'Ejaculation Without Penetration Not Rape': Chhattisgarh HC Reduces Sentence
New Delhi: In a strange order, the Chhattisgarh high court on February 16 held that placing the penis above the vagina and then ejaculating without penetration is not 'actual rape' by law, but an 'attempt to rape,' LiveLaw first reported.
The bench of Justice Narendra Kumar Vyas was reported to have said,
"Obscene assault is often turned into an attempted rape. In order to conclude that the conduct of the accused was, at all costs and in spite of all kinds of opposition, indicative of a strong intention to pursue his passion, the evidence must be present.
"As mentioned above, the prerequisite for the offence of rape is penetration, not ejaculation. Ejaculation without penetration is an attempt to rape, not actual rape."
The public prosecutor's statement noted that on May 21, 2004, the attacker forcibly took the survivor into his house, raped her, tied her limbs, stuffed a piece of cloth in her mouth, and locked her in a room where she was kept for eight hours until her mother rescued her.
The Additional Sessions Judge of Dhamtari had found the attacker guilty under Sections 376(1) – punishment for rape – and 342 – wrongful confinement – of the Indian Penal Code.
The man later appealed the sentence, hinging his argument on the fact that the survivor had said that in addition to putting his private parts inside her vagina, the man had "placed his private part on top of her vagina for about 10 minutes, but did not insert
it."
Testimonies of her mother and grandfather were also taken and the report notes that they "corroborated" her account. A doctor who examined her gave conflicting accounts, first claiming there was no firm opinion on the crime of rape and then claiming in cross-questioning that there was a possibility of partial penetration.
The high court's order means that the crime will not be punishable under Section 375 (rape) of the Indian Penal Code but under Section 376/511 (attempt to rape/punishment for attempt to commit offences).
The court has thus reduced a seven-year sentence to three years and six months, with a fine of Rs. 200, according to another report.
The same court had last year stated that non-consensual anal sex or any other non-consensual sexual act committed by a husband on his wife, who is above 15 years old, is not considered an offence under the Indian Penal Code.
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