The Cry for the Justice of Nirbhaya of Hathras

-By Anusha Ann Paul and Advocate KM Amar

The horrific incident that took place in Hathras, UP has stirred the conscience of the Indian society to its core. The tragic incident where the victim was dragged from the field by a rope on her neck and raped, highlights the harsh reality of the rampant rapes taking across the country. 

The investigation done by the police and the response of the government in this case brings up multiple issues of how the administration itself has failed the victim. The police allegedly refused to register the case, refused to help the victim who was in a deteriorating condition and asked the family to take her away. As per section 154 of the CrPC, the police are required to register every cognizable offence which includes rape. This was held in the case of Lalita Kumar v State of UP where the Supreme Court observed that “The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed.”[1] It was only after 8 days after the incident that the police registered a case against the accused in present case. It was claimed by the Additional Director General of Police of Hathras that the incident was not raped since there were no injuries or sample of semen that was found on the victim however, Supreme Court in a case  highlighted that it is possible to legally commit an offence of rape without causing any injury to the genitals and leaving any seminal stains and in another case observed that even slight penetration is sufficient[2]. The forensic evidence was not gathered until the 10th day after the incident. It is also established that forensic evidence can only be relevant when it is collected within 96 hours after the incident took place[3]. The delay in collecting samples as well as and the delay in issuing of medical legal certificate shows the laxity of the state police in handling the present case. The state police who insisted that rape has not taken place discredited the video of the victim who made her statement to the magistrate naming the accused persons. As per section 32 of Evidence Act, dying declaration is admissible as evidence moreover, it has been established as conclusive evidence for conviction in rape trials in India in both Nirbhaya’s case as well as in the case of Babulal v State where Supreme Court emphasized on the sanctity of dying declaration being enough to convict the accused[4].There was gross violation of human rights by cremating the body of the victim and not allowing the family to conduct her last rites.

The injustice faced by the victim and their kin is deeply concerning. It was not until 2012 after Nirbhaya’, when rapes were being reported and started making headlines in our country. Biased judgements were given on the basis that a rape is a damage done to a woman’s honor than a violation of her bodily autonomy. Therefore, the burden to fight for her honor rested upon the herself or otherwise she is not a victim. In the famous Mathura case, the court acquitted the accused as they believed that the victim was not “raped” since she was habituated to sex[5]. Judges have often interchanged the words “raped” and “ravishing” while allowing the accused out on bail in their judgements. In the recent judgement given by the High Court of Karnataka, the judge stated it was rather “unbecoming” of the victim to have gotten tired after the incident occurred and that is “not the way our women react when they are ravished.”[6] 

These instances often lead to victim fighting the system to get justice. While the law on rape has been changed since Nirbhaya’s case which now provides for stringent punishment, a lot has to change in our justice system and society. The need for gender sensitization, structured education, and communication about rape and rape laws in the country is needed now more than ever. The sensitization of police is a necessity so that victims feel comfortable to report the crime, better investigations are required to be done so that conviction rate increases and ensuring the rights of the victim and their families during the process of investigation as well as timely collection of forensic evidence. Will the victim of Hathras get the justice she deserves? Only a more sensitized judiciary system towards women will ever know.

[1]Lalita Kumari v State of UP AIR (2012) SC 1515

[2] Aman Kumar v State of Haryana AIR (2004) SC 1497

[3] Guidelines & Protocols Medico-legal care for survivors/victims of Sexual Violence Pg 29

[4] Babul Nath v State of UP (1996) 6 SCC 29

[5] Tukaram v State of Maharashtra (1979) AIR 185,

[6] Rakesh B vs State of Karnataka, CriminaL Petition No.2427 OF 2020


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