The Bombay High Court recently held that the amended definition of rape under the Criminal Law (Amendment) Act, 2013, cannot be made applicable retrospectively and changed the conviction of an accused from rape to attempt to rape.
The accused was convicted under Section 376 (2)(f) of the Indian Penal Code, the sentence was changed to Section 511 read with 376(2)(f) of IPC. Justice AM Badar was hearing an appeal filed by the accused convicted by the Additional Sessions Judge, Mumbai, in a judgment dated June 29, 2013.
According to the prosecution, the incident took place on July 5, 2012, when Shantaben asked her granddaughter, the victim, to ask landlord Bharat Gavand to start the water supply as they had run out of water. Meanwhile, Shantaben went with her grandson Varun to fetch the water. This is when accused Dilip Gavand, son of the landlord, put his hand on the victim’s mouth and took her to a secluded area. There he denuded her and then put his hands on her private parts. Then he raped her.
While the accused denied the incident completely, he also alleged that these allegations were made against him because his father had refused to sell the rented premises to the victim’s father.
The trial court found the accused guilty of rape as defined under Section 375 of the IPC and sentenced him to seven years in jail.
The court noted that Dr. Deepali Elgire, Assistant Professor in Gynecology at JJ Hospital, who examined the victim, found that she had some injuries in her vaginal area. Her report stated that the victim “gives a history of fingering and attempt of penile friction”.
After going through the definition “rape” under Section 375, Justice Badar observed:
“Thus, to constitute the offence of rape as it stood on 05/07/2012, the prosecution is required to prove that the appellant/accused had sexual intercourse with the victim female child/P.W.No.1. The prosecution is enjoined to establish even partial or slightest penetration of the male organ of the appellant/accused in the female organ of the victim female child/P.W.No.1.”
The court then noted that the crime took place on July 5, 2012, while the amended definition of rape introduced by the Criminal Law (Amendment) Act, 2013, was made applicable from February 2013:
“The learned trial Court committed error of law in holding that fingering, friction of penis and putting the penis in the mouth of the victim constitute the offence of rape as per amended definition of the said term which is applicable to the case in hand. The amended definition of the term 'rape' introduced by Criminal Law (Amendment) Act, 2013 is made applicable w.e.f. 03/02/2013 and the incident in question took place on 05/07/2012. The amended definition of the term 'rape' cannot be made retrospectively applicable. As on 05/07/2012, fingering or putting the penis in the mouth of the victim were not the act covered by the definition of the rape. Friction of penis would amount to rape if slightest penetration is established.”
Justice Badar then noted that the victim had been tutored by her grandmother and mother. According to the initial statement, the victim had at first told her grandmother Shantaben about the accused putting his finger inside her vagina, nothing else, as reflected in Shantaben’s initial statement. Further, the court observed:
“Even the history disclosed by the victim female child/P.W.No.1 to Medical Officer P.W.No.5 Dr.Deepali Elgire does not show that the appellant/accused put his penis in the mouth of the victim or had inserted his penis in the vagina of the victim.
This position of the evidence adduced by the prosecution makes it clear that evidence of the child witness/P.W.No.1 is all encompassing embellishment and exaggeration apparently as a result of tutoring to her since inception by her grandmother as well as her mother.”
The court concluded that there was no evidence to prove penile penetration but the accused did put his finger inside her vagina which means that attempt to rape failed. The court said: “Thus, evidence on record establishes that the appellant/accused had taken the victim female child/P.W.No.1 with an intention to commit rape on her and as a preparation to accomplish this task, he had denuded her and inserted his finger in her private part. This discloses the attempt by the appellant/accused to commit rape on the victim female child/ P.W.No.1. However, the attempt to commit rape failed and the crime was not completed as the victim female child/P.W.No.1 was successful in extricating herself from the clutches of the appellant/accused.”
Therefore, the appeal was partly allowed and the conviction under Section 376(2)(f) was set aside. The accused was instead convicted under Section 511 read with Section 376(2)(f). However, the sentence remains the same as earlier, i.e., 7 years.