Keeping penis above vagina and ejaculating not rape: Chhattisgarh HC
What's the story
The Chhattisgarh High Court has ruled that rubbing genitals without penetration amounts to "attempt to rape," not rape. The court modified the convict's sentence from seven years to three-and-a-half years based on the legal distinction between attempt and the completed act of rape, with medical evidence of an intact hymen being a significant factor. Justice Narendra Kumar Vyas observed that while the intent was clear, the act did not constitute actual rape due to lack of complete penetration.
Incident details
Case dates back to May 21, 2004
The case dates back to May 21, 2004, when the accused allegedly dragged the victim into his home when she was alone and attempted sexual intercourse against her will. He was convicted under Section 376(1) of the Indian Penal Code (IPC) for rape and Section 342 for wrongful confinement. The trial court sentenced him to seven years of rigorous imprisonment.
Legal proceedings
Defense arguments and forensic evidence
The defense argued that medical evidence did not support forcible sexual intercourse, as the hymen was intact. They also raised concerns over delays in recording statements and lack of independent witnesses. The court took particular note of this internal discrepancy. The court noted that, while her testimony clearly showed a violent and sexual attack, the critical element of penetration required to obtain a conviction under Section 376 (rape) of the Indian Penal Code (IPC) was not decisively proven.
Verdict details
Court relied on Dr. Tripathi's testimony
The medical examination report further complicated the matter. The court relied on Dr. Aasha Tripathi's testimony, which indicated a "possibility of partial penetration." According to the Forensic Science Laboratory (FSL) findings, human sperm was detected on some of the seized items, but not all. The court acknowledged that the evidence was conclusive that sexual assault had occurred. However, it stressed that suspicion or the possibility of partial penetration could not replace unequivocal proof of penetration.
Sentence update
Sentence modified to 3-and-a-half years
The high court then set aside the conviction under Section 376(1) and convicted the appellant under Section 376 read with Section 511 for attempt to commit rape. The sentence was modified to three years and six months of rigorous imprisonment, along with a fine of ₹200. The appellant has been directed to surrender within two months to serve the remaining sentence.