The Chhattisgarh High Court has altered the conviction of a man from rape to attempted rape, holding that ejaculation without proof of penetration amounts to an attempt to commit rape rather than the completed offence. Justice Narendra Kumar Vyas delivered the ruling while deciding a criminal appeal arising out of a 2004 case registered in Dhamtari district.
“Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. 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 at one stage of her evidence,” the court stated in its order dated 16 February.
The court underlined that penetration, not ejaculation, is the essential ingredient of the offence of rape under the law as it stood in 2004. It noted that although the appellant’s actions went beyond mere preparation and preceded actual partial penetration, the evidence did not conclusively establish penetration. “The sine qua non of the offence of rape is penetration, and not ejaculation,” the judge recorded.
According to the prosecution, the incident took place on 21 May 2004. The survivor, who was alone at her home, alleged that the accused lured her on the pretext of going to a shop, forcibly dragged her to his house, removed her clothes and subjected her to sexual assault. She further stated that he tied her hands and legs, stuffed cloth into her mouth and confined her inside a locked room.
A case was registered in Dhamtari in May 2004. Following investigation and trial, the Additional Sessions Judge, Dhamtari (Camp Raipur), on 6 April 2005 convicted the accused under Section 376(1) of the Indian Penal Code (IPC) and sentenced him to seven years’ rigorous imprisonment. He was also awarded six months’ imprisonment under Section 342 IPC for wrongful confinement.
At the centre of the appeal was the survivor’s testimony, particularly her statements concerning penetration, which the High Court found to be internally inconsistent. While her account clearly established that a violent sexual assault had taken place, the court held that the crucial element of penetration required to sustain a conviction for rape had not been conclusively proved.
The examining doctor testified that there was a possibility of partial penetration but stated that no definite opinion could be given regarding the commission of rape. The court also noted that the Forensic Science Laboratory report detected human sperm on certain seized articles, though not on all exhibits.
The High Court acknowledged that the evidence established sexual assault beyond doubt. However, it emphasised that suspicion or the possibility of partial penetration could not substitute for clear and cogent proof of penetration required for a conviction under Section 376 IPC as it then stood.
Consequently, the court set aside the conviction under Section 376(1) IPC and instead convicted the appellant under Section 376 read with Section 511 IPC, which deals with attempt to commit offences. The revised sentence comprises three years and six months’ rigorous imprisonment, along with a fine of Rs 200. The six-month sentence under Section 342 IPC for wrongful confinement was maintained. All sentences are to run concurrently.
The court also recorded that the appellant had already spent approximately one year and one month in custody during the trial and would be entitled to have that period set off under Section 428 of the Code of Criminal Procedure (CrPC). Section 428 CrPC mandates that the period spent in detention during investigation, inquiry or trial in the same case must be deducted from the final sentence of imprisonment, though it does not apply to imprisonment imposed in default of payment of fines.
As the appellant is currently on bail, the High Court directed him to surrender before the trial court within two months. It warned that coercive steps would be initiated in the event of non-compliance. The court also rejected an argument relating to the appellant’s age.
