| Gender | Law |

Suryanelli verdict : justice overturned?

M Suchitra

14/4/2005

14 April 2005 - Recently, a two-member Division Bench of the Kerala High Court let off all but one of the 36 convicted by a lower court in the infamous Suryanelli sex racket case, shocking some citizens and taking many others by surprise. The case was about a 16-year-old girl was allegedly sexually harassed continuously for 40 days by 42 men, who were convicted on charges of abduction, conspiracy, illegal detention, rape and gang rape. Overturning an earlier verdict by a special court which convicted 36 of 42 accused, the High Court acquitted all the 36 individuals of the charges of rape and gang rape. It also reduced the sentence given by the trial court to the prime accused Advocate Dharmarajan from a rigorous life imprisonment to a mere five-year imprisonment.

Terming the verdict a perfect example for the gender insensitivity of the judiciary, various women's organisations and human right groups have formed a common platform to protest against the verdict. 'Taking into account the increasing incidents of sexual harassment and violence against women, the High Court's verdict is a real let down,' points out K Ajitha, a prominent activist and president of Anweshi, a women?s counselling centre at Kozhikkode. A meeting of Kerala Sthree Vedi, an umbrella organisation of women?s groups in Kerala, held soon after the verdict, at Ernakulam has decided to take up the responsibility of filing appeal at the Supreme Court against the High Court verdict. Also, a defense committee has been formed for raising the finances for the case and for providing moral support to the victim and her family.

It was in January 1996 that the Suryanelli incident rocked the collective consciousness of the people of Kerala as well as the political realm. The prosecution's case is that as a result of a conspiracy hatched by the accused, the 16-year-old girl from Suryanelli, a remote village in Idukki district was enticed, threatened and persuaded to runway from her school hostel by a bus conductor whom she was in love with. He blackmailed her with a photo album of her and had her travel with him. He then threatened her that he would make nude films with her photos if she informed her parents about the trip.

In a planned move, somewhere during the trip he got off the bus and disappeared. The second accused, Usha, who was travelling in the same bus offered help to the girl and subsequently handed over her to Advocate Dharmarajan, the prime accused in the case. On the pretext of taking the girl to her relative's house, he took the girl to a lodge and raped her. There after, Usha and Dharmarajan presented her to several men, including influential politicians, businessmen and other prominent persons, at various places in Kerala and Tamilnadu.

The girl was held in coercive confinement, injected with drugs to prevent her escape, thereby also making her more liable for exploitation. It was only when she fell seriously ill and she could no longer serve the exploiters' purposes that she was abandoned. Her captors threatened her with dire consequences if she told anyone about what had happened. After 40 days, she came back home on February 26, 1996.

Though the ordeal of the girl shocked Kerala, what happened soon after was sheer injustice. The girl and her family were socially ostracized and they passed through traumas of several lifetimes. The girl had to abandon her studies. There was tremendous pressure on the family not to register a case. The investigation was inordinately delayed and the involvement of the influential persons resulted in scuttling of the entire probe. In the name of identifying the culprits, the police paraded the girl all over the State along with the accused. Where ever they stopped, the public abused the girl. The newspapers celebrated the incident with pulpy stories. There were threats on the minor girl's life to withdraw from the case. In the 1996 Assembly elections, the Opposition Left Democratic Front made the scandal one of its major campaign issues, especially in view of allegations that one of the men guilty was a prominent ruling party politician (eventually, however, his name did not figure in the charge-sheet for want of evidence), and came into power.

It was under tremendous public pressure that the LDF government set up the State's first-ever Special Court to try a case of sexual assault. A special investigation team probed the case for two-and-a-half years. After holding a 317-day trial, the Special Court on 6 September 2000 handed down stiff punishments to 35 of the accused -- 32 men and three women. Nine of them, including one woman, were sentenced to 13 years' rigorous imprisonment--for conspiracy, abduction, illegal detention, rape and gang rape.

Later in 2002, the court tried the prime accused Dharmarajan, who was absconding during the first phase of the trial, to rigorous life imprisonment. The court had termed the offences by the advocate as rarest of rare offences. The court had further gone on to observe that the accused was a hardened criminal, and as a lawyer he knew the ramifications of his gruesome criminal acts.

However, overturning the Special Court's verdict on 20 January this year, the Division Bench of the High Court comprising Justice K A Abdul Gafoor and Justice R Basant, observed that there was inadequate evidence for abduction, conspiracy, selling of the girl, rape and gang rape. The court observed that the girl had never tried to escape, though she got many opportunities. The judges also observed that as there was no evidence for resistance (absence of resistance marks on the body), the girl could not be considered an unwilling partner to the intercourse.

"So far as the accused are concerned, there was no resistance from her part, so that those who approached her could discern that she was not willing for intercourse," the judges noted. They felt that absence of consent had not been satisfactorily proved and asserted that the girl stated unwillingness really as an excuse to save her face in the family for her 40 day long absence from home.

The special prosecutor had contended that in spite of severe infection in her vagina, Dharmarajan and many others had raped the girl, and a few of them raped her more than twice. According to the girl, during those days her condition was precarious and she had acute pain on the back of the hip. But the judges observed that "to rape a girl with such ailments, pain and infected vagina may be humanly impossible, as contended by the appellants, except with roaring cry from the victim? PW3 (the girl) has no case that she had even wept during the alleged rapes? no resistance mark was found on her body. According to the doctor there were no signs or evidence of resistance." The Division Bench also observed that the girl got many opportunities to run away but she had not done that.

The Division Bench did not seem to have taken into consideration the girl's deposition before the trial court. "I was terrified. They had threatened to kill me? They threatened to kill my parents too. I was frightened.. Even now I am frightened that they would kill me. They used to tie my hands behind me and pour liquor into my mouth and give me drugs before taking me to various places. They continuously harassed me. I was tired? damn tired. When they go out they used to lock the rooms from outside? I appealed to all those who came to take me home. I told them who I was, where I came from, and whereabouts of my parents. But nobody helped me? whenever I resisted they tortured me." This is what the girl had deposed before the trial court.

The defence committee members point out that it's highly objectionable that the court has not even taken into account the basic facts such as absence of resistance does not mean willingness to have sex. When the girl was terrorised and forced to undergo sex, how could it be taken as consent?

The judges wrote that "medical opinion available in this case also is is of no help to the prosecution to prove that there was intercourse using force." But the evidence given by the doctor who examined the girl after her coming back home was crucial for the prosecution. The doctor had reported: "Vaginal examination was painful, valva was oedematous. There was infection. There was purulent foul smelling discharge. She would have suffered severe pain during the sexual act if it had continued as stated by her during the period of infection."

But the judges pointed out that in cross-examination the doctor said that uterine contraceptive device could also cause infection. In further cross-examination, the judges observed that the doctor told the court that he examined the vaginal wall and did not find it lacerated. The court also observed that the doctor agreed that during violent intercourse "laceration in the vaginal wall occurs posteriorly".

"While overturning the verdict by the trial court, the Division Bench of the High Court completely glossed over the evidences given by the victim and also medical evidences. The judges ignored the legal precedence in the case of medical and corroboratory evidences," says Adv.Anila George who helped the special prosecutor in the trial court, and who was present in the High Court throughout the hearing of the case. "It's as if the judges were overpowered by a male fear. The observation by the judges that the accused were unaware of the fact that the girl was a non-consent party is absurd."

Adv.Bhadra Kumari, an activist-lawyer in Kochi points out that the Division Bench judges have not even stated the reasons for overturning the trial court judgment. She also feels the judgment was overpowered by a preconceived notion about the character of the victim.

The judges did look into the girl's past behaviour. "When we read the evidence of the PW3, we have to be cognisant of her psyche - her mental make up. Her past conduct and behaviour have to borne in mind." The judges cited an incident pointed out by the counsel of the accused in which the girl had "squandered" Rs 450 entrusted to her by her father for remitting hostel fees and also an incident in which she pledged her ornaments without telling her parents. "She was not a normal innocent girl of that age. The peculiarity in her personality must realistically be borne in mind. The evidence of her age with such a conduct certainly has to be viewed seriously and with caution. A court cannot meekly swallow her version."

The judges further added that they were unable to persuade themselves to accept the argument that in all cases the rigid rule of acceptance of the evidence of prosecution must apply. "An emotional approach or insistence that the evidences of all rape victims have to be accepted is not warranted or permitted by law and would result in negation of justice", they wrote.

Women's organisations in Kerala fear the High Court verdict might have a negative influence on the fate of a dozen sex racket cases pending with various courts in the state. After the special court's verdict in Suryanelli case, a few more similar trafficking cases had come into light as more victims, encouraged by the verdict, came forward to take recourse to legal redress. "The trial court verdict definitely had a positive impact on the psyche of the public in general and women in particular," points out Jyothi Narayanan of Sthree Vedi. "The High Court verdict might encourage the sex rackets in the state."

Though women's organisations are moving ahead with their protests and media campaigns, the Congress-led UDF government in the state does not appear to be bothered much about the issue. The Chief Minister Oommen Chandy has already stated that his government was not in a hurry to approach the Apex Court against the High Court verdict.

After nearly a decade of traumatic life and victimization, the girl and her parents are still not sure whether they would get justice, though they have decided to fight against the High Court verdict. The girl, now 25, is a peon in a government office in Idukki district. She was given the job on compassionate grounds in 2000 by the then LDF government. Until then, she had spent over four years in house-arrest like existence in the remote tea estate near Munnar, during which time the accused were free on bail. Since the special court verdict, the girl's family was slowly coming back to normal life. But with the High Court verdict, they have once again withdrawn into their lonely, isolated existence.

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It was in January 1996 that the Suryanelli incident rocked the collective consciousness of the people of Kerala as well as the political realm. The prosecution's case is that as a result of a conspiracy hatched by the accused, the 16-year-old girl from Suryanelli, a remote village in Idukki district was enticed, threatened and persuaded to runway from her school hostel by a bus conductor whom she was in love with.


The defence committee members point out that it's highly objectionable that the court has not even taken into account the basic facts such as absence of resistance does not mean willingness to have sex.


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