Even If Penetration Was Very Slight The Act Would Constitute Rape: Allahabad High Court

The Allahabad High Court has observed that even if the penetration was very slight and was not into the vagina, the same will bring the act within the definition of rape.

The bench of Justice Jyotsna Sharma further observed that in rape cases, the extent of penetration is immaterial and that the perineum is part of the private parts, which sheathes the urethra.

The case in brief

An FIR was lodged by the informant-woman alleging that her daughter, aged about 7 years was taken away by the juvenile/child in conflict with the law in a cabin/housing a tube well and was ravished by him. The victim was medically examined; blood was spotted in her private parts; after the collection of the evidence, a final report was submitted by the Investigating Officer finding that no case was made out against the Juvenile.

Thereafter, on the protest petition moved by the informant, the matter was heard by the Juvenile Justice Board, where the final report was accepted and the protest petition was dismissed. Challenging the aforesaid order, a Criminal Appeal was preferred by the informant before the Special Judge (POCSO Act)/Children Court, Azamgarh.

After hearing both sides, the order of the Juvenile Justice Board was set-aside with a direction to Juvenile Justice Board to hear and decide the matter afresh, keeping in mind the observation of the appellate court. Challenging this very order of the appellate court, the minor accused moved revision through his natural guardian/father.

High Court's observations

The bench, at the outset, perused the order of the appellate court which remanded the matter back to the juvenile board to consider the matter afresh and observed that the appellate court had rightly observed that the Juvenile Justice Board had ignored the statements of three prosecution witnesses of facts while dismissing the protest petition.

"The Juvenile Justice Board though referred to the statements of the witnesses supporting the prosecution case, but did not rely on them instead relied on the evidence given by the witnesses who were essentially not the witnesses of the fact and also gave importance to the fact of lack of any external injury, absence of spermatozoa in pathological test and the fact of finding the hymen intact," the court said.

As far as medical evidence is concerned, the HC did not find the observation made by the appellate court, that even if the hymen was found intact, a commission of sexual assault cannot be ruled out, to be perverse or incorrect.

The Court also found that the appellate court had rightly taken note of the injuries found on the person of the juvenile in the light of the prosecution case that he was caught in the act at the spot and was beaten by the people gathered there.

Consequently, noting that the appellate court gave good reasons for not finding the order of the Juvenile Justice Board sustainable on facts and on the law, the Court upheld the order of the appellate court.

Before parting, the Court took into account a submission made before the Court that this case does not fall under the definition of section 375 IPC and observed that the extent of penetration is immaterial and that the perineum is part of the private parts, which sheathes the urethra. Hence, the Court opined that even if the penetration was very slight and was not into the vagina, the same will bring the act within the definition of rape.

However, the Court did add a word of caution that whether the act fell within the definition of rape, should be left to be decided by the court concerned when the matter is brought before it for hearing afresh.

Case title - Irfan Ahmad v. State of U.P. and Another [CRIMINAL REVISION No. - 743 of 2022]

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