Meghalaya High Court noted that rubbing a male organ on the vagina or urethra of the victim despite wearing her underpants, would still attract Section 375 (B) of the Indian Penal Code and would amount to rape.
The division bench comprising Chief Justice Sanjib Banerjee and Justice W Diengdoh noted that merely because a rape survivor did not experience pain in her genitalia and that she was wearing underwear when subjected to rape, cannot be proof that there was no penetration entitling the accused to be acquitted.
The bench observed, “Section 375(b) of the Penal Code recognises that insertion, to any extent, of any object into the vagina or urethra would amount to rape. Even if it be accepted that the appellant herein forced his organ into the vagina or urethra of the victim despite the victim wearing her underpants, it would still amount to penetration for the purpose of Section 375(b) of the Penal Code. In any event, by virtue of Section 375(c) of the Penal Code, when a person manipulates any part of the body of a woman so as to cause penetration into, inter alia, the vagina or urethra, the act would amount to rape.”
The High Court upheld a trial court order where a man was convicted in 2018 for raping a 10-year-old girl in 2006 and had sentenced him to 10 years of imprisonment.
The trial court’s order was based on medical evidence and the appellant’s statement under Section 164 of the Criminal Procedure Code (CrPC) to convict him of rape.
Case Background
The incident allegedly took place on September 23, 2006. A complaint was filed in connection to the assault on September 30, 2006, and the minor victim was examined on October 1, 2006.
The medical examination revealed that the victim’s vagina was tender and red and the hymen was also ruptured. The medical officer opined that the girl was raped and was suffering from mental trauma.
The medical examination officer also maintained that the nature of the tear of the hymen in this case indicated that it was upon being pushed by a foreign body and not due to the victim being involved in any arduous sporting activity.
The appellant had contended that penetration had not been made out, therefore, ingredients of Section 376 of IPC for rape were not satisfied.
It was argued that if the survivor’s underwear was not taken off and he merely rubbed himself on her crotch, it would not amount to rape.
The appellant’s counsel further argued that he lacks the formal education and his confession before the magistrate should, therefore, not imply that there was penetrative sex.
The contentions were presented on the basis of the statement given by the prosecutrix during the cross-examination, “I did not feel pain after the accused had raped me. It is a fact that the accused person did not penetrate his male organ inside my vagina but he just rubbed from the top of my underwear.”
To which, the bench remarked, “One must read the evidence in its entirety and also be aware of the status of the persons involved, their levels of education, understanding and intellect…In the light of the victim’s assertion in the examination-in-chief, what she said in her cross-examination must be seen in the appropriate perspective and a degree of latitude has to be granted to the victim, even though she was an adult when the trial was conducted, that she would be flustered, nervous and extremely uncomfortable in such details being sought.”
Taking note of the medical reports, the High Court noted that even if her cross-examination is taken at face value, it would not imply that there was no penetrative sex.
Considering the probability that the trial court could have dwelt on this aspect more, the High Court bench stated that the court below could not be blamed given the confession statement, as admission is the best form of proof.
