Lack of pain, survivor wearing underwear during rape doesn't mean there was no penetration: Meghalaya High Court

The Meghalaya High Court on Monday held that the merely because a rape survivor did not experience pain in her genitalia and that she was wearing underwear when subjected to rape, cannot be proof that there was no penetration entitling the accused to be acquitted [Cheerfulson Snaitang vs State of Meghalaya]..A Bench of Chief Justice Sanjib Banerjee and Justice W Diengdoh took note of the fact that the minor survivor felt pain at the time of the medical examination, which established that she was raped. "Section 375(b) of the Penal Code recognises that insertion, to any extent, of any object into the vagina or urethra would amount to rape. Even if it be accepted that the appellant herein forced his organ into the vagina or urethra of the victim despite the victim wearing her underpants, it would still amount to penetration for the purpose of Section 375(b) of the Penal Code. In any event, by virtue of Section 375(c) of the Penal Code, when a person manipulates any part of the body of a woman so as to cause penetration into, inter alia, the vagina or urethra, the act would amount to rape," the Court said..The High Court thus upheld a trial court order that had convicted the appellant in 2018 for raping a 10-year-old girl in 2006, and sentenced him to ten years' imprisonment. The trial court had relied on medical evidence and the appellant's statement under Section 164 of the Criminal Procedure Code (CrPC) to convict him of rape.The present plea was filed against the conviction order, with the appellant stating that penetration had not been made out and thus the ingredients of Section 376 of Indian Penal Code (IPC) for rape were not satisfied..The appellant submitted before the High Court that if the survivor’s underwear was not taken off and he merely rubbed himself on her crotch, it would not amount to rape. It was also argued on his behalf that he lacks formal education and his confession before the magistrate should, therefore, not imply that there was penetrative sex. This was said in the backdrop of the fact that the survivor, during cross-examination, stated that she did not feel any pain and the accused had only rubbed his private part over her garments. The trial court had glossed over this aspect while over-relying on the confession, it was submitted..The Court said that the evidence must be read in its entirety and some degree of latitude has to be granted to the victim when her statements during cross-examination are analysed."One must read the evidence in its entirety and also be aware of the status of the persons involved, their levels of education, understanding and intellect...In the light of the victim’s assertion in the examination-in-chief, what she said in her cross-examination must be seen in the appropriate perspective and a degree of latitude has to be granted to the victim, even though she was an adult when the trial was conducted, that she would be flustered, nervous and extremely uncomfortable in such details being sought," the Court said. Even if her cross-examination is taken at face value, it would not imply that there was no penetrative sex, the High Court noted in light of the medical reports that confirmed the offence. .While stating that the trial court could have dwelt on this aspect more, the High Court added that the court below could not be blamed given the confession statement, as "admission is the best form of proof." The High Court noted that there was no attempt at the time of the trial to detract from or explain the confession. A degree of sanctity has to be granted to the statement to the Magistrate, the Bench observed in response to the contention that the appellant was not allowed sufficient time to reflect. The Court, therefore, upheld the conviction and sentence of the trial court. .Legal Aid Counsel SD Upadhaya appeared for the petitioner. Additional Public Prosecutor with Government Advocate AH Kharwanlang appeared for the respondents..[Read Judgment]