Presence Of Accused's Semen On Victim's Clothes Insufficient To Sustain Rape Conviction Absent Proof Of Penetration: Sikkim High Court

The Sikkim High Court has altered the conviction of a man from offence of rape to that of attempted rape under Section 511 read with Section 376 IPC, noting that even though the accused's semen was present on the victim's clothes, there was an absence of proof for penetration. The division bench of the Chief Justice A Muhamed Mustaque and Justice Bhaskar Raj Pradhan observed that the victim was a 90-year-old dementia patient who could not testify, and eye witness testimony was void of the specific nature of the sexual act. The bench noted;"The proved circumstances unmistakably demonstrate that the Appellant had embarked upon the commission of the offence and had proceeded well beyond the stage of mere preparation. The evidence leaves no reasonable doubt that the Appellant was attempting to commit rape when ejaculation occurred during the course of the assault. In the absence of any plausible explanation from the Appellant, the only reasonable inference flowing from the proved facts is that the ejaculation occurred in the course of an attempted act of penetration, thereby constituting an attempt to commit rape". The dementia patient was found by her elder son (petitioner no 8), who responded to her shouts and found the appellant on top of the victim. Per petitioner no 8, the appellant was on top of his mother with his trousers lowered, while his mother's traditional dress, Bakkhu, was pushed up, and she was naked from the waist down.The Trial Court convicted the accused based on eye witness testimony from the elder son and corroborative testimonies from the victim's youngest son (PW-4), the ward panchayat (PW-6), the victim's grandson (PW-3) and the forensic evidence, including a report showing that the appellant's semen was on the victim's clothing, to convict the Appellant. The counsel for the appellant argued that the alleged acts could at best prove an attempt at rape, which is punishable under Section 511 IPC and therefore would attract lesser punishment. The division bench noted that after the Amendment Act of 2013, penile vaginal intercourse is no longer a mandate for the constitution of the offence of rape. The court reiterated the stand while referring to the cases of Santhosh v State of Kerala and Prafulla Mundari v State of Odisha [2021 SCC Online Ori 2556].The court noted that the medical report did not reveal any external injuries to the genitals and did not disclose any medical evidence conclusively proving penile penetration or sexual intercourse. However, the bench noted that the appellant's semen was found on the victim's clothes. The court also considered the issue of whether the court can infer penetration solely from the surrounding circumstances proved on record and whether the burden of proving those circumstances shifts to the Appellant under Section 106 of the Indian Evidence, 1872, Act once the foundational facts are established by the prosecution.In the present case, the court noted that having regard to the advanced age and physical condition of the victim, the evidence does not rule out the possibility that the Appellant was unable to accomplish penetration."The inference of penetration cannot rest on conjecture or suspicion. It must arise as the only reasonable conclusion flowing from the proved circumstances," it said.Nonetheless, Court said prosecution had proved circumstances establishing that the appellant had commenced the execution of the offence."In the absence of any explanation from the Appellant, and viewed in the light of the proved ocular and forensic evidence, the only reasonable inference is that the Appellant had attempted to commit rape. The application of Section 106 in the present case does not relieve the prosecution of its burden to prove the foundational facts, rather, it supplements the prosecution case by permitting the Court to draw an adverse inference in respect of facts exclusively within the knowledge of the Appellant". Thus, his conviction under Section 376(2)(j) of IPC was set aside, and he was convicted under Section 511 read with Section 376 IPC.Case Title: Chenga Thsering Bhutia v State of Sikkim, Crl. A. No. 31 of 2024For Appellant: Advocate D.K. SiwakotiFor State: Public Prosecutor Thinlay Dorjee Bhutia with Additional Public Prosecutor Yadev Sharma Click here to read/download the Order

Presence Of Accused's Semen On Victim's Clothes Insufficient To Sustain Rape Conviction Absent Proof Of Penetration: Sikkim High Court

Jayanti Pahwa

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Presence Of Accused's Semen On Victim's Clothes Insufficient To Sustain Rape Conviction Absent Proof Of Penetration: Sikkim High Court

Jayanti Pahwa

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