Are You Aware of Amended Definition of Rape, HC Asks UP Cop Who Denied Hathras Victim Was Raped

The Lucknow bench of the Allahabad high court said it was not convinced by the explanation given for the hasty cremation of the victim's body and expressed surprise that the DM had not been suspended.

New Delhi: The Lucknow bench of the Allahabad high court on Wednesday uploaded its written order in the Hathras rape, murder and forced cremation case,  coming down heavily on the Uttar Pradesh government for ‘violating the fundamental rights’ of the victim and her family.

The written order, which is dated October 12 – the date of the hearing – is especially scathing about the way the Uttar Pradesh Police handled her cremation and its aftemath.

In the light of comments made by a senior UP police officer that the Hathras woman had not been raped, the high court bench of Justices Rajan Roy and Pankaj Mithal also ordered that “No officer who is not directly connected with the investigation should make any statement in public regarding commission of the offence alleged or otherwise based on evidence collected as it can lead to unnecessary speculation and confusion amongst the masses, who may not be aware of niceties of law thereby fuelling emotions on both sides.”

Also read: Exclusive: Aligarh Hospital MLC Report on Hathras Victim Shatters UP Police’s ‘No Rape’ Claim

Court pulls up ‘No rape’ cop 

The bench zeroed in on UP ADGP Prashant Kumar who had denied the possibility of rape in the case on the basis of a forensic report which said no traces of of semen were found on the victim.

“We asked Sri Kumar as to whether it was proper for anyone not directly connected with investigation to comment on any evidence relating to the offence alleged specially if the allegation is of rape or to draw conclusions based thereon as to whether offence was committed or not, when the investigation was still pending and such person was not part of the investigation, he fairly agreed that it should not happen.”

Next, the bench implied that the same officer clearly did not understand the definition of rape under Indian law.

“We also asked him as to whether he was aware of the amendments in law relating to definition of rape w.e.f 2013 and that mere absence of semen during forensic examination, though a factor for consideration, would not by itself be conclusive as to whether rape had been committed or not, if there are other admissible evidence. He said that he was aware of the same.”

‘No good reason’ for administration to have denied handing body to family

Noting that the decision to hurriedly cremate her body without allowing family to be present or catch a last glimpse was a joint one by district magistrate Praveen Kumar Laxkar and local police, the bench  said, “This action of the state authorities [the cremation], though in the name of law and order situation, is prima facie an infringement upon the human rights of the victim and her family.”

The court quoted the victim’s family members describing their sorrow at being denied a last glimpse of her and noted the DM’s reasoning but said it remained unconvinced by the state’s claims that the cremation had to be rushed on grounds of law and order.

“We do not at this stage find any good reason on behalf of the administration as to why they could not hand over the body to the family 8 members for some time, say for even half an hour, to enable them to perform their rituals at home and thereafter to cremate it either in the night or next day.”

Significantly, the court asked the UP government’ additional chief secretary (hone) Awanish Awasthi  why it had suspended only the district police chief and not the DM for the cremation when the decision was admittedly a joint one.

“We specifically asked Sri Awasthi as to why, if the decision to cremate the victim in the night was a collective one as stated by the District Magistrate, Hathras himself, only Superintendent of Police had been suspended while the District Magistrate had been allowed to continue and is still continuing at Hathras. He stated that the first report of SIT had indicted the Superintendent of Police. However, on being asked as to whether, the SIT had absolved the District Magistrate and in fact whether the role of the District Magistrate was the subject matter of SIT enquiry, he stated that it was not. He could not give any satisfactory reply in this regard, as to why the two Officers had been treated differently.”

The court then asked Awasthi whether  “it is proper and/or fair to allow the District Magistrate to continue at Hathras in the facts of the present case, specially as the investigation and these proceedings relating to the very incident in which he had a role to play, are pending,” noting that Awasthi reeplied that the government was looking into the matter would “take a decision”.

The court also asked the state to announce compensation for the victim’s family.

The Allahabad high court, which had taken suo motu cognisance of the matter,  asked the additional chief secretary of home to formulate a policy with a proper set of guidelines in this regard.

Also read: UP’s Handling of Hathras Case in Violation of UN Convention on Racial Discrimination

Breach of fundamental rights

“Thus, the expanded fundamental right to life to live with dignity and to exist with dignity even after death as well as right to decent burial/cremation appears to have been infringed hurting the sentiments of not only the family members but of all persons and relatives assembled on the spot,” the court observed.

Concerned that the manner of cremation infringed upon Articles 21 and 25 of the constitution, the court emphasised that “such valuable rights cannot be trampled or trifled casually or whimsically especially when those likely to be deprived are of the downtrodden class, uneducated and poor.”

Family members of the woman who died of grievous injuries after having been gang raped by four upper caste Thakur men had maintained before the court that she had been cremated in the middle of the night without their consent.

Hathras District Magistrate Praveen Kumar Laxar and Superintendent of Police Vineet Jaiswal had told the court that the decision on the cremation was taken by the local administration and police, and there were no instructions or pressure from the state government.

Senior Uttar Pradesh administration and police officials, also summoned by the court, said the late-night cremation was due to law and order considerations.