Thursday, April 25, 2024

UP Police trial of victim, not criminals

  • Victim’s forensic report faulty
  • Police try to shield the criminals
  • No rape statement illegal, motivated
  • Police personnel shall be punished
  • CBI may save the criminals a la Babri destroyers
  • Allahabad High Court should monitor investigation

Prof. M Sridhar Acharyulu

It is a great contradiction to note. The CBI lost its reputation when the Special Court at Lucknow admonished it saying because of thorough failure of CBI no accused in Babri destruction case could be held guilty. After all accused in Babri case are saved, UP CM is looking to CBI’s help in Hathas victim also. He has handed the case to CBI only after ‘dead body’ is carefully cremated.

Police mislead people

At the same time the police in UP are trying to use the platform of press conference to mislead the people about ghastly crime. Prashant Kumar, ADG (Law & Order), of Uttar Pradesh Police on 1 October 2020 claimed that the woman’s forensic lab report showed that she was not raped. This statement makes it clear that police is trying to judge the evidence, which shows the resolve of the police to hush up the case to shield criminals.  Instead of investigating the crime and trying criminals, the UP police is prosecuting the victim. Because of the statement of Prashant Kumar, the media is now discussing the minute details of sexual assault disregarding the privacy, dignity, and justice to the victim.

Clean chit to criminals

It is tragic that the police officer chose to ‘give’ judgment acquitting the accused pronouncing that there was no rape because of absence of penetration and semen particles on victim’s body. This is called worst form of trial by police through media. The Additional DG of Police tried to give a clean certificate to criminals, which reveals their proximity with the establishment.

The ADG has allegedly relied on the forensic report which is just a preliminary ‘information’ which required to be properly admitted into court when case comes for trial, tested by examination, cross examination and re-examination and on corroboration with other witnesses and circumstances it could be either given credibility or discarded. The police officer has no business to release half-baked information to absolve criminals. This shows over-enthusiasm of the officer, His statement could be disregarded on several counts. For establishing rape, penetration, and discharge of semen not essential. Assuming that statement of officer was true, it could still be an attempt to commit sexual assault. Perhaps Addl. DGP must come to law school, where our criminal law students would teach him latest law of rape, which is amended, and now the offence is not called rape but ‘sexual assault’.

Sperm does not survive after 3 days

Another serious contention that counters the police officers’ 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, who told the Indian Express that the report “holds no value”.  According to them the samples were collected 11 days after allegedrape and sperm does not survive after 2-3 days. The government guidelines strictly say forensic evidence can only be found up to 96 hours after the incident.

The police officer also should remember that a case of sexual assault was registered only after the victim recorded statement before a magistrate after regaining consciousness at AMU hospital.

According to NDTV news report the autopsy report of the woman showed that she was strangled and suffered cervical spine injury…the final diagnosis did not mention rape but pointed out that there were tears in her genitalia.

Malice on part of ADG

The ADG’s malice could be inferred from his deliberate ignorance of other reports. For instance, the Report dated September 22 based on her statement, there was “complete” “penetration by penis” of the “vagina”, she was “gagged” and “strangulated by dupatta”. This report mentions verbal threats including 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”.

Dying declaration and the dead body testifying injuries and the conditions of victim stand as a strong proof which cannot be diluted by the forensic reports, which may not reflect the conditions because of various limitations and integrity of the humans involved in it. It loses its value.  Only when an extraordinary evidence is produced to counter the dying declaration. Her oral statement and injuries lead the court to conclude about offence. The accused in this case must face the prosecution under stringent norms of SC/ST Act.

Dead body cannot lie

Living humans might surely lie in the court of law, but not the dead body, Herdead body with certified injuries could have been a strong piece of evidence against criminals rather than the deposition of living beings. The UP Police knows that the only way of saving criminals is destroying the clinching evidence – the dead body of the victim of rape and murder.

The UP Police deserve to be prosecuted for destroying evidence as Section 201 of IPC says:

S 201.Causing disappearance of evidence of offence, or giving false information to screen offender.—

Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offend­er from legal punishment, or with that intention gives any infor­mation respecting the offence which he knows or believes to be false; if a capital offence.—shall,

if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life.—and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprison­ment of either description for a term which may extend to three years, and shall also be liable to fine;

if punishable with less than ten years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extend­ing to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment pro­vided for the offence, or with fine, or with both.

Illustration A, knowing that B has murdered Z, assists B to hide the body with the intention of screening B from punishment. A is liable to imprisonment of either description for seven years, and also to fine.

Depriving family of right to perform last rites

The details of the incident of cremation reflect the resolve of the police to deprive the family of victim of their right to perform last rites. The statement of Prashant, and subsequent cremation of dead body will have multiple dilutionary effects on the investigation and prosecution.

It is shocking for the whole nation that UP Police was out in full force to cremate Hathras woman, away from family. Media reported that from the time her body left Delhi’s Safdarjung Hospital at 9.30 pm on 29th September to a hurried cremation in a Hathras village 200 km away at 3.30 am on 30th September— the final journey of the 19-year-old was marked by a disregard to protocol and heavy handedness by a police force that did not let her family perform her last rites.  It was alleged that the Police took away the father and brother of victim from Safdarjung Hospital in Delhi, after persuading them to end a dharna.

At 9.30 pm the body was released and was taken to Hathras in an ambulance with one constable, the family were not informed. The father said, “We had been waiting all day to take her home, do the rituals, the last rites… The police did not inform us deliberately. In a medico-legal case, the body is handed over to the police following the post-mortem. It is then the job of the police to hand it over to the family following a verification process”.

While the body was on its way, the district authorities and police started preparations for a late-night funeral such as arranging the logs of wood, lights of the cremation ground switched on and the road to the victim’s home heavily barricaded.

SP’s false claim

Surprisingly, the SP claimed that after the post-mortem, the body was handed over to the family, saying: “The administration only provided logistical support to transport the body. In fact, the father told me more than once that the time the cremation was done would not matter.”

By one a.m, the ambulance reached the village, crossing at least three layers of barricades between the main road and the victim’s home, which was swarming with the police. As the ambulance stopped at around 100 metres from the woman’s home and an equal distance from the arranged cremation ground, her family and locals were asking to take her body inside the house.  When conversation was reaching a flare-up point, an official acknowledged on condition of anonymity that there were instructions to wrap up the cremation at night to prevent a “law and order situation” in the morning.

Straight to cremation spot

The ambulance headed straight to the cremation spot… My mother fell on their feet, the women from the family cried on the bonnet, we folded our hands… My mother said let me put haldi on her, let me take her home one last time… But no one heard us” said the woman’s brother. The area was full of higher police officers such as: DM Laxkar, SP Vir, Additional SP Prakash Kumar; Sadabad Circle Officer Bhram Singh; Ramshabd Circle Officer, City, Surendra Rao; Circle Officer Sikanda Rao; and Joint Magistrate Prem Prakash Meena. Besides, 200 personnel of the Provincial Armed Constabulary and forces from all 11 police stations of the area were deployed, over two shifts.

 Police kick victim’s relatives

At around 3 am the conversation became heated as the family was resisting cremation and district authorities and police officers insisting on it. Victim’s brother told media: “At one point, police personnel got aggressive and pushed, kicked some relatives who were trying to intervene. That’s when we became so scared that we locked ourselves in… We were afraid we would be lathicharged”.

DM Laxkar told Indian Express, showing a video where a relative was throwing wooden logs into pyre, “The funeral was carried out by the family members. Senior officials oversaw the entire process and it was done with their consent. The news circulating otherwise is baseless.” But the same newspaper reported that such relative told them that he was forced to do so.

Police in full force to cremate victim

Lucknow Bench of the High Court referred this report saying, “In this regard we have taken note of a news reported in Indian Express, Lucknow edition dated 01 October 2020, with the headline ‘U.P. Police out in full force to cremate Hathras woman, away from family’… and decided to step in to review the state actions around the brutal crime. 

The HC Bench directed family members of the deceased to be present that day so that the court could hear their version of the cremation organised by the police in the middle of the night, and wondered if the authorities acted thus because of their economic status. It also said that it would decide “as to the necessity of monitoring the investigation or getting it conducted through an independent agency as per law”.

The brutality of criminals and role of state authorities

Hathras brutality is not just an ordinary routine crime. The cruelty of criminals is comparable to inhuman involvement of state authorities that shocked the entire nation, which was about to celebrate Gandhi’s 151 Birth Anniversary.  While the truth failed miserably in Lucknow’s Special CBI court where the CBI thoroughly failed to link demolition of Babri structure to any of the accused over a period of 28 years.

Taking suo moto notice of the ghastly crime with ‘state authorities’ protecting the suspects, Allahabad High Court rightly observed:  “it involved allegations of high-handedness by the state authorities resulting in violation of basic human and fundamental rights not only of the deceased victim but also her family members”.

Allahabad judges shocked

Shocked Justices Rajan Roy and Jaspreet Singh said: “The incidents which took place after the death of the victim on 29 September 2020 leading up to her cremation, as alleged, have shocked our conscience.    As it is, the deceased victim was treated with extreme brutality by the perpetrators of the crime and what is alleged to have happened thereafter, if true, amounts to perpetuating the misery of the family and rubbing salt in their wounds.

The Bench further said: “We are inclined to examine as to whether there has been gross violation of the fundamental rights of the deceased victim and the family members of the victim; whether the State Authorities have acted oppressively high handed and illegally to violate such rights as if it is found to be so, then, this would be a case where accountability will not only have to be fixed but for future guidance also stern action would be required.”  

Hope Allahabad High Court monitors the CBI investigation into Hathras Crime to safeguard the rule of law.

Prof. M. Sridhar Acharyulu
Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.


  1. The names of the two of the accused sound so dear to the hearts of the Hindus, more so in the land of Lord Ram, in whose name a large vote bank has been created. Perhaps the reason why the entire state machinery is falling head over the heels to protect the accused!


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