Rape Is a Legal Term Not A Diagnosis To Be Made By Medical Officer- Bombay High Court
The Bombay High Court at Nagpur while upholding the conviction of a man who was accused of raping his four-year-old niece has held that rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.
The Bench of Justice S. Anil Kilor observed –
"Rape is a legal term and not the diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity whether the rape has occurred or not is a legal conclusion not a medical one."
The Court rejected the plea of the convict who had appealed against his conviction and 10-year imprisonment. The convict had argued that the report of the medical officer only showcased that sexual assault cannot be ruled out and that it does not say whether the victim was raped.
The Court thus held the testimonies of the witnesses coupled with medical evidence sufficiently established sexual activity.
In this case, it was alleged that a minor girl was raped by his paternal uncle when he was alone with the girl. The girl narrated the entire incident to her mother on the next day when the mother saw some injuries on the private parts of the girl.
The Court while referring to the facts of the case noted –
"This is a case of child sexual assault, which is a form of sexual violence which includes sexual abuse, rape, indecent behavior, sexual molestation, child sexual abuse, child sexual assault, sexual harassment. Sexual assault is most commonly committed against women and children by the people they know such as boyfriends, neighbors, step fathers, bosses, uncles. In the case at hand, uncle of the victim is the accused."
The Court also noted that the testimony of a victim of sexual assault is vital and unless there are compelling reasons which necessitated looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.
The Bench while placing reliance on Apex Court's judgments reiterated that penetration is the sine qua non for an offence of rape and it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen.
Furthermore, the Court held that medical evidence was in total compliance with the statement of the victim and therefore, the offence was completed.
The Court rejected the contention of the Appellant that there was no penetration as no injury was found on the male organ of the accused and hymen of the victim was intact.
The Court observed that rape is a crime and not a medical condition.
The Bench held, "In this case, as it is established that the penetrative sexual assault was committed on a girl child aged 4 years, it can therefore, safely be said that it is an aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Thus, the trial Court has rightly convicted the accused for the offence punishable under Section 6 of the POCSO Act."
Accordingly, the Court dismissed the appeal.
Cause Title - Ajay Keshav @ Kiran Malekar v. State of Maharashtra