When a victim of a sexual offence does not give out every minute detail regarding the offence, that does not imply that the offence never occurred and this certainly does not mean that the accused is not guilty of the offence under section 376 of the IPC. This was decreed by Hon’ble Justice Revati Mohite Dere in the case of Farukh Abdul Raheman Shaikh Vs. The State of Maharashtra [CRIMINAL APPEAL NO. 725 OF 2019] on the 18th of June 2021 before the Hon’ble High Court at Bombay.
The brief facts of the case are, on 8th January 2016, the prosecutrix who is intellectually challenged and aged 21, did not return home. 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 prosecutrix pointed out to the appellant who was answering the nature’s call, close-by. When the appellant tried to flee from the spot on being pointed out, he was apprehended by the people and assaulted. The police were called and thereafter PW 1 (mother of the prosecutrix) lodged an FIR with the Dindoshi Police Station, Mumbai, which was registered vide C.R. No. 19/2016 for the offences under section 363, section 366 and section 376. On April 25th 2019, the learned additional sessions judge issued an order convicting and sentencing the appellant under the above-mentioned sections. Aggrieved by this, the present appeal has been filed by the appellant challenging his conviction under section 376.
The counsel for the appellant submits that the appellant does not press the appellant’s conviction recorded under Sections 363 and 366 of the Indian Penal Code. According to the learned counsel for the appellant, since the prosecutrix had not given the details of the sexual assault in her evidence, the offence would not be one under Section 376 of the Indian Penal Code but would be a lesser offence. The defence of the appellant was that of denial and false implication. The counsel for the respondent vehemently opposes the submissions advanced by the learned counsel for the appellant. She submits that the evidence of the prosecutrix is duly corroborated by the medical case papers and the evidence by the doctor would clearly show that the prosecutrix was sexually assaulted and as such the offence would be one under Section 376.
The learned judge heard the submissions by both the parties. To analyze as to whether the offence would be one under Section 376 or would be a lesser offence, the learned judge observed, that the prosecutrix was intellectually disabled. It was also observed that the prosecutrix has identified the appellant during trial as the same person who committed sexual assault on her. It was also observed 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 said evidence gives credence to the prosecutrix’s case that she was sexually assaulted by the appellant. It hardly matters in the facts, and having regard to the evidence, that there was no penovaginal intercourse. Fingering of the vagina also constitutes an offence under the law.
The learned court dismissed the petition with the above-mentioned observations and decreed, “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. 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.”