New Delhi: Penetration is not necessary for establishing the offence of rape, the Supreme Court has said.
"Penetration itself proves the offence of rape, but the contrary is not true that is even if there is no penetration, it does not necessarily mean that there is no rape," a bench of justices Swatanter Kumar and Gyan Sudha Misra said.
The apex court passed the judgement while upholding the conviction of a man for raping an 11-year-old girl in 1997 despite there being no evidence of penetration.
"The explanation to section 375 (rape) of IPC has been worded by the legislature so as to presume that if there was penetration, it would be sufficient to constitute sexual intercourse necessary for the offence of rape.
"Penetration may not always result in tearing of the hymen and the same will always depend upon the facts and circumstances of a given case," the bench said.
The apex court`s judgement came while dismissing the appeal of Radhakrishna Nagesh, a ball boy at S V University tennis court in Tirupati, Andhra Pradesh in a 1997 rape case.
In this case, the minor was lured by the convict on the pretext of purchasing gold colour plastic bangles for her.
He then took her to the store room near the tennis court after he bought her the bangles. He then committed rape on her.
The trial court had acquitted him in 1999 on the ground that there was no penetration and there were discrepancies in witness statement.
The high court, however set aside the oder of the trial court, convicted the accused and sentenced him to ten year imprisonment for rape.
Nagesh then approached the apex court which dismissed his appeal and pulled up the trial court for acquitting him.
"The court must examine the evidence of the prosecution in its entirety and then see its cumulative effect to determine whether the offence of rape has been committed or it is a case of criminal sexual assault or criminal assault outraging the modesty of a girl," the apex court said.
"In our considered opinion, the trial court has failed to appreciate the evidence on record cumulatively and in its correct perspective by ignoring the material piece of evidence and improper appreciation of evidence. It has recorded findings which are on the face of it unsustainable. This error was rightly corrected by the high court, and we see no reason to interfere with the judgement of conviction recorded by the high court," the bench said.