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Synopsis

The Bombay High Court recently reversed the conviction of two men found guilty of committing penetrative sexual assault and aggravated penetrative sexual assault on their 13-year-old orphaned niece while observing that there can be no offence of rape without penetration.

“It is fairly settled position that penetration is sine qua non for constituting offence of rape. Though partial, it is essential that there has to be penetration or insertion,” the order reads

The high court convicted them of sexual assault, thereby reducing their sentence from 10 years to 5 years of rigorous imprisonment.

A single-judge bench of the high court at Aurangabad comprising Justice Abhay Waghase heard an appeal filed by two men who were convicted for the offence under Section 376(2)(f)(n) of the IPC and Sections 4 (Penetrative Sexual Assault) and 6 (Aggravated Penetrative Sexual Assault) of the POCSO Act.

After the victim was found crying by one of the teachers at her school, she narrated to the teacher that she was residing with her maternal uncle due to being an orphan.

She stated that her maternal aunt's husband and maternal uncle compelled her to perform household chores, subjected her to hunger, and forced her to sleep in the bathroom.

The victim informed the teacher that both accused individuals removed her clothes, touched her private parts, and threatened to kill her if she disclosed the incidents to anyone. Subsequently, the teacher reported the matter to the principal, leading to the filing of an FIR.

In her statement in the witness box, the victim also stated that both the accused touched their male genital to her vagina and also pressed her breasts.

The high court added that the victim in her statement only said that there was neither penetrative sexual assault nor aggravated penetrative sexual assault.

“…even charge under Sections 4 and 6 of the POCSO Act would not be attracted for the simple reason that, in substantive evidence, victim has deposed about accused nos.1 and 2 touching her private parts and chest with their hands and they sleeping over her person. Resultantly, when such is her testimony, in the considered opinion of this Court, neither penetrative sexual assault nor aggravated penetrative sexual assault can be said to be established. Resultantly, in the considered opinion of this Court neither the charge of Section 376(2)(f)(n) nor Section 4 and 6 of the POCSO Act can be said to be getting attracted,” the order reads.

Case title Sudhir Suradkar & Anr vs State of Maharashtra & Anr.