Chhattisgarh High Court Clarifies Legal Distinction: Ejaculation Without Penetration Constitutes Attempted Rape
In a landmark judgment delivered on February 16, the Chhattisgarh High Court has made a significant legal observation, stating that ejaculation without penetration constitutes an attempt to commit rape rather than actual rape. This ruling came during the hearing of a criminal appeal against a 2005 conviction, where the court meticulously re-examined survivor testimony and medical evidence to arrive at its conclusion.
Case Background and Survivor Testimony
The case originated from an incident on May 21, 2004, when the survivor was alone at her home. The accused allegedly approached her, asked if she would go to a shop, and when she requested money, he forcibly dragged her to his house. There, he removed both their clothes and committed sexual intercourse against her will. Subsequently, he locked her in a room, tied her hands and legs, and stuffed cloth into her mouth.
An FIR was lodged at Arjuni police station in Dhamtari district, leading to an investigation and charge sheet submission before the Chief Judicial Magistrate. The case was eventually committed to the Sessions Judge in Raipur.
The trial court, in its judgment dated April 6, 2005, convicted the accused under Section 376(1) of the Indian Penal Code (IPC) for rape, sentencing him to seven years of rigorous imprisonment and imposing a fine of Rs 200. He also received a six-month sentence under Section 342 IPC for wrongful confinement.
High Court's Reappraisal of Evidence
Justice Narendra Kumar Vyas of the Chhattisgarh High Court closely scrutinized the survivor's testimony during the appeal. In her evidence, the survivor initially stated that the accused had penetrated her vagina. However, in subsequent lines, she clarified that he had kept his private part above her vagina for approximately ten minutes without penetration.
This discrepancy in her statements raised doubts about whether actual penetration had occurred. The court noted that the survivor was extensively cross-examined, during which she affirmed that the appellant had kept his private part above hers but had not penetrated. She also described how she was restrained, with her hands tightened and mouth unable to open, and remained in the closed room for eight hours until her mother rescued her.
Medical Evidence and Legal Interpretation
Medical findings played a crucial role in the court's decision. The examining doctor reported that the survivor's hymen was intact and only the tip of one finger could be introduced into her vagina. While there was redness in the vulva, complaints of pain, and white discharge, indicating possible partial penetration, the doctor could not provide a definitive opinion regarding rape.
The court referred to the Supreme Court's ruling in State of U.P. v. Babul Nath, reiterating that complete penetration, rupture of the hymen, or emission of semen are not necessary to establish rape. Under Section 375 IPC, even slight penetration within the labia is sufficient to constitute the offence.
However, in this specific case, the prosecutrix's own statements created uncertainty about actual penetration. While there was evidence of sexual assault and potential partial penetration, the ingredients of completed rape were not conclusively established.
Distinction Between Preparation and Attempt
The court elaborated on the legal distinction between preparation and attempt, citing precedents such as Madan Lal v. State of Jammu and Kashmir and State of Madhya Pradesh v. Mahendra alias Golu. It observed that an attempt begins where preparation ends and involves direct movement toward committing the offence with requisite intent.
In this instance, the acts of forcibly taking the survivor into a room, closing the door, stripping both individuals, and rubbing genitals against hers went beyond mere preparation. These actions demonstrated a clear intention to commit sexual intercourse, even if penetration did not conclusively occur.
Court's Final Ruling and Sentencing
Since the evidence did not definitively prove penetration but did establish acts proximate to its commission, the court held that the offence fell within the ambit of attempt to commit rape. This is punishable under Section 376 read with Section 511 IPC, as applicable at the time of the 2004 incident.
Accordingly, the high court set aside the conviction under Section 376(1) IPC for rape. Instead, it convicted the appellant under Section 376/511 IPC for attempted rape, sentencing him to three years and six months of rigorous imprisonment along with a fine of Rs 200. The conviction and six-month sentence under Section 342 IPC for wrongful confinement were affirmed, with both sentences to run concurrently.
The appellant was granted set-off for the period already served in custody and directed to surrender before the trial court within two months. The court rejected the defence's contention that the survivor was a consenting major, noting that the school admission register—a public document under the Evidence Act—could not be disregarded without material to doubt its authenticity. Additionally, the appellant had not raised the plea of consent during the trial stage.
Legal Implications and Conclusion
While granting partial relief to the appellant, the Chhattisgarh High Court reinforced that the offence of rape hinges on penetration, however slight. However, when such penetration is not conclusively proved, yet the acts clearly evince intent and overt steps toward sexual intercourse, the law will punish the attempt. This judgment underscores the nuanced legal interpretation required in sexual assault cases, balancing survivor testimony with medical and factual evidence to ensure justice.
