KIRTI SINGH | 28 OCTOBER, 2020
Crimes against women
What constitutes rape and the steps that need to be taken in investigation of this offence need to be clearly understood to see the manner in which the UP Police and administration has been misleading people on the law of the land.
There have been serious allegations that the UP police have deliberately botched up the investigation to protect the accused who belong to upper caste Thakurs in Hathras and have close connections with the UP government and admission.
The law for rape and sexual assault were amended in 2013 and then subsequently in 2018 to bring in harsher punishments for certain categories of rape. The punishment for gang rape was increased to a minimum term of 20 years extending to life, i.e., the remainder of a person’s life in 2013.
After Nirbhaya, the 2013 amendment brought about, as a result of a campaign by women’s groups and organizations for several years, introduced new offences within the Penal Code.The Verma Committee reiterated the progressive demands by women’s organisations and others apart from suggesting some new additions in both substantive and procedural law and this also persuaded the UPA government to change the law comprehensively.
The definition of Rape was expanded to include within it not only forced penetration of penis into the vagina, mouth, urethra and anus to any extent, but also penetration by any object or a part of the body into the vagina, the urethra and anus and also oral sex. Section 354(molestation) of the IPC saw additions to the law of assault and included Stalking, Sexual harassment, Disrobing a woman, and Voyeurism in sections 354A to 354D with proportionate punishments.
Justice Verma’s committee also suggested certain protocols and standard operating procedures to be followed by the Police and Medical personnel while dealing with Sexual assault/rape cases.
The 2018 amendments by the Modi Government largely brought in extramely harsh punishments for certain categories of Rape.Going against the trend in many democratic countries to do away with death penalty even in cases of murder of the most gruesome kind, it introduced the Death penalty for rape of a child below 12 years of age apart from introducing 20 years to life for rape of women below 16 years of age.Since 18 was also made the age of majority any intercourse with a girl below 18, whether consensual or not, will now amount to rape.
Disagreeing with the harsh punishments that were infused into the Penal Code through the 2018 amendment, women’s organizations and groups,apart from expressing moral objections, expressly pointed out that unless there is certainty in law that a rapist will be punished harsh punishment would be mere tokenism.
It has been pointed out that what would be required in rape trials would be better investigation by the Police, following SOPs (Standard Operating Procedures) prescribed for cases of rape and ensuring a much better infrastructure by, for example, increasing the numbers of forensic laboratories to ensure that the evidence was properly analysed in a timely manner. The Hathras case highlights how these procedures have not been carried out.
In the Hathras rape and murder case, the police have not carried out the investigation properly, or in time. They have not registered the FIR at the first instance, thereby deliberately flouting the Supreme Court Lalita Kumari ruling.There have been several reports about how the police deliberately delayed the registration of the case while the girl lay outside in an obviously serious medical condition.During this time she even spoke to the India Today journalist naming the accused and saying that after doing jabardasti with her the accused, hurt her grieviosly,Still no FIR of Rape was lodged .
Non registration of an FIR by the Police has also been made an offence in sexual assault cases in 2013 and the police are liable to be punished for this under Section 166A(c) of the IPC Furthermore, the Police have deliberately jumped to wrong conclusions in law that there was no rape after an unforgivable delay in collecting medical evidence, and then stating that no semen was found on her body.
Since 2004, the Supreme Court has repeatedly held that rape does not need complete penetration by penis or ejaculation of semen and rupture of hymen (Aman Kumar v. State). In another case in 2004, the Supreme Court held that the sine qua non of rape is penetration and not ejaculation. In the State of U.P. v. Babulnath, the SC highlighted that it is possible to legally commit an offence of rape without causing any injury to the genitals and leaving any seminal stains. The Supreme Court has also said in Wahid Khan’s case in 2010 that slight penetration is sufficient, and that for rape prosecution the depth of penetration is irrelevant.
Therefore, the claim by the UP ADJ that there was no rape just because semen was not found on the body of the nineteen year old victim is wrong in law.This utterance by the ADJ has led to the accused and their clan openly and shamelessly stating in a panchayat that it has been proved that no rape has taken place.Furthermore, it is a well known fact that the medical legal certificate (MLC) was not recorded till the 22nd of September in the Aligarh Hospital.
This is despite the fact that the guidelines issued by the Central Government in the ‘Medico-legal care for survivors/victims of sexual violence’ states that there must be no delay in conducting medical examination and collecting evidence. The hospital claims that they were only told about the rape by the victim then.This is one fact which is very hard to believe since the girl at least had complained about the rape earlier.The conclusion by the doctor that though force had been used he would not form an opinion about sexual intercourse till he received the forensic examination report is also faulty.
The doctor ought to have known that forensic evidence ,which was taken after a certain number of days would be useless.One wonders what influenced the doctor to state this against all medical ethics.Samples were reportedly sent for forensic examination only on the 24th which is ten days after the incident.
In the meanwhile, the girl had been cleaned and washed several times. When she was found by her mother, she had been stripped, badly injured, strangulated and the mother had also reported that blood was flowing from her vagina. It is scientifically well established that no semen can be present on the body of a girl after eight days of rape. Also what constitutes rape is a question of law and no doctor is allowed to pass such an opinion.Significantly, no medical examination of the rape accused has been conducted.
What is most significant in this case is the statement that the victim made to the Aligarh Magistrate or Police on September 22 2020 clearly naming the four accused and stating that they had raped and strangulated her. Even earlier on the 14th the girl had apparently stated in two video recordings to the media outside the police station and while lying outside the hospital in a stretcher that the accused had done jabargasti,commonly used for rape, with her and hurt her badly.
The September22 statement which has to be seen as a dying declaration, since the girl died shortly after that, has been established as conclusive evidence for conviction in rape trials in India.
The Supreme Court has attached ‘great solemnity and sanctity’ to the words of a dying person in Babulal v. State. In the historic December 16 gangrape and murder case, the court held that “dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests”. Thus this declaration along with the corroborative videos is sufficient evidence to prove rape.
Infact in rape cases the Supreme Court has set down the precedent that the evidence of the prosecutrix alone is enough to get a conviction of rape if it is credible even in the absence of other witnesses. In as early as 1980, Justice Krishna Iyer in Rafiq v. State of U.P. while upholding the evidence of the prosecutrix said that it need not be corroborated.
All this shows that there should be a court monitored probe into the role played by the Police,the hospital administration and the U.P administration in suppressing the fact of rape and the reasons for the delay in lodging the FIR and in carrying out the medical examinations should and must be investigated.
The manner in which the victims family has and had been isolated and not allowed freedom of movement and S144 put in place in Hathras must also be investigated.Also how and why the Thakurs were selectively allowed to hold a congregation has to be found out.The law of the land were also violated by the manner in which the police hurriedly cremated the body of the victim in the middle of the night without the consent and participation of the the victim’s parents and brother.
The Allahabad High court is looking at this aspect of the case but needs to expand its suomoto enquiry into all aspects and closely monitor the CBI enquiry.It is highly likely that in their haste and enthusiasm to protect the upper caste Thakur men for the rape of this nineteen year old Valmiki girl, the police and the administration of UP have, apart from botching up the case, ignored what the law of the land is and concocted a false narrative of no rape.
Kirti Singh is a senior advocate and former member of the 18th Law Commission.