Vaginal Penetration is not necessary to constitute offence under Section 376 IPC

The Supreme Court in Madan Gopal Vs. Naval Dubey, (1992) 3 SCC 204 placed reliance upon Gour’s ‘The Penal Law of India’, 6th Edn. 1955 (Vol.II), page 1678, it is observed that even vulval penetration is held to be sufficient for a conviction of rape.

# Vaginal Penetration

In a case in which there was no rupture of hymen but there was only penile penetration within the labia majora or vulva with or without emission of semen, the Supreme Court held that such acts constitute evidence of rape.

In various other cases also, it was held that even “vulval penetration” is sufficient to convict a person for rape and that the depth of penetration is immaterial (Vide Natha Vs. Emperor, 1925 (26) CriLJ 1185), Abdul Majid Vs. Emperor, AIR 1927 Lah 735 (2), Mst. Jantan Vs. Emperor, 1934 (36) Punj LR 35, Ghanashyam Misra Vs. State, 1957 CriLJ 469, Das Bernard Vs. State, 1974 CriLJ 1098.

In re Anthony, AIR 1960 Mad. 308, it was held that the slightest penetration will be sufficient and a complete act of sexual intercourse is not at all necessary to constitute the offence of rape.

In Aman Kumar Vs. State of Haryana, (2004) 4 SCC 379, the Supreme Court held that, “to constitute offence, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration within labia majora or vulva or pudendum with or without emission of semen is sufficient to constitute offence of rape as defined in law”.

In State of U.P. Vs. Babulnath, 1994 (6) SCC 29, the Supreme Court held thus: “Even partial or slightest penetration of the male organ within labia majora with 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 Section 375 and Section 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.”

The Supreme Court (Babulnath’s case) has made it very clear that partial or slightest penetration of the male organ within labia majora with or the vulva or pudenda without any emission of semen, is also “rape”, as per Section 376 IPC.

In a layman’s view, the above acts may only be an attempt to rape, since there is no vaginal penetration in such cases. But, according to Supreme Court, such an attempt of penetration into the private part is sufficient to constitute “rape”, under Section 376 IPC, if on such attempt there is slightest penetration into labia majora (Labia Majora is the hairy exterior part of the female genital organ) vulva etc.

Thus, vaginal penetration is not a must for rape under Section 376 IPC, but if there is an attempt to vaginal penetration whereby, there is penetration into other external portions of the female private part, offence of rape will be made out.

In Chenthamara Vs. State of Kerala, 2008 (4) KLT 290, the scope of the definition of offence of rape and the expression “penetration” referred to in Explanation to Section 375 IPC were probed into. The Kerala High Court opined that to attract offence of rape under Section 376 of IPC, it is not necessary to have vaginal penetration, but it is enough if there is vaginal accessing by male organ.

In the course of accessing of vagina by the male organ, if it comes into contact with any of the external portions of female genital organ such as, vulva or pudendum, labia majora etc., without there being an actual entry of male organ into vagina, such penile accessing of vagina will constitute “rape”.

In cases involving only penile accessing of vagina, and thereby male organ come into contact with other external portions of female private part, such as vulva, labia majora etc., such an act of penile – accessing of vagina may amount to an attempt of penetration into vagina. But such act will also constitute “rape” under Section 375 IPC and it is not a mere attempt to rape. To put it short, vaginal penetration is not necessary to constitute offence under Section 376 IPC.

Though ordinarily, to common man, “penile – vaginal entry” is essential to constitute sexual intercourse, “penile – accessing” of vagina, by penetrating into the other external portions of female private part like vulva etc. is sufficient as per law to attract offence of “rape”, by virtue of the Explanation to Section 375 IPC. This is exactly the reason why, the Supreme Court repeatedly held that even slightest penetration into vulva or labia majora constitutes “rape”, even though in such a case there is no vaginal penetration.

The gender sensitised Indian Judiciary including the Supreme Court has given a practical and pragmatic meaning to the offence of “rape” under Section 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. Therefore, any attempt made by the Courts to dilute the above well settled legal position will result in gross gender injustice.

[The above discussion on rape is extracted from a significant judgment on the said issue by Kerala High Court in Kunjumon Vs. State of Kerala, 2011 (4) KHC 72 : 2011 (2) KLD 555 authored by Justice K. Hema]