LASD JOURNAL EDUCATIONAL VOLUME – I ISSUE – II SOCIETY

MARCH 2021 Page 2 of 14

D I S C L A I M E R

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor- in-chief of LASDES Journal. The Editorial Team of LASDES

Journal holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of LASDES. Though all efforts are made to ensure the accuracy and correctness of the information published, LASDES shall not be responsible for any errors caused due to oversight otherwise.

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E D I T O R I A L B O A R D

FOUNDER & PROJECT HEAD

Mr. Utkarsh Srivastava

EDITOR IN CHIEF:

Mr. Devaang Savla BCL, University of Oxford Practising in High Court of Judicature at .

. EDITORIAL DIRECTOR: Ms. Aparna Bajpai M.A, Azim Premji University.

EDITOR: Ms. Anjali Rawat BCL, University of Oxford.

EDITOR: Mr. Aradhya Sethia LL.M, Yale Law College. Page 4 of 14

EDITOR:

Ms. Srishti Joshi LL.B, University of Mumbai.

EDITOR:

Mr. Ayush Khanna B.Com LL.B, Amity University, Practising in High Court of Judicature at Allahabad.

EDITOR: Mr. Oliver Carr BCL, University of Oxford.

EDITOR:

Mr. Tanmay Sadh

B.A. LL.B (Hons.) from University of Petroleum and Energy Studies, Dehradun, Currently practising in High Court of Judicature at Allahabad.

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ABOUT US

LASD Educational Society (NGO) is a Non-Profit Organization which is involved in sectors of Legal Education, Legal Aid and Social

Reforms, expressly focusing on students and people belonging to backward communities, who are resource-deprived or suppressed. It is a development of professional legal enthusiasts who undertake to legally empower citizens of the State of , contributing towards their social and moral responsibility.

ABOUT LASDES E-JOURNAL

LASDES E-JOURNAL is open access, professional-reviewed reference- journal, dedicated to express views on topical legal and social issues, thereby generating a cross current of ideas on emerging matters.

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A VIEW ON RAPE CASE- SURYA PRATAP

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HATHRAS RAPE CASE

INTRODUCTION

On the fateful morning of 14th September 2020, a young girl of 19 years was constricted and gang-raped by four accused, namely, Sandeep Singh, Ramu Singh, Lavkush Singh, Ravi Singh in the Hathras district of Uttar Pradesh. The incident was reported by the victim’s mother, who keyed-up to the loud cries discovering her daughter in an excruciating condition.

The victim was ushered to the Chand police station, where police rejected her claim and humiliated her family. In due course, she was admitted in Jawaharlal Nehru Medical College and Hospital at due to precarious spinal injury debilitating her. She was later shifted to Safdarjung Hospital in Delhi after her condition worsened on 28th September.

The first complaint was registered on 20th September following which the statement of the victim and witnesses is recorded on 22nd September as provided under section 162 of the Code of Criminal Procedure, 1973. The statements recorded are provided hereinafter as: Page 8 of 14

Victim

The accused, Sandeep alias Chandu, had also molested her and tried to kill her by strangulating her with a cloth (dupatta).1

When my mother and I had gone to fetch fodder, then Sandeep, Ramu, Luvkush and Ravi of my village committed rape upon me, Sandeep then strangulated me with dupatta2

Victim’s Brother

Sandeep tried to “strangulate my sister with the intention to kill her.3

Into the bargain, the medical examination of the victim was also conducted after eight days of the incident following which its transcript underwrites that:

The samples did not have sperm and thus makes it clear that no rape or gang rape took place with the girl.4

1 https://indianexpress.com/article/india/hathras-victim-gave-2-statements-alleged-molestation-rape-up-govt-to-sc- 6705825/

2 https://indianexpress.com/article/india/hathras-victim-gave-2-statements-alleged-molestation-rape-up-govt-to-sc- 6705825/

3 https://indianexpress.com/article/india/hathras-victim-gave-2-statements-alleged-molestation-rape-up-govt-to-sc- 6705825/

4 https://www.hindustantimes.com/india-news/hathras-case-cops-contradict-victim-s-statement/story- ZZLwQAdckGVk2jZAWcAmyL.html Page 9 of 14

In the early hours of Thursday, the victim succumbed to her injuries following which the autopsy report articulated strangulation, cervical injuries, sepsis and cardiopulmonary arrest as the cause of her death. The postmortem reports also suggested healed tears and wounds on the private parts of the victim.5

Without further ado, the police drove the victim’s body and family back to Hathras, where the victim’s body was forcibly cremated at 2:30 A.M. in non-compliance with the last rites rituals as prescribed by the Hindu religion. The dissemination of police inaction and state impunity was reported by the victim’s family which is provided as under:

We told the administration we want to cremate her in the morning as per Hindu rituals, but they did not listen to us. They locked us inside our home and burned her body.

We kept shouting from inside the house but they did not listen to us and cremated her using petrol.

5 https://www.hindustantimes.com/india-news/hathras-case-cops-contradict-victim-s-statement/story- ZZLwQAdckGVk2jZAWcAmyL.html Page 10 of 14

The last time we saw her face was just after the post-mortem [autopsy] was done. They did not even accord us the basic dignity of allowing us to watch her face one last time.6

Moreover, the district magistrate is alleged of pressurizing and threatening the victim’s family to change their statement and rebut their claims. It is widely publicized online via 22 second video where the DM Praveen Kumar has reportedly heard stating:

These media persons are not here to stay. Half would go today and the remaining will move away tomorrow and only few will remain. It is we who would stand with you and thus it is your wish if you want to change your statements or not. Do not harm your credibility; else we might also change…7

ISSUES OF THE CASE

There is multiplicity of issues which cropped up in the aftermath against the malfeasance catechizing upon:

1. The medical examination conducted after eight days of the incidence.

6https://www.aljazeera.com/news/2020/10/2/hathras-they-locked-us-inside-our-home-and-burnt-her-body 7 https://www.hindustantimes.com/india-news/media-will-go-we-ll-still-be-here-top-official-on-visit-to-hathras- family/story-FNchqNAjzq3hUaZRouaGIJ.html Page 11 of 14

2. The statement stating the occurrence as “fake news” 3. The forcible cremation of the victim’s body at 2:30 am. 4. The late registration of the complaint against the offence. 5. The offer of inducement or threatening to the victim’s family. 6. The conformation of the procedures as prescribed under Code of Criminal Procedure. 7. The negation of judicial inquiry in the matter at hand.

JUDICIAL APPLICABILTY

The reported crime is an exemplication of transgression against rule of law which have shocked the judicial conscience of our society. There are countless instances of infraction of laws which are hereinafter mentioned as:

Section 154 of CRPC: The provisions clearly provided for registration of FIR on the information or complaint received in reference o commission of a cognizable offence. The victim’s family reported the occurrence to the nearest police station but Page 12 of 14 no actions were taken, Moreover, the victims family was humiliated by the police officials.

Section 164-A of CRPC: The provision mandates the medical examination of the rape victim within 24 hours of the incidence. The mandate has been introduced after the Criminal Law Amendment of 2013. This is imperative for bleak of finding evidences for consequences. The provision has been duly neglected by the police officials in the present matter at hand which in accordance with the forensic experts is a violation of statutory laws which states that examination must be conducted at the earliest in the cases of sexual assault. This deferred period of eight days have resulted in the loss of evidence against the accused.

This should be taken as a corroborative piece of evidence during adjudication of the case as provided under section 45 read with 46 and 51 of the Indian Evidence Act.

Section 32 (1) of IEA: The provision mandates the principle of NEMO MORITURUS PRAESUMITUR MENTIRE. It believes that “no person when about to die presumes to lie”. In the present case, the last statement given by the victim gives the Page 13 of 14 names of the accused who has committed the offence of rape upon her. This statement is the most important piece of evidence as the dying declaration is considered the most important piece of statement. It never requires the certification of corroborative evidences and can be the sole basis of conviction. This is further supported by the case of PAKALA NARAYAN SWAMY v. KING EMPEROR, AIR 1939 PC 47, where the court determines the validity of statements made before the death of the person as a valid dying declaration.

Section 7 & 8 of the IEA: The provisions gives out the relevancy of facts which are either imperative to the fact in issue or defines the nature of conduct to be construed within the ambit of relevancy of facts. Section 7, can be contemplated in reference with enmity which exists between two families. On the other hand, section 8 is construing the previous conducts of the accused of molesting the victim is a relevant piece of evidence in the case.

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CONCLUSION

The present matter in hand, is an open and shut cases of gang- rape and murder of girl due to the existence of prior enmity between two families. The charges of the case includes the section s of 302, 376-D, 354 under the Indian Penal Code. The accused should be given supposed punishment as mentioned and exemplified by the court under such matters i.e. capital punishment.

To the contrary, the case brought the police inaction and state impunity in limelight and the discrimination which still terrifies and spreads as a menace in our progressive Indian society.