Why Hathras verdict smells so strongly of injustice

The recent verdict in the 2020 Hathras case has had a chilling effect on many. A special scheduled caste/scheduled tribe (SC/ST) court last week convicted the main accused but acquitted three others of all charges. In 2020, a Dalit girl was murdered, leading to nationwide protests against the Uttar Pradesh government. The girl’s family had alleged that the police had cremated her without taking consent of the family. On September 14, 2020, family members said the girl was dragged into a farm and assaulted by four upper-caste men at a village in Hathras, leaving her with multiple fractures, deep gashes on the body and tongue, and paralysis. The girl died on September 29 in Delhi's Safdarjung Hospital during treatment.What’s utterly shocking is that charges of rape and murder against the prime accused, Sandeep Sisodia, have been dropped, convicting him under Section 304 of the Indian Penal Code, 1860 (culpable homicide, not amounting to murder), and certain sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The victim’s family says, “her soul will never rest now”. medium98474037What the judgment saysThe special court in Uttar Pradesh concluded that Sandeep did not have any intention to kill. The judge has relied on a statement of a medical expert, according to whom, if the victim was strangled with an intention to kill, then a ligature mark would appear around the entire neck, without any gaps. In absence of any mark on the back of the victim’s neck, the judge proceeded to conclude that there was no intent to kill.Moreover, the judge further relied upon the statement of Prof Adarsh Kumar, chairman, Multi-Institutional Medical Board (MIMB), who said that normally during strangulation the victim dies within a few minutes. With this in view, the judge decided that “since the victim was talking for eight days after the incident, it cannot be said that the intention of the accused was definitely to kill her.”Strikingly, even as the court admitted that the death was caused due to a severe blow to the victim’s neck, which led to subsequent damage to C6 spinal vertebra and cervical fracture, it ruled out the accused’s intention to kill.In one sentence, the judge was quick to deduce that “...injuries on the victim’s body are most likely to have been caused by only one person”, thereby eliminating any possibility of the involvement of the other three accused.Watch: The three acquitted walk out of jail medium nocaption98391947A victim on trial The victim had made multiple statements before the media, police, magistrate and medical examiners. One wonders how a case, where multiple dying declarations have been made by the victim alleging gang-rape, results in acquittal. The judge reckoned that if the offence was committed by four persons, the victim would have named all four before the police and media on September 14, 2020, the day of the incident. The court took note of videos shot by journalists on September 14, 2020 at the local police station in which the victim can be heard telling the police, “Gala daba diya [they strangled me].” When asked why, she remarked: “Zabardasti na karne de rahi taiku. [Because I did not let them force themselves on me.]” The court, nonetheless, did not give much weightage to the videos as there was no explicit mention of sexual assault.This expectation of the court from a severely traumatised, semi-conscious and paralysed victim to mention names of all her perpetrators, minutes after she had been allegedly assaulted and raped, is rather onerous and grossly oblivious of social realities. The apex court has held that “a girl or a woman in the tradition-bound, non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.” medium98474347That the dalit victim, who hailed from a village dominated by thakur-brahmins, went as far as indicating use of force or “zabardasti” was largely ignored — an institutional failure, first on the part of the police and then by the trial court in undermining the value of the victim’s statement.The court also took note of statement made by the victim’s mother where she said that after two-three days of the alleged incident, the victim had disclosed to her that she had been raped and also revealed the names of all four accused. However, the court discredited her claim in lieu of the victim’s statement to a constable on September 19, 2020.Stating that it was five days after the incident that the victim explicitly named the main accused, Sandeep, for the first time, the court cast further doubt on the victim’s testimony and pointed out that even at this juncture, the victim did not mention rape or name the other three men. It was only on September 22, 2020, the victim named all four accused. Accusing the victim of having been politically influenced and tutored, ultimately, the court concluded that due to variations in the statements made by the victim, her dying declarations could not be believed. ShowBlurbsEven as rallies were led in support of the accused, including by Bharatiya Janata Party (BJP) leader and ex-member of legislative assembly (MLA) from Hathras, Rajveer Diler, members from the Bajrang Dal, Rashtriya Swayamsevak Sangh (RSS) and Karni Sena, the judge somehow concluded that the victim who was barely able to speak, in her painful last days, lied for political vengeance. What, if anything, would she or her family members have gained knowing that they had to continue to live and work in the same village? It appears that it was the victim who was on trial, not the accused. medium nocaption984744911. A year after Hathras rape, victim's family is in 'detention'2. TOI's ground report soon after the brutal rape-murder medium nocaption98474510Glaring procedural lapses strengthen defenceTo rule out the possibility of rape, the victim was first medically examined at Jawaharlal Nehru Medical College Hospital at Aligarh on September 22, 2020, 8 days after the incident. The medico-legal examination (MLC) report indicated “complete penetration of the vagina” and use of force.The doctors, however, reserved their opinion on whether the assault on the victim involved rape, and refrained from either confirming or refuting the occurrence of rape. This was done as per the ministry of health and family welfare guidelines and protocols which mandate that medical opinion should not be given on whether rape occurred because it is a legal term. The court, nonetheless, disregarded the details of the MLC report.Later, on September 25, 2020, 11 days after the incident, the Forensic Science Laboratory (FSL) test was conducted. Prashant Kumar, the additional director general of police, Uttar Pradesh, held a press conference on October 1, 2020, where he claimed that the FSL report found “no sperm”. Although the presence of semen to prove rape is not a legal requirement, it was arbitrarily concluded that no rape had taken place.Even so, medical guidelines categorically state that spermatozoa can be “identified only for 72 hours after assault” and advises doctors to refrain from taking swabs beyond three days of alleged assault. medium98474105All these procedural defects were completely overlooked by the court – including the fact that the victim’s mother had repeatedly said in her statements that she had found her daughter lying in the field without her clothes on – to conclude that “none of the medical examinations of the victim showed that she was raped”. Notably, an extensive list of lapses on the part of the UP Police had been drawn up in the chargesheet filed by the Central Bureau of Investigation.That the victim’s body was hurriedly cremated by the law enforcement without the consent of the victim’s family members in the early hours, an incident that had “shocked the conscience” of the Allahabad high court, thwarted for good any possibility of a second post-mortem.Life imprisonment for the victim's familyThe real punishment of life imprisonment is for the victim’s family who will continue to live in fear in their own home. Since the beginning of the trial, the family has been under house arrest, their every move monitored by scores of Central Reserve Police Force (CRPF) personnel. medium98474432They haven’t been able to step out for work and depend on the meagre compensation provided by the state. Three young girls growing up in their home have been dropped out of school. The job that was promised to one member of the family by the government has not come through. Their requests for assistance to relocate out of the state have fallen on deaf ears.That no one from the village visited the victim's family to console them after the girl was attacked, or ask about her while she fought for her life in the hospital, or even after her death, and that the family members were blamed for framing thakurs to settle scores even as they lost their child, goes a long way to show the road ahead for them.The family hopes that the verdict will be overturned in their appeal before the high court. Until then, it will hold on to her carefully kept ashes and wait to conclude her last rites.The writer is a practicing lawyer based in New Delhi and is founding partner at Clinch Legal. Twitter: @manichander11