Absence of injury per se does not rule out rape, says High Court

Kolkata: In a case of rape against a minor where the defence counsel cited lack of clear indication of injuries in the medical report, the Calcutta High Court ruled that absence of injury per se does not rule out rape.

The bench of Justice Joymalya Bagchi and Justice Gaurang Kanth was moved by the accused (appellant) challenging the judgement and order of the trial court which awarded him life sentence for offence under the POCSO Act.

On November 26, 2014, the 10-year-old girl was picked up by the accused on his bicycle. He took her to Nischindapur forest and raped her. She returned home and confided in her mother. A police complaint was lodged. During the probe, the girl was medically treated. Her statement was recorded before the Magistrate. The accused was arrested and a charge sheet was filed.

The defence counsel disputed the prosecution’s submission that medical report supports a case of penetrative sexual assault since there was hymeneal congestion. The defence argued that the doctor’s opinion was there is “probability of injury” on her genitalia (labia majora).

The court observed: “Absence of injury on labia majora may be due to inability of the minor to resist the sexual act. Absence of injury per se does not rule out rape.” The court noted the doctor’s statement that the hymen congestion may be because of disease or insertion of foreign body.

The court observed that since it is nobody’s case the victim was suffering from disease, the insertion of foreign body itself corroborates the prosecution’s case of penetrative sexual assault. The court scotched other defence arguments such as the child gave false evidence in court on the instruction of the public prosecutor, or that her deposition is at variance to her earlier statement before the Magistrate. The court also dismissed the argument that the families of accused and the victim had enmity and hence accused was framed. The court relied on evidence including the victim’s version.

Observing that the accused was in his 20’s and there is high possibility of reformation, the court trimmed his life

sentence to ten years.