STIGMA OF RAPE
In an appeal against conviction for the offence punishable u/s 376(2)(f) , I have taken some novel grounds . The Appellant is convicted for 10 years R.I. and all evidence points towards his guilt. I would be very much indebted if the esteemed Advocate members/law students express their LEGAL OPINIONS [preferably supported by citations. General discussion please excuse ]. Boldly I have taken the grounds, but I do not know if I am right or wrong. Please comment and help out. [ I am convinced that there are absolutely no grounds for defence ]
[e] In the alternative and without prejudice it is submitted that the Ld Judge ought to have convicted the Appellant / Applicant for offence punishable u/s 376 and 511 of the Indian Penal Code. This would have been right and proper in view of the stigma attached by the society to a rape victim. By doing so , the Ld Judge would have prevented further stigmatization of the victim from being branded as a rape victim causing her serious psychological harm. [ as a damage limiting exercise , this would be just]
[f] That a person whose s*xual feelings are aroused by small innocent children ought to be looked at as a person with low self esteem with a deranged mind. [ which is a product of an abused childhood] and while sentencing , psychological counseling of the accused ought to have been ordered so that after completing the sentence , the accused person is let back into the society , not as a pervert but as a normal human being. This is necessary because after sentencing , by coming in contact with criminals there is a likelihood of more serious harm being caused to the accused’s mental health. Life is too precious to be allowed to wither away because of an impulsive incident by an under privileged accused. No soul is unredeemable.
[g] Under section 376(2)(f) :- whoever commits rape on a women when she is under 12 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also liable to fine.
Definition of rape u/s 375 , first explanation ‘ penetration is sufficient to constitute the s*xual intercourse necessary for the offence of rape.’ Various High Courts have consistently taken the view that even slightest penetration is sufficient to make out an offence of rape. In Madam Gopal Kakkar v/s Naval Dubey , the Hon’ble Supreme Court has held that ‘ even partial penetration in the labia Majora or the vulva or pudenda which in the legal sense is sufficient to constitute the offence of rape’.
It is respectfully submitted that construing strictly the word ‘penetration’ in section 375 of the Indian Penal Code, it strictly denotes that considering the female anatomy, it is only the hymen and no other part of the female anatomy which can be penetrated. Hence the offence u/s 376 ought to be considered established only when the hymen is penetrated and the male organ enters the v**gina. Superficial attempt to penetrate the v**gina would amount to outraging the modesty / knowing the women carnally and would fall short of rape. Such an interpretation is in the interest of child victims so that no stigma is annexed to them through out their life.
