Wednesday, February 1st, 2023 08:38:29

ANY PENETRATION MEANS RAPE : ALLAHABAD HC

By Sanjeev Sirohi
Updated: December 6, 2022 1:14 pm

While displaying zero tolerance for rape cases of all kinds, the Allahabad High Court has in a most learned, laudable, landmark and latest judgment titled “Irfan Ahmad vs State of UP and Another in Criminal Revision No. – 743 of 2022” pronounced as recently as on October 11, 2022 has minced just no words to make it indubitably clear that even if the penetration was very slight and was not into the vagina, the same will bring the act within the definition of rape. It must be mentioned here that the Single Judge Bench of Justice Jyotsna Sharma further made it clear that in rape cases, the extent of penetration is immaterial and that the perineum is part of the private parts, which sheathes the urethra. Of course, there can be no gainsaying that all the judges in India must definitely pay heed to what Justice Jyotsna Sharma has laid down so very courageously, commendably and cogently in this leading case!

At the very outset, this brief, brilliant, bold and balanced judgment sets the ball rolling by first and foremost putting forth in para-1 that, “Heard Sri AftabAlam, learned counsel for the revisionist and learned AGA for the state. None appears on behalf of the respondent No.2 despite service of notice.”

To put things in perspective, the bench then envisages in para-3 after perusing the record as stated in para-2 that, “This criminal revision has been filed under Section-102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 challenging the order dated January 15, 2022 passed by Additional Sessions Judge/Special Judge (POCSO Act, Azamgarh) in a Criminal Appeal No.80 of 2017 by which the order of the Juvenile Justice Board dated January 19, 2017 was set aside and the matter was remanded by the Appellate Court for deciding it afresh in a matter arising out of Case Crime No. 17 of 2016, under Sections-376, 504, 506 I.P.C. and Section-3/4 POCSO Act and Section 3(2)(v) of SC/ST Act, Police Station – Mubarakpur, District – Azamgarh.”

Be it noted, the bench then points out in para-4 that, “Relevant facts leading to this revision are as below: –

Informant lodged an FIR alleging that her daughter, aged about seven years, was playing in front of the house with other kids of the locality; the juvenile took away her daughter in a cabin/housing a tube-well and ravished her; she started bleeding and cried in pain; hearing her screams, other children came and apprehended him at the spot; the informant also reached at the place of occurrence; however the accused escaped, threatening them; the victim was medically examined; blood was spotted in her private parts; after collection of the evidence a final report was submitted by the investigating officer; thereafter, on the protest petition moved by the where the final report was accepted and the protest petition was dismissed vide order dated January 19, 2017; challenging the aforesaid order, Criminal Appeal No.80 of 2017 was preferred before the Special Judge (POCSO Act)/ Children Court, Azamgarh; after hearing both the sides, the order of Juvenile Justice Board was set aside with a direction to Juvenile Justice Board to hear and decide the matter afresh, keeping in mind the observation of the appellate court. Against the above order of the appellate court dated January 15, 2022, the minor accused has come in this revision through his natural guardian/father.”

Do also note that the Bench then specifies in para-7 that, “I went through the order passed by the appellate court, which is under challenge in this revision; after referring to well-settled principles of law as regard the options available to the court concerned regarding final report, the appellate court proceeded to refer to the statements of the victim, aged about seven years, wherein she supported the prosecution version and said “when I was playing with other kids of the locality, the accused called me and carried me of to nearby tube-well cabin; I made a noise, then my sister and others rescued me”. The appellate court also referred to the statement of the victim recorded under Section 164 CrPC., wherein she reiterated the same statement adding that she was subjected to sexual assault. The appellate court, thereafter, referred to the statement of sister of the victim, who supported the prosecution version and stated that on hearing screams of her younger sister, she rushed to the tube-well room and found the juvenile in the act; he (juvenile) was beaten then and there and the girl was rescued; the appellate court also referred to the statement of the mother of the victim, who stated that she also reached at the spot after hearing the noise; the accused escaped from their clutches threatening them; she also stated that her daughter was bleeding from her private parts. After referring to the aforesaid statement of three witnesses, the appellate court in my view, rightly observed that the Juvenile Justice Board dismissed the protest petition, ignoring the statements of three prosecution witnesses of facts; as far as medical evidence is concerned, the appellate court while noticing the fact of presence of blood on perineum in the medical examination of the victim, also observed that even if hymen was found intact, commission of sexual assault cannot be ruled out. In my view, such an observation is not perverse or incorrect.”

It would be germane to note that the bench then while citing the relevant case law specifies in para 11 stating that, “The Hon’ble Apex Court in JagannathChoudhary vs Ramayan Singh, 2002 SCC (Cri) 1181, while dealing with the powers of the revisional court held as below:-

“It is not to be lightly exercised but only in exceptional situations where the justice delivery system requires interference for correction of a manifest illegality or prevention of a gross miscarriage of justice. In Nossibala, LogendranathJa and Chinnaswamy Reddy as also in Thakur Das vs. State of MP, this court with utmost clarity and in no uncertain terms recorded the same. It is not an appellate forum wherein scrutiny of evidence is possible; neither the Revisional jurisdiction is open for being exercised simply by reason of the factum of another view being otherwise possible. It is restrictive in its application though in the event of there being a failure of justice there can be said to be no limitation as regards the applicability of the revisional power.”

It is worth noting that the bench then observed in para-12 that, “It may be noted that while exercising jurisdiction under Section-397 CrPC, the High Court is empowered to satisfy itself as to correctness, legality or propriety of any finding given by the courts below. While under Section-102 of the Juvenile Justice Act, the High Court is empowered to call for record of any proceeding to satisfy itself as to legality or propriety of any order and pass such order in relation thereof as the revisional powers as exercisable under Section-397 CrPC and as exercisable by the High Court under Section-102 of the Juvenile Justice Act, 2015 both. Thus, it is clear that the principles underlying the exercise of revisional powers under Section-397 CrPC are also applicable to a large extent when the revisional powers have to be exercised under Section-102 of the Juvenile Justice Act, 2015.” 

Most pertinently, the bench then seeks to clearly point out in para-13 holding that, “The Juvenile Justice Board though referred to the statements of the witnesses supporting the prosecution case, but did not relied on them, instead relied on the evidence given by the witnesses who were essentially not the witnesses of the fact and also gave importance to the fact of lack of any external injury, absence of spermatozoa in pathological test and the fact of finding the hymen intact. In my view, the appellate court gave good reasons for not finding the order of the Juvenile Justice Board sustainable on facts and on law. In these circumstances, the approach of the appellate court in giving a different view cannot be called improper or illegal.”

It would be worthwhile to mention that the bench then hastens to add in para-14 that, “A submission has also been made before this court that this case does not fall under the definition of Section-375 IPC confronting this submission, learned AGA has drawn the attention of this court to the offence of rape as defined under Section-375 IPC which said that: –

“375. Rape – A man is said to commit “rape if he-

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person.”

Most significantly, what constitutes the real cornerstone of this brilliant judgment is then summed up in para-15 wherein it is precisely, pragmatically and prudently held that, “It is important to notice that the extent of penetration is immaterial and that the perineum is part of the private parts which sheathes the urethra. Hence, even if the penetration was very slight and was not into vagina, the same will bring the act within the definition of rape. However, I add a word of caution here that whether the act fell within the definition of rape, should be left to be decided by the court concerned when the matter is brought before it for hearing afresh.”

As a corollary, the bench then observes in para-16 that, “On the basis of above discussion, I am of the view that the findings/observations given by the appellate court are not perverse, incorrect or illegal and the same is not liable to be under Section 102 of the Juvenile Justice Act, 2015.”

More to the point, the nbench then directs in para-17 that, “Accordingly, present petition is dismissed at this stage.” Finally, the bench then concludes by holding in para-18 that, “Copy of the order be transmitted to the court concerned.”

 All told, we thus see quite distinctly that the bottom-line of this most refreshing, robust and rational judgment by the Allahabad High Court is that even if the penetration was very slight the act would still constitute rape. The loud and clear message that emerges from this notable judgment is that there has to be zero tolerance for heinous offences like rape. It certainly merits no reiteration that there can be no justification of any kind for heinous offences like rape and there must be strictest punishment for all those who dare to indulge even in the slightest penetration and cannot under any circumstances be allowed to go scot-free under any circumstances! It also merits no reiteration that all judges must definitely pay heed to what the Allahabad High Court has held in this case so courageously, cogently and convincingly, so that no rapist ever dares to take women’s dignity for granted and try to extricate himself by resorting shamelessly to the most senseless and specious plea that the penetration was slightest which could be overlooked by the court. There is no denying it!


By Sanjeev Sirohi

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