Tripura High Court: A Single Judge Bench comprising of Arindam lodh, J. disposed of an appeal wherein the offence under Section 376 IPC was converted to Section 354 IPC.
The Appeal was filed by the appellant against the order of District Court whereby he was alleged for the offence of rape of a minor.
From the evidence presented by the respondent, it was clear that the appellant did not touch her vagina or any parts surrounding the vagina.
It was argued by the appellant that in order to attract the provision of Section 376 IPC, even the slightest penetration of the penis into the vagina, mouth, urethra or anus of a woman was enough to constitute the offence under Section 376 of IPC. Taking the deposition of the mother of the respondent into consideration it was clear that, the time gap between the cry for help of the respondent and her mother reaching the place on hearing the same was insufficient to commit the alleged offence. Also during examination-in-chief under Section 161 CrPC, the wearing apparels of the respondent were not ceased neither she was forwarded to record her judicial confession under Section 164(5) CrPC which further weakens her case along with the inference that her clothes were not torn out.
In light of the facts and the evidences stated, the Court established that this incident could be best described as “fondling” and the offence best categorized under Section 354 of IPC as already observed, the slightest penetration, whichever degree it was, an essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of IPC. Hence due to absence of any degree of penetration, the appeal was disposed of. [Nemai Dey v. State of Tripura, CRL A (J) NO. 23 of 2015, dated 06-09-2018]
