In a country where the law, its interpretation and its enforcers have often let down rape victims, the High Court of Meghalaya issued a landmark ruling on Monday that held that a man who rubs his penis against a female’s vagina can be convicted of rape.
The case has its origins in 2006 when, following a police complaint, a 10-year-old girl’s medical examination revealed she had a torn hymen and tenderness of the vagina. It was the medical examiner’s opinion that the tear to her hymen was not due to exercise but due to insertion of a “foreign body”.
The suspect, Cheerfulson Snaitang, was convicted in 2018, in part based on his confession. (At the time of the crime, the stringent Protection of Children from Sexual Offences (POCSO) Act 2012 had not been legislated.)
However, Snaitang appealed and withdrew his confession, stating that his words had been mistranslated by the authorities when it was taken down in English by the Executive Magistrate. His lawyer argued that he had only rubbed his penis on the girl’s underwear and that there was no penetration.
The victim, a young adult by the time the case came to trial, also said during cross-examination that the accused had not removed her underwear during the act. The victim had also stated that she did not feel pain afterwards but the court took into consideration the medical findings and that she had complained of pain when being examined in the days following the incident.
Under Section 375 of the Indian Penal Code a man is said to commit rape when he has sexual intercourse with a woman under specific circumstances, such as when it is without the victim’s consent. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
The defence argued that there was no penetration as the girl had still been wearing her undergarments.
However, the division bench of the court, comprising Chief Justice Sanjib Banerjee and Justice Wanlura Diengdoh, held that penetration to any extent is satisfactory under Section 375 to convict, even if it is not full penetration. They accepted the medical reports of a tender vagina and ruptured hymen and found that the accused could not offer an alternative explanation to these.
They thus concluded that there is sufficient evidence of at least some penetration and upheld Snaitang’s conviction. He had been sentenced in 2018 to 10 years’ imprisonment and fined Rs 25,000.
