Hathras Verdict: Was the Accused on Trial, or Was It the Victim?

The order exonerates 3 of the 4 accused, and convicts the fourth for culpable homicide not amounting to murder

Trigger Warning: Descriptions of physical and sexual violence.

“Unfortunately, in our society, the victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime… Even after a case is lodged and FIR recorded, the police, more often than not, question the victim like an accused…The victim’s first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.”

Supreme Court, Nipun Saxena vs Union Of India (2018)

The special court verdict in the Hathras case of 2020 – which involved the alleged rape and murder of a young Dalit woman – paints a sordid picture of criminal investigation in India.

The judgment betrays elements of all the major afflictions which plague our justice dispensing apparatus: shoddy investigation, institutional apathy, inbuilt prejudices and the everyday structural violence which although invisible, cripples a poor and marginalised litigant. 

But, What Does the Verdict Do?

Pronounced almost two and a half years after the Allahabad High Court expressed consternation at the conduct of the local authorities and pulled up the State machinery for “prima facie infringement of human rights of the victim and her family”, the verdict exonerates three out of the four accused, and sentences the fourth to life imprisonment for culpable homicide not amounting to murder and the corresponding violation of the SC-ST (Prevention of Atrocities) Act, 1989. 

Quite notably, the charges of rape and/or murder could not be proved against any of the accused. 

The judgment appears to have been delivered on the basis of the inconsistencies in the case of the prosecution, and the evidence (or, the lack of it) put forth before the special court. 

However, a simple reading of the judgment lays bare a series of lapses which crept in the handling of the case by the designated authorities from the very beginning. Quite astonishingly, the Court chose not to pass any observations on the blunders committed in the investigation and evidence collection.   

The Probe: A String of Botch-ups

DELAYED MEDICO-LEGAL EXAMINATION, NO COUNSELING

The first, and perhaps the most outrageous lapse relates to the medico-legal examination of the victim. 

It is an admitted fact that while the incident took place on 14 September 2020, it was only on 22 September that a forensic examination for sexual assault was carried out. 

Several excuses have been tendered for this delay: the primary one being that in their initial statements, neither the victim nor her family members disclosed that the victim was raped by the assailants.

We shall come to a nuanced scrutiny of the facts, but let us examine this claim at its face value: a grievously injured young woman, allegedly assaulted by a man, was brought to a police station, and it never occurred to the police personnel that she may also be subject to sexual assault by the perpetrator(s)?

There is no requirement of a court order to conduct medical examination of a suspected rape survivor. Thus to not requisition an examination to confirm the possibility of rape raises serious questions on the competence of the personnel to whom the offence was first reported. 

Be that as it may, what is more preposterous is the lack of psychological assistance provided to the victim and her family. 

It is conventional wisdom that a victim of sexual assault may experience emotional trauma in which case, she has to be provided with immediate professional counselling. This is essential not only to document accurate details of the crime but also to provide the survivor with first contact psychological support and validation. 

Various circulars issued by the Ministry of Home Affairs emphasise quick actions in cases concerning crime against women, which include immediate collection of evidence for forensic examination with due consideration to the mental state of the victim.

Further, the official protocol of the Ministry of Health and Family Welfare mandates that a potential survivor who belongs to a group facing caste based discrimination has to be treated with additional sensitivity.

As per the prosecution, the victim and her family were humiliated at the police station owing to their caste identity; in fact, no help was rendered to even take her to the nearest public district hospital. 

Given the marginalised background of the victim and the conduct of the police personnel, it is not difficult to conclude why the fact of rape may not have been divulged initially by the victim or her family. Even then, the mother of the victim had stated on 16 September (that is, two days after the incident) that the victim was subjected to sexual assault by the accused. The victim’s mother also revealed in her statement that a couple of days after the incident, she had washed the clothes of the victim in the hospital as the victim had soiled herself in her sleep. Quite naturally, forensic examination of the clothes on 22 September did not disclose any trace of blood or semen on the clothes of the victim. 

Needless to add, the investigation in the Hathras case saw a brazen violation of all relevant guidelines.

The claim of the investigation apparatus that the victim did not disclose rape at the outset is, I daresay, reprehensible.

FAULTY/INCONSISTENT METHOD OF RECORDING DYING DECLARATION

The second major mess-up by the police personnel occurred in the recording of the dying declaration of the victim. 

A dying declaration - that is, a statement given by a dying person explaining the circumstances and cause of their death - alone may be the sole basis of conviction, if it is found to be reliable.

While several statements of the victim were recorded between 14 and 22 September, there was no uniformity in the interrogation to which the victim was subjected even while she fought for her life. 

The last of these statements was recorded on 22 September at 5:40 PM; quite shockingly, the victim was never asked if she was subjected to sexual assault.

It gets more intriguing: once the account of the victim was jotted down, the dying declaration was not prepared and sealed in the presence of the victim; rather, the declaration was prepared in the office of the chief medical officer, and later sealed in the office of the Tehsildar. 

It is also on record that the declaration was not submitted to the Court on the day it was sealed. 

The court did not deem fit to enquire as to why such major procedural errors took place in recording and securing the dying declaration. 

Even so, the Supreme Court of India has broadened the scope of admissibility of a dying declaration. The law neither specifies who can record the dying declaration nor is there a prescribed format or procedure for the same. 

Where the victim is not in a stable condition, even cryptic declarations which are not in a question and answer form have probative value before a court of law. 

In this case, the court has ruled that the dying declaration of the victim is contradictory, tutored and not as per law. At this instance, it is imperative to delve into certain perplexing aspects of the verdict itself. 

A Disconcerting Judgment 

Primarily, the court relies on four things to hold that the offence of rape cannot be made out against any of the accused:

(i) report of the multi institutional medical board (MIMB)

(iii) findings of the medical and forensic examination dated 22 September 2020

(iii) no sign of injuries/penetration on the genital organs of the victims; and

(iv) inconsistent statements of the victim and her family. 

The court has relied on the report of the MIMB to conclude that the victim did not suffer any injuries which would indicate a possibility of sexual assault.

It may be noted that the MIMB was constituted in November 2020, once the Central Bureau of Investigation (CBI) took over investigation of the case.

Naturally, the judgment records that members of the MIMB never examined or conducted a medico-legal examination of the victim and reached their findings basis the delayed medical and forensic examination reports of 22 September 2020 and their discussion with relevant parties.

The delay in medico-legal examination, however, does not form a relevant consideration in the findings of the court; at one place, the verdict records a bizarre assumption that had the victim suffered any injury to her private parts, the same would have been noticed while a urinary catheter was placed in here body on 14 September.

Even so, while the medical report of 22 September 2020 reserved opinion on sexual intercourse, it clearly mentioned that there was use of force with the victim. 

Notwithstanding the above, the logic that injury to genital organs is a sine qua non to prove rape militates against established tenets of criminal jurisprudence.

Our constitutional courts have consistently held that even penile-accessing into/towards the vagina is sufficient to constitute rape within the meaning prescribed by the Indian Penal Code. In fact, trial courts should not proceed under the impression that for the offence of rape to occur, there must necessarily be any injury.

The World Health Organization manual on medico-legal care for sexual violence survivors states that injuries are present only in 33 percent cases of sexual violence. This is because often the survivor/victim is overpowered with force or threat, or they do not offer resistance due to fear.

Thus on this count, the verdict is grossly erroneous in law. 

While holding that the accounts of the victim and her family members are contradictory and have changed over time, the court gives no regard to their disadvantageous position and the hostile climate in which the investigation process had been conducted.

The verdict forays into and expends quite a number of pages in extraneous discussions which have no direct bearing on the alleged offence of rape, such as an alleged love affair between the convicted accused and the victim; and a purported dispute between the families of the accused and the victim. However, that the victim’s family is not educated and has been operating in an environment of fear and intimidation which may have contributed to the lack of precision in their statements has not once been considered by the court. 

The court goes on to cast aspersion on the bona-fide of the victim’s family; claiming that since the incident had taken a political colour, the possibility that the victim and her family were influenced and tutored cannot be ruled out.

By doing so, the Hathras verdict achieves an extraordinary feat: rather than allowing the victim and her family to get the benefit of their social and financial backwardness, something which is required under law as well as equity, it weaponises their marginalised status to fallaciously assume that their statements are not their own, and therefore cannot form a basis for conviction.

Law or equity cannot require justice, but it of course requires the court to give weak litigants benefit and an empathetic view.

In its lack of recognition of the victim’s vulnerability and the higher social power of the accused, the judgment reeks of bias and pre-conceived notions.

When Law Gets in the Way of Justice  

Additionally, after the victim’s demise, even her body was not handed over to the family. However this, as well as all the ways in which the authorities failed her (by carrying out an inadequate investigation, not providing her with timely counselling, etc) somehow became irrelevant concerns in the eyes of the law.

It also makes little sense how the state apparatus, which fails to provide basic medical aid and empathy to the victim and her family, expects an uneducated and underprivileged family, with far fewer resources and means, to provide incontrovertible evidence and statements which match word for word.

The cause of justice has many contradictions, but its biggest flaw is its presumption that for each of its subjects, the law comes from a place of equivalence.

The burden which the Indian legal machinery places on the poor and the marginalised is too high to discharge. Perhaps that is why the victim from Hathras could not receive dignity in life, and justice in death. The Hathras verdict is not just incorrect, it is also inhumane. 

(Harshit Anand is an advocate practising in Delhi. He tweets at @7h_anand and can be reached at [e-mail]. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses, nor is responsible for them.)