Victim's vague testimony that accused "hugged and impregnated me" without indication of penetration not enough to prove rape: Kerala High Court

The Kerala High Court on Wednesday held that vague statements from an alleged victim of sexual assault with no indication of penetrative sexual intercourse would not constitute the offence of rape under Section 375 of the Indian Penal Code (IPC) [Ranjith v. State of Kerala]..Justice Kauser Edappagath held in his order on a revision petition moved by an accused convicted for rape by lower courts based on the statement of the victim that the accused "hugged and impregnated me"."Mere statement by the victim in her evidence “the accused hugged and impregnated me” without indication about penetration aspect is not sufficient to attract the offence of rape. Such a vague statement would not be a substitute for the statutory mandate as contained in the Explanation to Section 375. Offence of rape is constituted only if the ingredients under Section 375 are made out. Unless the victim states in her evidence about the penetrative non consensual sexual act by the accused on her, the offence of rape cannot be said to be made out," the Court held..Even though the evidence of victims of sexual offences are entitled to greater weights, absence of corroboration notwithstanding, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts, it held. "Penetration being an essential ingredient of the offence of rape, there must be proof of actual penetration or at least penile accessing. The only witness who can prove that is the victim. But, even on a plain reading of the evidence of PW1(the victim), such fact is not revealed," the Court said..The judgement was issued on a revision petition filed by the accused found guilty of rape, punishable under Section 376 of the IPC, by a trial court and later by an appellate court. The prosecution allegation was that one night in the third week of December 2009, the accused went to the house of the victim, had sex with her and made her pregnant on the false promise of marriage.Subsequently, the police registered a crime against the accused on the basis of the first information statement given by the victim, three months after the alleged incident occurred. The conviction by the lower courts was based mainly on the oral testimonies of the victim and her mother..This prompted the accused to approach the High Court by way of the instant revision petition. It was argued on his behalf that there was no cogent and reliable evidence to show that the accused had committed rape on the victim as alleged by the prosecution..According to the prosecution, the accused was seducing the victim and he withdrew from the marriage proposal unilaterally after satisfying his sexual lust on the fateful day. According to the defence, the victim and her mother withdrew from the marriage proposal since the accused failed to return a gold chain borrowed by him from the victim for pledging..The Court stated that even the slightest penile vaginal entry will amount to 'sexual intercourse' and even 'penile accessing' would be sufficient to constitute the 'penetration' in the sexual intercourse.However, the Court found that the only incriminating evidence in the victim's testimony was that "the accused hugged and impregnated me". The Court found no evidence to show penetrative sex or that the victim gave birth to a child as alleged. .The appellate court had found that consent was clear in the prosecution evidence, but that the consent was obtained by the accused by giving false promise of marriage. Accordingly it was concluded that the consent is vitiated and the sexual intercourse constitutes rape.However, by referring to a host of legal precedents, Justice Edappagath noted that if a man retracts his promise to marry a woman, the prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that the accused had no intention to marry the victim at all from the very inception, to attract the offence of rape. .The Court found that even according to the prosecution, the promise of marriage was given after the alleged sexual act and not at the initial stage. .The Court thus set aside the conviction and sentence passed by the lower courts and ordered that the accused be set at liberty..[Read Judgment]