'Penetration Even Of Slightest Degree Is Necessary To Establish Offence Of Rape': Calcutta HC Modifies Order Of Conviction To 'Attempt To Rape' In Case Concerning 11 Yr Old Girl

The Calcutta High Court has recently observed that penetration even of the slightest degree is necessary to establish the offence of rape and accordingly held that the appellant should be convicted for the offence of attempt to rape instead of the offence of rape. 

A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi was adjudicating upon a case wherein the appellant had been convicted for raping a victim girl aged around 11 years. 

The Division Bench observed that the evidence on record shows that no case of penetration has been deposed either by the victim or other witnesses and accordingly held, 

"It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses. Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape."

Thus, the Bench modified the order of conviction by observing, 

"In the light of the aforesaid discussion, I convert the conviction of the appellant to one under Section 376(2)(f) read with Section 511 of the Indian Penal Code instead of 376(2)(f) of the Indian Penal Code."

Background 

The instant appeal had been preferred against the judgment dated June 28, 2013 wherein the appellant had been convicted for the commission of offence punishable under Section 376(2)(f) of the IPC (rape) and sentenced to suffer rigorous imprisonment for ten years and also to pay a fine of Rs.10,000 and in default to suffer rigorous imprisonment for one year more.

It was alleged that on May 5, 2010 at 11pm in the night when family members of the minor victim had gone out to attend a function, the appellant came into the house and embraced her. Thereafter, he  raped her. Hearing shouts of the victim, local people came to the spot.

Subsequently, hearing shouts from the minor victim, local people came to the spot. Thereafter, a police complaint had been registered by the mother of the victim dated May 21, 2010 under Section 376 (2)(f) of the IPC against the appellant. In course of investigation, the victim was medically examined and her statement was recorded before Magistrate. Appellant was arrested and charge-sheet was filed. Charge was framed under Section 376(2)(f) of the IPC. 

Background 

The Court placed reliance on the deposition of the minor victim girl wherein she had stated that the appellant had attempted to rape her but could not since she had protested his advances. She had further deposed that the appellant had forcibly kissed her, placed his penis over her vagina after opening her underwear.

It was further noted that the deposition of the victim had been corroborated by mother, father, elder sister as well as an independent witness who was a local resident. 

"..she does not speak of penetration. In fact, in cross-examination she clarifies that the appellant attempted to rape her but could not do so as she shouted for help. Deposition of the victim with regard to an attempt is also corroborated by her father (P.W. 4) who stated that her daughter stated that the appellant tried to rape her forcibly but could not do so as she shouted for help and the appellant fled away", the Court recorded further. 

Accordingly, the Court altered the order of conviction to the offence of attempt to rape. 

The Court also modified the sentence imposed upon the appellant after noting that he had already undergone more than 8 years of imprisonment. 

"Under such circumstances and in view of the alteration of his conviction as aforesaid, I modify the sentence imposed on him and direct the appellant be sentenced to suffer imprisonment for the period already undergone and to pay a fine of Rs.10,000/- in default, to suffer rigorous imprisonment for six month more", the Court directed further. 

Case Title: Dipak Singha v. State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 60

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