The learned Additional Director General of UP Police needs this written lesson in the law on rape. Does he know, for instance, that the offence is not called rape, but ‘sexual assault’?
The ADG (Law & Order) of UP Police on October 1 claimed that the victim woman’s forensic lab report showed that she was not raped. Why should he make this statement? In which legal capacity did he judge the forensic report? Who is he to interpret it and conclude in the aid of culprits? Is he an advocate of the accused or an investigator entrusted with the duty of prosecuting the culprit?
Generally, it is the duty of the police to investigate criminals and prosecute them. However, the UP police is probing and conducting a trial of the victim through press conferences. After destroying evidence of the crime – the dead body of the victim – the UP Government has handed over the case to the CBI, whose reputation has been adversely affected with the Special Court for CBI cases in Lucknow admonishing it for total failure in proving charges against all accused in the Babri Masjid demolition case.
It appears the UP police is conducting a trial of the victim through its statements in the media statements to mislead people about the ghastly crime in Hathras.
The ADG’s statement makes it clear that police is trying to judge the evidence, which shows its resolve to hush up the case to shield criminals. Due to the statement by Prashant Kumar, the media is now discussing the minute details of sexual assault while disregarding the privacy, dignity, and even justice for the victim.
It amounts to police judgement acquitting the accused even before the investigation has begun. As a teacher of the law this author tells people that the law will take its own course. However, this tragedy is unfolding in reverse! A police officer is pronouncing that there was no rape because of absence of penetration and semen particles on victim’s body. This is worst form of trial by police through a willing media. Is the ADG revealing the proximity of the state with the criminals?
The ADG has allegedly relied on the forensic report, which is just preliminary information which is required to be properly admitted into court when case is up for trial. It will be tested by examination, cross examination and re-examination, and on corroboration with other witnesses and circumstances, it could be either be seen as credible or be discarded. The police officer has no business to release half-baked information to absolve criminals. It shows his over-enthusiasm, and his statement could be disregarded on several counts.
For establishing rape, penetration and discharge of semen is not essential. Assuming that statement of the officer was true, it could still be an attempt to commit sexual assault.
Perhaps the ADG needs a trip to law school, where our criminal law students would teach him the latest law of rape. The amended law now calls the offence “sexual assault”, not rape.
The crime called ‘rape’ was mentioned in the Indian Penal Code when it was drafted in 1860. Section 375 to Section 376E were added after a hundred years, they refer to ‘sexual offenses’. Section 375 defined rape as sex without consent, with consent but under the fear of death, or with consent but under false excuses.
The 172nd Law Commission report recommended substantial changes, importantly that “rape” should be replaced with “sexual assault”, and that “sexual intercourse” as contained in Section 375 of the IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal. The Criminal Law (Amendment) Act in 2013 widened the definition of rape and made punishment more stringent.
For the ADG’s benefit, the following is the definition of the offence at present;
“IPC Section 375. Sexual Assault: Sexual assault means –
(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child–
(b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman
(c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.
(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child's body;”
Another serious contention that counters the police officer’s statement is the FSL report by Dr. Azeem Malik, Chief Medical Officer of Aligarh Muslim University’s (AMU’s) Jawaharlal Nehru Medical College, where the 19-year-old Hathras victim was admitted for two weeks. He told The Indian Express that the report “holds no value”. According to them, the samples were collected 11 days after the alleged rape and sperm does not survive after two to three days. The government guidelines strictly say forensic evidence can only be found up to 96 hours after the incident.
The police officer should also remember that a case of sexual assault was registered only after the victim recorded a statement before a magistrate after regaining consciousness at AMU hospital.
According to NDTV the autopsy report of the woman showed that she was strangled and suffered a cervical spine injury. The final diagnosis did not mention rape but pointed out that there were tears in her genitalia.
The ADG’s malice can be inferred from his deliberate ignorance of other reports. For instance, a report dated September 22 based on her statement mentioned “complete” “penetration by penis” of the “vagina”, she was “gagged” and “strangulated by dupatta”. This report mentions verbal threats including a threat to kill and points out the assailants as Sandeep, Ramu, Luv Kush, Ravi. The woman’s post-mortem report from Safdarjung Hospital had also stated that her “hymen showed multiple old, healed tears”, and that the “anal orifice showed old healed tear”.
Her dying declaration, the dead body testifying injuries and the condition of the victim stands as strong proof which cannot be diluted by the forensic reports, which may not reflect the conditions due to various limitations and the integrity of the humans involved in it. Her oral statement and injuries lead a court to reach a conclusion about the offence. The accused in this case must face prosecution under stringent norms of the SC/ST Act.
A living human might lie in the court of law, but a dead body is a truthful witness, almost unflinching evidence in a criminal case. The UP police knows that the only way of letting off the criminals is by destroying the clinching evidence – the dead body of the victim of rape and murder. The UP Police deserves to be prosecuted for destroying evidence under Section 201 of the IPC. The only ray of hope left to uphold the rule of law now is the Allahabad High Court.
The writer is a former Central Information Commissioner. Views are personal.