On October 1, Prashant Kumar, Uttar Pradesh’s additional director general of police, claimed that a forensic report showed Asha, the Hathras girl, had not been raped since no sperm could be found in her body. In doing so, he exposed the systemic lacuna in how sexual assault in India is recorded, investigated and reported.

The teenaged Dalit girl had succumbed to her injuries in Delhi’s Safdarjung Hospital on September 29, two weeks after being attacked and allegedly gangraped by four upper caste Thakur neighbours.

When Asha was still battling for her life in an Aligarh hospital, her brother had recounted to Newslaundry what happened when the family took her to the Chandpa police station. There, the girl was made to lie down on a stone platform in the sun, groaning in pain. “Nobody listened to us there,” her brother complained. “The police kept saying, ‘Just take her from here. She’s being dramatic and lying here. Do you want to trap us?’”

The police, then, filed an FIR against Sandeep, the first accused, charging him with attempt to murder and under the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act. Asha’s mother had said even though she found her daughter naked and bleeding from her vagina, she did not mention rape to the police.

On September 30, when Newslaundry went back to Asha’s now mourning home, we witnessed an ABP News reporter thrust her microphone into the mother’s face, asking, “Okay, but wasn’t there a delay from your end also in reporting the rape?”

A day later, ADG Kumar made his “no rape” claim.

Shoddy investigation

The Justice JS Verma Committee, constituted in the wake of the December 2012 Delhi gangrape and murder, made a slew of legal and psychological proposals to amend anti-rape laws. While the committee’s report speaks of a rehabilitative method in treating rape victims, it takes a step back to acknowledge that to do that, the victim of sexual violence must feel systemically safe to report it. A system that attaches shame and loss of honor to sexual violence denies the right of dignified justice to a woman. “The demand of justice is a fundamental charter of freedom which is guaranteed under the Constitution to every individual,” the report observes.

In this context, if you were treated by the police the way Asha and her family were, would you have trusted them enough to report her rape? Thus, in Asha’s case, it’s evident that the system, which by its treatment of the victim confirmed the fears of her family, must be held responsible for delaying the reporting of rape by the mother, or the victim herself.

Nevertheless, when Asha and her family decided to speak about her sexual assault, they did so with utmost clarity but, again, the system failed them.

According to Asha’s cousin, it was only on September 17 that Asha and her mother spoke about the rape to the other family members. Asha also said it wasn’t just Sandeep who had raped and attempted to kill her. He had been accompanied by three other Thakur villagers.

Her cousin said they immediately informed the doctor and the nurse attending to Asha in Jawaharlal Nehru Medical College and Hospital, Aligarh. They replied that “unless the required sections are added in the FIR, we can’t conduct an examination on our own”.

This went against Section 357C of the CrPC which mandates “all hospitals, public or private” to provide free treatment to a victim of sexual assault and “immediately inform the police of such incident”.

In State of Karnataka v Manjanna, the Supreme Court expressed “disapproval” of the refusal of some doctors, particularly in rural areas, “to conduct any medical examination of a rape victim unless the case of rape is referred to them by the police”.

“Such a refusal to conduct medical examination necessarily results in a delay in the ultimate examination of the victim, by which time the evidence of rape may have been washed by the complainant herself or be otherwise lost,” the court observed. “It is expected that the appellant State will ensure that such a situation does not recur in future."

So, if Asha spoke of sexual assault, the doctor who attended to her should have done the necessary examination, given her the required treatment, and promptly informed the police, explained Dr Padma Deosthali, senior advisor to the Centre for Enquiry into Health and Allied Themes, an NGO based in Mumbai.

“First attend to the patient and then inform the police,” she said. “It should be treated as medicolegal emergency."

Nevertheless, on hearing this, the family went to inform the Circle Officer as well, but the police official was not available at the time.

According to the cousin, the family, along with a few community leaders, met with the Hathras district magistrate on September 18, informed him about the rape and asked for the other three accused to be named in the FIR.

The same day, they recorded a video statement by Asha where she clearly names Sandeep and says “mere saath zabardasti kiya gaya”, a colloquial way of referring to rape. The very act of recording Asha’s statement by the family reflects their dwindling hope in the police.

On September 19, the cousin said, they went to the superintendent of police, Vikrant Vir, who agreed to add the charges of gangrape as well as the names of the other three accused to the FIR.

Still, the hospital did not conduct a rape examination that day. The next day, Asha lost consciousness.

On September 22, after Asha had regained consciousness, the neurosurgery department of the hospital issued a letter to the Casualty Medical Officer claiming the patient was critical so “a dying declaration before the magistrate must be arranged”, and it was. So, it was eight days after the incident and five days after being told about it that the hospital finally condcuted the rape examination.

The forensics, meanwhile, had not yet collected Asha’s clothes for examination.

After Asha’s death, her statement to the family and the magistrate has to be considered a dying declaration.

The Supreme Court has held that a deceased victim’s statement must be treated as a dying declaration even if it’s not given to a magistrate as long as “the person who records a dying declaration is satisfied that the deceased was in a fit state of mind”.

Thus, Asha’s video statement to her relatives must be considered a dying declaration of high evidentiary value.

The law assumes that a person who believes they might die has no reason to lie, and such statements are admissible under the Indian Evidence Act of 1872. The apex court has also held that dying declarations can be admitted without need for corroboration.

This is why, the former Supreme Court judge Madan B Lokur noted, the ADG “should have been more circumspect, considering that the victim says she was gangraped”.

In Asha’s case, her doctors at the Aligarh hospital have not yet confirmed whether she was conscious of the possibility of her impending death.

Medical negligence

On September 14, after Asha’s family had registered the FIR at the Chandpa station, they took her to the Bagla Joint District Hospital, Hathras, where she vomited blood and was given glucose. In spite of the severity of the assault on Asha, a family member said, doctors at the hospital didn’t ask about possible sexual assault or conduct a rape examination.

According to Deosthali, both the district hospital and the Aligarh hospital, where Asha was referred to, should have treated it as a suspected case of sexual violence.

“Even if the family did not speak of rape, considering that a young girl was physically assaulted, both hospitals should have enquired with the patient or gaurdian regarding sexual assault,” she explained.

Asha’s family told Newslaundry that doctors at neither hospital sought to know from them if the girl had faced sexual violence.

Instead, citing Asha’s “serious medical condition”, the district hospital referred her to Aligarh.

Typically, the first healthcare centre that receives the patient is expected to provide the MLC. According to the National Health Systems Resource Centre of the central health ministry, the MLC refers to “any case of injury or ailment where the attending doctor, after history taking and clinical examination, considers that investigations by law enforcement agencies...are warranted to ascertain circumstances and fix responsibility regarding the said injury or ailment according to the law”.

The only time the MLC need not be produced is if the hospital can’t provide the required care and, therefore, must urgently transfer the patient elsewhere. Asha was made to wait two hours at Bagla Joint District Hospital before she was sent to Aligarh.

It is imperative that the hospital that recommends the patient’s transfer mentions whether the MLC was provided or not. The referral slip issued by the district hospital states that given Asha’s serious condition, it didn’t provide the MLC. The Aligarh hospital’s records, however, claim that an MLC was produced at the district hospital.

In any case, the Aligarh hospital produced an MLC of its own. It states that the patient sustained injuries from strangulation. The MLC adds that the patient was “conscious and oriented in time”, but it does not record any history of sexual violence or suspected sexual violence.

Considering the seriousness of the assault, a complete examination was warranted that would have revealed other injuries to her body. Asha’s treatment card shows that she was referred to neurosurgery, ENT, FMT, and a CT scan report was produced, but it doesn’t explain why a complete examination was not conducted.

On September 25, Dr Shahid Ali Siddiqui, the principal of the Jawaharlal Nehru Medical College and Hospital, told Newslaundry that spinal cord damage had left Asha paralysed in all four limbs, and injuries to her neck were causing her “breathing problems”.

The next day, when Newslaundry met Asha’s family, they said the doctors at the Aligarh hospital had been pressuring them to take her to AIIMS, Delhi. “Why are they asking us to suddenly take her there? If they feel they cannot treat her here, they need to officially refer us to a better hospital right?” asked her brother.

This was confirmed by Vir, the SP who has since been suspended. “We tried asking but the family wasn’t willing to take her to AIIMS,” he said on September 27. Asha was eventually shifted to Safdarjung Hospital on September 28.

But why did they refer Asha to the Safdarjung Hospital and not AIIMS as her family wanted?

When Newslaundry asked Siddiqui about this, he said he couldn’t comment on the matter.

Police negligence

Asha’s brother told Newslaundry, and this is corroborated by the forensic report, that her clothes were changed in the hospital “at the time of admission”. These were the clothes Asha’s mother had dressed her in after finding her naked in the fields. The family took these clothes home. They had already collected from the fields the clothes Asha’s assaulters had torn off her, the brother said. “Since her underwear was soiled with faeces, we washed it properly,” he added. “The clothes remained in our house until September 23 or 24 when the forensics team took them.” A crucial piece of evidence was, thus, lost.

Also, when Newslaundry visited Asha’s home on September 27, we saw the pair of slippers she had been wearing on the day of the assault. This clearly shows the police’s negligence in collecting material evidence. It was left to the forensics team to take the slippers over a week after the crime.

A crime scene investigation is crucial for collecting evidence of a crime. Yet, when Newslaundry visited Hathras on September 27, Asha’s mother walked us to the field, and showed us where her daughter had been attacked. Ideally, the police should have sealed off the place. Since this wasn’t done, some evidence could possibly have been trampled upon.

Rape examination

That the hospital conducted the rape examination eight days after the attack meant that evidence of sexual assault was possibly lost.

A family member told Newslaundry that after Asha was transferred to the ICU, he was asked by the hospital to buy an Unwanted 72 pill, an emergency contraceptive. “After I got the pill for her, the doctor took away the prescription from me. So, I don’t have a record of it,” the relative said. The pill is effective only if given within 72 hours of intercourse. So, it’s not clear why the doctors would give it to Asha eight days after the assault.

The rape examination report states that according to the patient’s statement, penetration by penis into the vagina was complete. It adds that the patient experienced pain, especially while walking, and “mild discomfort in lower abdomen”. It also records “healed abrasions present over the back”.

Whether there was emission of semen or not is unknown since the patient was “not conscious at the time of the incident”, it adds. The presence of semen may not be established for four reasons:

1. There was no ejaculation during the act.

2. The ejaculation did not take place inside or on the victim.

3. There was ejaculation but the victim was bleeding, in which case the semen can be washed away.

4. The victim washed or cleaned herself.

According to the report, by the time the rape examintation was done, the victim had changed clothes, including undergarments, wiped her genitalia, passed urine and stool, rinsed her mouth and gargled.

Moreover, sperm cells can typically be detected for only upto three days in vaginal swabs and for upto seven days in cervical swabs. But over seven days had passed since the assault, so the doctors were not even trying to detect sperm. This is evident from the report, which clearly states that since the body had been wiped several times, a UV examination wasn’t done. A UV examination is done to detect sperm.

In 2013, based on Justice Verma committe’s report, India enacted an anti-rape law which expanded the definition of rape to include oral sex and penetration with objects. The committee had replaced the term “rape” with sexual assault to include non-penetrative forms of sexual contact, and defined sexual assault as any form of non-consensual non-penetrative touching of a sexual nature. The law clearly states that mere absence of physical struggle doesn’t discount rape.

The ADG’s claim that an examination of the victim hadn’t found sperm so she hadn’t been raped was based on swab tests done eight days after the assault. Moreover, the chief medical officer of the Aligarh hospital told the Indian Express that the forensic report, which the police relied on to insist Asha wasn’t raped, “holds no value”. It is, therefore, safe to say that the ADG’s comment was highly misleading, at the very least.

There’s another glaring question: even though the report states that the patient was not menstruating or bleeding from her vagina when she was being examined, it mentions that she had to use sanitary pads/tampons/sponges after the assault. This is evidence that the girl was bleeding vaginally. If there was no menstrual blood, were the sanitary pads used to deal with the vaginal bleeding reported by the mother but not officially recorded by the hospital?

Under the head “History of Alleged Assault”, the examining doctor points out, “As alleged by the informant, the survivor was sexually assaulted by four unknown persons” namely, Sandeep, Ravi, Ramu and Luvkush. It also records that the survivor was “strangled by her dupatta” and “gagged” while being verbally threatened that she would be killed.

Then, why is it that under “Psychological/Emotional Abuse” and ‘Resistance Offered by the Survivor”, the doctor has written “No”?

In conclusion, the doctor writes, “On the basis of local examination I am of the opinion that there are signs of use of force however opinion regarding penetrative intercourse is reserved pending availability of FSL report.”

Incosistencies in postmortem report and death summary

The postmortem report mentions an “old healed anal tear”, but does not specify how old. Given the postmortem was done 15 days after the assault, it’s possible that the injury might have healed or begun to heal even if it had been sustained during the crime. So, why was the age of the injury not mentioned?

The postmortem report, produced at the Safdarjung Hospital by three senior doctors on September 29, does not mention a rape examination in the history of the case even though one had been conducted eight days prior to Asha’s death. The death summary produced by the same hospital, on the other hand, mentions “rape and strangulation” on September 14.

This raises the question: had the Aligarh hospital not handed over the rape examination report to the Safdarjung Hospital or did the Delhi hospital not take cognizance of it?

The death summary mentions that the girl died of “cardiopulmonary arrest” post strangulation and cervical spine injury. The postmortem report does not mention cardiac arrest, merely stating the marks on the neck are consistent with strangulation but “did not contribute to death in this case”.

The postmortem report also records “vaginal bleeding” because of menstruation even though the mother clarified that Asha was not menstruating on the day of the assault. The rape proforma makes no mention of menstruation either. It’s unclear how this conclusion was drawn.

While the postmortem report records Asha’s age as 22, the death summary records it as 20. According to Asha’s family, she was 19 years old.

Post-death lapses

In 2014, to “rule out any foul play” in the “interest of transparency”, the Delhi government ordered that the postmortem in homicide cases must be videographed. According to Lokur, the former Supreme Court judge, given the sequence of events, “it would have been appropriate if the post mortem had been video recorded”.

On September 29, hours after Asha’s body had been taken for a postmortem examination, the family, along with activists, sat in protest outside the Safdarjung Hospital demanding to know where the body was and why it was not being handed over to them. According to media reports, her father and brother were later reportedly taken away by the police.

Lokur told Newslaundry that based on the information available in the public domain, it is not very clear if the body that was handed over to the police and thereafter cremated was that of the victim. “Has anybody confirmed this? Even the parents and family of the victim don’t seem to be sure,” he pointed out. “But assuming that the body was of the victim, I am not aware of any law that allows the hospital or the police to decline to hand over the body to the family of the deceased.”

He noted that there have been instances in the past when hospitals have refused to hand over the body of a patient until their relatives cleared the hospital’s dues. “This practice has been frowned upon. The basic principles of humanity require that the body should have been handed over to the family,” Lokur said.

Asha’s cousin told Newslaundry that there was no family member in the ambulance that carried her body from Delhi. Her brother and father were put by the police in a car which drove ahead of the ambulance to Hathras.

“At some point, the ambulance and the car split ways,” the cousin said. “The ambulance took a different route while her brother and father reached home.”

The ambulance reached Asha’s house just after midnight, the cousin added, and the police told the family to cremate the body quickly.

The Dalit family pleaded with the police to allow them to conduct the cremation as per their traditions in the morning. The police wouldn’t listen and cremated the body while the family locked themselves inside their own home, fearing police aggression. Clause 135A of the UP Police Regulations required the body to be disposed of as per the faith of the deceased.

The family told Newslaundry they intended to demand a second postmortem but this can no longer happen as the body has been cremated.

Since the moment a brutalised Asha was taken to the police station, the way her family has been treated by the police and the media reveals a shoddy investigation into the matter, medical negligence, a cover-up of facts, and denial of the evident truth.

Asha is a pseudonym used to protect the victim's identity.

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