Man convicted of rape: Degree of penetration can’t be defence ground

The court, finally, stated that the prosecution has “fully proved” the case beyond doubt and all charges framed against accused persons are established.

A Special Court on September 13 convicted a man of penetrative sexual assault and offences under the POCSO Act. Earlier, the medicolegal report, or MLC, in the case, stated that the victim’s hymen was found intact. The counsel for the accused had based his argument on this report, stating that “no case of rape” was made out since there was no evidence of external injury, bleeding or tear, and the hymen remained “intact”.

The prosecution, meanwhile, led with 13 witnesses to prove its case. Relying on the victim’s statement, wherein she specifically said that she felt pain when the accused committed the act and that she had started crying, the prosecution submitted to court that the Forensic Sciences Laboratory (FSL) report and the previous statement given to the magistrate under CrPC section 164 corroborate her version.

Additional Sessions Judge Ashwini Kumar Sarpal said the mere fact that the hymen was not found torn or there was no swelling or bruises on vaginal area itself was not sufficient to hold that the offence was not committed. He said that the hymen may not be torn due to “incomplete penetration” and added, “Law does not describe anywhere that a particular degree of penetration should be proved before constituting offence of rape… The MLC of the victim has to be taken into consideration with oral testimony of the victim read with the FSL report.”

The counsel of the accused submitted that the MLC rules out any penetration or rape as well as any use of force. “Had there been any rape, then hymen must have been torn, there must have been swelling or injury marks on the vaginal area because the medical examination was done within three hours of the alleged incident,” the counsel submitted, according to court records.

The court, finally, stated that the prosecution has “fully proved” the case beyond doubt and all charges framed against accused persons are established.

The case dates back to January 2014, when an eight-year-old girl was playing outside her home in Gandhi Nagar. Soon afterwards, she returned home weeping and told her mother about a man sexually assaulting her. After police were called, semen samples were collected from a cot on which the assault took place.

The court relied on the FSL report as well as the DNA profile comparison report, which stated that the DNA generated from the vaginal secretion of the victim, her clothes and the cot was found matching with the DNA generated from the blood sample of the accused.“Thus, this FSL clearly indicates that the victim was sexually assaulted,” the court stated.