'Keeping private part above vagina, ejaculating without penetration isn't rape': Chhattisgarh HC reclassifies rape conviction

RAIPUR😘 Ejaculation without penetration constitutes an attempt to commit rape and not actual rape, the Chhattisgarh high court observed in a significant judgment on February 16.

The rape survivor, in one part of her evidence, stated that there was penetration, but in the subsequent line, said that the convict had kept his private part above her vagina for about 10 minutes. This discrepancy, coupled with medical findings of an intact hymen, showed that only an attempt with intent to commit rape had been proved, the court noted.“The survivor was extensively cross-examined, wherein she stated that when the accused caught hold of her hand and removed his pant, he penetrated his private part into her vagina.

She further stated that the appellant had kept his private part above her vagina for about 10 minutes and affirmed that he had kept his private part above hers but had not penetrated. She also stated that she could not open her mouth as the appellant had tightened both her hands.

She admitted that she remained in the closed room for eight hours and that when her mother entered the room, she untied her hands and mouth,” the court recorded.

The prosecution case, in brief, was that on May 21, 2004, the survivor was alone at her house when the accused came and asked whether she would go to the shop. When she asked him for money, the appellant allegedly caught hold of her hand and forcibly dragged her to his house, where he removed his own clothes as well as the survivor’s clothes and committed sexual intercourse without her will. Thereafter, he allegedly locked her inside a room in his house, tied her hands and legs, and stuffed cloth into her mouth.

An FIR was lodged at Arjuni police station in Dhamtari district, following which an offence was registered and an investigation conducted. After completion of the investigation, the charge sheet was submitted before the Chief Judicial Magistrate, Dhamtari, and the case was committed to the Sessions Judge, Raipur.The trial court, by judgment dated April 6, 2005, convicted and sentenced the accused to rigorous imprisonment for seven years under Section 376(1) IPC and imposed a fine of Rs 200.

He was also sentenced to six months’ rigorous imprisonment under Section 342 IPC.The high court modified the conviction for rape to one for attempt to commit rape, while reiterating that “even the slightest penetration” is sufficient to constitute the offence under Section 375 of the IPC as it stood prior to the 2013 amendment. In the criminal appeal, Justice Narendra Kumar Vyas partly allowed the appeal filed against the conviction by the Additional Sessions Judge, Dhamtari, dated April 6, 2005.Reappreciating the evidence, the high court closely examined the survivor’s testimony. While she initially stated that the accused had penetrated her, she later clarified that he had kept his private part above hers and had not penetrated.Medical evidence revealed that the hymen was intact and that only the tip of one finger could be introduced into the vagina. The examining doctor noted redness in the vulva, complaint of pain, and the presence of white discharge, and opined that there was a possibility of partial penetration but could not give a definite opinion regarding rape.Referring to the Supreme Court’s ruling in State of U.P. v. Babul Nath, the high court reiterated that complete penetration, rupture of the hymen, or emission of semen are not necessary to establish rape. The explanation to Section 375 IPC makes it clear that penetration alone is sufficient and that even slight penetration of the male organ within the labia is enough to constitute the offence.However, the court held that in the present case, the prosecutrix’s own statements created doubt about actual penetration.

While there was evidence of sexual assault and possible partial penetration, the ingredients of completed rape were not conclusively established.Drawing from precedents including Madan Lal v. State of Jammu and Kashmir and State of Madhya Pradesh v. Mahendra alias Golu, the court elaborated on the distinction between “preparation” and “attempt”.It observed that an attempt begins where preparation ends and consists of a direct movement towards the commission of the offence with the requisite intent.

The acts of forcibly taking the survivor into a room, closing the door, stripping her and himself, and rubbing his genitals against hers went beyond preparation and demonstrated an intention to commit sexual intercourse.Since the evidence did not conclusively establish penetration but did prove acts proximate to its commission, the offence was held to fall within the ambit of attempt to commit rape punishable under Section 376 read with Section 511 IPC, as applicable at the time of the 2004 incident.Accordingly, the court set aside the conviction under Section 376(1) IPC and instead convicted the appellant under Section 376/511 IPC, sentencing him to three years and six months of rigorous imprisonment along with a fine of Rs 200.The conviction and six-month sentence under Section 342 IPC were affirmed, with both sentences directed to run concurrently. The appellant was granted set-off for the period already undergone in custody and directed to surrender before the trial court within two months.Rejecting the defence contention that the survivor was a consenting major, the court held that the school admission register, being a public document under the Evidence Act, could not be brushed aside in the absence of material to doubt its authenticity. The appellant had not raised the plea of consent at the trial stage.While granting partial relief to the appellant, the high court reiterated that the offence of rape hinges on penetration — however slight — but where such penetration is not conclusively proved, yet the acts clearly evince intent and overt steps towards sexual intercourse, the law will punish the attempt.