Lack of penetration does not mean it wasn’t rape, says Bombay HC

Reiterating that lack of penetration does not necessarily mean that there was no rape, the Aurangabad bench of the Bombay high court (HC) on Thursday upheld a 10-year prison term handed down to a 74-year-old resident of Paithan in Aurangabad district, for raping his adopted daughter.

According to the prosecution case, the survivor was alone at home with the accused on December 16, 2016, as her adoptive mother had gone out of town to attend a wedding. She alleged that she woke up in the night, as the 74-year-old started touching her inappropriately.

He then undressed and also forcibly removed her clothes and tried to penetrate but could not. She further alleged that the next night, he again sexually assaulted her, but could not penetrate.

In this backdrop, Paithan police swung into action and arrested the man after the survivor disclosed her ordeal to one of her teachers, who then reported the matter to the police. The 74-year-old was prosecuted for raping the minor.

On July 10, 2019, a special Protection of Children from Sexual Offences (Pocso) Act court convicted him for rape and sentenced him to 10 years’ imprisonment. He was, however, let off in all the Pocso charges, as the prosecution failed to prove the age of the survivor, who was reportedly 14 years old at the time of the attack.

The convict had moved the HC in appeal. It was argued on his behalf that the girl was being used by his wife’s brothers to settle their personal scores over a property dispute. His lawyer submitted that there was no evidence of rape as even the survivor said there was no penetration.

The single-judge bench of justice MG Sewlikar, however, refused to accept the contention. The judge noted that the medical evidence suggested that there was no penetration, but the girl was candid enough to admit it and did not try to improve her version.

The court quoted the Supreme Court’s view reflected in Tarakeshwar Sahu’s case of 2006, holding that the word penetrate means “to find access into or through, pass through” and held that in the case at hand, penetration was complete so far as the convict was concerned. In this regard, the court took note of the fact that semen stains were found not only on the clothes of the 74-year-old but also on the clothes of the survivor.

“From the observations made in this decision by the Hon’ble Supreme Court, even an attempt at penetration into the private part of the victim would be enough to attract the provisions of sections 375 and 376 of the Indian Penal Code (IPC),” said justice Sewlikar. “It is evident that even if there is no penetration, it does not necessarily mean that there was no rape,” the single judge bench reiterated.