Sexual assault without undergarment removal will still amount to rape: Meghalaya HC

The Meghalaya High Court has ruled that rubbing of male organ on a woman's genitalia, even when she had her underpants on, would amount to penetrative sex and could be charged for rape, officials said on Thursday.

Section 375(b) of the Penal Code recognises that insertion, to any extent, of any object into the vagina or urethra would amount to rape.

"Even if it be accepted that the appellant herein forced his organ into the vagina or urethra of the victim despite the victim wearing her underpants, it would still amount to penetration for the purpose of Section 375(b) of the Penal Code," a division bench of the high court, headed by Chief Justice Sanjib Banerjee, said in a judgment recently.

The bench was hearing a plea in a 2006 case.

The accused in the case was found guilty of raping a minor girl by a trial court. He was sentenced to 10 years' imprisonment and fined Rs 25,000, failing to pay which he would have to undergo an additional six months' imprisonment.

"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. There is sufficient evidence of such penetration in the present case," the order stated.

While the accused admitted that he "lost control" of himself and committed the offence, the division bench contented that the punishment awarded to the appellant herein does not appear to be out of place, upholding the trial court's conviction on March 14.

The accused asserted that considering that he is of average intellect with no formal education, his confession must be regarded as having committed a wrong, but merely because his translated statement reveals that he had confessed to having committed rape, it would not imply that there was penetrative sex.

The girl, who was 10 years of age at the time of incident, had initially claimed that the man grabbed her and took her to a bed where he made her lie down before "he took off his pant and he pulled my under garments and then he raped me".

However, she later changed her statement and admitted that she was tutored by her mother to say something and that "he did not open my under wear" during the assault.

The court, in its judgment, said that the medical examiner substantiated and maintained that the nature of the tear of the hymen in this case indicated that it was upon being pushed by a foreign body and not due to the victim being involved in any arduous sporting activity.

"Even if the victim's evidence in her cross-examination is taken at face value, it would not imply that there was no penetrative sex. If it be accepted that at the relevant time the victim was wearing her underpants and the appellant rubbed his organ from over her underpants, there was no difficulty in penetration," the order added.