Slight penetration enough to constitute rape: Bombay HC

  • HT Correspondent, Hindustan Times, Mumbai
  • Updated: Apr 20, 2016 11:10 IST
In an offence of rape, complete or significant penetration is not important, slight penetration is sufficient to constitute rape, the Bombay high court (HC) said, while deciding on the appeal of a 40-year-old Pune resident convicted for raping his minor relative in January 2012

The Bombay high court on Tuesday held that any extent of penetration, whether slight or complete, amounted to rape, reiterating the legalities under the Criminal Laws (Amendment) Act 2013.

The bench, while deciding on an appeal of a 40-year-old Pune resident convicted for raping a minor in 2012, upheld that the offence of rape could happen without the typical signs of injury.

Anil Dhiwar was convicted of raping his 14-year-old relative at their residence in Ghopardigaon in Pune district in January 2012. Held guilty by an additional sessions judge at Pune, he was sentenced to seven years of rigorous imprisonment in 2015.

Dhiwar challenged the conviction in the high court on the grounds that the evidence was not reliable. His counsel, Satyavrat Joshi, also contended that, at the most, Dhiwar should be charged for attempt to rape as there was no penetration. Medical examination had revealed the hymen of the survivor was intact and there were no injury marks on her private parts.

Although Justice Abhay Thipsay did not find any substance in the submission, he granted Dhiwar the benefit of doubt in view of the medical evidence submitted by the survivor, and primarily because of absence of evidence on the medical examination of the accused.

However, the judge upheld the conclusions of the trial court that offence of rape could be committed without causing any injuries to the survivor and rupture of hymen was not a conclusive test of rape.

“After carefully considering the matter, the possibility of there being only an attempt of committing rape is greater than the possibility of a completed offence of rape having been committed,” Justice Thipsay said.

“When such a doubt is created, the benefit of it must go to the accused,” the judge added and reduced Dhiwar’s sentence by two years.

Following the 2012 gangrape in Delhi where a young physiotherapist was assaulted on a moving bus, an amendment to laws governing sexual offences expanded the ambit to consent, non-penile penetration and even forcing an estranged wife into sexual acts.

The Criminal Laws (Amendment) Act 2013 also included offences like acid attack voyeurism and stalking under its purview.

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