The Many Legal Falsehoods in UP Government's Hathras Affidavit to Supreme Court

From using a misleading definition of rape to an irrational and illogical conspiracy theory, the affidavit constructs a skewed and self-serving version of the horrific events.

The affidavit submitted by the Uttar Pradesh government to the Supreme Court in the matter of the Hathras rape-cum-murder case suffers from factual inaccuracies and distortions, legal falsehoods and the lack of logic.

Demanding a Central Bureau of Investigation inquiry is surely the government’s right. But its attempt to sell a narrative to the Supreme Court based on legal infirmities and preposterous claims is a crude attempt to cover up a sequence of events so horrific that the Allahabad high court felt compelled to take suo motu cognisance of them.

Misleading to say victim had not first complained of rape

In the name of narrating the events in a chronological order, the affidavit dwells at length on the fact that rape was not mentioned in the 19-year-old Dalit victim’s first complaint.

Leaving aside the fact that there is video evidence of the woman writhing in pain at the Chandpa police station on September 14 and saying her assailants had tried to do ‘zabardasti – modesty-driven argot for rape – the law is well settled that a first information report (FIR) is not supposed to be an encyclopaedia of the entire events.

Apart from mentioning ‘zabardasti‘ again in a video at the Hathras clinic where she first taken on September 14, the young woman clearly mentioned rape in a statement on September 22, in the course of which she also explained that earlier she was not in her senses. The JNMCH hospital in Aligarh had asked that a magistrate take her dying declaration that day. The status and contents of that statement, if taken, have not been made public officially. As per the UP government’s affidavit, her statement to the police is effectively her last statement. Hence, though not strictly a dying declaration, it would be vital as held by the Supreme Court in Munnu Raja & Anr vs The State of Madhya Pradesh.

Fundamentally flawed understanding of rape

The UP government’s affidavit has harped on the sexual assault forensic examination report, which, they claim, does not support what I would call their notions of rape.

According to the definition of rape under Section 375 of the Indian Penal Code, as amended by the Criminal Law Amendment Act, 2013, penetration of the vagina by the penis in the conventional sense of sexual intercourse is not at all necessary to constitute the offence of rape. Now, insertion, to any extent, of any object or a part of the body, such as finger, hand or mouth, into the vagina, urethra or anus of a woman also constitutes rape. “To any extent” is the critical part. It means that the slightest contact with the concerned part would also make for rape.

Also read: Kathua, Unnao, Hathras: The Government’s Hall of Shame

Even before this amendment, the Supreme Court had held in the case of Radhakrishna Nagesh vs State of A.P. that penetration itself proved the offence of rape, but the contrary was not true, i.e., even if there was no penetration, it did not necessarily mean that there was no rape.

Secondly, the law is very clear that to constitute rape, the presence of semen or sperm in the vaginal swab/smear is not necessary.

In State of U.P vs Babul Nath, the Supreme Court had held that the presence of semen, rupture of hymen and injury to the genitals was not necessary to constitute rape. In State of Maharasthra v. Chandraprakash Kewalchand Jain, the Supreme Court ruled, “Spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form. If the prosecutrix [i.e. victim] washes herself by then, the spermatozoa may not be found.”

In this case, there was a delay of as many as eight days in the sexual assault forensic examination. It can therefore be alleged that she was washed/douched without her knowledge or under sedation, etc. It can also be alleged that the so-called ‘old healed tears’ in the hymen resulted due to this delay. In any case, an insistence on looking for evidence of full penile penetration and semen discharge fails to appreciate that the human vagina is a highly elastic body that allows the passage of a neonate typically weighing 3.5 kg also without suffering any damage. It shall therefore not be left with a gaping hole because of insertion of a human penis into it.

Letter from the Jawaharlal Nehru Medical College Hospital report (left); deliberate mischaracterisation of report in UP government affidavit, confusing penetration with intercourse and rape. (right).

The UP affidavit is also guilty of misrepresenting one of the conclusions of the JNMCH report. “There are no signs suggestive of vaginal/anal intercourse,’ the hospital says, using the term intercourse (which involves ejaculation, for which, after eight days, there clearly could not have been signs) rather than penetration (for which there would typically be no signs regardless).

The one word the JNMCH does not use is rape. Yet the UP affidavit misleads the court by stating, on oath: “The hospital has … specifically stated in its report that there is no sign suggestive of rape. True copy of the Final Opinion on Rape given by JN Hospital, AMU, Aligarh dated 3.10.2020 is annexed…” (emphasis added).

Watch: Does Hathras Victim’s MLC Report Contradict the UP Police’s ‘No Rape’ Theory?

Settled legal position regarding value of victim’s statement

In a catena of judgments including State of Uttar Pradesh vs. Chhotey Lal, Vijay @ Chinee vs State of M.P., Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, and The State of Punjab vs Gurmit Singh & Ors, the Supreme Court has held that in prosecutions of rape, the law does not require medical corroboration. Seeking corroboration amounts to adding insult to injury. In State of Maharasthra v. Chandraprakash Kewalchand Jain, the Supreme Court ruled that if the totality of the circumstances appearing on the record of the case disclosed that the prosecutrix did not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

In Ranjit Hazarika vs State of Assam, the Supreme Court held that medical evidence based on “no reasons” like the absence of rupture of the hymen and injuries on the private parts cannot throw out the otherwise cogent and trustworthy evidence of the victim.

Citing the above judgments, in State of Karnataka vs S Raju, the Karnataka high court ruled that medical corroboration was not necessary in cases of sexual assault.

Surreptitious cremation, untenable plea of possible law and order problem

According to the affidavit, there was sloganeering by some political activists at the Safdarjung hospital after the news of the victim’s death on September 29. However, admittedly, there was no violence. The affidavit says the crowd finally agreed to move and vacate the hospital. When they reached the village of the victim, about 200-250 people were found protesting there.

Thereafter, the affidavit speaks of intelligence inputs having been received the same day, that is on September 29, that lakhs of people could gather at Hathras and could create a law and order problem.

Uttar Pradesh Chief Minister Yogi Adityanath interacts with father of the Hathras gang-rape victim through a video call. Photo: PTI

Citing an intelligence report to justify something unreasonable has been a very old ploy of the police. However, there is no reason that a sensational report like that, assuming an officer had really filed it, should not have been subjected to a critical examination – unless the government was hell bent upon using that report to take a certain course of action.

Questions should have been asked, such as, was the report realistic and if so, how? The Intelligence Bureau or R&AW, for example, do not have a license to conjure a report out of thin air that Martians are going to attack India in force tomorrow morning and hence a national emergency under Article 352 ought to be declared right away.

Also read: UP Govt’s ‘Conspiracy’ FIR an Example of Adityanath’s Favourite Defence – Going on the Offence

So the question remains: Was there any credible evidence in support of such a report? One cannot claim that ‘agents or moles’ had said so. To believe in agents or moles, one should be sure of their veracity. What was the ‘access’ of the agents in the organisations or parties that were to collect people in lakhs, and at what level?

It takes considerable time and resources to mobilise lakhs of people. The activity can hardly be kept secret. There is no way anybody could surprise the administration by suddenly bringing lakhs of people to a spot. In other words, even if the report were true, the administration could easily block the protesters quite far from the village of the victim. The extreme step of insisting the young woman’s body be cremated right away was hardly necessary.

Moreover, what prevented the concerned parties from going ahead with the protests after the cremation? There is no reason to believe that the very rationale of protests was ‘punctured’ by the hurried cremation. The number of people from various parties who subsequently went to Hathras was not even a minute fraction of the apprehended “lakhs” of people. What happened to the lakhs of people and their plans? All of this strongly suggests that the so-called ‘intelligence report’ was a concocted one.

In the 2002 case of Mechineni Kishan Rao vs Commissioner of Police & Another, the Hyderabad police denied a group of citizens permission to take out a procession and hold a meeting, claiming there was an intelligence report that People’s War Group cadre would infiltrate these events. The high court rejected the contention and ordered the police to make all necessary arrangements for the procession. The same argument applies here also.

That there was no consent of the parents for the surreptitious cremation has been established. In the context of the fundamental rights of the deceased for a decent funeral, the Allahabad high court has ordered a suo moto public interest litigation as the reports ‘shocked their conscience’.

Moreover, by forcibly burning the dead body, they also denied the victim’s family the chance to demand a second post-mortem – which was their right.

Militants’ funerals in Kashmir

In the past 33 years, dead bodies of terrorists killed in Kashmir have been given to their kith and kin for funerals. The funeral processions are attended by scores of thousands of agitated people, where shouting of pro-azadi slogans and firing a volley of bullets in the air as a form of ‘gun salute’ is common. The funeral of Burhan Wani was attended by close to two lakh people. At times, the police have had to fire at the agitated mourners who attack the police, but all that has not deterred the Kashmir police from allowing the funerals. Only recently has the practice stopped, with the police citing COVID-19 social distancing norms as the reason.

The question is, if the Jammu and Kashmir police could allow public funerals for militants for over three decades, what prevented the UP police from allowing a customary funeral in a small village? Even if it is accepted that they apprehended a law and order situation, it is their job to handle it. Did they lack so much in confidence in their ability to handle an agitated crowd that they had to hurriedly burn the dead body surreptitiously in a manner so acutely reminiscent of the hidden cremation of the revolutionaries Bhagat Singh, Sukhdev and Rajguru by the British colonial state?

Also read: Why the Dying Declaration of the Hathras Victim Is Legally Admissible Evidence

The UP Police has had a long experience of dealing with agitated mobs and riots, probably more so than any other state’s police. Hence, it cannot be accepted that they were so apprehensive of an agitated crowd. If the logic of apprehension of possible protest actions were to be accepted, it would amount to an admission of incompetence of the UP Police in dealing with such situations.

Illogical blame on social media

The affidavit accuses social media users of maligning the image of the government. For their information, maligning the image of the government is not an offence. Citizens have a right to criticise the government and that criticism cannot be called ‘interference in the process’ or ‘not permitting the truth to be unveiled’. There is no law which says that citizens cannot meet witnesses or other people of the locality and that if they do, it will be called ‘influencing the investigation’.

One or more individuals might have posted morphed photos showing the father of the accused in the company of certain dignitaries, or the chief minister of UP looking at a funeral pyre on his laptop. They may be individually held responsible if it is the police’s belief that they broke a law by doing so. However, by no stretch of imagination can this be called an attempt to “incite violence or caste/communal disharmony”, as the state claims.

A woman holds a placard during a protest after the death of a rape victim, on a street in Mumbai, India, September 30, 2020. Photo: Reuters/Francis Mascarenhas

Social media is full of morphed photos of all sorts and no violence has ensued because of them. Moreover, except for the individual who might have mischievously created a morphed image and uploaded it first, everybody else deserves the benefit of doubt, as they could have very well believed in its genuineness.

So is the case with the allegedly morphed or wrong photo of the half-burnt body of a woman, and fake casteist comments. Websites like Alt News have devoted themselves exclusively to debunking such photos and statements.

The legal position on the UP government’s fears is also clear. When the Centre expressed concern over the circulation of fake news that allegedly caused panic among migrant workers leading to their mass exodus from cities to their native places – a controversial claim that may easily be refuted – and sought a form of pre-censorship of news on the pandemic and lockdown,  the furthest the Supreme Court was prepared to go was to direct media platforms to publish the government version about the COVID-19 crisis.

Earlier, in April 2019, the Supreme Court had refused to interfere with a PIL aimed at regulating misinformation on social media. In June 2020, a review petition was also dismissed.

The mysterious case of the cut-and-paste website

The UP affidavit also refers to a website, http://justiceforhathrasvictim.carrd.co, which it alleges was collecting funds in the name of giving information about the Hathras victim and was helping organise protests and riots. The sheer absurdity of this has already been exposed. The website is in English, has simply copy-pasted content from a Black Lives Matter protest site in the United States, and has such useful advice as ‘take precautions to avoid surveillance by the NYPD’, among other things.

It simply does not make sense for protesters of any hue in India to make such a ridiculous website. I do not think that any protesters, however dumb they are, would indulge in that sort of stupidity. On the other hand, it could also be alleged (though, obviously there is at present no evidence for it) that somebody was hired by some interested party to create this website with the intention of discrediting the protesters. Who that interested party is, we cannot say now.

The claim of a website having been created for protests needs to be viewed in the backdrop of the fact that the police in India is known for planting false evidence and implicating innocent people. This has been acknowledged by a constitution bench of the Supreme Court in the case of Mukesh Singh v. State (Narcotic Branch of Delhi), numerous other cases and the Law Commission of India’s Report No 277. The unintelligent way in which such false evidence is usually planted by the police is a dead giveaway. In the recent case of a suicide vest recovered from Balrampur, it was seen to have a regular two-point plug to it. In other words, the terrorist had to connect himself first to an AC socket before blowing himself up!

Perhaps the stupidity of bad people, whichever side they are on, is something India needs to be grateful for.

Dr N.C. Asthana, a retired IPS officer, has been DGP Kerala and a long-time ADG CRPF and BSF. Views are personal. He tweets @NcAsthana.