New Delhi:TheChhattisgarhHigh Court, while hearing a rape case, observed that ejaculation without penetration constitutes an ‘attempt to rape’ and not ‘actual rape’ under Section 375 of the Indian Penal Code (IPC), adding that the accused is punishable under attempt to rape under Section 376/511 of the IPC.
During the hearing, the court noted the rape survivor version who stated in her account that there was penetration, but the accused kept his private part above hers.
According to TOI, the court noted that the “survivor was extensively cross-examined, wherein she started that when the accused caught hold of her hand and removed his pant, he penetrated his private part into her vagina. She further stated that the appellant had kept his private part above her vagina for about 10 minutes and affirmed he had kept his private part above hers but had not penetrated. She also stated that she could not open her mouth as the appellant had tightened both her hands. She admitted that she remained in the closed room for eight hours and that her mother entered the room, she united her hands and mouth.”
The single bench of Justice Narenda Kumar Vyas noted that the accused’s intent was criminal and clear, but the prosecution failed to establish penetration beyond a reasonable doubt.
The court modified the conviction under Section 376 (1) to Section 376/511, which is attempt to rape. The case in discussion relates to the incident that took place on May 21, 2004.
The prosecution told the court that the accused had dragged the victim from her house to his place. He stopped her and attempted sexual intercourse against her will. He also locked her inside the room, tied hands and feet, and stuffed cloth into her mouth. It was after several hours when her mother rescued the victim.
Back in 2005, the accused was convicted under Section 376 (1) and 342 of the IPC and sentenced to seven years in prison and additional six months for wrongful confinement.
However, in the High Court, the judiciary noted the victim’s testimony and medical report. The victim in her initial statement had alleged that there was penetration. However, she later told the court that the accused had only placed his private parts over hers without actual penetration.
Also, the medical report confirmed that the hymen was intact.
The High Court noted that there was clear evidence of sexual assault and intent but full penetration according to the sine qua non for rape under the pre-2013 IPC was not conclusively proved.
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