Rubbing Male Organ On Vagina Or Urethra Over Victim's Underpants Amounts To Rape: Meghalaya High Court

"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. Further, 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."

Factual Background:

The matter pertains to an incident of September 23, 2006 in respect of which a complaint was lodged on September 30, 2006, whereupon the minor victim was medically examined on October 1, 2006. The said examination revealed that the victim's vagina was tender and red and her hymen was ruptured. The opinion rendered by the medical examiner was that the girl had been raped and was suffering from mental trauma.

The medical examiner substantiated his opinion in course of his evidence at the trial and maintained that the nature of the tear of the hymen in this case indicated that it was upon being pushed by a foreign body and not due to the victim being involved in any arduous sporting activity.

The accused (appellant herein) was convicted by the trial Court. He assailed the same here in this appeal.

Contentions:

In support of the appellant's case that there was no rape, it is the victim's oral evidence at the trial that was relied upon. The victim had stated the following in her cross-examination:

"I did not feel pain after the accused had raped me. It is a fact that the accused person did not penetrate his male organ inside my vagina but he just rubbed from the top of my underwear."

According to the appellant, 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 rape.

Observations of the Court:

However, the Court held that 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. 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. There is sufficient evidence of such penetration in the present case.

The Court observed that whatever may have been the reasons for the victim claiming that she did not feel any pain at the time, she complained of pain when she was medically examined on October 1, 2006 and the medical report confirmed the same. The medical report also confirmed the tenderness in her vagina which also revealed redness and the ruptured hymen.

In the absence of the appellant herein establishing any alternative reason for the victim suffering the tenderness in her vagina or ruptured hymen or pain that she complained of in the context of the physical abuse that she was subjected to, 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.

Consequently, the Court held that on an overall appreciation of the evidence, it does not appear that there was no penetration in course of the appellant forcing himself on the victim on the relevant date, warranting any interference with the judgment of conviction. Accordingly, his conviction for the commission of rape was affirmed.

Case Title: Cheerfulson Snaitang v. State of Meghalaya

Case No.: Criminal Appeal No. 5 of 2020

Date of Judgment: 14 March 2022

Coram: Chief Justice Sanjib Banerjee and Justice W. Diengdoh

Authored by: Chief Justice Sanjib Banerjee

Counsel for the Appellant: Mr. SD Upadhaya, Legal Aid Counsel

Counsel for the Respondent: Mr. S Sengupta, Addl. PP and Mr. AH Kharwanlang, Government Advocate

Citation: 2022 LiveLaw (Meg) 6