New Delhi: Contrary to the Uttar Pradesh Police claim that the Dalit teenager at Hathras who succumbed to her grievous injuries on September 29 was not raped, the medico-legal examination report (MLC) prepared by the Jawaharlal Nehru Medical College Hospital (JNMCH) at Aligarh, where she was first admitted, reveals that doctors had recorded the detail provided by her of the “complete penetration of the vagina” and indicated the use of force in their preliminary examination.
In line with the Union health ministry’s protocol for medical examination of victims of sexual assault which stipulates that examining doctors “should neither refute nor confirm” whether a sexual offence had occurred, the hospital reserved its opinion on whether the assault on the victim involved rape or not, and referred the case for further examination by the state government-run Forensic Science Laboratory in Agra.
The medical examiner Dr. Faiz Ahmed, assistant professor at the JNMCH, concluded, “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 reports.”
The 54 page JNMCH report, which The Wire has accessed, recorded various details of the crime that the 19-year-old woman who died after battling for life for two weeks, provided, including “penetration by penis” and that she was “strangulated by her dupatta”. It also found “quadriparesis” – a condition characterised by weakness in all four limbs (both arms and both legs) – and “paraplegia” in the woman’s body that caused “sensory loss” in lower limbs up to the level of her hips.
The report claims that the victim, who was admitted to the hospital on September 14, informed the doctors about her sexual assault only on September 22. On the same day, the JNMCH referred the case to FSL, Agra.
“As alleged by the informant, the survivor was sexually assaulted by four known persons of the same village when she was doing some work in the fields of the village Bulgarhi on 14/09/2020 at 9.00 a.m. There is history of loss of consciousness during the incidence,” the MLC said.
The subsequent FSL report, for which samples were collected from the JNMCH only on September 25 – that is three days after JNMCH referred the case to FSL and 11 days after she was first examined – has become the basis for UP police officials to deny the possibility of rape in the case. On Thursday, Prashant Kumar, additional director general (law and order) of Uttar Pradesh police, cited the absence of sperm in samples that the FSL collected as proof that the victim was not raped and the matter was “twisted to stir caste tension.”
Speaking to The Wire on Friday, Kumar, however, indicated that he knew of the presence of the JNMCH report when he had made this claim.
Inexplicable delay in sexual assault forensic examination
Curiously, the MLC report which begins with an account of the hospital’s first examination of the woman at 4:10 pm on September 14, describes the ‘present illness’ of the woman as merely ‘strangulation’ and records the claim that assailant was unknown.
Given the fact that she had already stated on video that she had been raped and had named her attackers, the omission of this incident in the initial MLC raises doubts about the efforts put in by the policemen who brought her there and the hospital authorities examining the grievously injured woman to establish the full picture.
Ironically, these videos have been circulated by BJP leaders on Twitter in order to suggest the woman was not raped, whereas she clearly speaks about ‘zabardasti’, or force, being done – a well-known euphemism for rape – and also names some of the attackers. These videos were apparently shot by unidentified persons in the Chandpa police station before she was taken to the Aligarh hospital.
The MLC report includes a note dated September 22 from Prof M.F. Huda, chairman, department of neuro surgery at the hospital in which he says ‘Patient is critical so kindly arrange magistrate dying declaration’. The magistrate recorded her declaration that day in which she described the rape and, coincidentally, the hospital finally conducted its sexual assault forensic examination on September 22 too – claiming, “Patient didn’t gave [sic] any history of sexual assault at the time of admission to the hospital. She told about the incidence [sic] first time on Sept 22”.
Details of the MLC
In section 16 of the MLC performed by the JNMCH, the doctors record that the victim’s vagina had been penetrated by a penis during the incident. In the next column, the doctors said that the penetration was “complete”.
The other sub-sections which seek to know whether there was ’emission of semen’, ‘did the assailant use condom’, and ‘status of condom,’ have been marked ‘DNK’, an acronym for ‘do not know’.
Against the sub-section which seeks to record whether there was use of any weapons during the assault, the doctors have written, ‘no’ but added that the ‘the survivor was gagged’. The document also mentions that the victim was given a threat of murder during the incident.
The JNMCH had performed the initial medical examination on her, in order to file a medico-legal case (MLC) report. This MLC report also mentions the names of the four accused persons, all members of the Thakur community, whose names were disclosed to the hospital by the victim’s family.
UP Police’s contention
The Aligarh hospital record furthers the claim made by journalists, activists and opposition parties that the Adityanath government in Uttar Pradesh has been attempting to downplay the gravity of the crime.
After the woman’s body was cremated without her family’s consent by district police, reports have shown that the administration has attempted to intimidate the victim’s family and prevent media and political leaders from entering Boolgarhi, her village in Hathras.
ADG Kumar had discounted rape on two counts. One, that the FSL report has said that “no sperm or ova were found in the samples collected from vaginal swab”. And two, the post mortem report has suggested that the cause of death of the deceased was because of trauma following injury in the neck.
“The post-mortem report says the victim died due to her neck injury. FSL report hasn’t found sperm in samples, making it clear that some people twisted the matter to stir caste-based tension. Such people will be identified and legal action will be taken,” Kumar said.
With the JNMCH report leaning towards the possibility of rape, it is not clear why the UP police is insisting there was no rape.
Speaking to The Wire, a JNMCH official said, “This (MLC) is the final report we prepared after examination of the victim. This is the same document that will also be presented in court.”
The MLC was examined and attested by the CMO (Chief Medical Officer) of the hospital, Dr. Obaid Imtiyazul Haque.
The report also clearly shows the Hathras superintendent of police Vikrant Vir was being economical with the truth when he told the news agency ANI earlier that the report by the Aligarh hospital, where she was admitted before she was brought to Safdarjung hospital does not confirm rape. “The medical report from the Aligarh Muslim University Medical College (JNMCH) mentions that there were injuries but it does not confirm forced sexual intercourse. They are waiting for a report of the forensics. As of now, doctors say that they’re not confirming rape,” he had said. The report could more accurately be characterized as neither confirming nor denying rape but Vir chose to play it one way.
Indeed, under the Ministry of Health and Family Welfare guidelines and protocols for medico-legal care of survivors/victims of sexual violence, “The examining doctor should clarify in the court that normal examination findings neither refute nor confirm whether the sexual offence occurred or not. They must ensure that a medical opinion cannot be given on whether ‘rape’ occurred because ‘rape’ is a legal term.”
‘FSL considered sperm collected 11 days after crime’
The forensic report, according to reports, had not found any traces of sperm. Doctors from JNMCH have told The Wire that the sample for the FSL (Forensic Science Laboratory) report which has been cited by the ADG, was collected as late as September 25, 11 days after the incident. It is, therefore, unreliable, they said.
“There are no chances of finding sperm, as its life cycle is hardly 2-3 days. If a sample is collected within 72 hours, that too with the condition that the girl has not used the bathroom to relieve herself or hasn’t taken a bath…only then it will be valid,” Hamza Malik, junior resident doctor, at the JNMCH hospital said.
He added that it is not necessary for ejaculation to have occurred for the offence to be considered rape.
Dr Asrar-ul-Haque, assistant professor at the forensics department of AMU hospital, confirmed the same to The Wire. “Given the fact that that the life cycle of a sperm is not more than 3 days, it is highly improbable that would be found in the FSL report.”
He also said that in order to probe rape, all the swabs should be taken.
Although the JNMCH officials collected the vaginal swabs only on September 22 – the date the hospital claims the victim informed them about her sexual assault – the doctors pointed out qualitative concerns about those samples.
Apart from the delay in collecting swabs, the MLC mentioned that the woman had washed herself before reporting to the hospital, and that she changed clothes, wore cleaned or washed clothes, and also changed her underwear at the time of admission.
The Wire has been able to confirm that the samples for the FSL report were indeed collected on September 25.
In any case, say lawyers, the police’s statement concerning the requirements of presence of sperm to prove rape is patently erroneous and contrary to settled law, which considers even the slightest of non-consensual penetration as an act of rape.
The victim’s post mortem report, which the ADG Kumar referred to, was made at Safdarjung Hospital, New Delhi, where she was shifted on September 28 – 14 days after the incident.
The report did not specify if rape had occurred. However, it says that there were multiple old, healed tears in the victim’s hymen. The uterus contained blood clots and the anal orifice showed old, healed tear. It also mentions that blood was present in the vagina, calling it ‘menstrual blood’. The victim’s mother had initially alleged that the bleeding had occurred due to the rape. The report also held that the spinal injury sustained by the victim was the cause of her paralysis and ultimately, death.
When The Wire reached out to the ADG (law and order) Prashant Kumar, he said he had only stated a fact about the FSL report but was not exonerating the accused.
“I only stated a fact about the FSL report: that sperm was not found. I insisted that the investigation is still ongoing, who are we to give a clean chit to anybody,” he told The Wire, adding that the media reports had cherry-picked his statements to create a false narrative.
In fact, an official note of the UP Police formally circulated to the media on October 1 says categorically, “Putting to rest all the speculation, the Forensic Science Laboratory (FSL) report on the vaginal sample of the 19-year-old girl of Hathras has revealed that she was not raped.”
On being asked about the JNMCH report, ADG Kumar appeared to underline the significance of the FSL report over the initial MLC. “The AMU report has been formed on the basis of local examination. AMU hospital is a semi-autonomous body,” he said.
Curiously, however, he did not mention the JNMCH medical report at this press briefing, and chose to only speak on the FSL and post mortem reports while discounting the possibility of rape in the Hathras assault case.
He went on to say, “Some people are projecting this as a case of mass rape even though the victim’s brother himself gave us in writing that there was only one person involved. We have believed the victim’s version from the very beginning and also arrested the accused immediately. We have nothing to hide and we know the definition of rape.”
Legal Experts speak
Lawyers well-versed in cases of sexual violence said, that the victim’s claim that she was sexually assaulted would hold greater significance over laboratory tests which were possibly done on contaminated samples.
Senior advocate Rebecca John says that an FSL report is not the legal requirement to constitute rape and is hence irrelevant. She says, “In the facts and circumstances of this case, the FSL report is largely irrelevant. Collecting a vaginal swab after 8 days (at the JNMCH) – after she has urinated, washed her vagina, where is the question of any semen to be found? It was an irrelevant exercise that was conducted.”
She also believed that “given the circumstances, the FSL report can be corroborative, not substantial.”
She said that contrary to what the UP police has claimed, the FSL report cannot be used to discount the possibility of rape. “You cannot rule out rape by the FSL report, but you can affirmatively confirm rape in case the FSL finds something. The provisional opinion is not ruling out rape,” she said.
She added that the MLC in its conclusion clearly mentions the use of force, which is a reference to sexual assault.
“The effort on part of the police authorities has been to establish that there was no rape. Whereas the effort should have been to establish the opposite. Far from the UP police’s version of the AMU hospital report that it has ruled out rape, it is leaning towards it,” she told The Wire.
“The Supreme Court has been consistent on the fact that the victim’s statement is of sterling quality. That’s the only test you have to pass,” the senior advocate added.
Vrinda Grover, lawyer in Delhi, has also raised concerns over the swabs for the FSL report being collected almost two weeks after the incident. “Why were the vaginal swabs been taken only on 22 September? There was a young woman who was found lying without her clothes, in a mutilated condition. The first response should have been to collect all possible samples. This is a dereliction of duty at all levels.”