'Keeping Penis Above Vagina, Ejaculating Without Penetration Isn't Rape': Chhattisgarh High Court Alters Rape Conviction

The Chhattisgarh High Court on Monday (February 16) held that keeping male organ over vagina and subsequently ejaculating without penetration cannot be called as 'rape' under Section 375 of the Indian Penal Code (IPC), which rather constitute an 'attempt to rape' and shall be punishable under Section 376/511 of the IPC.While altering a rape conviction to one for attempt to rape, the Bench of Justice Narendra Kumar Vyas observed –“Indecent assault is often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of the determination to gratify his passion at all events, and in spite of all resistance, materials must exist. As already discussed above, the sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape.”As per the prosecution version, on 21.05.2004, the appellant caught hold of the victim's hand, forcibly dragged her to his house where he removed their clothes and committed sexual intercourse without her consent and thereafter, he locked her inside the room of his house, tied her hands and legs and stuffed cloth into her mouth. An FIR was registered and pursuant to investigation, a charge-sheet was filed against the appellant. The Additional Sessions Judge, Dhamtari had found him guilty under Sections 376(1) and 342 of the IPC. Impugning the conviction order and sentence awarded thereunder, the appellant moved the High Court in appeal.During the course of trial, the victim inter alia stated that the appellant penetrated his private part into her vagina. However, she further stated that the appellant had kept his private part above her vagina for about 10 minutes but did not penetrate. Her version was corroborated by the testimonies for her mother as well as grand-father.The doctor, who medically examined the victim, found her hymen intact and could not give any definite opinion with respect to commission of offence of rape. Nevertheless, in the cross-examination, she reiterated that there is a possibility of partial penetration. She also stated about redness in the vulva along with discharge of white liquid, which suggested partial penetration. Furthermore, human sperm was found from the undergarment of the victim.Upon hearing both the sides, the Court underlined inconsistent statements made by the victim. At one part, she stated about penetration but in another part of her testimony, she stated that the appellant merely kept his private above her vagina for 10 minutes without penetrating the same.“This version of victim's evidence is corroborated with the medical report Ex. P/12 wherein the doctor (PW 11) has given her opinion that hymen is not raptured [sic] and only tip of 1 finger could be introduced in vagina, therefore, there is possibility of partial penetration. The doctor in her evidence has also stated that the victim has complained about pain in her private part. There was redness in the vulva and having white liquid in it which clearly proved beyond reasonable doubt that the victim was subjected to commission of offence of rape by the appellant,” the Court remarked.Justice Vyas pointed out that Section 375, as it stood prior to the 2013 Amendment, required penetration as sine qua non for an offence of rape. He further observed–“Even slight penetration is sufficient for conviction under Section 376 of IPC. Thus, it is quite vivid that penetration is sine qua non for an offence of rape and in order to constitute penetration, there must be clear and cogent evidence to prove that some part of the virile member of the accused was within labia of the pudendum of the woman, no matter to what extent which is sufficient to hold accused guilty for the offence punishable under Section 376 of IPC.”Examining the facts of the case against the above legal backdrop, the Court was of the opinion that the liability of the appellant ought to have been for attempt to commit rape and not the offence of rape itself. Accordingly, it concluded–“As such, the act of the appellant forcibly taking the victim inside the room, closing the doors with motive of carnal knowledge, was the end of 'preparation' to commit the offence. His following action of stripping the victim and himself, and rubbing his genitals against those of the victims and partial penetration which was indeed an endeavour to commit sexual intercourse. These acts of the appellant were deliberately done with manifest intention to commit the offence aimed and were reasonably proximate to the consummation of the offence. Since the acts of the appellant exceeded the stage beyond preparation and preceded the actual partial penetration but without ejaculation, the appellant is guilty of attempting to commit rape as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence.”Consequently, the appellant was convicted for the offence...

'Keeping Penis Above Vagina, Ejaculating Without Penetration Isn't Rape': Chhattisgarh High Court Alters Rape Conviction

Jyoti Prakash Dutta

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