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. 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. After Nirbhaya, the 2013 amendment brought about, as a result of a s campaign by women’s groups and organizations for several years, introduced new offences within the Penal Code Section 354 also including disrobing a woman which has a minimum punishment of three years and a maximum of seven years. Apart from gang rape and murder this would be yet another offence in the Hathras Gang rape case.
Disagreeing with the harsh punishments that were infused into the Penal Code through the 2018 amendment, women’s organizations and groups 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 floutingthe Supreme Court Lalita Kumari ruling. Furthermore, they have deliberately jumped to wrong conclusions in law that there was no rape. 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 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. 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. 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 faulty. 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 on 22nd September clearly naming the four accused and stating that they had raped and strangulated her. Even earlier on the 14th the girl had apparently stated on video that the accused had done jabargasti, commonly used for rape, with her. The 22nd September statement which is a dying declaration, 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 16th 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 examination. Perhaps 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 ignored what the law of the land is and concocted a false narrative of no rape.
Kirti Singh is Advocate, ex-member (part-time) 18th Law Commission of India, and legal adviser, All India Democratic Women’s Association. (Views expressed are personal.)