Slight Penetration Without Rupturing Hymen Would Constitute Rape: Allahabad HC
The Allahabad High Court emphasised that a slight penetration by a penis into a vagina would be deemed penetration, even if such penetration does not rupture the hymen, and would constitute the offence of rape.
The Court upheld the conviction of an accused under Section 376 of the Indian Penal Code, 1860 (IPC) and Sections 5 and 6 of the Protection Of Children From Sexual Offences Act, 2012 (POCSO Act).
The Bench comprising Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi observed, “And even a slight penetration of penis into vagina without rupturing hymen would constitute rape”.
“In this case the implication of the appellant-accused is right from the beginning. He is well known to the victim and there is no suspicion about his identity. The victim has clearly implicated him in her statements before the Magistrate as well as before the trial court. The medical evidence also corroborates the testimony of the victim. The doctor has opined that redness and partially torn hymen were due to penetration of some hard and blunt object, but the penetration was incomplete, hence hymen was partially torn” the Court observed.
Advocate Ram Krishna Mishra appeared for the Appellants and Additional General Advocate Rahul Asthana appeared for the Respondent.
A Criminal Appeal was filed before the High Court challenging the judgment and order of the Special Judge under Section 376 of the IPC and Sections 5 and 6 of the POCSO Act. The Appellant was sentenced to life imprisonment along with a fine of Rs.50,000/-. An FIR was registered alleging that the 8-year-old sister of the Informant was sexually assaulted by the Appellant at his residence. The victim for the last several days was living with her father.
The Court noted that per the medical examination report, the hymen was found intact, but redness was present on the hymen, and it was partially torn. The Court also noted the witness’ statement that in her opinion the redness and partially torn hymen were due to penetration of some hard and blunt object, but penetration was incomplete, hence the hymen was intact. The Court referred to the Supreme Court Judgment in the case of State of Tamil Nadu v Ravi alias Nehru [2006(55)ACC 1005 (SC)].
The Bench also noted that the eight-year-old girl had corroborated the prosecution’s case and implicated the Appellant. The victim disclosed the incident to her brother who took her to the police station. The medical examination confirmed the sexual assault. The witness had corroborated her statement under Section 164 of the Criminal Procedure Code, 1973 (CrPC).
Furthermore, the Court emphasized that minor inconsistencies in the victim's testimony should not be used to dismiss a strong prosecution case. The victim's testimony alone is sufficient for conviction in sexual assault cases, and corroboration is not required unless there are compelling reasons to seek it.
The Court observed, “Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does nor require any corroboration unless there are compelling reasons for seeking corroboration. The Court may look for some assurances of her statement to satisfy the judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness”.
However, the Court allowed the prayer of the Appellant for leniency as he was the sole breadwinner of the family.
Accordingly, the Court partly allowed the Criminal Appeal and modified the sentence to 10 years rigorous imprisonment.
Cause Title: Suresh Kumar v State of UP and Another (2023:AHC:225745-DB)
