STRUCTURES OF VIOLENCE

495 | Structures of Violence
the alleged rape, but victim no.2stated
that she went for a bath. This was a
contradiction.
- That who typed the medical report,
and why it was signed by only three out of
the four Doctors is unclear. Further, it is
unclear whether it was typed on the date
of examination or thereafter. No reliance
can be placed on the medical report.
Based on the above ndings, the decision of the
SGCM was set aside and the statement of victim no.2
was found unreliable.
Before analyzing the decision of the High Court, the
following preliminary points may be made:
- The IPTK does not have a copy of the
decision of the SGCM. Further, the victims, or
their family members, have not been met by the
IPTK. Therefore, this limits the scope of the
analysis.
- From the reading of the documents it appears
that the conviction of Captain Ravinder Singh
Tewatia was for the rape of victim no.2. But,
technically, as it was allegedly a joint operation,
the charge for both rapes could hold against him.
- The documents available provide very little
information on the rape allegation against SPO
Bharat Bhushan, except the information received
by RTI which may pertain to SPO Bharat Bhushan
as well. Therefore, the analysis will focus on the
allegations against Captain Ravinder Singh
Tewatia.
The submissions and ndings may now be analysed
as follows:
- There appears to be a contradiction on when
Captain Ravinder Singh Tewatia was rst
identied i.e. during the identication parade or
before the SGCM. Further, on one hand he states
that medical examination conrms that victim
no.2 was not injured. On the other hand he
suggests the medical report was a fabricated
document. Further, the medical report does
conrm sexual assault.
- The issue of Captain Ravinder Singh Tewatia
not being named in the FIR appears to be a major
issue. The family of the victim suggest that this
was due to their fear. It would prima facie appear
to be unfortunate that the High Court chose to
dismiss fear as a legitimate reason. Within the
context of Jammu and Kashmir, it would appear to
be a legitimate reason. Further, while victim
no.2states that she informed her parents right
after the incident, and her uncle the following day,
that Captain Ravinder Singh Tewatia was
responsible, the High Court erred by not giving
any weightage to this. Further, while on one hand
the High Court accepts that the uncle was
informed, subsequently the High Court states that
he was not informed. This would once again
appear to be an error on the part of the High Court.
Further, the mere fact that victim no.2, or Sona-
Ullah, did not mention earlier that she was raped
twice, while a contradiction for the High Court,
appears to be very minor.
- The issue of what exactly victim no.2 did
immediately following the rape also appears to be
an issue that the High Court gave weightage to.
Based purely on the records available, the
contradiction is not adequately made out. While
victim no.2 does state that she had a bath, she
does not explicitly state that she was not
unconscious immediately following the rape.
Therefore, based on the record available, it would
appear that the story of victim no.2is consistent with
the other evidence, and that the High Court erred by
overturning the SGCM decision.
The nal point to be considered is the manner in which
the Government of Jammu and Kashmir has
approached the matter. In response to a RTI
application led, the Director of Litigation, Jammu has
stated vide letter dated 17 May 2012 that the
Government of Jammu and Kashmir did not challenge
the High Court judgment as the order was not directed
against the State. Considering that the police within
the State deemed it t to le a chargesheet in the
case, it is unfortunate that the Government did not
deem it t to further litigate the matter. This is
particularly alarming considering that the LPA led by
the Ministry of Defence remains pending from 2003.
Information received by RTI on 27 June 2013, lists the
last activity in this matter as being of 17 March 2003 –
when the LPA was admitted, notices issued and the
High Court order stayed. Further, no information
exists on the effect of the staying of the High Court
nal decision.
Further, in addition to concerns with the court-martial
proceedings in Jammu and Kashmir, it is clear that the
instant case should have been tried before the
criminal courts.
Firstly, in light of section 34 [Common intention] of the
Ranbir Penal Code, 1989 [RPC], Captain Ravinder
Singh Tewatia would be guilty of the rape of both
victims.
Second, by splitting the case between the courtmartial
and the criminal court, the efcacy of the trial is
affected.
Finally, it is concerning that the trial of SPO Bharat
Bhushan does not appear to have reached any logical
conclusion. It is also unfortunate that SPO's
Shailender Singh and Sanjay Kumar, who abetted in
the crime, do not appear to have been proceeded
against.
This case is also an example of the inevitability of the
acquittal of alleged perpetrators as even when a
court-martial nds a person guilty, ultimately the