Indian Kanoon - Search engine for Indian Law

6. It was also strongly contended that even if the entire prosecution case is accepted, the offence allegedly committed by the petitioner will not constitute any non-bailable offence under Section 375 IPC which is punishable under Section 376 IPC. As per the materials available, the offence will only be under Section 354 IPC which is a bailable offence and hence, he is entitled to bail. The petitioner is handicapped at this stage, since the prosecution records are not within the reach of the petitioner, still, as it is understood during this proceedings, the findings in the medical certificate will strongly suggest that there was no penile penetration which is an inevitable requirement to constitute offence of rape under Section 375 IPC, it was submitted. It was also argued, on the basis of the decision of the Supreme Court reported in Sakshi v. Union of India ( (2004)5 SCC 518) that an offence under Section 376 IPC will be attracted only if there is penile penetration, but the medical certificate would negative possibility of any penile penetration.

18. In 2004 the Supreme Court held, after considering the matter in detail that only penile penetration will constitute rape, but no other forms of penetration will attract offence under Section 375 IPC. It is seen from the judgment in Sakshi's case (supra) that the Supreme Court referred the matter on 13.1.1998 to the Law Commission of India for its opinion whether all forms of penetration would come within the ambit of Section 375 IPC or whether any change in statutory provision need to be made and if so, in what respect.

20. The Supreme Court held in Sakshi's case (Supra) that prosecution of an accused for an offence under Section 376 IPC on a radically enlarged meaning of Section 375 IPC as suggested by the petitioner in that case may violate the guarantee enshrined in Article 20(1) of the Constitution. It says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The Supreme Court held, "it will not be in the larger interest of the State of the people to alter the offence of rape as contained in Section 375 IPC to include penetration other than penile penetration, by a process of a judicial interpretation as is sought to be done by the petitioner" in that case.

21. In the light of the above interpretation given to Section 375 IPC, it is clear that offence under Section 375 IPC will not be attracted unless there is evidence of penile penetration. It is also well-settled that partial penile penetration will be sufficient to constitute rape. Any injury caused by penetration other than penile penetration will not suffice to attract offence under Section 376 IPC. In this case the medical certificate shows that "vagina admits one finger". The victim has not specifically stated that there was any penile penetration or an attempt of such penetration. There was no attempt from the side of the investigating agency to question the child to find out what exactly had happened. After receiving the medical report which shows only admission of one finger into the vagina, the child and the doctor ought to have been questioned to ascertain whether there was any "penile penetration" or an attempt to it. But, neither the child nor the doctor was questioned from this angle.