Calcutta High Court recently reduced the sentence of a man accused of raping an 11-year old girl. Noting that penetration was not established in the case, the bench considered it a case of attempt to rape.
“It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses,” the court noted.
The High Court bench comprising Justice Joymalya Bagchi and Justice Bivas Pattanayak was hearing an appeal filed challenging a 2013 judgment and order by trial court.
The trial court had convicted the accused for the offence punishable under Section 376(2)(f) (rape on a woman below 12 years of age) of the Indian Penal Code. He was sentenced to ten years of rigorous imprisonment and a fine of ₹10,000.
Amicus curiae Pawan Gupta had sought his acquittal citing that the survivor had not mentioned any penetration as corroborated by the medical examination officer witness.
Advocate appearing for the appellant submitted that the evidence of the offence is corroborated by a neighbour-witness as well, adding that a lack of injury cannot be grounds to disbelieve the prosecution’s case.
“Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape,” the bench observed.
As per the depositions and cross-examination of the survivor and her father, the girl had not mentioned any penetration. But they had submitted that the accused had tried to rape her but could not do so as she protested.
The High Court modified the sentence and held him guilty under Section 376(2)(f) read with Section 511 (offences punishable with imprisonment for life or other imprisonment along with the existing offence) of the IPC.
Considering the submission that the appellant had already spend eight years in prison, the bench stated, “Under such circumstances and in view of the alteration of his conviction as aforesaid, I modify the sentence imposed on him and direct the appellant be sentenced to suffer imprisonment for the period already undergone and to pay a fine of ₹10,000 in default, to suffer rigorous imprisonment for six month more.”
Any period of detention undergone during the stages of trial, enquiry and investigation shall be set off from the sentence, the bench added.