Keeping The Male Organ Over The Vagina And Ejaculating Without Penetration Is Not Rape: Chhattisgarh High Court

The Chhattisgarh High Court ruled on Monday that keeping the male organ over the vagina and ejaculating without penetration does not amount to rape under Section 375 of the Indian Penal Code (IPC), reported Live Law.

Instead, such an act will be treated as an “attempt to rape” and punishable under Section 376 read with Section 511 of the IPC.

The judgment was delivered by Justice Narendra Kumar Vyas while hearing a criminal appeal filed by a man who had been convicted of rape in 2005, as per SCC Times.

According to the prosecution, the incident took place on May 21, 2004. The victim was alone at her house when the accused allegedly dragged her to his house.

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It was claimed that he undressed both of them and committed sexual intercourse against her will. After the incident, he allegedly tied her hands and legs, stuffed cloth into her mouth, and locked her inside a room. She was later found by her mother.

The trial court, in its April 6, 2005 judgment, convicted the accused under Sections 376(1) (rape) and 342 (wrongful confinement) of the IPC. He was sentenced to seven years of imprisonment along with a fine.

During cross-examination, the victim made conflicting statements. In one part of her testimony, she said that the accused had penetrated her. However, she later stated that he kept his private part above her vagina for about 10 minutes but did not penetrate.

The medical examination report stated that the hymen was not ruptured and only the tip of one finger could be inserted into the vagina. The doctor mentioned there was redness in the vulva and white discharge. However, the forensic science laboratory (FSL) report did not find human sperm in the victim’s undergarments.

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After examining the evidence, the High Court observed that there was no clear proof of penetration. The Court held that penetration is necessary to constitute rape under Section 375 IPC. Since penetration was not conclusively established, the offence would fall under “attempt to rape.”

Accordingly, the Court modified the conviction from rape to attempt to rape under Section 376/511 IPC. The sentence was reduced to rigorous imprisonment for three years and six months.

(With inputs from Live Law)