Meghalaya HC upholds conviction, says rape even if survivor wore undergarments

The victim, a young adult by the time the case came to trial, said during cross-examination that the accused had not removed her underwear during the act.

The Meghalaya high court has upheld the conviction of a man for raping a minor girl, dismissing his argument that there was no sexual assault because the victim was wearing undergarments at the time of the incident.

The suspect, Cheerfulson Snaitang, was convicted in 2018 by a lower court, in part based on his confession. (Representational photo)

The case has its origins in 2006 when, following a police complaint, a 10-year-old girl’s medical examination revealed sexual assault. The suspect, Cheerfulson Snaitang, was convicted in 2018 by a lower court, in part based on his confession. He was sentenced to 10 years’ imprisonment and fined ₹ 25,000.

However, Snaitang later withdrew his confession and appealed against the order in the high court, stating that his words had been mistranslated by the authorities. His lawyer argued that he had rubbed his penis on the girl’s underwear, but there was no penetration.

The victim, a young adult by the time the case came to trial, also said during cross-examination that the accused had not removed her underwear during the act.

“Even if the victim’s evidence in her cross-examination is taken at face value, it would not imply that there was no penetrative sex. If it be accepted that at the relevant time the victim was wearing her underpants and the appellant rubbed his organ from over her underpants, there was no difficulty in penetration. Penetration for the purpose of Section 375 of the IPC (which defines rape as a crime) doesn’t have to be complete. Any element of penetration would suffice for the purpose of the relevant provision,” a division bench of the court, comprising chief justice Sanjib Banerjee and justice Wanlura Diengdoh, said in the order passed on Monday.

“Further Section 375(b) of the penal code recognises that insertion to any extent, of any object, 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,” it added.

Responding to the judgment, former Chairperson of the Meghalaya State Commission for Protection of Child Rights (SCPCR) and noted advocate, Meena Kharkongor said it was in the right direction and expressed hope that this would further deter criminals with such motives.

“The HC judgement is a welcome sign to be seen as far as rape/sexual assaults are concerned. The judgement delivered in the Appeal in section 375, 375(B) IPC is in line with the Pocso Act, 2012 as far as children are concerned,” Kharkongor told HT.

In Pratap Misra Vs State of Orissa (1977), the Supreme Court ruled that even a partial penetration would be legally sufficient to constitute the offence of rape.

This principle was affirmed again in Madan Gopal Kakkad Vs Naval Dubey (1992) when the Supreme Court acknowledged the severity of the crime of child rape and saw fit to use the “sword of justice” to punish the perpetrators under Section 376 of the IPC in a case where there was only partial penetration of the victim.

In 2012, the Supreme Court reiterated the guiding principles in rape cases as it held penetration is not necessary for establishing the offence of rape.

“Penetration itself proves the offence of rape, but the contrary is not true —that is even if there is no penetration, it does not necessarily mean that there is no rape,” declared the apex court.