Keypoints:
- Bombay HC upheld a 10 year prison term handed to a 74 year old man for sexually assaulting his adopted 14 year old daughter.
- The girl alleged that she woke up one night as he started touching her inappropriately.
- Then he forcibly undressed her and tried to penetrate, but failed to do so.
On Thursday,Bombay HC said that lack of penetration doesn’t necessarily mean that there was no rape, while uphelding a 10 year prison term handed down to a 74-year-old resident of Paithan in Aurangabad district, for raping his 14 year old adopted daughter.
As per the prosecution case, on December 16 2016, the survivor was home alone with the accused, as her adoptive mother had gone out of town to attend a wedding. The girl alleged that she woke up in the night as the 74 year old started touching her inappropriately. He then undressed her forcibly and tried to penetrate, but failed to do so. The girl further alleged that the next night he sexually assaulted her again, but couldn’t penetrate.
This 74 year old was prosecuted when then survivor disclosed her ordeal to one of her teachers who then reported this matter to the police.
Three years later, on July 10, 2019, a special Protection of Children from Sexual Offences (Pocso) Act court convicted him for rape and sentenced him to 10 years’ imprisonment. However, the man was let off in all the Pocso charges, as the prosecution failed to prove the age of the survivor, who reportedly was 14 years old at the time of the attack.
The HC was moved in by the convict and it was argued on his behalf that his wife’s brother used the girl to settle their personal scores over a property dispute. On this note, the lawyer submitted that there was no evidence of rape since the survivor said there was no penetration.
The contention was unaccepted by the single judge bench of Justice MG Sewlikar. It was noted by the judge that medical evidence suggested that there was no penetration, but the girl was candid enough to admit it and did not try to improve her version.
The Supreme Court’s view was noted in reflection of the Tarakeshwar Sahu’s case of 2006, holding that the word penetrate means “to find access into or through, pass through” and held that in the case at hand, penetration was complete so far as the convict was concerned. Noting this, the court took note of the fact that semen stains were found not only on the clothes of the 74-year-old but also on the clothes of the survivor.
The single judge bench reiterated saying that,”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),” said justice Sewlikar. “It is evident that even if there is no penetration, it does not necessarily mean that there was no rape.”
