The Chhattisgarh High Court on February 16 modified a rape conviction to attempt to rape, holding that ejaculation without penetration does not constitute rape under Section 375 of the Indian Penal Code (IPC), as it stood prior to the 2013 amendment.
Delivering the judgment, Justice Narendra Kumar Vyas observed that penetration is the “sine qua non” for the offence of rape.
“Ejaculation without penetration constitutes an attempt to commit rape and not actual rape,” the Court stated, adding that even slight penetration would be sufficient to attract conviction under Section 376 IPC.
Trial Court Conviction Challenged
According to the prosecution, the incident occurred on May 21, 2004, when the accused allegedly dragged the victim to his house, removed their clothes and committed sexual intercourse without her consent. It was further alleged that he confined her inside a room, tied her hands and legs and gagged her.
An FIR was registered and a charge sheet filed. The Additional Sessions Judge, Dhamtari, convicted the accused under Sections 376(1) and 342 IPC. He subsequently challenged the conviction before the High Court.
Inconsistent Testimony And Medical Evidence Examined
During trial, the victim initially stated that the accused had penetrated her. However, she also testified that he kept his private part over her vagina for about 10 minutes without penetration. Her version was corroborated by the testimonies for her mother as well as grand-father.
The medical examination revealed that the victim’s hymen was intact. The doctor noted redness in the vulva and the presence of white discharge, suggesting the possibility of partial penetration. Human sperm was detected on the victim’s undergarments. However, the doctor could not give a definite opinion confirming rape.
Conviction Modified To Attempt To Rape
After hearing both sides, the Court noted inconsistencies in the victim’s testimony. While she initially alleged penetration, she later stated that the accused had kept his private part over her vagina for about 10 minutes without penetration.
Referring to the medical report (Ex. P/12), the Court observed that the hymen was intact and only the tip of one finger could be inserted, indicating a possibility of partial penetration. The doctor also noted redness in the vulva, white discharge and complaints of pain, which the Court said supported the occurrence of sexual assault.
After analysing the evidence, the High Court held that while the accused’s actions went beyond mere preparation and clearly demonstrated intent, the evidence did not conclusively establish penetration as required under the unamended Section 375 IPC.
The Court consequently altered the conviction to one under Sections 376/511 IPC (attempt to rape) and sentenced the accused to rigorous imprisonment of three years and six months, along with a fine of ₹200. His conviction under Section 342 IPC for wrongful confinement was upheld. The accused, currently on bail, has been directed to surrender before the trial court to serve the remaining sentence.
