Ejaculation without penetration of penis is only attempt to rape, not rape: Chhattisgarh High Court

The Chhattisgarh High Court recently ruled that ejaculation from penis without penetration constitutes an attempt to commit rape but does not attract the offence of rape itself [Vasudeo Gond v State of Chhattisgarh]

Justice Narendra Kumar Vyas was dealing with an appeal challenging a rape conviction in which the victim in her cross examination had stated that the accused kept his penis above her vagina but did not penetrate her.

"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 said.

In the case dating back to 2004, the trial court in 2005 sentenced the accused to 7 years jail for rape, ruling that the accused had committed sexual intercourse with the victim against her will. However, the High Court has now modified the conviction to attempt to rape.

In the verdict dated February 16, the Court noted that the medical examination revealed that the hymen was not ruptured but a tip of one 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,” it added.

The Court added even slight penetration is sufficient for conviction under Section 376 of IPC. 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,” it further said..

However, the Court also said that indecent assault is often magnified into attempts at rape. Taking into account the victim’s statement in the present case, the Court said,

“When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established as the victim’s own statement creates doubt as in one stage of her evidence, she has stated that the appellant has penetrated his private part in her vagina and in her further evidence, she has stated that the appellant had kept his private part above her vagina for about 10 minutes. She again affirmed that the appellant has kept his private part above her private part but he has not penetrated it.”

On medical evidence, the Court opined that it was not sufficient prove that rape was committed since the hymen of the victim was intact and there was no definite signs of rape.

“This [victim’s] statement is corroborated with the evidence of doctor (PW-11) has stated that hymen was not raptured and no definite opinion can be given with respect to commission of offence of rape and also stated about partial penetration. In the cross-examination, she has reiterated that there is possibility of partial penetration. However, this evidence is sufficient to prove that attempt to commit rape was made out but not rape.”

Thus, the Court concluded that  an offence of attempt to commit rape was made out against the accused as there was a partial penetration.

“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,” it said.

Consequently, the Court modified the convict’s sentence to three years and six months. He was asked to surrender within two months to serve the remaining jail sentence.

“It has been reported that the appellant remained in jail during trial from 03.06.2004 to 06.04.2005 i.e. 10 months 4 days and he has been released on bail by this Court on 06.07.2005, therefore, he remained in jail for 3 months thus, he remained in jail for about 1 year and 1 month & 4 days. The appellant is entitled to get set off as per Section 428 of the Cr.P.C. or Section 468 of Bharatiya Nagarik Suraksha Sanhita 2023."

Advocates Rahil Arun Kochar and Leekesh Kumar represented the convict.

Advocate Manish Kashyap appeared for the State.

[Read Judgment]