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.
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.
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.