Non-detection of semen in vaginal swab does not, by itself, dislodge the theory of rape

Uttaranchal High Court: While delivering the judgment in a case of alleged rape of a one year and three months old baby girl, Rajiv Sharma, J., for himself and Alok Singh, J. upheld the conviction and sentence of the appellant-accused, as awarded by the trial judge.

The appellant, tenant of the informant, was a convict under Section 376(2)(i) IPC and Section 5(m) read with Section 6 of POCSO Act. It was alleged that he took away the grand daughter (victim) of the informant (PW 1) on the pretext of buying her biscuits; and when the victim returned, she was crying and blood was oozing out of her private body parts. She was taken to the hospital and FIR was lodged with the police. The appellant was tried for the charges mentioned above. The trial court relying on the FSL report and considering the statements of prosecution witnesses held the appellant guilty and convicted him for the said offences. The appellant challenged the decision of the trial court.

The main ground for the challenge was that no semen was found on the vaginal swab of the victim and hence, the case against the appellant was not proved beyond reasonable doubt. However, the High Court rejected such contention relying on the Supreme Court decisions in Wahid Khan v. State of M.P., (2010) 2 SCC 9 and Parminder v. State (NCT of Delhi), (2014) 2 SCC 592, and observed that even slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. Further, the absence of semen in the vaginal swab and/or non-rupture of hymen does not dislodge a theory of rape. On the facts of present case, the Court held that though no semen was detected in the pathology report, yet the nature of injuries as shown by the FSL report and proved by the witness-medical expert; statement of PW 1 that found corroboration in the statement of PW 2 (mother of the victim), were sufficient to bring home the guilt of the appellant-accused. Holding thus, the High Court dismissed the appeal and upheld the order of conviction and sentence passed by the trial court. [Dal Chandra v. State of Uttarakhand,2018 SCC OnLine Utt 612, decided on 01-06-2018]

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