A Meghalaya High Court Division Bench, led by Chief Justice Sanjib Banerjee and Justice W. Diengdoh, found that rubbing a male organ on the prosecutrix's v agina or urethra while she was wearing her underwear constituted penetration for the purposes of Section 375(b), IPC.
"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 for the purpose of Section 375(b) of the Penal Code."
FACTUAL BACKGROUND
The incident occurred on September 23, 2006, and a report was filed on September 30, 2006, after which the minor victim was medically checked on October 1, 2006. The victim's vagina was sensitive and red, and her hymen was ruptured, according to the examination. The medical examiner concluded that the girl had been sexually assaulted and was suffering from mental anguish.
During his testimony at the trial, the medical examiner backed up his claim, claiming that the type of the hymen tear in this case suggested that it was caused by being pushed by a foreign body, not by the victim participating in any strenuous sporting activity.
The trial court found the defendant (appellant herein) guilty. In this appeal, he attacked the same.
CONTENTIONS
The victim's oral testimony during the trial was cited in support of the appellant's claim that there was no rape. During her cross-examination, the victim alleged the following:
"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."
According to the appellant, there would be no rape if the victim's underwear was not removed and the appellant simply rubbed himself on the victim's crotch while she was still wearing her underpants.
OBSERVATIONS OF THE COURT
The Court decided, however, that even if the victim's testimony in cross-examination is taken at face value, it does not rule out the possibility of penetrative intercourse. There was no problem in penetration if the victim was wearing her underpants at the time of the incident and the appellant stroked his organ from over her panties. In any case, rape is defined as a person manipulating any part of a woman's body in order to produce penetration into, for example, the vagina or urethra, as defined by Section 375(c) of the Penal Code. In this case, there is adequate evidence of such penetration.
Whatever the reasons for the victim's assertion that she was not in pain at the time, the Court noted that she complained of pain when she was medically evaluated on October 1, 2006, and the medical report verified this. Her vaginal pain was confirmed by the medical report, which also revealed redness and a ruptured hymen.
In the absence of the appellant establishing any other reason for the victim experiencing the tenderness in her vagina, ruptured hymen, or pain that she complained of in the context of the physical abuse that she was subjected to, the victim's claim that she did not experience any pain at the relevant time does not absolve the appellant of his guilt.
As a result, the Court determined that, based on the evidence, there was no penetration in the course of the appellant forcing himself on the victim on the relevant date, warranting any interference with the conviction verdict. As a result, he was found guilty of rape and his conviction was upheld.
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