‘No penetration, no rape’: Why Chhattisgarh High Court reduced man’s 7-year jail term in 20-year-old case

‘Penetration sine qua non’

• 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.
• The sine qua non (essential condition) of the offence of rape is penetration, and not ejaculation.
• Details of the survivor’s statement indicate that the appellant had not penetrated her.
• This statement is corroborated by the evidence of a doctor who added that no definite opinion can be given with respect to the commission of the offence of rape, and also mentioned partial penetration.
• In the cross-examination, the woman stated the possibility of partial penetration.
• However, this evidence is sufficient to prove that an attempt to commit rape was made out but not rape.

Trial court conviction

• According to the prosecution, the incident occurred on May 21, 2004.
• The victim, who was alone at her house, alleged that the accused lured her on the pretext of going to a shop, dragged her to his house, removed her clothes and forcibly engaged in sexual acts.
• She further stated that he tied her hands and legs, stuffed cloth into her mouth and locked her inside a room.
• Based on the complaint, a case was registered in May 2004 in Dhamtari.
• After investigation and trial, the Additional Sessions Judge, Dhamtari (Camp Raipur), on April 6, 2005, convicted the accused and sentenced him to seven years’ rigorous imprisonment, besides six months’ jail under IPC Section 342 (wrongful confinement).

Testimony: Turning point

• At the heart of the appeal was the testimony of the survivor whose statements differed on the question of penetration.
• The high court noted this internal inconsistency carefully.
• The court observed that while her testimony clearly established a violent and sexual assault, the crucial ingredient of penetration necessary for sustaining a conviction under Section 376 (rape) of the Indian Penal Code (IPC) was not conclusively proved.

Medical, forensic evidence

• The medical examination further complicated the issue.
• The examining doctor testified that there was a possibility of partial penetration, but no definite opinion of rape could be given.
• The Forensic Science Laboratory (FSL) report found human sperm on certain seized articles, though not on all exhibits.
• The high court acknowledged that the evidence proved sexual assault beyond doubt.
• However, it emphasised that suspicion or possibility of partial penetration could not replace clear proof of penetration required for a rape conviction under the law as it stood in 2004.

Conviction altered, sentence reduced

• The high court set aside the conviction under IPC Section 376(1) (rape) and instead convicted the appellant under Section 376, read with Section 511 IPC (attempt to rape).
• The revised sentence included three years and six months’ rigorous imprisonment, a fine of Rs 200, and six months’ imprisonment under IPC Section 342 (wrongful confinement).
• Sentences to run concurrently.
• The court recorded that the appellant had already spent about one year and one month in custody during the trial and would be entitled to get the period deducted under Section 428 CrPC.
• Section 428 of the Code of Criminal Procedure (CrPC) 1973 mandates that the period an accused spent in detention (jail) during investigation, inquiry, or trial must be set off from their final sentence of imprisonment upon conviction.
• This applies to the same case and does not include imprisonment for non-payment of fines.
• Since he was on bail, the court directed him to surrender before the trial court within two months, failing which coercive steps would be initiated.
• Age argument rejected.

Sumit is an intern with The Indian Express.