While converting the conviction of an accused under Section 376 (1) IPC to Sections 376/511 IPC, the Chhattisgarh High Court has held that penetration is sine qua non for an offence of rape and ejaculation without penetration constitutes an attempt to commit rape and not actual rape.

The High Court was considering an appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973, against the judgment of the Additional Sessions Judge whereby the appellant stood convicted and sentenced as under sections 376 (1) and 342 of the IPC.

The Single Bench of Justice Narendra Kumar Vyas held, “From the above position of law, it is quite vivid that in order to constitute rape as per Section 375 of IPC as stood prior to amendment on 03.02.2013, Section 375 of IPC requires medical evidence of penetration and this may occur and hymen remain intact and in view of the explanation to Section 375, mere penetration of penis in vagina is an offence of rape. Even slight penetration is sufficient for conviction under Section 376 of IPC. Thus, it is quite vivid that penetration is sine qua non for an offence of rape and in order to constitute penetration, there must be clear and cogent evidence to prove that some part of the virile member of the accused was within labia of the pudendum of the woman, no matter to what extent which is sufficient to hold accused guilty for the offence punishable under Section 376 of IPC.”

“In order to come to a conclusion that the conduct of the accused was indicative of the determination to gratify his passion at all events, and in spite of all resistance, materials must exist. As already discussed above, the sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape”, it added.

Advocate Rahil Arun Kochar represented the Appellant, while Panel Lawyer Manish Kashyap represented the State.

Factual Background

The case dates back to the year 2004 when the appellant caught hold of the victim’s hand, forcibly dragged her to his house and committed sexual intercourse with her without her will. It was alleged that he locked her inside the room of his house, tied her hands and legs and stuffed cloth into her mouth. The information regarding the incident was lodged at the Police Station, and an investigation was conducted. After completion of the investigation, the Trial Court convicted and sentenced the appellant.

Reasoning

On a perusal of the evidence of the victim, the Bench noted that the victim in one part of her evidence had stated about penetration and on a subsequent line, she had stated that the appellant had kept his private part above her private part for about 10 minutes, and the appellant had not done the penetration. This version of the victim’s evidence was corroborated by the medical report wherein the doctor had opined that the hymen was not ruptured and there was a possibility of partial penetration. “The doctor in her evidence has also stated that the victim has complained about pain in her private part. There was redness in the vulva and having white liquid in it which clearly proved beyond reasonable doubt that the victim was subjected to commission of offence of rape by the appellant”, it noted.

Considering that the acts of the appellant were deliberately done with manifest intention to commit the offence aimed at and were reasonably proximate to the consummation of the offence, the Bench stated, “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 as punishable within the ambit and scope of Section 511 read with Section 375 IPC as it stood in force at the time of occurrence.”

The Bench was thus of the view that the appellant cannot be convicted under Section 376 (1) of the IPC, but he can be convicted under Section 376,511 of the IPC. The Bench convicted the appellant for the offence punishable under Section 376/511 of IPC instead of Section 376 (1) of IPC and awarded sentence of R.I. for 3 years and 6 months and a fine of Rs. 200. However, considering the period of incarceration of the appellant, the Bench held, “The appellant is entitled to get set off as per Section 428 of the Cr.P.C. or Section 468 of Bharatiya Nagarik Suraksha Sanhita 2023.”

Cause Title: Vasudeo Gond v. State of Chhattisgarh (Neutral Citation: 2026:CGHC:8245)

Appearance

Petitioner: Advocates Rahil Arun Kochar, Leekesh Kumar

Respondent: Panel Lawyer Manish Kashyap

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Chhattisgarh High CourtJustice Narendra Kumar Vyas

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.