Ejaculation without penetration is not rape: High Court reduces convict's sentence

A High Court ruling has drawn a sharp legal line between preparation, attempt and the act itself -- a distinction that has now altered a decades-old conviction and sentence.

“The sine qua non of the offence of rape is penetration, and not ejaculation.” With this clear formulation, the Chhattisgarh High Court has altered a two-decade-old conviction, holding that keeping the penis above the vagina and ejaculating without proven penetration does not amount to rape under Section 375 of the Indian Penal Code, as it stood in force at the time of the occurrence.

The verdict, delivered on February 16 by Justice Narendra Kumar Vyas, came in an appeal against a 2005 trial court judgment that had sentenced the accused to seven years in prison for rape.

At the heart of the appeal was the victim’s own testimony.

During cross-examination, she said the accused kept his private part above her vagina but did not penetrate. At another stage of her evidence, she said that penetration had taken place. The High Court found this inconsistency crucial.

“When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established as the victim’s own statement creates doubt,” the Court observed, reported the Bar and Bench.

She had said at one point that the accused penetrated, but later clarified that he “had kept his private part above her vagina for about 10 minutes” and “has not penetrated it”.