- The Hon’ble Calcutta HC has, in Dipak Sihna vs. State of West Bengal recently observed that penetration of the slightest degree is necessary to establish the offence of rape and that in the case at hand, only the offence of attempt of rape could be made out.
- In the instant case, the accused had been convicted for the rape of an 11 year old girl. The appeal had been preferred against the judgment of the lower Court dated 28 June, 2013 where the appellant had been convicted for the offence of rape under section 376(2)(f) of IPC and sentenced to an imprisonment of 10 years alon with fine.
- It was alleged by the prosecution that on May 5, 2010, at 11 pm, when the family of the victim had gone out to attend a function, the accused had come to the house of the victim and had committed assault on the sleeping victim. She had deposed that when she woke up, she found the accused lying beside her, he forcibly kissed her and placed his penis over her vagina after removing her underwear. When she shouted then the appellant/accused ran away. She had stated in her cross examination that the accused had attempted to rape her but as she protested, he could not commit the offence in its entirety.
- It was on this deposition that the Court has relied on, where the victim states that the accused had attempted to rape her but could not do it because of her protests. The Court observed that the victim does not speak of penetration, and the same testimony was corroborated by the victim’s father when he said that his daughter told him that the accused had tried to rape her but could’nt due to her protests.
- The Court, thus, observed that penetration even of the slightest degree is essential to establish the offence of rape. Evidence on record in the instant case clearly shows that no penetration of any kind had occurred.
- The Court has also observed that although absence of injuries or non-rupturing of the hymen does not indicate the absence of rape, but where the victim herself states that the appellant attempted to rape her, coupled with the absence of injuries on her private parts, corroborate the conclusion that the offence was one of attempt to rape.
- Thus, the appeal was allowed. The accused had already undergone 8 years of imprisonment and the Court ordered him to suffer imprisonment for the period already undergone and to pay a fine of Rs.10,000 and in default, to suffer imprisonment of six months.
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