Mumbai: The Bombay High Court bench of Justice Revati Mohite-Dere has held that even inserting a finger into the private part of a woman, would amount to rape. The bench has accordingly upheld the conviction of 33-year-old man from suburban Malad, who sexually assaulted an intellectually challenged woman.
The bench was hearing an appeal filed the man, who lived in the same vicinity as that of the survivor woman (21). He had challenged his conviction by the Dindoshi sessions court in April 2019.
According to the prosecution case, the woman had been to a Kali Mata mandir nearby her house and from there the accused took her to a fair. Later, he took her in the bushes besides the fair site and disrobed her and inserted his finger in her private parts. But as the woman started crying, the accused stopped and dropped her near her house, where her mother and other family members were searching for her.
The mother, on seeing the survivor woman, sought to know where she was to which she narrated the entire incident. She even pointed out at the accused, who was peeing at the side of the road. The family members, as per the prosecution, caught hold of the accused and called the police and registered a case and after extensive probe and trial he was convicted for committing rape and even under charges of kidnapping.
Before the HC, the accused argued that his conviction under charges of rape was uncalled for and instead he should, at the most, be convicted for sexual assault.
Having heard the contentions, Justice Mohite-Dere said, "It appears from the evidence on record that the accused had inserted his finger in the prosecutrix's private part, which act is squarely covered under the definition of the offence 'rape', as defined under section 375 of the Indian Penal Code. The medical papers of the prosecutrix reveal that there was injury to the hymen."
"It hardly matters in the facts, and having regard to the evidence, that there was no penovaginal intercourse. Fingering of the vagina also constitutes an offence under the law," Justice Mohite-Dere ruled.
The judge further took into account the fact that the DNA reports of the accused's nail clippings did match and also the injuries and the mud stains on the survivor's person matched with the soil of the crime spot.
"What cannot be lost sight of, is that the accused was apprehended immediately on the very day, soon after the incident; the fact that the FIR was also lodged on the very same day and the victim was taken for medical examination within 24 hours. What also cannot be lost sight of, is the fact that she was intellectually challenged," the judge noted in her orders passed last month but made available on Friday.
"In the facts of the case and the evidence on record, merely because the prosecutrix has not given minute details of sexual assault on her, would not absolve the accused of the offence under Section 376 (rape)," Justice Mohite-Dere said while dismissing the plea.
