“Ejaculation without penetration is an attempt, not rape”: Why High Court reduced man’s 7-year sentence in 2004 Case
Harvinder Kaur
Raipur (Chhattisgarh), February 18, 2026: Drawing a sharp legal line between sexual assault and the statutory definition of rape under the pre-2013 law, the Chhattisgarh High Court has ruled that ejaculation without proven penetration amounts to an attempt to commit rape and not the offence of rape itself, modifying a 2004 conviction in a Dhamtari case.
Justice Narendra Kumar Vyas passed the order on February 16 while deciding a criminal appeal filed by a man who had been sentenced to seven years of rigorous imprisonment by a trial court in 2005 after being convicted under Section 376 of the Indian Penal Code.
The High Court held that penetration is the sine qua non — the essential ingredient — for sustaining a conviction for rape under the law as it stood at the time of the incident. “Ejaculation without penetration constitutes an attempt to commit rape and not actual rape,” the court observed, adding that the survivor’s own testimony created doubt regarding the occurrence of penetration.
According to the prosecution, the incident took place on May 21, 2004, when the accused allegedly lured the woman from her home on the pretext of going to a shop, dragged her to his house, removed her clothes and forcibly engaged in sexual acts. The survivor stated that her hands and legs were tied, cloth was stuffed into her mouth, and she was locked inside a room.
Based on her complaint, a case was registered in Dhamtari. The Additional Sessions Judge, Dhamtari (Camp Raipur), in April 2005, convicted the accused of rape and sentenced him to seven years’ rigorous imprisonment, along with six months’ imprisonment under Section 342 IPC for wrongful confinement.
While examining the appeal, the High Court scrutinised the survivor’s deposition and noted inconsistencies on the question of penetration. Though her testimony clearly established violent sexual assault, the court found that the crucial element of penetration required for a rape conviction was not conclusively proved. During cross-examination, she indicated the possibility of partial penetration, but her statements did not firmly establish its occurrence.
The medical evidence further complicated the issue. The examining doctor testified that there was a possibility of partial penetration but no definite opinion confirming rape could be given. The Forensic Science Laboratory report detected human sperm on certain seized articles, though not on all exhibits.
The court acknowledged that the evidence unmistakably proved sexual assault and that the accused’s actions had gone far beyond mere preparation. However, it emphasised that suspicion or possibility of partial penetration cannot replace clear proof of penetration, which was mandatory under the legal framework in force in 2004.
Holding that the prosecution failed to establish the essential ingredient of penetration beyond reasonable doubt, the High Court modified the conviction from rape to attempt to commit rape, while affirming that the accused was guilty of a punishable attempt under criminal law.
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