Sanjeev Kumar Patro

Bhubaneswar: 'Intrigue' and 'mystery' are the hallmarks of the alleged gangrape in Kunduli that shook the State severely some two-years back.

The Judicial Commission report tabled in the State Assembly yesterday had termed the labeling of rape charges and suicide of the victim as 'mysterious'; whereas the victim's family members cry of 'intrigue' intended to give an escape route to the culprits.

As per the gist of the Judicial Commission report, since the medical reports didn't establish signs of rape, therefore, the Commission ruled out the charges of rape.

Significantly, the medical report submitted to NHRC by the Human Rights Protection Cell (HRPC) of Odisha Police had stated that the findings of all the hospitals starting from Kunduli CHC, Koraput DHH and MKCGH, Behampur have maintained that there is no sign and symptoms of recent physical relation and that the complainant's hymen was intact. Since there is no physical injury signs on the victim's body, rape is ruled out.

This part of the medical report has played the crucial role in Kunduli probe panel's report submitted to the Government last year, which was tabled yesterday. While ruling out rape on the victim, in the same vein, the probe panel report has also observed that why or under what circumstances a girl could label such a charge that affects her modesty.

Legally speaking, as per Indian Penal Code (IPC), rape is defined either as a penetrating aggression or a non-penetrating act that violates a women's modesty or the both. And the SC guidelines regarding crimino-legal probe of a rape case are: Besides collecting physical evidences, evaluating the psychological symptoms of the victim are also part of an investigation of a crime like rape.

The fact of the Kunduli victim being severely distressed psychologically is evidenced from her long treatment in the Koraput DHH, her attempts of suicide, and finally the suicide.

An analysis of the IPC definition of 'Rape' and  the SC guidelines hints at the fact that a rape is not necessarily a penetrable aggression. And in case of non-penetrable offence, the psychological evaluation of victim plays the clincher role in rape crimes.

An analysis of some rulings of the HCs across the country also reveal that non-finding of sperm in the vagina does not rule out the rape. Though injury to hymen has been a surefire evidence of penetrable aggression, the investigations become quite tricky when the rape amounts to a non-penetrable offence.

As per legal experts, in such non-penetrable rape offences, oral swab of the accused has to be undertaken within 12-24 hours of the crime. Since in the Kunduli case, none were arrested, the taking of oral swab has become infructuous, they observed and added that the alleged crime will remain a 'mystery'.

Significantly, the noteworthy observation of the Judicial Commission regarding political parties 'high' interest in the Kunduli case seems not in sync with the trend in the country - the Unnao case in UP is the latest instance to point here. However, the Commission taking umbrage over erection of a statue of the victim is legally sound.