Offence of rape shall not be measured in inches or millimetre

The Kerala High Court on 11 December 2010 in Kunjumon Vs. State of Kerala, 2011 (4) KHC 72 : 2011 (2) KLD 555 held that “penetration of male organ into the external portions of female private part such as labia majora or vulva is sufficient to constitute rape.”

# Offence of Rape

Justice K. Hema pointed out that 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. Any attempt made by the courts to dilute the above well settled legal position will result in gross gender injustice,” the judgment said.

While dismissing the appeal filed by the accused the Court held that the doctor’s opinion that there was no “actual penetration” is founded on a wrong impression that to constitute rape, there must be vaginal penetration, with rupture of hymen, emission etc.

See Also : Rape : Compromise between parties not permissible

In the opinion of certain medical experts and according to a layman, sexual intercourse or rape requires complete act of penetration into the “vagina”, rupture of hymen and also ejection. In common parlance, there may not be any sexual intercourse, without vaginal penetration, rupture of hymen and also ejection. While deciding whether the offence of rape under Section 376 IPC is committed or not, such opinion has no relevance at all. Sexual intercourse and rape have a different meaning and connotations, as per law particularly, under Section 375 IPC.

It is not for a medical expert or a common man to say whether vaginal penetration, rupture of hymen etc., are essential to constitute rape under Section 376 IPC. A medical expert may say whether or not, there is any evidence of recent sexual activity, involving the private part or body of the victim. Medical expert may also report evidence of injury, if any, on the body of the victim particularly, the private part and express the opinion as to cause of such injury. Medical expert may also say whether there is penetration into any portion of the private part. But, a medical expert is not competent to say whether a particular type of penetration is necessary to constitute sexual intercourse or rape, as stated in Section 376 IPC.

# In Modi in Medical Jurisprudence and Toxicology, 21st Edn. at page 369 observed thus:

“The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one”. Taking all the above facts into consideration, I find that the medical opinion or evidence showing that there was no evidence of “actual penetration” (meaning, “vaginal penetration”) is not sufficient to discard the prosecution case, holding that there is no rape.

Offence of “rape” is not a medical condition. It is not a diagnosis to be made by a medical expert, who examines the victim. “Rape” is a an offence defined under Section 375 IPC and it is a legal term. It has nothing to do with the ordinary impressions of a layman or a medical expert about sexual intercourse or rape. What type of penetration will constitute sexual intercourse or rape under Section 376 IPC is to be decided by the Court and not by a medical expert. The Court has to decide whether the act committed by accused constitute “rape”, as per law, based on the evidence in each case.

A close reading of Section 375 IPC, particularly, the Explanation makes it clear that to constitute an offence of rape, vaginal penetration is not necessary. Even though in common parlance, it is understood that to have sexual intercourse and rape, there must be penile – vaginal penetration, legally it is not so. Even if the sexual act falls short of complete entry of male organ into vagina (vaginal penetration), rupture of hymen or ejection, to a common man or to a medical expert, it may only be an attempt of rape. But, legally, the position is not so.

See Also : Act of Promiscuity and its difference with Rape

So, in cases in which, there is only penile accessing of vagina and thereby, only penetration of male organ into vulva or labia majora, without there being even any partial slight or complete entry into the “vagina”, such an act will squarely come under Section 375 IPC and it is not merely an attempt to rape.

In this case, there is ample evidence to show that there was penile accessing of vagina by the male organ by force and in that process, it had come into contact with vulva, causing congestion and redness thereon, by local pressure. Even though there was no “actual vaginal penetration or even partial penetration into vagina, rupture of hymen or ejection into vagina, offence committed by appellant is clearly “rape” under Section 376 IPC and not merely an attempt to rape, as argued. It is not an offence under Section 377 IPC also.

# Absence of semen or sperm in vaginal swab and slides

Prosecution itself has no case there was emission of semen into vagina. As per evidence of PW 2, the child victim, she noticed some white liquid on her thigh, after the incident. PW 1 also stated that she found white matter on PW 2’s thigh or reaching the scene. PW 2 has no case that any emission took place within the vagina. In fact, there was no chances for such emission also.

Additional Sessions Judge rightly observed, evidence also reveals that before there could be emission of semen into vagina, grand mother came to the scene and semen fell on the thigh, while the accused withdrew from the act. Therefore, in the absence of any evidence to show that during the act of rape there was ejection into the vagina, the absence of sperm or semen in the vaginal swab and slides is of no consequence at all.

At any rate, such absence is not at all sufficient at all to disbelieve evidence of the child, PW 2 or PW 1. It is also to be noted that vaginal swab and slides were collected only on the next day of the accident, that too, after about 23 hours of the incident.

Taking all these facts into consideration, the Court held that the act committed by the accused amounts to offence under Section 376(2)(f) of IPC and not merely an attempt to rape or unnatural offence, under Section 377 IPC. The conviction is therefore, only sustainable. The appellant, however, requests for reducing the sentence. The sentence imposed on appellant is to undergo rigorous imprisonment for 10 years and to pay fine of Rs.25,000/- and in default to undergo one year imprisonment.

# Section 376(2)(f) of IPC

The offence under Section 376(2)(f) of IPC is rape on a child under 12 years of age. The proviso to Section 376(2) of IPC permits imposing sentence lesser than 10 years, for adequate and special reasons to be mentioned in the judgment. However, the offence under Section 376(2) of IPC is punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may be for life and shall also be liable to fine. Thus, sentence for even life imprisonment can be imposed in cases falling under Section 376(2)(f) IPC. So, to decide as to what will be adequate or appropriate sentence in case falling under Section 376(2)(f) IPC, the Court has to look into the evidence and various facts and circumstances in each case.

# Psychological harm on the child

The appellant committed rape on his own daughter, when her mother was away from home, in connection with her employment. The child was aged only 10 years at the time of offence. The offence committed by accused, no doubt, is too heinous. No cultured society will pardon the offender, for what he has done to the child who looks forward to him for protection and security. Incestual rape (especially parental incest), is one of the most extreme forms of childhood trauma, which leads to a long – term psychological damage to the victim and as the psychological study reveals such injury caused to the victim is too severe.

The risk of long lasting psychological harm on the child is higher, when the perpetrator of the sexual assault is her own father. A feeling of insecurity, broken trust, shame, isolation in society and many other untold misery haunt the child, till she breathes her last. A child victim of any crime depends upon the parents for support, protection and security. But, in a case in which father himself sexually assaults his own daughter, he mercilessly denies to his own child the protection and support which he is bound to give as a father. Hence, what a father, as an offender in a case of rape on his own child commits cannot be reckoned merely as an offence of rape; he completely devastates his own child.

But, there is no adequate provision in Indian law for giving support at least by psychological counselling to such handicapped victims of rape either at the cost of the offender or the State. In such circumstances, at least as a deterrence, adequate punishment has to be imposed to such heartless offender, who commits sexual assault on his own child who is dependent on him.

Hence, in cases in which offence under Section 376(2)(f) of IPC is involved, the Court has to keep all these facts in mind, while deciding the question of sentence. Unless there are adequate or special reasons to reduce sentence, the Court shall not reduce sentence to any period lesser than 10 years in cases, falling under Section 376(2)(f) of IPC.

See Also : Punishment must be proportionate to the offence

In this case, appellant has not pointed out any adequate or special reasons as to why he deserves a reduction in sentence. Hence, ten years imprisonment and fine of Rs.25000/- and a default sentence of one year imprisonment is in no way, any excess. To a father like appellant who has left his own child in an irreparable broken state of mind and body at the age of 10 years, no reduction of sentence is warranted. The conviction and sentence passed against the appellant therefore, are only sustainable and there is no ground to interfere with the same.

# Facts of the Case

A child aged just 10 years is allegedly raped by her own father. The father stood trial for offence under Section 376(2)(f) of Indian Penal Code. After trial, he was found guilty by Additional Sessions Court and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.25,000/- and in default, to undergo rigorous imprisonment for one year. Fine amount if realised, was ordered to be paid to the victim as compensation. Set off was also allowed. The said conviction and sentence are challenged in this appeal.

# Prosecution Case

PW 2 is born in the wedlock of appellant and CW 3 and she was residing with her father, grand mother (PW 1), and brother. Her mother was away, working at Bangalore in connection with her job. On the crucial day, on 11/11/2006 in the evening, PW 2 had gone to her maternal aunt’s house to watch TV and while she was returning, she met appellant on the way and they came home together. At that time, nobody was present in the house. PW 1, the grandmother of PW 2 had gone to a neighbouring house to get eggs.

On reaching home, by about 6.30 pm., appellant asked PW 2 to remove her underwear and when she refused, he made her lie on the bed in the bedroom, switched off the light, removed her undergarments and committed rape on her despite the resistance.

In the meantime, PW 1 returned to the house and found that the lights were switched off. She had switched on the lights before she left the house for getting eggs. She went to the bed room and switched on the light when she found appellant and PW 2 lying on the cot and appellant sliding away from the body of PW 2. Immediately, PW 1 lifted PW 2 from the bed and appellant was questioned.

PW 1 informed the victim’s mother and appellant’s mother also about the incident. PW 2 was taken to the house of PW 3, a neighbour. PW 3 examined private part of PW 2 and found some redness etc., in her private part and asked the girl to be taken to the doctor. Since it was late on that day, complaint was lodged only on the next day, on 13/11/2006. A case was registered and thereafter, PW 2 was taken to the doctor for medical examination. After investigation, a charge was laid against appellant.

Prosecution examined PW 1 to PW 12 and marked Ext. P1 to P9 and MO1 to MO5. The accused did not adduce any evidence, but he only stated that he is innocent. He marked Ext. D1, a portion of the statement of PW 2 given to the police.

On an analysis of the evidence in detail and by placing reliance upon a decision of this Court reported in Chenthamara Vs. State of Kerala, 2008 (4) KLT 290, Trial Court found that there was partial penetration and the act committed by accused constitute rape. The contention of the appellant that offence made out is only under Section 377 IPC, since no semen was detected etc., was rejected.

State Brief Shylaja S.L. appeared for the appellant and Advocate K.S. Sivakumar for the respondent.

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