Shillong: The Meghalaya High Court has ruled that rubbing of male organ on the vagina or urethra over underpants would still amount to penetration and be charged under Section 375(b) of the Indian Penal Code.
In a ruling delivered on March 14, a division bench comprising Chief Justice Sanjib Banerjee and Judge W Diengdoh upheld the judgement of a trial court delivered on October 31, 2018, convicting for rape an adult, who had rubbed his male organ over the underwear of a minor girl.
The matter pertains to an incident of September 23, 2006, after which a complaint was lodged on September 30, 2006, whereupon the minor victim was medically examined on October 1, 2006.
The principal ground urged in this appeal was that though the appellant had been found guilty of having committed rape and sentenced to ten years’ imprisonment and payment of a fine of Rs. 25,000 (in default to suffer imprisonment for an additional six months), no case of penetration in terms of Section 375 of the Indian Penal Code, 1860 was made out.
“Penetration for the purpose of Section 375 of the Penal Code does not have to be complete. Any element of penetration would suffice for the purpose of the relevant provision. Further, 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…” the Court ruled.
A complaint was lodged in 2006 involving a minor who said she did not feel any pain and the accused did not penetrate but just rubbed from the top of the underwear. However, the court said that medical examination revealed that the “victim’s vagina was tender and red and her hymen was ruptured”.
“The opinion rendered by the medical examiner was that the girl had been raped and was suffering from mental trauma. The medical examiner substantiated his opinion in course of his evidence at the trial and maintained that the nature of the tear of the hymen, in this case, indicated that it happened upon being pushed by a foreign body and not due to the victim being involved in any arduous sporting activity,” the order stated.
The first information report came to be lodged after a women’s organisation in the locality came to know of the incident.
“The investigating officer also deposed at the trial to the effect that the appellant had confessed that he had committed the offence. However, since such extra-judicial confession could not have been taken cognizance of, the trial court merely referred to the statement rendered by the appellant under Section 164 of the Code of Criminal Procedure, 1973, wherein he clearly admitted to having raped the victim,” the division bench stated in its ruling.
“Whatever may have been the reasons for the victim claiming that she did not feel any pain at the time, she complained of pain when she was medically examined on October 1, 2006, and the medical report confirmed the same. The medical report also confirmed the tenderness in her vagina which also revealed redness and ruptured hymen. In the absence of the appellant herein establishing any alternative reason for the victim suffering the tenderness in her vagina or ruptured hymen or pain that she complained of in the context of the physical abuse that she was subjected to, merely because the victim may have said that she did not endure any pain at the relevant time may not absolve the appellant herein of his guilt,” the court said. “On an overall appreciation of the evidence, it does not appear that there was no penetration in course of the appellant forcing himself on the victim on the relevant date, warranting any interference with the judgment of conviction of October 31, 2018. Since the victim was a minor and since the appellant confessed that he lost control over himself and committed the offence, the punishment awarded to the appellant herein does not appear to be out of place. The judgment of conviction and the resultant sentence are affirmed,” the High Court ruled.