The term “rape” is not a medical diagnosis but rather a phrase used in the judicial system: Bombay High Court to Medical Officers

The Court concluded that the medical officer can only state whether there is evidence of recent sexual activity; whether or not rape has taken place is a legal judgement rather than a medical one.

The Nagpur Bench of the Bombay High Court recently ruled that rape is a legal word and not a medical diagnosis, upholding a man’s conviction for raping his younger niece.

Justice Anil Kilor rejected the defendant’s argument that the medical report only indicates that “sexual assault” cannot be ruled out and does not specifically identify whether or not rape occurred. The defendant had appealed his conviction and 10-year prison sentence.

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 concluded that sexual activity was sufficiently proved by the testimony of the medical witnesses and the medical evidence in the record.

According to the prosecution’s case, the victim, who was four years old at the time, was related to the appellant through blood. On April 1, 2018, while they were alone in the house, he is accused of sexually assaulting his niece.

The following day, when her mother saw some injuries on the victim’s intimate areas, the victim told her mother the entire incident. She reported to her mother that the appellant had turned out the lights in the home, taken her shorts off, and raped her before threatening to hurt her if she cried out.

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 accused’s argument that the offence of sexual assault or rape cannot be brought against him since he did not penetrate the girl’s private area was rejected by the court.

Referring to different Supreme Court rulings on this subject, Justice Kilor stated that while penetration is a sine qua non (prerequisite) for the crime of rape, it is not required that the penetration be complete with semen ejection and hymen rupture.

“Even a partial or small penetration of the labia majora, vulva, or pudendum, with or without the release of semen, is adequate, as the labia majora is the first organ contacted by the male reproductive system. Therefore, the depth of penetration is irrelevant in a violation punishable under Section 376 (rape) of the Indian Penal Code” The judge repeatedly emphasized.

Last but not least, the Bench rejected the appellant’s argument that the victim’s family was late in filing the First Information Report (FIR).

The Bench noted that, upon hearing about the occurrence from the victim, the mother immediately contacted her husband, who at the time was in Nagpur and not at his residence in Chandrapur district. It was also mentioned that she called her in-laws, and the FIR was lodged the following day.

“It is essential to notice that the appellant is the brother (relative) of the informant’s spouse and the victim’s uncle. In light of the circumstances, it is not surprising that the informant waited for family members to decide before filing the report. Consequently, the argument that there was a delay in filing the FIR is susceptible to being rejected” Judge’s opinion.

Attorney RM Daga represented the appellant. The State was represented by Assistant District Attorney SD Sirpurkar. Attorney Mukta R. Kavimandan represented the victim.

Case Title: Atul Keshav @ Kiran Malekar v. State of Maharashtra

Written By: Lakshman Singh, B.B.A LL.B (Hons.), Shri Ramswaroop Memorial University, Lucknow

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