If a man rubs his organ on vagina over victim’s underpants, would that amount to rape? Megh HC answers

Meghalaya High Court: The Division Bench of Sanjib Banerjee, CJ and W. Diengdoh, J., addressed that, if the victim’s underwear was not taken down and the man merely rubbed himself on the victim’s crotch while she still wore her underpants, would that amount to commission of rape.

In the present matter, though the appellant had been found of having committed rape, no case of penetration in terms of Section 375 of the Penal Code, 1860 was made out.

In 2006, a complaint was lodged whereupon the minor victim was medically examined. On examination, it was found that the victim’s vagina was tender and red and her hymen was ruptured. The opinion rendered by the medical examiner was that the girl had been raped and was suffering from mental trauma.

In course of the examination-in-chief, the victim claimed that the appellant herein grabbed the victim and took the victim to a bed where he made the victim lie down before “he took his pant and he pulled my undergarments and then he raped me”.

However, in the cross-examination the victim had to say the following:

“… After the accused entered my house he caught hold of my hands, opened his long pants and mine, but he did not open my under wear, he then took me to the bed which was in the bedroom and then rape me. I did not scream for help when I saw the accused opened his under pant as I was scared of him. I did not feel pain after the accused had rape me. It is a fact that the accused person did not penetrate his male organ inside my vagina but he just rubbed from the top of my underwear. It is a fact that I was tutored by my mother before I came to the Court today”.

Appellant stated that, if the victim’s underwear was not taken down and the appellant merely rubbed himself on the victim’s crotch while she still wore her underpants, there would be no commission of any rape.

It was also asserted by the appellant that, considering that the appellant was of average intellect with no formal education, his confession must be regarded as having committed a wrong, but merely because his translated statement revealed that he had confessed to having committed rape, it would not imply that there was penetrative sex, particularly since the victim’s version was such that would rule out any element of penetration, which was the key to the commission of the offence of rape.

Bench stated that, 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.

Further, the Court added that, in the absence of the appellant herein establishing any alternative reason for the victim suffering the tenderness in her vagina or ruptured hymen or pain that she complained of in the context of the physical abuse that she was subjected to, merely because the victim may have said that she did not endure any pain at the relevant time may not absolve the appellant of his guilt.

Lastly, the Court concluded that it did not appear that there was no penetration in course of the appellant forcing himself on the victim.

Since the victim was a minor and since the appellant confessed that he lost control over himself and committed the offence, the punishment awarded to the appellant did not appear to be out of place.

In view of the above, the criminal appeal failed.[Cheerfulson Snaitang v. State of Meghalaya, 2022 SCC OnLine Megh 52, decided on 14-3-2022]


Advocates before the Court:

For the Petitioner/Appellant(s) : Mr. SD Upadhaya, Legal Aid Counsel

For the Respondent(s) : Mr. S Sengupta, Addl.PP with Mr. AH Kharwanlang, GA

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