Redness & Swelling In Vaginal Walls Sufficient To Show 'Penetrative Sexual Assault' Even Though Insertion Of Male Organ Not Alleged: Meghalaya HC

"The survivor herself did not assert penetration. She claimed that the appellant rubbed his penis on her vagina...In this case, the young survivor may have meant that the entirety of the appellant's organ may not have been pushed into her. However, she complained of pain, to the extent of having difficulty in urinating. Further, the examination conducted on her within close proximity of the incident revealed redness and swelling in the vaginal walls, which would be indicative of penetration and the hymen was found to be ruptured. Even if not much significance is attached to the rupture of the hymen in the light of the survivor's assertion that the appellant may not have inserted his penis into her, the redness and swelling of the vaginal walls would be indicative of penetration. At the end of the day, the expert who examined the survivor was of the opinion that the survivor had suffered penetrative sexual assault."

Background:

The appeal arose out of a judgment of conviction under Section 5(m) and (n) of the Protection of Children from Sexual Offences Act, 2012 read with Section 6 thereof. 

Mr. S.D. Upadhaya, legal aid counsel for the appellant, claimed that there is no evidence of penetrative sexual assault and even the survivor asserted that the appellant did not insert his penis into her vagina. He referred to the inconclusive forensic science laboratory report and the absence of any firm opinion in the report of the medical expert who conducted the examination on the survivor immediately upon the FIR being lodged.

He further placed reliance on the categorical statement of the survivor that was recorded under Section 164 of the Cr.P.C. to the effect that the appellant merely rubbed his penis on her vagina but did not insert the same in her vagina. In the survivor's testimony at the trial, she referred to the appellant coming on top of her and doing "bad things" to her. The appellant contends that since penetration was not even alleged in either statement by the survivor, no case of penetrative sexual assault could have been found to have been made out.

Court's Observations:

The Court noted that the medical examination report did not indicate a conclusive opinion as to whether the survivor had been subjected to penetrative sexual assault, as the final opinion was reserved till the receipt of the forensic science laboratory report. However, the deposition of the medical examiner at the trial was clear in such regard and remained uncontradicted. The medical examiner deposed that though there were no external injuries found on the person of the survivor, on the examination of her genital parts he discovered "swelling and redness of the vaginal walls".

The Court referred to a solitary question that was put to the medical examiner in his cross-examination as to whether the kind of injury in the private parts of the survivor could be caused by falling or playing. The unqualified reply was in the 'negative'.

The Court observed that though the survivor herself did not assert penetration and, in fact, in her initial statement she clearly stated that the appellant did not insert his penis into her vagina, at the same time, the she claimed that the appellant rubbed his penis on her vagina. However, when the vaginal walls are rubbed with some pressure, insertion would be possible. and for the offence of penetrative sexual assault, even the slightest degree of penetration would suffice. It is possible that if the outer walls of the vagina were rubbed lightly with the penis or any other object, there may not be any insertion.

Further, the Court was of the opinion that the survivor made out a believable account of the incident and, considering the circumstances, it was incumbent on the appellant to find fault with the same or to adduce evidence that would have detracted from the essence of the accusation. The bare denial on the part of the appellant in course of his examination under Section 313 of the Code is almost an admission of the presence of the appellant at the place of occurrence and the commission of the offence.

Having regard for the aforesaid, the Court found no merit in the appeal and accordingly, upheld the decision of the Trial Court.

Case Title: Mehun Lamurong v. State of Meghalaya

Case No.: Criminal Appeal No. 14 of 2022

Judgment Dated: 10^th August 2022

Coram: Sanjib Banerjee, CJ. & W. Diengdoh, J.

Judgment Authored By: Sanjib Banerjee, CJ.

Counsel for the Appellant: Mr. S.D. Upadhaya, Legal Aid Counsel

Counsel for the State: Mr. R. Gurung, Government Advocate

Citation: 2022 LiveLaw (Meg) 27

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