Hathras Case : Presence Of Sperm Not Necessary To Prove Rape; UP Police Claim Contrary To Law

The Uttar Pradesh Police has claimed that no rape happened with the 19-year old Dalit woman of Hathras, who succumbed to her injuries yesterday.

A senior UP Police official told the press that the Forensic Science Laboratory result did not show the presence of semen samples in the body of the deceased woman.

"The report of the FSL has also come. It says clearly that samples did not have sperm. It makes clear that there was no rape or gang rape," ADG (Law and Order) Prashant Kumar said.

With such statements, the police attempted to contradict the dying declaration given by the woman on September 22 that she was raped by four men.

In this connection,  it is pertinent to note that to prove the offence of rape it is not necessary to establish the presence of sperm samples in the body of the woman.

This had always been the position of law even as per the previous version of Section 375 of the Indian Penal Code.

The Explanation to Section 375(as it stood earlier) clarified that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape.

There are several decisions of the Supreme Court and various High Courts stating this aspect in unequivocal terms.

To cite one, in the case Parminder alias Ladka Pola vs State of Delhi (2014) 2 SCC 592, the Supreme Court affirmed a decision of the High Court which held that presence of semen was not necessary to prove rape.

The High Court had relied on the following passage from Modi in Medical Jurisprudence and Toxicology (Twenty First Edition):

"Thus, to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains."

The SC approved the course of action adopted by the HC.

In Wahid Khan v. State of Madhya Pradesh 2010 (2) SCC 9, the SC held that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. 

In State of UP vs Babulnath (1994) 6 SCC 29, the SC observed :

"...to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains".

Penile- vaginal entry is not essential to constitute rape and even penile access towards vagina, without there being any entry of penis into the vagina would constitute rape, if penis gets physical contact in that process of access with any of the external portions of the female genital organ, such as, vulva, labia majora etc. An attempt at penetration into vagina would amount to accessing of the vagina and even a slightest penetration into vulva or labia majora would constitute "rape", although there would be no vaginal penetration in such cases. Penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence under S.376 IPC. Ejaculation is not necessary to constitute the offence.( See -. Tarkeshwar Sahu v. State of Bihar 2006 (8) SCC 560, Madan Gopal Kakkad v. Naval Dubey 1992 (3) SCC 204, Aman Kumar v. State of Haryana 2004 (4) SCC 379).

Some observations made by the Kerala High Court are also relevant in this context :

"The gender sensitised Indian Judiciary including the Supreme Court has given a practical and pragmatic meaning to the offence of "rape" under S.375 IPC . Penetration of male organ into the external portions of female private part such as labia majora or vulva is also sufficient to constitute rape. The offence of rape shall not be measured in inches or millimetre of penile penetration into the vagina. If a man intrudes into the privacy of the body of a female, particularly the private part, the Court need not look into whether the male organ entered vagina by millimetre or inch, to decide whether there is "rape" or not, as per law. It is enough if the male organ penetrates into or accesses external portions of the female private part other than vagina. This is the message given in various decisions of the Supreme Court and this Court" (Kunjumon vs State of Kerala, 2011)

The offence of rape has undergone a drastic change following the 2013 amendment to the IPC, which expanded the scope of the offence to include cases other than penile-vaginal penetration.

As per the new definition, penetration to any extent will constitute rape.

In Raj Bhowmik vs State of Tripura, the Tripura High Court said :

".. the presence of semen or spermatozoa and even emission of semen are not sine qua non to constitute the offence of rape. It is not necessary that there should be complete penetration of the penis with emission of semen and more so it is the penetration to the extent of any slightest degree and not the ejaculation is sine qua of the offence of rape". 

Non-detection of semen in vaginal swab does not, by itself, dislodge the theory of rape, held the Uttarakhand High Court in the case Dal Chandra v State of Uttarakhand (2018).

It is possible to commit the offence of rape without leaving seminal stains, held the Karnataka High Court in State v Arumugam Govindaswamy and others (2017).

It is also settled law that the testimony of the rape-victim does not need corroboration and that the conviction can be possible solely on the basis of that. There are a catena of precedents of courts holding the accused guilty for rape on the basis of the dying-declarations of the rape victims.

The 19-yr-old victim in this case was allegedly tortured and gang-raped by four men on September 14 in UP's Hathras district. It is alleged that the perpetrators cut of the tongue of the victim to ensure that she does not give any statement to the police and repeatedly threatened her family for several days.

She was recovered from the fields in a critical condition and was admitted to a hospital in Aligarh for treatment. On September 28, she was shifted to Safdarjung Hospital Delhi, where she succumbed to her injuries the next day.

Her body was cremated by the police in the wee hours of September 29 against the wishes of her family. The victim's family complained that they were not allowed to perform her last rites and were forcibly locked up in their home by the police during the cremation.

Expressing shock over the incident, the Lucknow Bench of the Allahabad High Court has taken suo moto cognizance and has asked the Home Secretary, DGP(Police), ADGP(Law and Order), District Magistrate, Hathras to appear before the Court on October 12 to explain their version.