles involved in serious crimes.
The Investigations
The Mumbai police reeling under a barrage of negative media coverage left no stone unturned and the investigation was handed over to the crime branch. A high profile public prosecutor, known for the death penalties he has secured in cases involving terrorists, was appointed overriding the high court directive that public prosecutors in rape cases must be women. Every minute detail about the investigations was handed out to the media.
The investigations were meticulous. The victim’s statement was detailed and graphic, the test identification parades were done as per the rule book, the medical and forensic reports were detailed and in record time, the statements of doctors, forensic experts, the constables, the panchas (witnesses), and other technical witnesses, were all in order. An elaborate charge sheet of 600 pages was prepared and filed within a month and the charges framed.
Concerns for the Survivor
Despite the case’s high-profile status, the additional burden of the media intrusion and the offensive high-profile investigations, the focus continued to be on conviction with hardly any concern about the victim. Support to the survivor was conspicuously absent. The same pattern that we have noticed in most of the other cases we have handled was apparent here too.
Mona informed us that Simran was coping well; the treatment in the hospital was excellent, the police were cooperative and very helpful, her office had been very supportive, and they had arranged for her to go through counselling. So then, why did she want to meet us?
The trial was approaching and they were nervous. They did not know what lay ahead. There was no one to answer their questions and quell their anxiety. The police were telling them what to do next, but no one was answering the “why”. Being an alert and confident girl, Simran wanted to know why she was being asked to do the things that she was asked to do and how they were important for the case. They were also apprehensive that a male prosecutor had been appointed and Simran had misgivings about discussing the intimate details of the perverse sexual acts with him. A sensitive and caring approach to a rape survivor was what was missing.
An Ideal Survivor
When she walked into our office, Simran could have passed for a junior lawyer. Her interest in clothes, accessories, shopping, movies, etc, were like those of any of our young colleagues. For the first time we had an educated girl, who was eager to go over the technicalities, keen to complete her case and move on and not wallow in guilt or shame. Here was an ideal survivor. However, she confided that she felt lost in the face of the legalities, and wanted us to guide her. The three things that disturbed her most were:
(1) The threat to her privacy. She was perturbed that her name, address, phone number and personal details were in the charge sheet. She was also disturbed at the way some reporters and state officials had projected her character.
(2) Test identification parade. She had to give a graphic account of the sexual act of each accused in the presence of seven other dummies. She had to do this five times over. At the end of it, she felt sick.
(3) She wanted her new phone instrument which was a gift from her mother and which was in police custody, returned. It had some valuable photographs. She was perturbed that these would be damaged while in police custody.
When we asked for the papers, the Joint Commissioner, Crimes was happy to know that we would be involved with the case, and shared with us the charge sheet. When we went through it we realised there were graphic descriptions of the sexual act. There were statements that could be punctured during the cross examination by an astute criminal lawyer. Her testimony could be shred to pieces, in case she faltered and the carefully manicured case could just collapse.
Initially, when we contacted the public prosecutor, he boasted that he is a “one man army” and did not need any help. However, when he tried to ask Simran to repeat the sexual acts he was too embarrassed, and Simran could not grasp what he was trying to convey. Finally, even he had to acknowledge the need for a support person.
Second Case Revealed
To make this case truly historic a prop was needed, so that a provision in the amended law which warranted the extreme death penalty for repeat offenders could be invoked. The crime branch issued a public statement requesting those who had met with a similar fate inside the mill compound to come forward and assured them complete confidentiality.
The second case came to light almost accidentally. The incident had occurred a month prior to the brutality against Simran. While on her way to the Mahalakshmi temple, Suman had been gang-raped in a similar way and her testimony bears an uncanny resemblance to Simran’s. After the gruesome gang rape, Suman too was issued a similar warning against reporting it to anyone.
Suman was in excruciating pain as she had suffered internal injuries, her clothes were torn and she could not find her undergarments and dupatta. So Kaushik her boyfriend, who was accompanying her purchased a T-shirt from a vendor outside the station. Like Simran, Suman too was protective towards her mother, and was worried how the latter would be able to cope. She did not want to return home. Kaushik suggested that they go away for some time. When she reluctantly agreed, Kaushik borrowed some money from a friend and went to a small village in Chhattisgarh where they stayed at his friend’s place and returned after a month. When Suman did not return home, the worried mother filed a “missing” complaint. Though Suman informed her mother about her whereabouts the next day, the complaint could not be “closed” until she appeared personally before the police. So when Suman returned on 2 September 2013, her mother took her to the police station. As the female police officer started probing the reason for her disappearance, Suman started crying. She disclosed that she had been gang-raped and described the location. By now the Shakti Mills compound had become notoriously well known. So the officer made the necessary connection. The first information report (FIR) was registered in the early hours of 3 September 2013 (2 am) itself (even though no woman should be retained at a police station at night). She was then sent to the N M Joshi Marg police station for identification of the scene of the crime.
This second case did not receive the same attention from the media or support from the state. While Simran’s medical bills at a private hospital amounting to lakhs of rupees were paid by the state in order to make the case “high profile”, Suman was examined at the J J Hospital where routine vaginal tests were conducted, though one month had lapsed since the incident, including the “two finger test”. Incidentally these tests have been banned through a protocol drafted by a committee constituted under the Public Health Department, headed by the senior doctor of this very hospital! On the other hand, no treatment was provided nor paid for, despite the fact that Suman was still in pain and was also in an acute depression.
Suman was called daily to the crime branch office and had to travel nearly two hours from her residence to record her statement. Her mother missed work as she did not want Suman to travel alone due to her fragile health. This had financial implications as the mother who works as a security guard had to miss work. Noticing her poor health, the crime branch officials asked us to intervene and extend our support to Suman. She needed medical care and counselling and was nervous about meeting the public prosecutor, so we accompanied her on those days. The public prosecutor’s tone while addressing her was different, less patient and laced with irritation and disrespect which was rather jarring, as compared to his behaviour in the Simran case.
The Two Trials
As the date for Simran’s deposition was nearing, media frenzy reached a crescendo. Simran was anxious that everything should go well. She would now come to our office nearly every day to go over her statement or just to chat. We requested the police commissioner to seek permission to record her evidence through video conferencing (as had been done in the Spanish rape case, earlier), but he left the decision to the public prosecutor. The latter who enjoys the high pitched courtroom drama did not heed our request. Finally, we had to push hard for additional security. We ensured that Simran entered through a back entrance that was not well known. She was in a burqa, along with 10 other women constables also in burqa, to conceal her identity, while hordes of cameras lined up at the main entrance.
Simran answered the questions raised by defence lawyers with quiet composure, reassured by our presence in court. The judge was very helpful and stopped irrelevant, derogatory and humiliating questions. (For example, when did she get her last periods, and when she replied that she did not know, the comments that followed were “what sort of a girl is she who does not keep track of her own monthly periods?”.)
She identified the accused sitting across the court hall at the rear end, with their heads bent, except the most brutal one, who glared at her throughout her deposition. The only time she lost her composure was when she was asked to identify the pornographic video clips shown to her while she was being raped. She asked for a short break to regain her composure. In her absence, the public prosecutor sought an adjournment, and she had to return the next day. Outside the court, the public prosecutor held a media briefing and gave all the details of the “in camera” trial and stated that she had fainted during her deposition, and hence the matter had to be adjourned. This sensational story became front page news. The next day, after her deposition, Simran went back to her office which was an indication that she was trying hard to move on and was not letting this incident weigh her down. Thereafter, we kept Simran abreast with the progress in her case, as well as the campaign issues that we had flagged, based on her experience.
Suman’s trial was less high profile as compared to Simran’s. There was hardly any media coverage. The day before Suman’s deposition, the public prosecutor informed her that she could beat the accused in court if she desired. We were unnerved to hear this. He even looked at her footwear and said it is too flimsy and asked the crime branch to purchase a new pair with a thick sole for the desired impact. Next morning before entering the court, Suman was asked to wear them and the public prosecutor reminded her of the “plan”.
Suman’s mother deposed first. Though illiterate, she is a woman of the world, confident and capable of dealing with the challenges of life. She had singlehandedly raised three daughters. Initially, a bit nervous within the formidable court atmosphere, she settled down soon enough and answered the questions with composure. At the end, she asked the judge to mete out the severest punishment to the accused and show them no leniency.
Suman was next. Her hands were trembling and she had a headache, but she did not want to ask for an adjournment. The piercing gaze of one of the accused disturbed her. So, the judge asked for a plank to be placed to block the direct gaze, which the public prosecutor had failed to bring to the notice of the judge earlier. Towards the end of her deposition, she appeared unsure about the “plan”. When it was time for her to identify the accused, she hesitantly told the judge that she wanted to beat them up. The judge smiled at her indulgently and explained that it was not possible but that the law would take its course. The public prosecutor looked away sheepishly. Later, he announced to the waiting media that the girl was so overwhelmed with grief that she wanted to hit the accused with her chappals from the witness box!
Judgment Day
The marathon trials were concluded in record time, within six months from the date they were committed to the sessions court. In the first case, the prosecution examined 44 witnesses while the second had 31. Apart from the usual and technical witnesses, employees from the mobile phone companies were also summoned to prove call records.
For us, it was a reversal of roles considering our usual cases. Here there was a high profile public prosecutor pitted against inexperienced defence lawyers since the accused lacked the resources to engage the services of astute criminal lawyers. The thrust of the cross examination was along conventional lines and was clichéd. The girls might have indulged in sex with their male companions and then in order to cover up had put the blame on the accused, the accused were shown to the victims in advance and their sketches were published in newspapers. Hence, the test identification parade was a sham, the property discovered by the investigation team at the scene of the crime may have been planted by the police to nail the accused, and so on.
One could have said that it was a watertight case or that the public prosecutor was brilliant. Strangely, it was neither. It was just that the scales were unevenly balanced. The defence failed to ask questions about even the most glaring lapses. During the final arguments, while the public prosecutor quoted John Salmond (a doyen of English jurisprudence) the defence lawyers were struggling to find the right words to make their points.
Finally the day of the judgment arrived. The hall was packed with reporters who were waiting anxiously, albeit for a foregone conclusion. They had already keyed in the words, “convicted” on their cell phones, and were waiting to press the “send” button. At this juncture, the carefully crafted game plan of the prosecution rolled out.
The judgments were pronounced within minutes of each other. Though Simran’s FIR and charge sheet were filed earlier in time, Suman’s judgment was pronounced first. The four accused were held guilty. Then the four accused in Simran’s case were held guilty. Our lawyer messaged the girls before they watched the news on television since it was their case after all and they had a right to know first.
On the following day, the judge read out the sentence in Suman’s case. It was the maximum punishment that can be awarded for gang rape under the new amendment: life imprisonment for the remainder of their natural lives.3
At this point, the PP submitted an application to add a charge under Section 376E of the Indian Penal Code (IPC) in Simran’s case. There was a flutter in the courtroom. What was 376E? The defence tried to put up a feeble resistance that new charges could not be added at this late stage after the verdict had been pronounced. The judge merely asked them to submit their reply to the application. The dice had already been cast in favour of the death penalty, since the judge had already awarded the maximum permissible under the section rather than the minimum which in itself was harsh – 20 years.4 The progression from here could only be the death penalty.5
Over the next 10 days, Section 376E became the topic of conversation everywhere. Advocates, human rights activists, journalists and the general public all had an opinion. Since it was a new section added by the 2013 amendment and had been invoked for the first time, there was no precedent. Can a verdict of “guilty” pronounced a few minutes earlier, render the accused “repeat offenders” warranting the death penalty? If the second case had not come to light during the trial of the first, the court would have had to stop at life imprisonment.
Since the verdict of death penalty was preordained, the rest was a mere formality. It became a matter of time before the dreaded verdict would be pronounced. The defence tried to postpone this moment, but these turned out to be mere histrionics which only served to annoy the judge.
The worst moment of this entire trial was when the impoverished and illiterate mothers of the accused stepped into the witness box to plead “mitigating circumstances” to ward off the death penalty. The reporters crowded round the witness box demeaning the sanctimony of a court about to deliver the harshest punishment in the statute books. Their poverty, sickness and lack of opportunity were on full display as the “state” cross examined them. (The “state” of course was beyond culpability for its own neglect to provide basic necessities of life to its citizens.)
Survivors, Not Victims
For the final arguments, the public prosecutor showed records of the accused who had earlier been a juvenile offender of a petty crime to prove “serial criminality”, which is strictly prohibited by the Juvenile Justice Act. At the final moment, for impact, he advanced the most conventional and sexist argument: rape is a state worse than death. These comments were far removed from the reality of the lives of the two girls, who possessed great survival instincts due to which they had survived the attacks and had courageously withstood the criminal trial despite the media onslaught. They were well on their way from being “victims” to “survivors”.
On the other hand, the public prosecutor who was pleading for the death penalty on the ground that they had been scarred for life and would never recover from the “vegetative state” they had been reduced to, had not even bothered to inform them about the verdict. They had obviously been relegated to the background. The state’s own concern for retributive justice and the city’s desire to salvage its pride became the prime concern.
Finally, it was time for the dreaded verdict to be pronounced. The judge held that the accused had used the most potent weapon of all, their male organ. They had violated the canons of human behaviour and tenets of human dignity, sanctity of human life and individual dignity. Class, poverty, young age, dependents – none of these were considered to be “mitigating circumstances”. The judge relied upon two recent judgments – the Kasab case and the Delhi gang rape case (the victims had died in both). Coming soon after the Delhi gang rape case, the judge declared that the incident had shocked the collective conscience of the society, which justified the death penalty. There was no possibility or hope of reform. The accused had to be hanged.
The city rejoiced. Justice had been done! While most countries were retracting from awarding the death penalty, we were moving in the reverse direction.
The irony is that while throughout the trial, we were the support persons the girls relied on, at the time of the judgment the talk shows on television pitted us against the public prosecutor and the police. It almost seemed as if they were speaking for the victims while we were speaking in support of the accused!
Glaring Contrasts
In order to highlight the different standards adopted while investigating a “high profile” case and “ordinary” cases where young girls from impoverished backgrounds are involved, we shall discuss another judgment delivered around the same time, which concerned a 13-year-old from a poverty stricken background, brutally raped by four middle-class men of a similar age group. The girl’s mother is a domestic maid, her father an alcoholic. Though the case was reported in the media, it did not become a high profile one. The collective conscience of the city was not pricked.
She was raped at a house party, to which she was taken by her 16-year-old friend. It was so brutal that the girl had to be hospitalised for six days. At the shelter home where she was placed for care and protection, she was assaulted by this older girl who was an accomplice and was placed there as a juvenile offender. The girl continued to be in a state of extreme trauma and depression for several days after the incident, a fact brought before the court by the counsellor of the shelter home who had interviewed her nearly three weeks after the incident.
The investigations were full of loopholes. There was delay in arresting the accused and in seizing objects from the scene of crime. The bedsheet had semen stains of all the four accused, but the judge held that this could not be connected to the victim as the vaginal swabs did not have any semen stains despite the fact that the girl had suffered injuries due to the sexual assault. The test identification parade could not withstand judicial scrutiny. An independent witness faltered in identifying the right accused. A local non-governmental organisation (NGO) which had initially met the child on the very next day of the incident, failed to provide the necessary long-term support beyond the first meeting.
It is not surprising that the child turned “hostile”.
While the three accused in the Shakti Mills were given the death penalty, this case resulted in acquittal.6 The accused are now roaming free in the same area. In all probability, her alcoholic father may have “compromised” with the accused and the investigating team may have facilitated this process. It was a case where everyone concerned – the family, her friend, as well as the other stakeholders – the police, the judge, and the civil society group, seemed to have let her down.
1 Names of all important witnesses have also been changed.
2 The fact that the state had failed to provide him basic education despite the mandate of free and compulsory education, and the only place he was being “groomed” for adult life was in the company of these lumpen elements, did not seem to bother anyone. Neither state nor civil society expressed any remorse, nor held themselves in any way responsible for this sorry state of affairs.
3 Prior to this, the maximum, life imprisonment, was for 14 years, the amendment raised the minimum to 20 years and the maximum or the remainder of the entire life for gang rape.
4 Section 376D – Gang Rape: Where a woman is raped by two or more persons constituting a group or acting in furtherance of a common intention, then each person is said to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean, imprisonment for the remainder of that person’s natural life and with fine.
5 Section 376E – Punishment for Repeat Offenders: Whoever has been previously convicted of an offence under sections 376, 376A or 376D and is subsequently convicted of any offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life or with death.
6 Case decided by the Special Court under the Protection of Children from Sexual Offences Act, 2012, at Sessions Court, Fort, Mumbai on 1 April 2014.

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