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No offence under Section 376 IPC can be made out, unless there was penetration to some extent: Sikkim High Court

Penetration is a key component of the offence under Section 375, which is punishable under Section 376 of the Indian Penal Code, which is completely absent in this case. Without some level of penetration, no offence under Section 376 IPC can be established. It would not bring the appellant’s crime within the four corners of Section 375 of the Penal Code if there was no penetration to any extent. The judgment was passed by The High of Court Sikkim in the case of Mikal Bhujel alias Rubeen vs the State of Sikkim. [Crl. A. No. 31 of 2018] by Single Bench consisting of Hon’ble Shri Justice Jitendra Kumar Maheshwari.

The Facts of the case are that the complaint was submitted by the minor victim. she revealed that one Jeewan Bhujel of the same locality had sexually assaulted her on so many occasions. Police Station registered FIR under Section 376 of the IPC, 1860, with Section 6 of the POCSO Act. The victim gave birth to a boy child. Thereafter, the blood samples of the suspects were collected along with the blood samples of the victim as well as the newly born child and sent for DNA test. samples revealed that John is the biological father and the victim is the biological mother.

Learned Counsel on behalf of the appellant, has contended that in the FIR lodged by the mother of the victim on enquiring her, the name of the appellant has not been mentioned. Therefore, initially, the offence was registered only against Jeewan Bhujel. The victim, in her statement under Section 161 Cr. P.C. implicated the appellant which is based on afterthought. It is urged in the statement of the victim under Sections 161 and 164 Cr. P.C. the allegation of rape/sexual assault has not been alleged but, in the Court statement, only the allegation of sexual assault indicating the incident has been alleged.

Learned Counsel on the corollary, contends that as per the allegation alleged by the prosecutrix, the Trial Court has considered the testimony of the prosecutrix which remains withstand to the allegation and there is no cross-examination of those allegations, therefore, the testimony of the victim has been rightly relied upon. The Trial Court has rightly convicted the appellant under Section 3, i.e., penetrative sexual assault, although the charge was under Section 5, i.e., aggravated penetrative sexual assault.

The Court relying on Apex Court in the case of Tarkeshwar Sahu vs. the State of Bihar. Wherein it was held that “the important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In the absence of penetration to any extent, it would not bring the offence of the appellant within the four corners of Section 375 of the Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. Because of the Explanation to Section 375, mere penetration of the penis in the vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376 IPC.”

The Court while partly allowing the petition opined that “the sexual assault has been committed by the accused/appellant with her and to such extend her testimony is in ocular and withstand to those allegations. Therefore, the testimony of the victim cannot be disbelieved to such an extent. Simultaneously, it cannot be ignored that in her testimony the allegation of penetration of virile to the pudendum has not come. However, it is only said that the appellant has sexually assaulted her.”

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