Survivor Wearing Underwear During Rape Doesn't Mean There Was No Penetration: Meghalaya HC

A division bench of the Meghalaya High Court has held that merely because a rape survivor did not experience pain in her genitalia and was wearing underwear when subjected to rape, it cannot be proof that there was no penetration.

It added that ¡°insertion, to any extent, of any object into the vagina or urethra would amount to rape for the purpose of Section 375(b) of the Indian Penal Code (IPC).

What the case is

The HC Bench, comprising Chief Justice Sanjib Banerjee and Justice W Diengdoh, was hearing a plea in a 2006 case where a 10-year-old girl was raped, Bar and Bench reported.

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The case relates to an incident of September 2006 over which a complaint was lodged in the same month after which the minor was medically examined in October 2006.

What examination revealed

The examination found that the girl¡¯s vagina was tender and red and that her hymen was ruptured, leading to the conclusion by the medical examiner that the girl had been raped and was suffering from mental trauma. The accused was then convicted by the trial court.

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The said plea was filed against the conviction order, with the accused stating that penetration had not been made out and thus the ingredients of IPC Section 376 for rape were not satisfied, the report said.

¡°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 Court said.

The sentence

The Meghalaya High Court, thus, upheld a trial court order convicting the accused in 2018 and sentenced him to ten years in jail.

In his plea, the accused said told the high court that if the survivor¡¯s underwear was not taken off and he merely rubbed himself on her crotch, it would not amount to rape and added that the confession before the magistrate should not imply that there was penetrative sex as he lacked formal education.

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The court, however, said that the evidence must be read in its entirety and some degree of latitude has to be granted to the victim when her statements during cross-examination are analysed.

The verdict

¡°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," the Court said.

Even if her cross-examination is taken at face value, it would not imply that there was no penetrative sex, the high court noted in view of the medical reports that confirmed the offence.

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