Digital Penetration Constitutes Rape Under Section 375(b) IPC; Degree Of Penetration Irrelevant: Bombay High Court (Goa Bench)

"By its very definition the offence of rape includes insertion of any part of the body, to any extent into the vagina of a woman... the definition of the offence of rape does not stipulate any 'degree of penetration'," Bombay High Court at Goa, in a significant ruling dated April 27, 2026, held that "digital penetration" (insertion of fingers) falls squarely within the definition of rape under Section 375(b) of the IPC.

A single-judge bench of Justice Ashish S. Chavan observed that following the 2013 amendments to the Indian Penal Code, the law does not require penile penetration or a specific "degree" of penetration to satisfy the ingredients of the offence. The Court emphasized that even the slightest penetration by any part of the body is sufficient to sustain a conviction for rape.

The appellant, who worked as a car cleaner for the victim, was convicted by a Fast Track Special Court for trespassing into the victim's bedroom at night and sexually assaulting her. According to the prosecution, the victim woke up to find the appellant crawling near her bed, after which he smothered her with a pillow and attempted digital penetration. The victim resisted, and with the help of her landlord (PW7), apprehended the appellant on her balcony before handing him over to the police.

The primary question before the court was whether the act of digital penetration constitutes the completed offence of rape under Section 375 IPC or merely an "attempt." The court was also called upon to determine if the non-collection of scientific evidence like DNA and fingerprints by the Investigating Agency was fatal to the prosecution's case.

Broadened Definition of Rape Post-2013 Amendment

The Court began its analysis by noting the substantial changes made to Section 375 of the IPC following the recommendations of the Justice Verma Committee. The Bench observed that the post-2013 scenario broadens the definition of rape to include the insertion of any object or part of the body, not being the penis, into the vagina, urethra, or anus of a woman.

The Court noted that Section 375(b) specifically covers acts where a man inserts "to any extent" a part of the body into the woman's private parts. The Bench clarified that the legislative intent was to move beyond the traditional requirement of penile-vaginal intercourse to provide wider protection to victims of sexual violence.

"By its very definition the offence of rape includes insertion of any part of the body, to any extent into the vagina of a woman. Thus, the very definition of the offence of rape includes penetration by fingers or ‘digital penetration’."

Degree of Penetration is Irrelevant for Conviction

Addressing the appellant's argument that the act was only an "attempt" because the victim used the word "tried" in her deposition, the Court held that the oral testimony must be read in conjunction with medical evidence. The Bench referred to a catena of Supreme Court precedents, including State of U.P. vs. Babul Nath and Aman Kumar vs. State of Haryana, to reiterate that even partial or the slightest penetration is sufficient.

The Court found that the Medico-Legal Report (MLR) prepared by the gynecologist (PW3) clearly recorded evidence of "vaginal penetration" upon examination. This medical finding, according to the Court, effectively converted the "attempt" described in the victim's panic-stricken state into a completed act of rape under the law.

"The definition of the offence of rape does not stipulate any 'degree of penetration'. In fact, even before the 2013 amendment, the Hon’ble Supreme Court has held... that even partial or slightest penetration into the private part of the victim would be sufficient to attract the offence of rape."

DNA Profiling Facilitative, Not Mandatory

The appellant had argued that the Investigating Officer’s failure to collect DNA samples or fingerprint evidence from the balcony wall created a serious lacuna in the case. However, the Court rejected this contention, stating that Section 53A of the CrPC is a facilitative provision rather than a mandatory one.

The Bench observed that defects or shortcomings in the investigation cannot be a ground for acquittal when the prosecution has produced otherwise reliable and cogent oral evidence. The Court held that the testimony of a victim of sexual assault, if found trustworthy, does not strictly require scientific corroboration to sustain a conviction.

"Failure to conduct DNA profiling cannot by itself be treated as fatal to the prosecution case... defects or shortcomings of the investigation cannot by themselves be a ground for acquittal particularly when the prosecution has otherwise produced reliable and cogent evidence."

Burden of Proving Insanity Rests on the Accused

The Court also addressed the appellant's faint plea regarding his "low IQ" and mental status, which the Investigating Officer had briefly mentioned during cross-examination. The Bench held that under Section 84 of the IPC, the burden of proving the plea of insanity rests squarely on the accused.

The Court noted that the appellant failed to produce any documentary evidence of mental illness or unsoundness of mind during the trial. Furthermore, in his statement under Section 313 CrPC, the appellant merely issued denials and did not raise a specific defence of insanity, thereby disentitling him to any benefit of doubt on that ground.

"Under Section 84 of IPC the plea of insanity can be availed by an accused only when it is established that, at the time of the commission of the offence he was incapable of knowing the nature of the act."

The High Court concluded that the prosecution had successfully proved the charges of house trespass (Section 448 IPC), outraging modesty (Section 354 IPC), and rape (Section 376 IPC). Finding no error in the trial court's judgment, the Bench upheld the 10-year rigorous imprisonment sentence, noting it was the minimum prescribed punishment for the offence and was proportionate to its heinous nature.

Date of Decision: 27 April 2026