Justice Narendra Kumar Vyas Rules Penetration Is Essential Ingredient of Rape; Sentence Reduced to 3.5 Years in 2004 Case
Raipur: The Chhattisgarh High Court has ruled that ejaculation without penetration does not constitute rape, but amounts to an attempt to commit rape, reiterating that penetration is the sine qua non for the offence under Section 375 of the Indian Penal Code (IPC).
Delivering the verdict on February 16 in Vasudeo Gond v State of Chhattisgarh, Justice Narendra Kumar Vyas modified a 2005 trial court conviction that had sentenced the accused to seven years of imprisonment for rape. The High Court reduced the conviction to attempt to rape and altered the sentence to three years and six months.
Penetration, Not Ejaculation, Is Essential: Court
“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,” the Court observed.
The case dates back to 2004, when the accused was charged with committing sexual intercourse against the victim’s will. The trial court in 2005 had held him guilty of rape and imposed a seven-year jail term.
However, during cross-examination, the victim stated that while the accused had kept his private part above her vagina, he had not penetrated. The High Court found this inconsistency significant.
Medical Evidence and Contradictions
The Court noted that the medical examination report stated that the hymen was not ruptured, though the doctor mentioned the possibility of partial penetration, observing redness and presence of white discharge.
While the prosecution argued that even slight penetration would be sufficient to constitute rape under Section 376 IPC, the Court emphasised that there must be clear and cogent evidence proving that some part of the accused’s virile member entered within the labia of the woman.
The judgment highlighted contradictions in the victim’s testimony. At one stage, she claimed penetration had occurred, while later she stated that the accused had only kept his private part above hers without penetration.
“This statement is corroborated with the doctor’s evidence… hymen was not ruptured and no definite opinion can be given with respect to commission of offence of rape,” the Court observed.
From Preparation to Attempt
The High Court held that forcibly taking the victim into a room, closing the door, stripping her and rubbing genitals amounted to acts beyond preparation and reasonably proximate to the commission of the offence. However, since actual penetration was not conclusively established, the offence would fall under attempt to commit rape under Section 511 read with Section 375 IPC, as applicable at the time of occurrence.
The Court clarified that indecent assault is often magnified into attempts at rape and stressed the need for careful scrutiny of evidence in such cases.
Sentence Modified; Accused to Surrender
Taking into account the period already undergone in custody — approximately one year and one month during trial — the Court granted set-off under Section 428 of the Code of Criminal Procedure and relevant provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The accused has been directed to surrender within two months to serve the remaining sentence.
Advocates Rahil Arun Kochar and Leekesh Kumar appeared for the convict, while Advocate Manish Kashyap represented the State.
The ruling is expected to have significant implications in interpreting the legal threshold required to establish the offence of rape under criminal law.
