Also, victim has been subjected to the violative two-finger test during medical examination

On April 21, at 4 pm, the Special Investigation Team (SIT) submitted the chargesheet in the Kulgam sex racket case at the Chief Judicial Magistrate court in South Kashmir’s Kulgam district.

The case pertains to a 16-year-old girl, Abda*, who had been missing for close to one week, when her parents lodged a missing person’s report at the Kulgam police station. Abda was recovered on the same day and soon the ugly details that lead up to her disappearance unfolded.

Abda’s statement

Abda’s statement was recorded under Section 164 of the Code of Criminal Procedure (CrPC). In her statement, she alleged that she had befriended Shaziya* who often visited her home. One day, Shaziya mixed drugs in her food which made her unconscious. Abda then alleges to have been forcibly raped by Shabir Ahmad, beside whom she woke up the next morning. She has accused Meema and Shaziya for co-operating in the act. Meema is Shaziya’s mother. The three also threatened Abda that they had taken objectionable videos of her and would expose it if she didn’t cooperate with them.

After this incident, Abda claims that she was forced to visit Meema’s house where she was forcibly raped multiple times. She also said she was taken to Jammu about six times. In Jammu, Abda said the group lodged at Hotel Sahara. Here, Abda said money was exchanged in return for her body. “Many people did wrong things to me and raped me,” she says in her statement. She also accused Riyaz Ahmad, Bilal Ahmad and Adil of raping her.

Abda in her statement mentions that the person who worked in Hotel Sahara – Chottu, also raped her. In fact, she also accuses Chottu of bringing more men to rape her. Apart from Chottu, a person named Bunty also raped her. Abda says that Chottu knows Bunty’s address.

Towards the end of her statement Abda said one police personnel, an SHO, raped her twice. She confesses to not knowing the SHO’s name but claims that she can identify him. She also added that the police person’s name and address can be recovered from Chottu.

Investigation report of the SIT

Yesterday, the SIT constituted by the J&K police submitted the chargesheet under section 173 of CrPC, that is, report of police officer on completion of investigation.

According to the chargesheet Shabir Ahmad has been charged under Sections 363, 376 and 120(b) of CrPC, that is, kidnapping, rape and criminal conspiracy.

Meema and Shaziya have been charged for kidnapping and criminal conspiracy of rape. Riyaz and Adil who were arrested on February 9, 2018 have been charged for rape, after their identification parade was conducted. Their medical test had been taken to prove potency. The test result was positive.

According to the medical test conducted on Meema and Shaziya it was proved that neither of them were pregnant. A Medical test was also conducted on Abda after which Section 376, that is charges of rape, was added. From Shaziya’s birth certificate, the team also determined that she is a minor.

In her statement Abda had also mentioned a person named – Bilal Ahmad. According to the SIT, they had conducted an identification parade with one named Bilal but when Abda failed to identify him, he was let off.

In conclusion, the chargesheet claims that according to Abda’s statement, “more people are involved and must be arrested”. Hence, the team is going to keep the investigation ongoing and will eventually submit a supplementary chargesheet soon.

What the chargesheet has left out

Even though Abda in her statement to the court has said that an SHO in Jammu has raped her twice, the chargesheet does not mention any investigation or identification parade being conducted for the same.

Abda also mentioned the name of Hotel Sahara and the name of Chottu who worked in the hotel. She claims to have been raped by the same person. Once again, the chargesheet is silent regarding any investigation on the Hotel and Chottu. No identification test for Chottu has been conducted. In her interview to Newslaundry, Abda had stated that the hotel was aware of Meema’s activities, the hotel also forms the scene of crime so to speak.  

In her statement Abda has also mentioned that there was a video taken of her by Meema, Shabir and Shaziya. It is this video that was used to threaten her to comply in their conspiracy. If this video is not found it can be established that Abda might have gone by her own will. The chargesheet also does not mention anything regarding the finding or investigation of this video.

Abda also claimed to have been drugged before being raped. A medical test has to be conducted within 24 hours of recovering the victim. The report of the medical examination conducted on January 30, 2018, shows that no test has been conducted on Abda to determine presence of any drug/substance in her body. These aspects are indeed crucial to proving Abda’s charges in the court. When Newslaundry called up Hotel Sahara, we were informed that Chottu had stopped working there because “he did some wrong things”. We were also informed that the police had conducted raids on the hotel but could not confirm this independently.

Abda subjected to intrusive two-finger test

The medical report attached along with the chargesheet states that there are no violent marks of struggle anywhere on the victim’s body but “the patient has lost virginity”. This was understood because “hymen was not intact” and “inserted 4 fingers easily”.

In 2013, the Supreme Court held that the two-finger test on a rape victim violates her right to privacy, and asked the government to provide better medical procedures to confirm sexual assault.

“Undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent,” the Bench said.

The judge said that rape survivors are entitled to legal recourse that “does not violate their physical or mental integrity and dignity”. “Medical procedures should not be carried out in a manner that constitutes cruel, inhuman or degrading treatment and health should be of paramount consideration while dealing with gender-based violence”. The apex court declared that the State is under an obligation to ensure “such services available to survivors of sexual violence”. “Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with her privacy,” the Bench said.

Union Ministry of Health and Family Welfare’s guidelines for medico-legal care for survivors of sexual violence clearly state: “Per-Vaginum examination commonly referred to by lay persons as ‘two-finger test’, must not be conducted for establishing rape/sexual violence and the size of the vaginal introitus has no bearing on a case of sexual violence. Per vaginum examination can be done only in adult women when medically indicated.” 

It must be noted here that Abda is a minor. When Newslaundry contacted her, she confirmed to being subjected to the test. Apart from this, the report also said that the slides and semen analysis results are negative.

Peoples Democratic Party MLA Majid Paddar’s involvement

After the initial investigation, in a statement to the media in early February, Abda alleged the involvement of PDP MLA Majeed Paddar from Noorabad. She had said that while she had not met the MLA herself, Meema had been in touch with the MLA. While speaking to Newslaundry she also said that, one night, the MLA had called Meema at 2am and asked her to send him a girl for which he would pay 10,000 rupees. When Abda refused to go, Meema had gone herself. She did not mention the name of the MLA in her statement to the court. Thus, the MLA has not been investigated.

While speaking to Newslaundry, Abda claimed that she did not mention the MLA’s name because SHO Gowhar Ali in Kulgam ‘politely’ told her not to reveal Paddar’s name in court as it would “create too much hungama (drama)”.

SHO Gowhar Ali told Newslaundry that Abda had never mentioned the MLA’s name to him.

MLA Majeed Paddar told Newslaundry that he had never met Abda and did not know anything about her. Nevertheless, he admitted to being acquainted with Meema as she was his “voter and worker”.

Regarding SHO Gowhar Ali, the MLA had said “I don’t know him. I have never called him for any help. The police are investigating everyone who has been mentioned in the FIR. I have full trust on the J&K police. My name has never been mentioned,” said Padder.

Since Abda did not mention the MLA’s name in her statement to the court, it is only fair that that MLA need not be investigated. But if Meema’s phone records were investigated, the degree of her proximity with the MLA would have shed more clarity.

When Newslaundry contacted the police regarding the chargesheet, a spokesperson from the police said: “The investigation is still ongoing”. A date for the submission of the supplementary chargesheet has not been given.

*Names changed to protect identity.

This article was first published in Newslaundry.