In October 2017, a 10-year-old school student from Kanchipuram district in Tamil Nadu, was raped and gangraped, on two consecutive days. Nithya (name changed) was on her way to school when she was dragged to a secluded area, surrounded by shrubbery, allegedly by a 17-year-old youth from her neighbourhood. The teenager, whom she identified as 'mottai', or someone with no hair on his head, allegedly raped her even as two of his acquaintances – Dinesh (20) and Satish (22) both adults, watched on. The next day, the young man was joined by the two others as they allegedly took turns to rape the child.
Today, over two years later, Nithya's family awaits an important verdict in connection to this gangrape. In the first week of February, the court will decide on a petition filed by the family to try the child in conflict with the law, identified by Nithya, as an adult. The maximum punishment that can be given under the JJ Act is three years. However in this case, experts say that if he is dealt with as a minor by the Juvenile Justice Board (JJB), his punishment for the alleged rape and the subsequent gangrape will be a year at most. And that will not be justice for their daughter, says the family of the survivor.
However, the lawyer for the child in conflict with the law in the case says he has been wrongly identified, and that he has an alibi for the day of the crime. Now 19-years-old and an engineering student, he has a certificate from the Registrar of his college that says he was attending classes at the time of the crime.
‘He orchestrated the rape, threatened her’
According to Nithya's statement, the child in conflict with the law orchestrated the abduction, rape and gangrape. “On the first day, 'mottai' alone took me to some shrubs,” Nithya said in her statement to the Magistrate Court, “On the next day, three people took me and did the same thing. They closed my eyes and mouth so that I couldn't scream.”
The accused, an engineering college student, allegedly issued multiple threats – first to convince Nithya to join them quietly, and second to stop her from telling her family about the rape. “When I said I won't accompany them, he (the child in conflict with the law) said he will pour petrol on my family and burn them.”
The police investigation shows that the accused student dropped her off at school on the first day after the rape, and allegedly threatened to murder her family if she exposed them. On the second day, when she began to bleed profusely, the alleged perpetrators abandoned her at the spot of crime and fled after issuing threats. It took Nithya two days to confide in her mother about what had happened to her.
"She thought the rapists will kill me and her father," says Alamelu (name changed), Nithya's mother, "We went to the hospital immediately and then a police complaint was registered. For two years now, we have been fighting for justice for my daughter."
The only identification the Nithya’s could offer the police was the alleged rapist’s tonsured head, but she also assured officials that she would recognise him immediately in person. Based on their investigation, police officials then lined up 10 youths from the area and asked Nithya to point to her alleged rapist.
"My daughter was such a cheerful person before this incident. But when they lined up suspects for her to recognise the minor, she immediately found him, went straight up to him and slapped his face. The magistrate had to physically restrain her from getting aggressive," Alamelu recalls.
“We thought the juvenile will get maximum punishment and will be tried as an adult automatically, but it was not the case," she adds. But according to police investigating the case, the JJB has rejected their appeal to treat the minor as an adult in this crime.
"This means he will get away with minimum punishment. A year perhaps, at the most, " says Kannadasan, the child's lawyer.
Family goes to court
The family with the help of Sherin Bosko, the co-founder of Nakshatra, an organisation that works with child sexual abuse survivors, moved the Madras High Court in August 2019. The demanded that the child in conflict with the law be tried in the Chengalpattu Mahila Court along with the two other accused.
"We believe that the amendments brought into the Juvenile Justice (Care and Protection of Children) Act of 2015, should be applied here," says Sherin. "The amendment itself was brought in after uproar over the minor's role and bare minimum punishment he got in the Nirbhaya case. If we allow the same to happen again now, there will be no meaning to those protests and efforts to change the law," she adds.
As per the Juvenile Justice (Care and Protection of Children) Act of 2015, a minor above the age of 16 can be tried as an adult if the crime he has conducted is classified as 'heinous'.
Section 15 of the Act states, "In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence, and the circumstances in which he allegedly committed the offence."
The preliminary assessment is may be conducted with the assistance of experienced psychologists or psycho-social workers or other experts. They determine whether the child in conflict with the law possesses the mental faculties to be tried as an adult.
And as per Section 18, "The Board after preliminary assessment under section 15 can pass an order that there is a need for trial of the said child as an adult, then the Board may order the transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences."
Swagata Raha, an independent legal researcher, also points out that with these provisions of the JJ Act, the victim is well within her rights to demand that her alleged rapist be tried as an adult. “However, retributive measures are not within the ambit of the JJ Act. Further, one has to remember that this field of justice is premised on the belief that children are amenable to reform. That also keeps in line with the international standards on juvenile justice.”
“There have been questions about the validity of this system which allows the child in conflict with the law to be transferred to adult criminal justice system, as it discriminates against some children based on the allegations raised against them. It is still at the allegation stage, which means it has not yet been proven,” she adds.
"We look at the minor as the prime accused in this case," said an investigating officer. "The public prosecutor appealed to the JJ board to let us treat him as an adult, but they did not comply," adds the officer.
Neither the police nor the survivor's lawyer received the results of the preliminary assessment.
When TNM spoke to Saravanan, the advocate for the child in conflict with the law, the lawyer admitted to having a copy of the assessment but could not divulge details immediately. He however stated that his client was incorrectly identified by the victim.
‘He’s not the culprit’
"The juvenile I represent did not rape that child. The only witness in this case is the child herself and she didn’t identify the rapist properly," he says. "We have proof that my client was elsewhere on the days the child alleges that the rape happened," he adds.
The alibi that the advocate is referring to is a certificate from the Registrar of the engineering college that the child in conflict with the law was attending when he was accused in the case. The Registrar of the University says that the accused was present in college at the time of rape.
In addition to this, owing to the delayed medical check-up, no medical evidence could be collected, specifically the DNA of the accused on the child.
"This college certificate is a lie," says Sherin. "The juvenile's family is using their affluence to influence the case. The child has identified the juvenile multiple times, with and without a tonsured head. When it comes to the rape of a minor, the survivor's statement is more powerful than any other evidence," she adds.
The family of the survivor meanwhile stands resolutely behind the child who is now 12 years old. The family has moved cities and two homes to help their daughter cope with the trauma she suffered.
"Our relatives have cut off connection with us because we won't hide in shame after the rape. They don't want us to fight, but we must for our daughter," says Alamelu. "I live in perpetual fear today when my daughter is not in my sight. I make multiple calls every day to ensure she is safe. When I express my fear, she tells me not to worry and she is so strong despite her trauma. I want her to remain this strong through her life and if that has to happen, she has to see her rapists punished for their crimes."