No Convincing Evidence To Show Penetration To Attract Rape Offence On The Date Of Occurrence: Kerala High Court Modifies Conviction To Attempt To Rape
The Court converted conviction U/S 376 IPC to S. 511 read with 376 IPC after finding evidence proved attempt to commit rape of two-year-old victim but not penetration.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has held that for offences governed by the pre-2013 definition of rape under Section 375 IPC, proof of penetration remains an indispensable requirement to sustain a conviction under Section 376 IPC. The Court observed that while evidence showing access to the genital area and injuries around the vaginal orifice may indicate sexual assault and even establish an attempt to commit rape, conviction for the completed offence cannot stand in the absence of convincing evidence of penetration. Accordingly, the Bench partly allowed the appeal, and set aside the conviction under Section 376 IPC, and instead convicted the accused under Section 511 read with Section 376 IPC.
The Court further clarified that the non-examination of a victim aged less than two years at the time of the incident would not, by itself, be fatal to the prosecution case. At the same time, the Court reiterated that hearsay evidence can qualify as part of the doctrine of res gestae only where the statement possesses sufficient spontaneity and forms part of the same transaction without scope for fabrication.
Justice A. Badharudeen observed, “…When reading the evidence of PW2 and PW3, supported by the presence of contusion on the vaginal orifice of the victim, it could be seen that there was an attempt on the part of the accused to commit rape on the minor victim. But, there is no convincing evidence to show penetration to complete the offence of rape as on the date of occurrence, which is prior to amendment of Section 375 of IPC with effect from 03.02.2013. When a person is attempting to do an act with intention to do so and he would do some overt acts and when he could not complete the offence by doing the remaining overt act or acts, the law would punish such person for commission of offence of attempting to commit the said offence for which the punishment is half of the punishment provided for such offence…”.
Advocate S. Rajeev appeared for the appellant-accused and Renjit George, Senior Public Prosecutor appeared for the respondent.
According to the prosecution, the accused allegedly sexually assaulted a two-year-old child on October 9, 2005, at the courtyard of a neighbour’s house while the child’s mother and another woman were washing clothes nearby. The prosecution relied principally on the testimony of the child’s mother and the neighbour, who stated that the child was found sitting on the accused’s lap without her undergarment, which was lying nearby.
The mother further deposed that the child later stated that the accused had removed her knicker and “pierced” her. Medical examination revealed contusion around the vaginal orifice, though the hymen remained intact.
The trial court convicted the accused under Section 376(2)(f) IPC and sentenced him to ten years’ rigorous imprisonment with fine. Challenging the conviction, the accused argued before the High Court that penetration, a mandatory ingredient of rape under the unamended Section 375 IPC, had not been proved. Reliance was placed on several Supreme Court precedents distinguishing rape from attempt to commit rape.
Upon reappreciating the evidence, the High Court held that the prosecution had successfully established overt acts amounting to an attempt to commit rape. However, the Court found no convincing evidence proving penetration sufficient to constitute rape under the law prevailing prior to the 2013 amendment. The Court observed that the evidence of the mother and neighbour, corroborated by medical findings of contusion around the vaginal orifice, established an attempted sexual assault, but not the completed offence of rape.
“…Even though from the evidence discussed, the learned Special Judge found commission of offence punishable under Section 376 of IPC by the accused, the evidence available would not suggest necessary ingredients to constitute an offence under Section 375 of IPC punishable under Section 376 of IPC prior to amendment of Section 375 of IPC with effect from 03.02.2013. But the ingredients to prove an attempt to commit the offence of rape have been established by the prosecution based on the evidence…”, it noted.
“…in the instant case, non-examination of the victim, who even not completed two years of age as on the date of occurrence, could not be held as non-examination of a material witness…”, the Bench categorically said.
The sentence was modified to five years’ rigorous imprisonment with a fine of Rs.50,000, of which Rs.30,000 was directed to be paid to the victim as compensation. The Court also vacated the order suspending sentence and directed the accused to surrender before the Special Court forthwith.
Cause Title: Suresh @ Kadakam v. State of Kerala (Neutral Citation: 2026:KER:33900)
Appearances:
Appellant: S. Rajeev, K.K. Dheerendrakrishnan and V. Vinay, Advocates.
Respondent: Senior Public Prosecutor Renjit George appeared for the State.