Rape is a legal term and not a diagnosis to be made by medical officer: Bombay High Court

While upholding a man's conviction for raping his minor niece, the Nagpur Bench of the Bombay High Court recently said that rape is a legal term and not a diagnosis to be made by a medical officer. [Atul Keshav @ Kiran Malekar v. State of Maharashtra].Justice Anil Kilor rejected the contention of the convict, who appealed against his conviction and 10-year jail sentence by arguing that the medical report only states that 'sexual assault' cannot be ruled out, and that it directly does not state whether or not rape occurred.The judgment stated,"It is thus evident from the observations made by the apex court that rape is a crime and not a medical condition. 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 judge, therefore, held that the statements of the medical witnesses, as well as the medical evidence on record, sufficiently established sexual activity..As per the prosecution case, the appellant was the uncle of the victim, who was four years old at the relevant time. He allegedly raped his niece on April 1, 2018, when he was alone in the house with her. The victim narrated the entire incident to her mother the next day, when she noticed some injuries on the private parts of the victim. She told her mother that the appellant switched off the lights of the house, removed her shorts and raped her, and when she started crying, he threatened her of dire consequences.Speaking about the case, Justice Kilor observed, "This is a case of child sexual assault, which is a form of sexual violence which includes sexual abuse, rape, indecent behaviour, 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, neighbours, step fathers, bosses, uncles. In the case at hand, uncle of the victim is the accused.".The Court rejected the contention of the accused that he had not penetrated the girl's private part and thus the offence of sexual assault or rape cannot be invoked against him. Referring to various judgments of the Supreme Court on this very issue, Justice Kilor noted that penetration is the sine qua non (essential condition) for an offence of rape, but it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen."Even partial or a slightest penetration in the labia majora or the vulva or pudendum with or without emission of semen is quite sufficient as labia majora is the first to be encountered by the male organ. Hence, the depth of penetration is immaterial in an offence punishable under Section 376 (rape) of the IPC," the judge reiterated..Lastly, the Bench refused to accept the contention of the appellant that there was a delay in lodging the First Information Report (FIR) on the part of the victim's family.The Bench noted that the mother, upon learning about the incident from the victim, had immediately called her husband, who was in Nagpur and not at his residence in Chandrapur district at that time. It further noted that she called her in-laws, and on the next day, the FIR was filed."It is imperative to note that the appellant is the brother (cousin) of the husband of the informant and uncle of the victim. In the circumstances it can not be said that it is unnatural that the informant waited for the family members to take decision about lodging of the report. Hence, the submission that there was a delay in lodging of FIR, is liable to be rejected," the judge opined..Advocate RM Daga appeared for the appellant. Additional Public Prosecutor SD Sirpurkar represented the State. Advocate Mukta R Kavimandan appeared for the Victim..[Read Judgment]