No penetration, no rape: HC commutes life term to 10-year jail term

The division bench of justice Prasanna Varale and justice NR Borkar replaced the man’s conviction under the charge of rape with the charge of attempted rape (section 376 read with section 511), and commuted his sentence to 10 years, as evidence on record did not show that penetration had occurred.

Mumbai: Penetration is an essential part of the charge of rape, the Bombay high court (HC) said on Thursday, while hearing the appeal of a 29-year-old man sentenced to life under Section 375 for assaulting a five-year-old girl.

The bench referred to a 2004 judgement of the Supreme Court which held that penetration was sine qua non [essential condition] for sustaining the charge of rape. (HT PHOTO)

The division bench of justice Prasanna Varale and justice NR Borkar replaced the man’s conviction under the charge of rape with the charge of attempted rape (section 376 read with section 511), and commuted his sentence to 10 years, as evidence on record did not show that penetration had occurred.

The bench referred to a 2004 judgement of the Supreme Court which held that penetration was sine qua non [essential condition] for sustaining the charge of rape and thus, without penetration, the offence may constitute an attempt to commit rape but not actual rape.

The bench noted that in case of the Govandi resident, the survivor had in clear terms stated that he had touched her private parts and there was nothing further on record – medical or forensic evidence -- to suggest that there was any penetration.

The man has already served 10 years in prison.