Even if penetration was very slight the act would constitute rape: Allahabad HC

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 U.P. 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 Hon’ble Mrs 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 Hon’ble Mrs. Justice Jyotsna Sharma has laid down so very courageously, commendably and cogently in this leading case!

Informant lodged an FIR alleging that her daughter, aged about 7 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; challenging the aforesaid order, Criminal Appeal 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 15.01.2022, the minor accused has come in this revision through his natural guardian/father.”

It would be worthwhile to mention that the Bench that, “A submission has also been made before this Court that this case does not fall under the definition of Section 375 I.P.C.

COURT ON DEFINITION OF SECTION 375

Confronting this submission, learned A.G.A. has drawn the attention of this Court to the offence of rape as defined under Section 375 I.P.C. which said that:-

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

(a) 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.”

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:

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! No denying it!