In a significant observation, the Kerala High Court noted that a vague statement by a woman alleging that a man hugged and impregnated without any indication of penetration aspect would not attract the offence of rape under Section 375 of the Indian Penal Code.
“Mere statement by the victim in her evidence ‘the accused hugged and impregnated me’ without indication about penetration aspect is not sufficient to attract the offence of rape,” said Justice Kauser Edappagath.
The High Court was hearing a plea filed by Ranjith who was convicted in a rape case by the trial court. The court had sentenced him to seven years in jail with a fine of Rs 10,000.
The court allowed his petition and acquitted him of the charges.
There is no cogent and reliable evidence to show that the accused committed rape on the victim as alleged by the prosecution, the court said.
“The offence of rape is constituted only if the ingredients under Section 375 are made out. Unless the victim states in her evidence about the penetrative non-consensual sexual act by the accused on her, the offence of rape cannot be said to be made out. The evidence given by the victim was found lacking in this aspect since there was no mention or hint of any penetration,” said the High Court bench.
“There is no other evidence to suggest penetrative sexual intercourse. No DNA test was conducted to find out the paternity of the child. The trial court and the appeal court found that oral testimony of the victim and her mother are sufficient to suggest sexual intercourse. Section 375 of IPC shows that to commit ‘rape’, a man must have ‘sexual intercourse with a woman,” the court added.
The case was reported in 2009. The accused was a frequent visitor to the victim’s house. He allegedly pretended love and made a promise to marry her. The victim got pregnant.
The court found out that the only incriminating part in the victim’s testimony was “the accused hugged and impregnated me”.
However, both the courts noted that the testimony of the victim and her mother suggests sexual intercourse between the accused and the victim.
“Even the slightest penile-vaginal entry will amount to ‘sexual intercourse’, and that precedents had established that ‘penile accessing’ would be sufficient to constitute the ‘penetration’ in the sexual intercourse which is necessary to constitute are under Section 375,” observed the court.
Although the victim’s evidence in a sexual offence is entitled to great weight, the absence of corroboration notwithstanding, even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts, the court said.
The bench went on to add, “Penetration being an essential ingredient of the offence of rape, there must be proof of actual penetration or at least penile accessing. The only witness who can prove that is the victim. But, even on a plain reading of the evidence of PW1, such fact is not revealed. She has not stated anything relating to “penile penetration” or such attempt. She only stated that the accused hugged and impregnated her.”