"Non-Rupture Of Minor's Hymen Wouldn't Rule Out Case Of Rape": Calcutta HC Upholds Conviction In 5 Yr Old Girl's Rape Case

The Calcutta High Court recently upheld the conviction of a man for raping a 5-year-old girl by observing that the non-rupture of the hymen of a minor child would not wholly rule out a case of rape. 

Taking into account the facts, circumstances of the case, and the evidence adduced, the Bench of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay observed thus:

"A combined reading of medico-legal evidence on record categorically shows injuries on the vulva as well as inner aspect of thighs of the victim which probabalise a case of rape. Slight penetration is sufficient to constitute rape. Non-rupture of the hymen as noted by PW 11 is to be assessed in the light of the aforesaid proposition of law. Hence, non-rupture of the hymen of a minor child would not wholly ruled out a case of rape."

Thus, the bench was of the opinion that the medico-legal evidence on record supported the version of rape of the minor and proved the prosecution case beyond a reasonable doubt. In view of this, the Court upheld the conviction and sentence of the appellant.

The case in brief 

The instant appeal had been preferred against the judgment passed by the concerned Sessions Court convicting the appellant for commission of offence punishable under Section 376 (2) (f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for six months more.

Essentially, the prosecution alleged that the victim, a five-year-old girl, used to reside alone with her mother in the village. On 22.03.2007 the appellant, who is their neighbor, came to her residence and offered chocolates to the child, took off his lungi, and made the victim lie on the lungi spread on the floor and committed rape with her.

At that time, the mother of the victim had gone out to collect water from a nearby pump. On returning, she found the appellant committing rape on her daughter. She raised a hue and cry and the appellant fled away.

Even though the crime was committed in Mar 2007, no FIR was registered despite several attempts and it was only after the mother of the victim lodged a complaint with the West Bengal Commission for Women, that a complaint was received in June 2007 and the criminal case came to be started.

In the course of the trial, the prosecution examined 16 witnesses and exhibited a number of documents. In conclusion of the trial, the trial Judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid.

Court's observations 

At the outset, the Court took into account the unfortunate saga of harassment of the five-year-old child and her family members as they had to run from pillar to post to set the criminal law in motion against the appellant/convict.

In this regard, the Court also discarded the argument of the appellant regarding a delay in lodging of the FIR as the Court observed that the delay in the lodging of the FIR was duly explained.

"...contentions raised on behalf of the appellant do not improbabilise the prosecution case with regard to the indifference of the local police administration in promptly responding to a case of child rape and the ominous atmosphere prevailing in the village which compelled the family to take shelter elsewhere. These circumstances appear to have been proved and duly explain the delay in lodging the F.I.R," the Court said.

The Court also observed that the version of the victim was corroborated by her mother PW 1. The Court found justification in neighbors turning declared hostile as it stressed that a hostile atmosphere was prevailing in the village which compelled the family of the victim to leave their residence. It had its adverse impact on the neighbouring witnesses too.

The Court also took into account the evidence of PW 16 (the doctor who treated the victim first) wherein he had found injuries on her vulva as well as abrasions over the inner aspect of her thighs. He had noted in the referral card that it was a case of suspected rape. 

Against this backdrop, the Court opined that the medico-legal evidence on record supported the version of rape of the minor and had proved the prosecution's case beyond a reasonable doubt. Consequently, the appeal was dismissed. 

Case title - Azad Ali Saha v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 262

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