IMPORTANT POINT
The interpretation of penetration under Section 375 of the Indian Penal Code, 1860, recognizes that any form of penetration, even through clothing, constitutes rape.

JUDGMENT

1. The principal ground urged in this appeal is that though the appellant has been found guilty of having committed rape and sentenced to ten years' imprisonment and payment of fine of Rs. 25,000/- (in default to suffer imprisonment for an additional six months), no case of penetration in terms of Section 375 of the Indian Penal Code, 1860 was made out.

2. The matter pertains to an incident of September 23, 2006 in respect whereof a complaint was lodged on September 30, 2006, whereupon the minor victim was medically examined on October 1, 2006. Such examination revealed that the victim's vagina was tender and red and her hymen was ruptured. The opinion rendered by the medical examiner was that the girl had been raped and was suffering from mental trauma. The medical examiner substantiated his opinion in course of his evidence at the trial and maintained that the nature of the tear of the hymen in this case indicated that it was upon being pushed by a foreign body and not due to the victim being involved in any arduous sporting activity.

3. The first information report came to be lodged upon a women's organisation in the locality coming to know of the incident. Indeed, the complaint referred to the appellant herein having confessed to the commission of the crime before the local Dorbar. The investigating officer also deposed at the trial to the effect that the appellant had confessed that he had committed the offence. However, since such extra-judicial confession could not have been taken cognizance of, the trial court merely referred to the statement rendered by the appellant under Section 164 of the Code of Criminal Procedure, 1973, wherein he clearly admitted to having raped the victim.

4. In support of the appellant's case that there was no rape and the appellant's confession had to be discarded, it is the victim's oral evidence at the trial that is placed. In course of the examination-in-chief, the victim claimed that the appellant herein grabbed the victim and took the victim to a bed where he made the victim lie down before "he took off his pant and he pulled my under garments and then he raped me". However, in her cross-examination, the victim had this to say:

"... After the accused entered my house he caught hold of my hands, opened his long pants and mine, but he did not open my under wear, he then took me to the bed which was in the bedroom and then rape me. I did not scream for help when I saw the accused opened his under pant as I was scared of him. I did not feel pain after the accused had rape me. It is a fact that the accused person did not penetrate his male organ inside my vagina but he just rubbed from the top of my under wear. It is a fact that I was tutored by my mother before I came to the Court today".

5. According to the appellant, if the victim's underwear was not taken down and the appellant merely rubbed himself on the victim's crotch while she still wore her underpants, there would be no commission of any rape. The appellant also asserts that considering that the appellant is of average intellect with no formal education, his confession must be regarded as having committed a wrong, but merely because his translated statement reveals that he had confessed to having committed rape, it would not imply that there was penetrative sex, particularly since the victim's version is such that would rule out any element of penetration, which is the key to the commission of the offence of rape.

6. The appellant is critical of the impugned judgment of October 31, 2018 to the extent that the trial court has glossed over such aspect of the matter upon the trial court placing over-reliance on the purported confession. The underlying submission on behalf of the appellant is that since it was the Executive Magistrate who translated the answers given by the appellant into English, it is possible that the Executive Magistrate translated what he perceived the appellant had said, rather than what the appellant may actua