Even if penetration was very slight and wasn't into vagina, the act would constitute rape: Allahabad High Court

New Delhi: Even if the penetration was very slight and was not into the vagina, the act will come within the definition of rape, the Allahabad High Court ruled on Tuesday.

The bench of Justice Jyotsna Sharma observed that in rape cases, the extent of penetration is immaterial. “The perineum is part of the private parts, which sheathes the urethra,” the court said.

What is the case?

The high court was hearing the matter of the informant-woman who alleged that her 7-year-old daughter was taken away by a juvenile in a cabin and was ravished by him.

After the incident the victim was medically examined and blood was spotted in her private parts.

After collecting the evidence and examining them, a final report, submitted by the investigating officer, found that no case was made out against the minor.

Later, a protest petition was moved by the woman and the matter was heard by the Juvenile Justice Board (JJB), where the final report of the investigation was accepted and the protest petition was dismissed.

Challenging the order, a Criminal Appeal was preferred by the informant before the Special Judge (POCSO Act)/ Children Court, Azamgarh.

Both sides were heard, and the order of the JJB was set-aside with a direction to the board to hear and decide the matter afresh, keeping in mind the observation of the appellate court.

Challenging the order of the appellate court, the minor accused moved revision through his natural guardian.

What did Allahabad High Court say?

The bench read the order of the appellate court and observed that it had rightly observed that the statements of three prosecution witnesses of the facts were ignored by the JJB while dismissing the protest petition.

The high court did not find the observation made by the appellate court related to the medical evidence in the case. It said that even if the hymen was found intact, a commission of sexual assault cannot be ruled out, to be perverse or incorrect.

The court also found that the appellate court had rightly observed the injuries found on the juvenile in the light of the prosecution case that he was caught in the act at the spot and was beaten by the people gathered there.

The high court noted that the appellate court gave “good reasons” for not finding the order of the JJB sustainable on facts and on the law. Hence, it upheld the order of the appellate court.

What is rape?

“A man is said to commit “rape” if he – (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person,” Section 375 of IPC defines rape.

With inputs from LiveLaw

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