Legal experts have also debunked the theory that the absence of semen in the body of the Hathras victim suggests that she was not raped.

A representative image containing a silhouette of a woman on the right and silhouettes of three men in the backgroundRepresentative image
news Law Friday, October 02, 2020 - 16:17

Amid protests over the death of the 19-year-old Dalit woman from Hathras who succumbed to her injuries on Tuesday, the Uttar Pradesh police announced that there was no indication that she was raped. The woman, in her dying declaration, as well as her family, had alleged that she was dragged into the fields, strangulated and gang-raped on September 14 when she was out to fetch firewood. Now, the fresh claim by the Uttar Pradesh police has been questioned, since samples for a medical examination were examined only on September 25, 11 days after the incident, as per documents. 

What the forensic documents say

A forensic note accessed by TNM states that there was no trace of secretion or semen found on the woman’s clothes, nails or private parts. The report lists various samples that were collected from the victim and states that while blood was found on the woman’s clothes, there was no semen.

The post mortem report from the Department Of Neurosurgery, Vardhman Mahavir Medical College in Safdarjung Hospital in Delhi, states that the cause of death was “alleged post strangulation with cervical spine injury with sepsis, wia cardiopulmonary arrest.” She was declared dead at 6.55 am on September 29. 

"The report of the FSL (forensic science laboratory) has come. It says clearly that samples did not contain sperm. It makes clear that there was no rape or gang rape," Additional Additional Director General (Law and Order) Prashant Kumar said on Thursday.

The death summary however notes the brief history of the case as 'rape and strangulation on September 14', while the post mortem says that she had multiple old healing tears on her hymen.


Death report of the Hathras victim

A delay in testing samples?

The gap between the time when the woman was attacked and the time when the samples were collected has also been questioned. Doctors who had initially treated the victim in Aligarh from September 15 said that the woman could not make a statement just after she had been admitted since she had difficulty breathing, but two days later, when she regained consciousness, she indicated that she was sexually assaulted as well. This is when the samples were collected and sent to the lab for examination. An India Today report states that a medical examination began at 12.30 pm on September 22, eight days after the incident.

According to sources, the samples were sent to the lab on September 22 and the forensic report, dated September 25, was signed and released on Thursday, October 1. 

Senior advocate Vikas Pahwa told PTI, “Body can be washed, cleaned. It depends. It is also to be seen how much time difference was there between the offence and the medical examination. If the medical examination was conducted immediately after the rape, there would be presence of semen, otherwise there will not be.”

Forensic experts, however, say that though semen is conclusive evidence of rape, the absence of semen is not conclusive to rule out rape. Moreover finding traces of sperm cells in the cervical swab after so many days of the crime is also questionable. "The time gap between September 14 to 22 is about a week. The swabs may not show evidence of semen. But definitely the injuries will be remaining, in a healing state," a forensic expert told TNM.

Is semen the only proof of rape?

Legal experts have also debunked the theory that the absence of semen in the body of the Hathras victim suggests that she was not raped. There have been instances where the courts too have maintained that the presence of sperm cannot be an essential or only ingredient to prove the crime.

In the case of Parminder vs State Of Delhi on 16 January, 1947, the Supreme Court had upheld a High Court ruling that it is “quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains.”

“...to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law,” the Supreme Court had said.

In the judgment in the case of Wahid Khan vs State Of Madhya Pradesh on December 2009, the Supreme Court had held that “even a slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial.”

In 2012, the Aurangabad bench of the Bombay High Court had dismissed a rape accused’s appeal and had observed that the “reason is given that there was no semen detected in the vaginal swab,” is “not acceptable in view of the position of law and also for common sense.” 

The Uttar Pradesh government has employed the services of Concept PR, a public relations agency, to issue statements to deny that the Hathras victim was raped. 

“The ADG (Law and Order), UP, Shri Prashant Kumar said the FSL report has clearly said that no sperm or ova were found in the samples collected from the vaginal swab. He said that along with the FSL report, the postmortem report has suggested that the cause of death of the deceased was due trauma following injury in the neck,” the press note says. 

“He said it also exposed the conspiracy of those who tried to push the state into a caste turmoil. The police action in this case had been prompt to prevent any untoward incident under the prevailing circumstances,” the note adds. 

The definition of rape

After the December 2012 Delhi gangrape, a committee under the chairmanship of retired Supreme Court judge JS Verma was constituted to suggest amendments to the criminal law to sternly deal with sexual assault cases. In March 2013, the Union government amended the rape laws in the country, bringing in the Criminal Law (Amendment) Act, 2013, and expanded the definition of rape to include oral sex as well as the penetration “by any other object, or a part of the body into a woman’s vagina, the urethra or anus,” against her will and without her consent.

Senior advocate Rebecca John told PTI that absence of semen on the body of the victim as claimed by the police in the forensic report was of no consequence for the prosecution of accused persons for the offence, as there was a dying declaration by her that cannot be discredited.

The Hathras woman was allegedly raped on September 14. After her condition deteriorated, she was referred to the Delhi's Safdarjung hospital where she died on Tuesday. She was cremated in the early hours of Wednesday, with her family alleging the local police forced them to conduct the last rites in the dead of night.

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