Read Time: 08 minutes

The Bombay High Court recently upheld the judgement of Trial Court and held that even inserting a finger into the private part of a woman, would amount to rape.

The Single Bench of Justice Revati Mohite-Dere was hearing an appeal filed the man (appellant), who lived in the same vicinity as that of the survivor woman who was intellectually challenged.
He had challenged his conviction by the Dindoshi sessions court in April 2019.

“What also cannot be lost sight of, is the fact that the prosecutrix was intellectually challenged. In the facts, having regard to what is stated aforesaid i.e. the evidence on record, merely because the prosecutrix has not given minute details of sexual assault on her, would not absolve the appellant of the offence under Section 376,” noted the Bench

Factual Matrix –

The incident took place on 8th January 2016. The mother has alleged that her daughter (Prosecutrix), was aged 21 years and is intellectually challenged. When Prosecutrix did not return home from Kaali Mata Mandir then her family went in search of her and that at about 10:00 p.m, they saw the Prosecutrix returning home.
When the Prosecutrix was questioned as to why she was late, she informed that one person (appellant) had taken her to a fair on his bike and from there, in the bushes in Ghosh compound, where she was undressed. She disclosed that the said person had inserted his finger in her private part.

The family members, caught hold of the accused and called the police and registered a case the learned Sessions Judge framed charge as against the appellant, to which the appellant pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined 13 witnesses and after extensive probe and trial he was convicted for committing rape (s 376 IPC) and even under charges of kidnapping (Sections 363 & 366 IPC).

In the present case the appellant through his counsel argued that 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. He did not challenged the conviction under Kidnapping in the appeal.

“as the offence under Section 376 is concerned, the act of the appellant would not fall within the purview of Section 375 and that, at the highest, taking into consideration the evidence on record, the act of the appellant would be one under Section 354 of the Indian Penal Code,” contended the Counsel for appellant.

Taking into account the factual matrix of the present case the High court Bench observed that,

“It appears from the evidence on record that the appellant 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 fact that the appellant had inserted his finger is also duly corroborated by the DNA report.”

The Bench further noted that, “What cannot be lost sight of, is that the appellant 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 prosecutrix was taken for medical examination on 9th January 2016 within 24 hours and was examined by the doctor.”

The Bench dismissed the appeal and observed that, “Considering the material on record, the conviction of the appellant under Section 376 of the Indian Penal Code, cannot be said to be unwarranted. Accordingly, the judgment and order of conviction and sentence is upheld.”

[Case Title - Farukh Abdul Raheman Shaikh v Sate of Maharastra]

[Law Point – s 376 and s 375 of Indian Penal Code, 1860]