The Bombay High Court (Goa Bench) has held that digital penetration, namely insertion of a finger into the vagina, falls within Section 375(b) IPC, and even insertion “to any extent” is sufficient to constitute rape. Therefore, where the victim’s testimony is trustworthy and is corroborated by medical evidence showing vaginal penetration, conviction under Section 376 IPC is sustainable.
The Court laid down that absence of DNA profiling or similar scientific evidence is not fatal to the prosecution case, since Section 53A CrPC is facilitative in nature, and shortcomings in investigation cannot override otherwise reliable ocular and medical evidence proving guilt beyond reasonable doubt. It also affirms that where the accused is found at the spot and fails to offer any acceptable explanation for his presence, the prosecution can validly establish allied offences such as house trespass and assault outraging modesty on the basis of the victim’s testimony, corroborative circumstances, and surrounding evidence.
A Single Judge Bench of Justice Ashish S. Chavan observed that the testimony of the victim was clear, cogent and trustworthy, and that her account of the assault was materially corroborated by owner of the premises, who found the appellant at the spot, and by the medical evidence of the doctor recording vaginal penetration upon gynaecological examination.
The Bench rejected the appellant’s contention that the case disclosed only an attempt to commit rape. It observed that Section 375(b) IPC, after the 2013 amendment, expressly includes insertion, to any extent, of any object or part of the body, not being the penis, into the vagina, urethra or anus of a woman, and therefore digital penetration falls within the definition of rape.
On the evidence, the Bench found that the victim’s statement that the appellant tried to put his fingers into her vagina had to be read holistically with the medico legal report, which clearly established penetration by finger and evidence of vaginal penetration. Thus, the Bench held that the alleged discrepancy did not weaken the prosecution case because doctor had only examined the victim for external injuries at the PHC, whereas another doctor had conducted the gynaecological examination for sexual assault; their opinions operated in different spheres and were not at variance.
The Bench also rejected the argument that non-collection of DNA or other scientific evidence was fatal, holding that Section 53A CrPC is facilitative and not mandatory, and defects in investigation do not by themselves justify acquittal when there is otherwise reliable and cogent evidence.
The plea based on the appellant’s alleged low IQ or mental condition was discarded because no documentary material was produced, no plea of unsoundness of mind was raised in the statement under Section 313 CrPC, and the burden under Section 84 IPC had not been discharged. The Bench further held that the offences under Sections 448 and 354 IPC were also proved, since the appellant’s presence in the flat stood established by his apprehension at the spot and no plausible explanation was offered by him for such presence.
Hence, the sentence of ten years’ rigorous imprisonment under Section 376 IPC was found proportionate, being the minimum prescribed punishment, and the appeal was dismissed.
Briefly, the prosecution case was that on May 15, 2023, the victim lodged a complaint stating that on the previous night, after going to sleep in her bedroom, she sensed someone present, woke up, and found a person crawling near her bed; when she screamed, he jumped on the bed, tried to cover her face with a pillow and bedsheet, removed her pants, touched her vagina and tried to insert his fingers, whereupon she struggled and shouted for help until neighbours arrived and apprehended him.
The FIR was registered at Anjuna Police Station under Sections 448 and 376 of the IPC, the accused was arrested on May 15, 2023, medical examination of both the victim and the accused was conducted, the scene of offence panchanama was drawn, statements were recorded, and the charge-sheet was filed after investigation.
The victim, supported the complaint and deposed that while she was sleeping in her locked bedroom, the accused assaulted her, touched her inappropriately, tried to insert his finger into her private parts, and was later identified by her as her car cleaner when others entered the flat on hearing her screams and found him at the balcony. The Senior Resident Doctor from GMC, deposed that on gynaecological examination there was evidence of vaginal penetration in consonance with the oral history given by the victim, which included digital penetration by the appellant.
The owner of the premises, deposed that he heard the victim screaming, went to her flat with others, and after the victim opened the door, found the appellant standing in the balcony without pants, whereafter he was apprehended and taken to the police station.
Hence, this appeal challenged the judgment and order dated October 01, 2024 and October 05, 2024 passed by the Fast Track Special Court, POCSO, Panaji, Goa, in Sessions Case, whereby the appellant was convicted under Sections 448, 354 and 376 of the IPC and sentenced to one year, five years and ten years of rigorous imprisonment respectively, with fines, all sentences to run concurrently.
Appearances:
Advocates Pradeep Sawaikar and Jay Sawaikar, for the Appellant
Advocates S. Karpe, S. Gaonkar and S. Parodkar, for the State
