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

High Court reduces the seven-year sentence awarded by trial court to a man in a 2004 rape case and convicted him of attempted rape instead

The Chhattisgarh High Court has held that ejaculation without penetration cannot be called as 'rape' and constitutes 'attempt to rape'.

The judgement was pronounced by Justice Narendra Kumar Vyas on February 16, in an appeal against a 2005 trail court order.

The court said that partial proof of penetration is required to prove. The judge said, "The evidence available in the present case does not prove complete rape, but it does prove that the accused attempted rape."

The High Court reduced the seven-year sentence awarded by the trial court to a man in a 2004 rape case and convicted him of attempted rape instead. Partially accepting the accused's appeal, the High Court has reduced the convict's sentence to three years and six months' rigorous imprisonment. A fine of Rs 200 was imposed.

Additional Sessions Judge, Dhamtari (Camp-Raipur), had convicted Vasudeo Gond on April 6, 2005, under section 376(1) of the Indian Penal Code (IPC) and sentenced him to seven years’ rigorous imprisonment.

He was also sentenced to six months’ rigorous imprisonment under Section 342 IPC. Both sentences were to run concurrently.

Gond had allegedly lured the victim, a resident of Dhamtari district, to his house on May 21, 2004, under some pretext, and raped her. He locked her in a room and tied her hands and feet. A case was registered at the Arjuni police station.

The prosecution examined 19 witnesses during the trial.

In her statement, the victim had claimed forced sexual intercourse by the accused. However, contradictory statements were given during cross-examination regarding penetration.

Medical examination revealed an intact hymen, but the possibility of partial penetration was raised. The FSL report also found human sperm in some samples.

Citing various Supreme Court decisions, the single-judge bench stated that the victim's statement lacked clarity regarding penetration. The medical evidence also failed to establish complete penetration. that proof of penetration, even if partial, is necessary to prove rape.

"The evidence of the victim is corroborated with the medical evidence brought on record by the prosecution and law on the subject. It is quite vivid that an offence of attempt to commit rape is made out against the appellant, as there is partial penetration by the appellant.

"As such, the act of the appellant forcibly taking the victim inside the room, closing the doors with the 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," the HC stated.

"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," the High Court stated.

The High Court convicted Gond under sections 376 (1) and 511 of the IPC, instead of section 376, and sentenced him to three years and six months' rigorous imprisonment. The six-month sentence under Section 342 was upheld. Both sentences will run concurrently.

The bench ordered that the sentence already undergone by the accused be set off.

It cancelled the bail of the accused and directed him to surrender before the trial court within two months, failing which action for his arrest would be initiated.

(With PTI inputs)