The Bombay High court on Thursday reiterated that lack of penetration does not necessarily constitute the fact that there was no rape committed. The Bombay High court single-judge bench ruled that “It is evident that even if there is no penetration, it does not necessarily mean that there was no rape.” 

The ruling came from the Bombay High Court when it upheld its original decision of 10-year-prison term it handed to a 74-year-old Aurangabad resident in a crime of raping his adopted daughter.  

The facts of the case

Trigger Warning: Sexual assault, child abuse.

According to the prosecution, on December 16, the rape survivor was alone at her home as her adoptive mother was out of the town to attend a wedding. The survivor alleged that she was woken up at night when his 74-year-old step-father touched her inappropriately. 

The culprit went on to undress and forcibly removed the survivor’s clothes. He later tried to penetrate his step-daughter but could not. According to the survivor, the man’s sexual assault did not stop there as he assaulted her for the second time the next night. 

The survivor disclosed the situation to one of her teachers who went on to report the matter to the police. The Aurangabad police took swift action and arrested the 74-year-old man. The man was arrested with the charge of raping a minor.   

Later, in 2019, the special Protection of Child from Sexual Offences (POSCO) Act court convicted the man for raping his step-daughter and slapped him with a sentence of 10 years imprisonment. However, the man was later left off in all the POSCO charges as the prosecution failed to prove the survivor’s age who was allegedly 14-years-old at the time of the attack.  

The case moves to High Court 

The alleged culprit then took to Bombay High Court. The prosecution argued on the man’s behalf that the step-daughter was being used by the man’s wife’s brothers to settle personal grudges over an old property dispute. The prosecution’s lawyer appealed to the court that as there was no evidence of rape due to the fact that there was no penetration, the case should be dismissed. 

However, the Bombay High Court’s single-judge bench which comprised of Justice MG Swelikar refused to accept the prosecution’s contention. According to the judge, even though the medical evidence indicated that there was no penetration, the girl was candid enough to come to the court and never tried to improve her version that would strengthen her case. 

The judge went on to quote the Supreme Court’s views which were reflected in the Tarakeshwar Sahu 2006 case where penetration meant “to find access into or through, pass through”. The judge upheld the case saying that the penetration was complete as far as the culprit was concerned. The judge also took notice of the fact that there were semen stains found on the clothes of the 74-year-old culprit and on the clothes of the survivor.  

The final ruling

Justice Sewlikar in his ruling stated: “From the observations made in this decision by the Hon’ble Supreme Court, even an attempt at penetration into the private part of the victim would be enough to attract the provisions of sections 375 and 376 of the Indian Penal Code (IPC).” 

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