'Ejaculation without penetration is attempt to rape, not rape': Chhattisgarh High Court

Chhattisgarh High Court

• Ejaculation without penetration is attempt to rape, not rape
• Chhattisgarh HC reduced sentence to 3.5 years for the accused
• Court: Penetration, not ejaculation, defines rape under law

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The Chhattisgarh High Court has ruled that ejaculation without penetration does not amount to rape but constitutes an attempt to commit rape, modifying a conviction delivered nearly 20 years ago. The judgment was pronounced on February 16 by Justice Narendra Kumar Vyas while deciding an appeal against a 2005 trial court order.

On the distinction between rape and attempt, the Court said, “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 that even slight penetration is enough to attract punishment under Section 376 of the Indian Penal Code. However, it underlined that there must be “clear and cogent evidence” to establish that some portion of the male organ entered the labia of the woman.

According to the judgment, to establish penetration, there must be proof that “some part of the virile member of the accused was within labia of the pudendum of the woman.”

Case background

The matter traces back to 2004. A trial court in 2005 had convicted the accused for rape and sentenced him to seven years’ imprisonment, concluding that sexual intercourse had been committed against the will of the victim.

During the appeal proceedings, attention was drawn to the victim’s testimony in cross-examination. She stated that the accused had placed his private part above her vagina but did not penetrate it.

The High Court noted inconsistencies in her account. At one stage, she alleged penetration; at another, she clarified that the accused kept his private part above her vagina for about 10 minutes without penetrating it.

The Court observed, “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…”

Medical evidence

Medical findings were also examined. The doctor who conducted the examination testified that the hymen was intact, though a tip of one finger could be introduced into the vagina, suggesting the “possibility of partial penetration.” The doctor also recorded redness in the vulva and presence of white discharge but stated that no definite opinion regarding commission of rape could be given.

The High Court said that while the medical material supported an attempt, it did not conclusively establish rape. “This evidence is sufficient to prove that attempt to commit rape was made out but not rape,” the Court said.

Reasoning on attempt

The judgment further analyzed the stages of preparation and attempt. It held that forcibly taking the victim inside a room and shutting the door amounted to preparation. The subsequent acts, including undressing and rubbing genitals along with partial penetration, went beyond preparation.

“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,” the Court said.

It added, “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.”

Sentence modified

Holding that rape was not proved beyond reasonable doubt, the High Court altered the conviction to attempt to commit rape and reduced the sentence to three years and six months. The appellant was directed to surrender within two months to serve the remaining term.

The Court also noted that the accused had already spent over a year in custody during trial and was entitled to set-off in accordance with law.