Chhattisgarh High Court: Ejaculation Without Penetration Is Attempt to Rape, Not Rape
In a significant ruling, the Chhattisgarh High Court has held that penetration is the sine qua non (essential ingredient) for constituting the offence of rape under Section 375 of the Indian Penal Code, 1860 (IPC). The Court clarified that ejaculation without penetration amounts only to an attempt to commit rape and not rape itself.
The judgment was delivered on February 16, 2026, in Vasudeo Gond v. State of Chhattisgarh (2026 CGHC 8245) by Justice Narendra Kumar Vyas.
Background of the Case
The case arose from an incident dated May 21, 2004. According to the prosecution, the accused forcibly dragged the prosecutrix into his house, locked the door, tied her hands and legs, stuffed cloth into her mouth, and committed sexual assault against her will. An FIR was lodged, and after trial, the Sessions Court convicted the accused under Section 376(1) IPC (rape) and Section 342 IPC (wrongful confinement), sentencing him to seven years of rigorous imprisonment.
The accused challenged the conviction before the High Court under Section 374(2) of the Code of Criminal Procedure, 1973.
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Key Findings on Evidence
While examining the appeal, the High Court carefully scrutinized the testimony of the prosecutrix and the medical evidence. Although the prosecutrix initially alleged penetration, she later stated during cross-examination that the accused had kept his private part above her private part for about 10 minutes but there was no penetration.
The medical examination revealed:
- The hymen was intact
- Redness in the vulva
- Pain in the private part
- Presence of white discharge
- Human sperm detected
However, the doctor noted only a possibility of partial penetration and did not conclusively confirm penetration.
Court’s Observation on Legal Requirement of Penetration
Justice Narendra Kumar Vyas emphasized the settled legal principle governing rape prior to the 2013 amendment to the IPC. The Court categorically observed:
“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.”
The Court further reiterated that even slight penetration is sufficient to constitute rape. However, there must be clear and cogent evidence establishing that:
“some part of the virile member of the accused was within the labia of the pudendum of the woman.”
In the present case, due to contradictory testimony and inconclusive medical evidence, the prosecution failed to establish penetration beyond reasonable doubt.
Distinction Between Preparation and Attempt
The High Court observed that the accused’s actions went far beyond mere preparation. Forcibly confining the victim, stripping clothes, and rubbing genitals demonstrated conduct that was reasonably proximate to the commission of rape.
However, since penetration was not proved, the Court held that the offence would fall under Section 376 read with Section 511 IPC (attempt to commit rape), and not Section 376(1) IPC.
Modified Conviction and Sentence
Accordingly, the High Court:
- Set aside the conviction under Section 376(1) IPC
- Convicted the accused under Section 376/511 IPC (attempt to rape)
- Sentenced him to three years and six months of rigorous imprisonment
- Imposed a fine of ₹200
- Directed surrender within two months
The Court also granted set-off under Section 428 of the CrPC (now reflected under Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023) for the period already undergone in custody.
Legal Significance of the Judgment
This ruling reinforces a critical doctrinal distinction in sexual offence jurisprudence under the pre-2013 IPC framework. It reiterates that:
- Penetration remains the foundational element of rape.
- Ejaculation alone is insufficient to constitute the completed offence.
- Clear, consistent testimony supported by medical evidence is essential for conviction under Section 376 IPC.
The judgment will serve as an important precedent in distinguishing between rape and attempt to rape in cases governed by the earlier statutory framework.
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