Home » News » “Lack of Penetration Does Not Necessarily Mean It Wasn’t Rape”: Bombay High Court

Aurangabad bench of Bombay High Court reiterated that lack of penetration doesn’t necessarily mean that there was no rape and upheld the special POCSO court order of 2019 wherein a 74-year old man was convicted of raping his adopted daughter and was sentenced to 10-year in jail.

As per the prosecution, the minor girl was alone at home on December 16, 2016, as her adoptive mother had gone out for a wedding. The survivor alleged that she woke up in the night as the 74-year old man started touching her inappropriately.

She further submitted that the man then undressed and also removed her clothes forcibly. He tried to penetrate but could not. The survivor alleged that the adopted father repeated the same next night and sexually assaulted her. He again tried to penetrate but could not.

Paithan police initiated the action after a teacher from the survivor’s school reported the incident. The survivor had explained her ordeal to her teacher. Following the complaint from the teacher, the 74-year-old resident of Paithan in Aurangabad district was arrested.

The man was convicted by a special Protection of Children from Sexual Offences (POCSO) court on July 10, 2019, and was sentenced to 10 years imprisonment. However, all the charges under POCSO Act were dropped against him as the prosecution was unable to prove the age of the girl at the time of the assault.

The convict had challenged the 2019 special POCSO court order before Bombay High Court. The accused claimed that the girl is being used by her wife’s brothers over a property dispute. Counsel appearing for the accused argued that there is no evidence of rape as even the survivor has accepted that there was no penetration.

The bench denied accepting the contention and noted that the medical evidence suggested that there was no penetration but the girl was candid enough to admit it and did not try to make any improvement in her version.

Quoting the Supreme Court’s view in Tarakeshwar Sahu’s case of 2006 that the word “penetrate” means “to find access into or through, pass through”, the single-judge bench of Justice MG Sewlikar held that the penetration was done so far as the convict was concerned. The court also considered the fact that the semen was not only found on the 74-year old man but the stains were also there on the clothes of the survivor.

“From the observations made in this decision by the Hon’ble Supreme Court, even an attempt at penetration into the private part of the victim would be enough to attract the provisions of sections 375 and 376 of the Indian Penal Code (IPC). It is evident that even if there is no penetration, it does not necessarily mean that there was no rape,” said Justice Sewlikar.

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