“Undisputed facts are that a young citizen of India has died,” observed Chief Justice Deepak Gupta and Justice Sanjay K Aggarwal of the Chhattisgarh High Court in an order passed on July 19.
An elderly couple, Madkam Lakshmi and Kosa, had filed a petition in the court on June 20, alleging that security forces had raped and killed their 23-year-old daughter Madkam Hidme after taking her away from their home in Gompad village of Sukma district in Bastar region on June 13.
The state police in turn claimed Hidme was a member of the Communist Party of India (Maoist) and had been killed in a gunbattle between security personnel and armed Maoist guerillas.
On June 21, the court ordered for Hidme’s body to be exhumed and put through a second postmortem. The first postmortem had been carried out in Sukma on June 14. The second one took place in Jagdalpur Medical College on June 25.
In her submission made to the court, Rajni Soren, the lawyer representing Hidme's elderly parents, pointed out serious discrepancies between the first postmortem report and the second one.
Doubts over the alleged encounter death first surfaced after the police released a photograph showing the body of a young woman lying on the ground, dressed in a crisp, neatly ironed and blemish free Maoist uniform.
Hidme's parents claimed that she was wearing a lungi, blouse and gamchha (or stole) when the security personnel took her away from home. The police, on the other hand, claimed to have recovered her “uniformed body” in the forests at the end of a fierce gunbattle in the forests of Konta block in Sukma district.
In her submission to the court, Soren noted that the photograph displayed no bloodstains on the uniform. The holes recorded in the uniform and the wounds recorded on the body did not correspond. The uniform was recorded to have three holes, two at the back and one in the front, while the wounds on the body were recorded to be four, two at the back and two in the front. She said this vindicated the claims of the parents that Hidme was put into the uniform after she had been shot dead.
Further, there were discrepancies between the first and second postmortem reports.
The first report recorded four bullet wounds – two bullet wounds at the back, one of the left side and the other on the right, and two bullet wounds correspondingly in the front. The second report, however, recorded all the wounds to the left side.
The size of the wound, as recorded in the second report, was larger in size by 3 mm-5 mm as compared to the first report. According to Soren, the size of the wound “indicates the deceased was shot from a close range”.
The second report noted a large cut in the left foot of the size 11x7 cm, which finds no mention in the first report.
Evidence for rape
The first postmortem report records in a single statement “no evidence of rape”. Soren pointed out that “no vaginal swab was sent to FSL (forensic) examination or no viscera taken”. This is a failure to comply with the guidelines of the National Human Rights Commission which makes it imperative to keep slides of vagina, semen or any other material in the course of autopsies.
Soren also drew the judges' attention to the difference between the time of death recorded in the first postmortem report and the time of the alleged encounter as noted in the first information report of the police.
The postmortem was conducted on June 14 between 11.20 am and 12.30 pm. It records the death to have taken place 10-15 hours earlier, which would be roughly between 9.30 pm on the night of June 13 and 2.30 am in the early morning hours of June 14. Soren pointed out, “the FIR records the encounter to have taken place around 11.30 am of 13th June.”
Soren expressed surprise that the FIR notes that “not a single fire shell, of the 125 rounds the police fired, could be collected”.
The government’s reply
A written response was filed by the lawyer representing Chhattisgarh government, Prafull Bharat, on July 18.
The submission places on record the responses of the Block Medical Officer who conducted the first postmortem to questions posed by a police officer of Errabore police station.
On the subject of the number of wounds on the body differing from the number of holes in the uniform, the officer asked: “Could the missing button as recorded in the report be indicative of the exit wound?” The BMO concurred with such a “probability”.
The second postmortem records the wound on the left arm as a plausible injury of 10x10 cm caused by a firearm, but states an inability to ascertain the entry and exit of the bullet due to high decomposition of the body. In contrast, the first postmortem had noted only a fracture of the left arm with a wound of 10x6 cm, making no mention of a firearm injury.
Almost as an afterthought, the BMO noted the wound could be “suggestive of firearm injury”. However, he did not say why it had not been recorded in the first postmortem.
The government’s lawyer reconfirmed the date and site of encounter.
In his submission, he stated that many cases were pending against Madkam Hidme. According to the police records, she was part of the military wing of the Kistaram Area Platoon, and had earlier been a member of the Chetna Natya Mandal, the cultural troupe of the CPI (Maoist) and Krantikari Adivasi Mahila Sangathan, its women wing.
The lawyer said three FIRs were pending against her. But no copies of the FIR were attached.
What the judges said
The judges examined Soren’s submissions as well as the counter submissions made by Bharat.
Given “the extremely disputed questions of facts”, they conceded their inability to conclude “whether she [Hidme] was a member of any banned organisation or whether she was killed in an encounter or otherwise killed by the police.”
The judges, however, cited a recent Supreme Court order passed on July 8 that established “the right to know the truth”, a right articulated by the United Nations High Commissioner for Human Rights. They directed the District and Sessions Judge of Dantewada to conduct an enquiry into the matter and report to them by December 31.
A magisterial enquiry by the district administration is already underway in Sukma as per guidelines of the Supreme Court on encounter deaths. But the judges noted, “it would be better if this enquiry is conducted by a Judicial Officer who is well versed with law”.
“The cry of the parents should not go unheard,” they said.
Soren, the lawyer representing Hidme’s parents, was pleased with the order. It had restored the matter within the jurisdiction of the court “on which I place greater faith than with the police,” she said. The challenge, she added, would be to ensure that witnesses are able to depose before the court, which is a tough task given the remoteness of the village.