The High Court of Chhattisgarh has ruled that the act of rubbing genitals against a victim without penetration amounts to “Attempt to Rape” and not the substantive offence of Rape. Citing medical evidence of an intact hymen, the Court modified the convict’s sentence, reducing it from seven years to three and a half years.
Justice Narendra Kumar Vyas partly allowed the appeal filed by the appellant, observing that while the intent was clear, the act fell short of actual rape due to the lack of complete penetration.
Case Background
The appeal challenged the judgment dated April 6, 2005, passed by the Additional Sessions Judge, Dhamtari. The prosecution’s case was that on May 21, 2004, the appellant forcibly dragged the victim into his house when she was alone. The accused allegedly removed the victim’s clothes as well as his own and attempted to commit sexual intercourse against her will. He then locked her inside a room, tied her hands and legs, and stuffed a cloth into her mouth.
The victim was later rescued by her mother (PW-2). Based on the FIR lodged at Police Station Arjuni and subsequent investigation, the trial court convicted the appellant under Section 376(1) of the Indian Penal Code (IPC) and Section 342 of the IPC (Wrongful Confinement), sentencing him to seven years of rigorous imprisonment.
Arguments Placed Before the Court
Counsel for the appellant, Mr. Rahil Arun Kochar and Mr. Leekesh Kumar, argued that the prosecution failed to prove the case beyond reasonable doubt. They contended that the medical evidence did not corroborate the version of forcible sexual intercourse, as the hymen was found intact. The defense also raised issues regarding the delay in recording statements and the lack of independent witnesses. Furthermore, the defense challenged the proof of the victim’s age, citing that the writer of the school register was not examined.
On behalf of the State, Panel Lawyer Mr. Manish Kashyap supported the trial court’s judgment, arguing that the medical evidence, including the presence of human sperm on the victim’s clothes and the redness in the private parts, substantiated the prosecution’s case.
High Court’s Analysis and Observations
Justice Vyas meticulously examined the testimony of the victim (PW-1) and the medical evidence. The Court noted a contradiction in the victim’s statement; initially, she alleged penetration, but later stated that the appellant “kept his private part above her private part for about 10 minutes” and had not penetrated.
The Court relied on the medical report and the testimony of Dr. Aasha Tripathi (PW-11), who opined that the hymen was not ruptured and that “only tip of 1 finger could be introduced in vagina,” indicating a “possibility of partial penetration.” The medical examination also noted redness in the vulva and the presence of white liquid, which the Forensic Science Laboratory (FSL) confirmed contained human sperm.
On the Distinction Between Rape and Attempt
The Court referred to the Supreme Court judgments in Madan Lal Vs. State of Jammu and Kashmir (1998) and State of M.P. Vs. Mahendra alias Golu (2022) to distinguish between preparation and attempt.
Justice Vyas observed that the appellant’s actions—forcibly taking the victim, undressing her, and “rubbing his genitals against those of the victims”—went beyond mere 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. 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 Court ruled.
The Court reiterated that while even slight penetration is sufficient for rape, in this case, the specific evidence pointed to an attempt rather than the completed offence.
On the Age of the Victim
The Court rejected the appellant’s contention regarding the victim’s age. Citing the Supreme Court judgment in Bhupram Vs. State of U.P. (1989), the High Court held that the school register (Dakhil Kharij), maintained in the regular course of official duty, is a relevant public document under Section 35 of the Evidence Act. The Court noted that the appellant had not raised a dispute about the victim’s age before the trial court.
The Decision
The High Court set aside the conviction under Section 376(1) of the IPC and instead convicted the appellant under Section 376 read with Section 511 of the IPC (Attempt to commit rape).
The Court modified the sentence as follows:
- Section 376/511 IPC: Rigorous Imprisonment for 3 years and 6 months and a fine of Rs. 200.
- Section 342 IPC: Rigorous Imprisonment for 6 months (Affirmed).
Both sentences are to run concurrently. The Court noted that the appellant had already served approximately 1 year and 1 month. He has been directed to surrender before the trial court within two months to serve the remaining sentence.
Case Details:
- Case Title: Vasudeo Gond Vs. State of Chhattisgarh
- Case Number: CRA No. 355 of 2005
- Bench: Justice Narendra Kumar Vyas
