Rubbing male organ on vagina over underpants amounts to rape: Meghalaya HC Landmark order to have significant ramifications w.r.t need to prove complete penetration in rape cases

04, Apr 2022 | CJP Team

On March 14, 2022, the Meghalaya High Court ruled that rubbing male organ on vagina over underpants amounts to penetration under Section 375(b) of the IPC and therefore, constitutes rape. This ruling has significant ramifications for the very definition of rape as it does away with the need to prove complete penetration.

The Meghalaya HC bench comprising Chief Justice Sanjib Banerjee and Justice Diengdoh rejected a plea by a man convicted of rape to drop rape charges as the survivor was wearing her underwear at the time of the sexual assault, and said, “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.” The bench further 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 its judgement the Court further cited Section 375(c) of the Penal Code which states that 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 affirmed the judgment of conviction of the accused and the resultant sentence by the trial court in 2018. The principal ground urged in the said appeal was that though the appellant had been found guilty of having committed rape and sentenced to ten years’ imprisonment and payment of fine of Rs. 25,000/-, no case of penetration in terms of Section 375 of the Indian Penal Code, 1860 was made out. The convict had challenged the order of the trial court arguing that there was no rape as there was no penetration but only rubbing of male organ over underpants.He submitted, “If the victim’s underwear was not taken down and the appellant merely rubbed himself on the victim’s crotch while she still wore her underpants, there would be no commission of any rape”In support of his argument the convict further pointed out to the fact that the victim asserted in course of her cross-examination that she felt no pain.

However, to this the court responded, “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 further said, “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.”

According to the court, the fact that victim complained of pain during her examination is to be taken into consideration even though she may have claimed otherwise in her cross-examination. The court stated, “Merely because the victim may have said that she did not endure any pain at the relevant time may not absolve the appellant herein of his guilt.” The court even made a remark stating that the trial court might have done better in focussing on such aspect of the matter.

The judgement may be read here:

 

This proves to be a landmark judgment as it brings non-penetrative sexual assault under the purview of rape. The Indian courts have been divided on this issue. For instance, the Calcutta High Court recently observed that penetration even of the slightest degree is necessary to establish the offence of rape and accordingly held that the appellant should be convicted for the offence of attempt to rape instead of the offence of rape, reported LiveLaw. The court stated, “It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses. Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape.” [Dipak Singha v. State of West Bengal 2022 LiveLaw (Cal) 60]

The judgement may be read here:

 

In 2018, in the case of Sri Nemai Day (alias Pijus) vs. the State of Tripura, the High Court of Tripura stated,The slightest penetration, whichever degree it is, is the essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. From the evidence, it is found to be absent.”

The judgement may be read here:

 

Section 375 of the Indian Penal code reads as under:

[375. Rape.—A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent.

Last month, in another landmark judgment in the case of Hrishikesh Sahoo vs. State of Karnataka [WP 48367/2018], the Karnataka HC while upholding theframing of charges under Section 376 IPC against husband ruled that a man can be booked for raping his wife. The court reportedly stated, “A man is a man, an act is an act, rape is a rape, be it performed by a man the “husband” on the woman “wife”.

Judicial Precedents laid down by the Supreme Court

In the case of Madan Lal vs. Stateof J&K [(1997) 7 SCC 677], the Supreme Court was to decide whether in the absence of any penetration into the vagina, the offence of rape can be said to have been established. The Court stated,“The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 I.P.C. and not an attempt to commit rape under Section 376 read with 511 I.P.C.”

The judgement may be read here:

 

In the case of Radhakrishna Nagesh vs. State of AP [Criminal Appeal No. 1707 of 2009], the Supreme Court said, “Penetration itself proves the offence of rape, but the contrary is not true i.e. even if there is no penetration, it does not necessarily mean that there is no rape. The Explanation to Section 375 IPC has been worded by the legislature so as to presume that if there was penetration, it would be sufficient to constitute sexual intercourse necessary for the offence of rape. Penetration may not always result in tearing of the hymen and the same will always depend upon the facts and circumstances of a given case. The Court must examine the evidence of the prosecution in its entirety and then see its cumulative effect to determine whether the offence of rape has been committed or it is a case of criminal sexual assault or criminal assault outraging the modesty of a girl.”

The Judgement may be read here:

Image Courtesy:indialegallive.com

Related:

Still no move on marital rape by the Centre

Punjab and Haryana HC expands scope of Sec 377 IPC and “sexual intent”

 

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