Penile penetration is mandatory for rape under section 376 IPC before amendment act 2013. My brother has been convicted in the fake criminal case lodged under section 376 and 354 IPC. He was contesting election for gram pradhan in 2009 and won that election. Our village is dominated by muslim community but my brother, being a hindu had good support from the muslim. Therefore, he successfully won the election. After the election that FIR was lodged by the rival group. The allegation is that my brother went to the house of the victim and compel her to hold his penis. There was no evidence of sexual intercourse. The father of the victim was hostiled during the trial but the court overlooked all that evidence and convicted him for seven years. In this situation, what is the possibility of saving my brother? He is in jail from 3rd March 2024.
Asked from: Uttar Pradesh
Prima facie, it seems that the conviction is bad in law because in the absence of penile penetration, the offense of rape is not established. You mentioned nothing about the medical report of the victim, which is crucial evidence to establish the fact of penile penetration. Without a medical examination report, the court cannot form an opinion about whether there was penetration of the penis into the victim's vagina.
In this situation, you should file an appeal against the order of conviction. This is the only remedy available in this scenario. Before the enforcement of the criminal law amendment act 2013, penile penetration was mandatory for a rape conviction. If the accused did not penetrate his penis into the victim's vagina, he could not be punished for the offense of rape.
Holding the penis in hand may amount to the offence of outrage of modesty if it was against the will of the victim. However, you did not mention the age of the victim. If the victim's age is below 12 years, her consent is immaterial. The offence under Section 354 is made out if the victim's age is below 12 years. Therefore, the punishment under Section 354 IPC is appropriate.
When the victim's age is between 12 to 18 and she is confronted in her statement under section 164 of the CrPC, then the court shall presume that she did not give her consent. In this situation, the conviction seems proper.
However, when the victim's age is above 18 years and there is no evidence of use of force, deceitful act, or compulsion from the accused, the offence under Section 354 IPC is not established. Because an adult woman is competent to give her consent. For more legal help please visit Kanoon India.
Also read: Physical injury is not mandatory to prove the charge of rape
