The Lucknow Bench of the Allahabad High Court has taken suo moto cognizance over the gang rape and post-midnight cremation of a young 19-year-old Dalit girl in Hathras, Uttar Pradesh on October 1, 2020. The order passed by Bench of Justices Rajan Roy and Jaspreet Singh states that “The incidents which took place after the death of the victim on 29.09.2020 leading up to her cremation, as alleged, have shocked our conscience, therefore, we are taking suo moto cognizance of the same.”
The Bench of Justices Jaspreet Singh and Rajan Roy has issued notices to the State of Uttar Pradesh through Additional Chief Secretary (Home); the Director General of Police, Uttar Pradesh, Additional Director General of Police, Law and Order, Uttar Pradesh; District Magistrate, Hathras; Superintendent of Police, Hathras, and has asked them to be present before the Court on the next date of hearing, that is October 12, 2020. It has also directed the family members of the deceased to be present before the Court to ascertain the facts and their version of the incidents which took place at the time of cremation. The court also directed district and state authorities to extend “all necessary cooperation and facilities, including transportation, food, lodging and security, to the family members of the deceased victim”.
The Learned Bench has also appointed Senior Advocate Jaideep Narain Mathur and Advocate Abhinav Bhattacharya as Amicus Curie to assist the Court in this regard. The Bench has also directed Senior Registrar of the Court to register a suo moto Public Interest Litigation with the title In Re: Right to decent and dignified last rites/cremation” and place it before the appropriate Bench having jurisdiction.
The Bench has also directed that some media houses such as Times of India, Indian Express, NDTV, Aajtak be requested to produce relevant material and content, on the basis of which they have reported the matter in the newspapers and the electronic media.
Background
On September 14, 2020 a 19-year-old girl was allegedly gang raped and savagely assaulted by 4 men while she was working with her mother on the field to collect some fodder in Hathras. She was allegedly dragged by a dupatta around her neck which probably damaged her spinal cord and neck causing paralysis. The alleged accused also tried to strangulate her and, in that process, she ended up biting her tongue and suffering a severe cut on it. Her mother found her naked, lying in a pool of blood, bleeding from her eyes and private parts and she was soon rushed to the Aligarh Muslim University’s Jawaharlal Nehru Medical College. On September 29, 2020 she breathed her last at Safdarjung Hospital, Delhi.
After the horrific incident, the tormented young girl was denied dignity in death too. The family has alleged that her body was cremated in the wee hours of Wednesday despite their demand to see their child for the last time and perform her last rites in accordance to their personal religious inclinations. A relative of the grieving family alleged that, ”Humein ye samajh nahi aa raha kyun, kya chahiye, kaisi rajneeti kar rahe hain ye log, saare ulte seedhe bayaan de rahe hain ke ladki ka rape nahi hua hai, pata nahi kya chahiye inko (We are unable to understand, what they want, what kind of politics is this, they are saying that she has not been raped! We don’t know what they want).
The court observed that “the matter before us, of which we have taken suo moto cognizance is of immense public importance and public interest as it involves allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights not only of the deceased victim but also of her family members.” The Division Bench also referred to a Supreme Court decision in Pt. Parmanand Katara Vs. Union of India (UOI) and Others, (1995) 3 SCC 248 where Justice B.L Hansaria and Justice Kuldip Singh observed that “We agree with the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death.” The Allahabad Court also referred to Ramji Singh @ Mujeeb Bhai Vs. State of U.P. and others (2009) 5 ALJ 376 where the Allahabad High Court Division Bench of Justice Sunil Ambwani and Justice Dilip Gupta stated that, “Right to Life under Article 21 extends to a dead person in a limited sense that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion which he professed.”
The Court also opined based on newspaper sources and electronic media that even though the UP Police claimed that the final rituals happened as directed by the family members of the victim, they would want to know “if the economic and social status of the deceased’s family was taken advantage of by the State Authorities to oppress and deprive them of their Constitutional Rights?” The shameful action of the State machinery has once again exposed its broken system and caste driven hatred in India.
The Bench further noted that although the Uttar Pradesh Government had set up a Special Investigation Team (SIT) to probe into the horrific incident, the court shall consider other impartial and monitoring options as per law. “We have also pondered over the heinous crime committed against the deceased victim and though an SIT has been constituted by the State Government in the matter, we leave it open for our consideration on future dates, as to the necessity of monitoring the investigation or getting it conducted through an independent agency as per law”, they said.
Yesterday, on October 1, 2020 the Hathras SP Vikrant Vir has said that the report by the Aligarh hospital, where she was admitted before she was brought to Safdarjung hospital in Delhi does not confirm forced sexual intercourse. Additional Director General (law and order) of Uttar Pradesh Police Prashant Kumar has said that the victim died due to the trauma of her neck injury and the Forensic Science Lab (FSL) report also clearly shows that no sperm was found in the collected samples. “It suggests that some people have twisted the matter to stir caste-based tension”, he said. This directly contradicts the statement of the victim or dying declaration that was recorded before the Magistrate on September 22, 2020 where she named all 4 men (Sandip Singh, Ramu Singh, Ravi Singh and Lavkush Singh) and said that they had raped her.
Section 32(1) of the Evidence Act states that “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” In the Indian legal context, an individual’s statement right before his/her death is regarded as crucial information and is termed as a Dying Declaration. In P.V. Radhakrishna vs State of Karnataka (2003) INSC 312 the Division Bench of the Supreme Court, Justice Doraiswamy Raju and Justice Arijit Pasayat held that, “The principle on which dying declaration is admitted in evidence is indicated in legal maxim nemo moriturus proesumitur mentiri – a man will not meet his maker with a lie in his mouth.” “The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement”, they said.
The definition of “Rape” has been amended by the 2013 Criminal Law Amendment Act where penetration is not the only ground to establish rape. The Bench of Justices Swatanter Kumar and Gyan Sudha Misra, while passing a judgment upholding the conviction of a man for raping an 11 year old in 1997 despite any penetration evidence, held that “Penetration itself proves the offence of rape, but the contrary is not true- that that is even if there is no penetration, it does not necessarily mean that there is no rape.” According to the 2013 Amendment, penetration of the vagina by the penis in the conventional sense of 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 into the vaginal urethra, or anus of a woman also constitutes rape. “To any extent” is critical to examine in such circumstances because it could mean any degree of contact with the concerned parts of the woman in question.
The order may be read here:
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