UP Police Says ‘No Rape’ in Hathras Case. Here Are Eight Questions

The police investigation in the Hathras case raises several red flags and points to glaring loopholes.

Uttar Pradesh senior police officer Prashant Kumar, on Thursday, 1 October, claimed that the 19-year-old Dalit girl from Hathras, who succumbed to her injuries on 30 September, was not raped because her forensic report has not found sperms in her samples. This, despite the girl claiming sexual assault and naming the four accused in her dying declaration.

But, here are some questions to the Uttar Pradesh police:

QUESTION 1: Is the UP Police Contradicting India’s Jurisprudence on Rape?

1. India’s jurisprudence on rape clearly states that the absence of sperms in a swab sample by itself cannot rule out rape. There are High Court rulings on this very issue. In 2012, the Bombay High Court ruled that the presence of semen is not necessary to prove offence of rape. In 2018, the Uttaranchal High Court, while passing judgment on the alleged sexual assault of a one-year-old upheld the conviction of the accused who had challenged that no semen was found in the vaginal swab of the victim. The court relied on the Supreme Court decisions in Wahid Khan v. State of M.P., (2010) 2 SCC 9 and Parminder v. State (NCT of Delhi), (2014) 2 SCC 592.

2. According to the definition of rape in Section 375 IPC (as amended by Criminal Law Amendment Act, 2013), the definition of rape has been widened to include acts other than only peno-vaginal penetration. According to India’s rape laws, insertions, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman can also amount to rape. So, when the police recorded the statement of the victim, did she specifically mention that she had a peno-vaginal penetration? If not, then how is the police concluding ‘no rape’ on the basis of lack of semen in the vaginal swab? Cause India’s rape laws clearly states to the contrary.

So is the UP police, who has investigated several cases of rape and sexual assault in the past, contradicting India’s rape laws?

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QUESTION 2: Can UP Police Find Accurate Results from a Delayed Medical Test?

The “final test” on which the UP Police is basing their conclusion on was done on 25 September, three days after the victim first claimed that she was sexually assaulted (her statement was recorded on 22 September in Aligarh hospital) and eleven days after the actual incident. As pointed out by Resident Doctors Association, samples should be ideally collected within 72-90 hours after the crime to be able to detect sperms, that too when the victim hasn’t urinated, defecated or bathed.

So, is the medical report that the UP Police is basing their conclusion on accurate, given that there was a considerable delay of 11 days from the alleged act of crime?

QUESTION 3: What About the Post Mortem Report Mentioning ‘Old Healed Vaginal Injuries?’

The post-mortem report mentions old healed injuries to her private parts, though it is not mentioned how old the wounds are. A gynaecologist, who wished to remain anonymous, said minor injuries can very well heal within the span of 11 days.

Will the UP Police not investigate these ‘old healed wounds’ in her vagina as mentioned in the post-mortem report?

QUESTION 4: Why Did the UP Police Not Take Circumstantial Evidence into Account?

UP ADGP Prashant Kumar told NDTV that the girl alleged sexual assault only after a week, which was when the rape charge was added to the FIR. But her mother says that she told the police on 14 September that she found her daughter in a crop field, stripped off her clothes, bleeding from her vagina and with several wounds on her body. Because the girl was fleeting in and out consciousness and the mother could not definitively say that she was raped, she did not mention the word to the police on the day of the crime.

Now picture this: A woman is found stripped and brutalised in the crop field – a scene historically associated with rape / sexual violence.

Did the police not have any suspicion of sexual assault in the case, despite the description given by her family members? Could the police not have registered a suo motu case of sexual assault or molestation, and modified it later?

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QUESTION 5: Were There Legit Law and Order Concerns to Hurriedly Cremate Victim’s Body?

UP Police has been consistently claiming that the cremation of the girl was done in the middle of the night without the approval of her family on 30 September because they wanted to avoid “law and order problems” in the village. The police has also said that the victim’s ‘extended family’ was present during cremation, but testimonies of the family supported by videos showed that police carried out the cremation without the presence of any family members.

Now, can the police cremate a rape victim’s body citing ‘law and order’ concerns without the presence of her family?

Ex-Uttar Pradesh DGP Vikram Singh told The Quint that there is precedence of police officials cremating/burying a dead body if they sense imminent danger of law and order worsening. “If the police have advanced information that vested interests and diverse political groups can snatch the dead body from the family or put them at a public place and go in for a large-scale agitation or promote/instigate a situation that can cause large-scale violence, which could lead the police to use force to control, the police should take the family into confidence and ensure that the last rites are performed as per the requirements of the religious practices of the victim’s family.

So, the first question, did the police have credible information on any vested interest groups attempting to pose imminent danger in the area? If they did, could the police not have provided enough security to the family till morning when they wanted to cremate the body?

Singh said, in the Hathras case, “Were the family of the victim criminal? Why could they not be taken into confidence? The police should have been of general utility to them providing security, like they have placed officers now. Disregarding the rights or rituals of the family was unacceptable in Hathras.”

QUESTION 6: Did the Police Snatch the Victim Family’s Right for Further Probe?

As NC Asthana, retired IPS officer who has served as Kerala DGP, points out that by burning the body in the hush of the night, allegedly without letting the family get a last glimpse, the police snatched away the family’s right to demand a second post-mortem or to even document the bruises on the girl’s body.

Was the police deliberately trying to hurry the cremation to possibly cover up or dilute the case of rape?

QUESTION 7: Why Did the UP Police Not Seal the Spot of Crime?

The alleged crime took place on 14 September. When The Quint visited the ground on 30 September, it found that the scene of the crime had not been sealed. The victim’s brother said, from the first day the incident had been reported till 2 October, the crime spot has been accessible to the general public, journalists and accused family. He added that there has been no board or sealings done by the police. The three-member SIT, formed by the Yogi government to probe the case, reached the spot only on 1 October.

Why did the police not seal the spot of crime even once since it was reported? Does it not leave the crime spot open for all sorts of compromise? Can the SIT gurantee that the presence or absence of evidence from the crime spot can be accurate since it has been kept open for compromise and contamination?

QUESTION 8: Plain Negligence or Deliberate Botch-ups?

The glaring loopholes in the investigation and police statements alongwith the examples of dereliction of duty by the UP police, when viewed together, does it not raise the question about whether the UP police is being negligent in getting to the bottom of the case or is it acting with ulterior motives to dilute the case?