Press Statement : Badaun Case : “Experts Rebut CBI Claim of Bungled Autopsy” – Association for Advocacy and Legal Initiatives (AALI)
Badaun Gang Rape and Murder
“Experts Rebut CBI Claim of Bungled Autopsy” – Association for Advocacy and Legal Initiatives (AALI)
July 16th, 2014, Lucknow : The double rape and murder of two cousin sisters on 27th May, 2014 in village Katra, Sahadatganj, District Badaun, Uttar Pradesh led to an uproar in the country. The bodies of the young girls, belonging to a lower caste, hung from a tree in the village, in a brazen display of power and impunity, attracting global condemnation.
The accused men, including two policemen, named in the FIR by the victim families, belong to a dominant caste community, wielding much social and political clout in the area. Given the severe power imbalance, the victim family, apprehensive that the local police will collude and shield the accused men, sought a prompt and fair investigation by the CBI. It needs reiteration that it was on the request of the family of the deceased girls that the case was handed over to the CBI. The victim family wants the truth to be uncovered and the murderers punished.
However since then the manner in which the CBI is handling the case, in particular the treatment of the victim family members by the CBI raises serious concern and troubling questions. Association for Advocacy and Legal Initiatives (AALI), a women’s rights organization headquartered in Lucknow, Uttar Pradesh, has been in regular touch with the family of the deceased and has been providing socio-legal support to them. AALI has been following the case and monitoring the media coverage of the incident and the statements issued the CBI with regard to the investigation.
Surely CBI, the premier investigating agency of the country is well versed in law, procedure and evidence and has up to date knowledge regarding the protocols for medical examination of victims of sexual violence. The trajectory of the CBI’s investigation is therefore puzzling, if not worrying.
Both the fathers and 2 Uncles of the murdered girls were subjected to lie detector tests, even though the same has no evidentiary value before a Court of law. The Supreme Court of India in its landmark judgment of Selvi and ors. Vs. State of Karnataka has “…elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to `cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. … Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test.” Given that this test will yield no evidence why did the CBI whisk away the victims’ father and Uncle for more than 72 hours and keep them in undisclosed place beyond the reach of their family. The victim family is anxious, is there a plan afoot to maneuver the investigation, manipulate public opinion and divert investigation away from the accused persons, particularly where poor and vulnerable victims have accused socially politically powerful men and well -networked police men for this heinous crime.
In the Badaun case the media has been faithfully and uncritically reporting only on the basis of CBI handouts, abandoning its role as a watchdog. According to press reports the CBI has expressed dissatisfaction with the autopsy report and has therefore sought to exhume the bodies of the 2 girls. Under law, the exhumation of the bodies can only take place with the voluntary and valid consent of the victim family. Pertinently, the CBI has not yet broached this with the victim family or sought their consent, although the same has been broadcast by CBI in national and local newspapers. Grief stricken, helpless and bewildered the family has expressed discomfort and unease with the proposed exhumation.
Alarmed at these developments we sought the advice of forensic, health and legal experts to answer our concerns.
According to the CBI the autopsy was bungled as it was done late at night which is in violation of the procedure prescribed for autopsies. Mumbai based, CEHAT (Centre for Enquiry Into Health and Allied Themes), has opined that there is no legal bar on conducting autopsies at night. The directive of 1995 requires the autopsies to be done in a place where there is adequate light. Autopsy on both the girls have been video recorded, which is evidence of the fact that there was sufficient light.
The CBI states that proper procedure was not followed during autopsy and a panel of doctors will conduct the autopsy after exhumation. This claim of the CBI is patently false and inaccurate. The post mortem report clearly states that the post mortem examinations on both the girls was conducted by a panel of three doctors consisting of: Dr. Ranju Kumar Gupta, Physician; Dr. Avdhesh Kumar, Surgeon, both of the District Hospital Badaun and Dr. (Mrs.) Pushpa Pant Tripathi, Gynecologist and Obstetrician, of District Female Hospital, Badaun. The claim that one of the lady doctors who did the autopsies was doing so for the first time does not hold, as the same were conducted by a panel of doctors.
The CBI has also claimed that the autopsy report of the state government was only suggestive of rape without conclusively proving it. But as pointed out by Vrinda Grover, a New Delhi based Supreme Court lawyer and women’s right advocate, “Doctors cannot give a medical opinion whether rape has occurred or not because ‘rape’ is a legal term. The issue of whether an incident of rape/sexual assault occurred is a legal issue and not a medical diagnosis. The post- mortem report of the 2 girls clearly records injury around the vaginal orifice and abrasions and injury on the hymen and the doctors have recorded their provisional findings as suggestive of rape. It would have been more appropriate for the Doctors to say that there are signs of use of force, suggestive of sexual violence. Moreover, the medical findings of the autopsy report are provisional as a final opinion can only be given after receiving reports from FSL of the vaginal smears, clothes sent to the FSL. It is therefore quite shocking and unwarranted that CBI should seek a conclusive finding of rape from the autopsy report.”
The Ministry of Health and Family Welfare National Guidelines for medico-legal care for survivors/victims of sexual violence, issued by MoHFW in March, 2014 states that only findings in relation to medical findings should be recorded in the medical report. The doctors are instructed on how to formulate opinion; a provisional opinion immediately after examination and a final opinion after the forensic reports are received. Even in case where there are genital and bodily injuries, the doctor can only state “suggestive of sexual violence” the doctors must ensure that a medical opinion cannot be given on whether ‘rape’ occurred.
As explained by Dr. Jagdeesh Reddy, a Bangalore based forensic doctor, in this case, the doctors should have opined that there are “signs of forced penetration of genitals / vulva, however definitive opinion would be given after receiving final reports from FSL of the vaginal smears” or ‘there are injuries on genitals/vulva which are suggestive of forced penetration of genitals/vulva, however definitive opinion would be given after receiving final reports from FSL of the vaginal smears’ instead of commenting as ‘findings suggestive of rape’.
The opinions of the experts leave no doubt before us that the provisional outcome of the postmortem reports of the deceased girls have little to no flaw in procedure or finding, leaving no cogent or valid reason for the CBI to seek the exhumation of the bodies for a fresh autopsy.
Curious about the CBIs move for a fresh autopsy, Dr. Reddy has also pointed out that ‘it has been about six weeks since the death of these girls. With advanced stages of decomposition of bodies it is unlikely to comment about the skin and mucosal injuries with 100% accuracy. Same applies to the detection of much of the trace evidences from these decomposed bodies.’
If impunity for crimes against women is to be checked and if girls are to live as free and equal citizens, the accused, irrespective of their socio-economic status and their political connections, must be prosecuted by the CBI. It is not just the victim families in Badaun, but women across India and the world community is tracking the Badaun case, to see if justice will be done.
Contact : AALI office (0522-2782060/66) ; Renu Mishra (09415037634)