Srinagar, June 24, KDC: The High Court of Jammu & Kashmir and Ladakh has ruled that forcing or rubbing a male organ between a victim’s thighs without medical evidence of penetration does not amount to the completed offence of rape but constitutes an attempt to commit rape.
Modifying a trial court order that had sentenced a man to 10 years of rigorous imprisonment for rape, Justice Sanjay Parihar altered the conviction to attempt to rape under Section 376 read with Section 511 of the Ranbir Penal Code (RPC) and reduced the sentence to five years.
The Court observed that while the accused’s actions clearly showed an intention to commit rape, the absence of evidence proving even partial penetration meant that a conviction for the completed offence could not be legally sustained.
The ruling came while deciding an appeal filed by Showkat Ahmad Seer, who had been convicted by the Additional Sessions Judge, Handwara, in connection with a 2016 incident. The prosecution alleged that he forcibly took a minor girl to a forest area in Qalamabad and sexually assaulted her.
However, medical examination carried out during the investigation found that the victim’s hymen remained intact and that the vaginal opening was extremely narrow, admitting only a little finger with difficulty. Doctors also concluded that there was no evidence of penetrative sexual intercourse.
Examining the medical evidence, Justice Parihar referred to a laceration on the victim’s perineum, the area of skin between the vaginal opening and the anus. The Court said the injury, coupled with other circumstances, could not be ignored.
“In the absence of evidence of penetration, the only reasonable inference that can be drawn is that the appellant, in an attempt to gratify his sexual lust, may have forced or rubbed his male organ between the thighs of the victim, resulting in the perineum laceration,” the Court observed.
The Court held that this evidence supported the prosecution case only to the extent that there had been an attempt to commit rape involving an effort at penetrative sexual assault, but not that actual or partial penetration had occurred.
A major aspect highlighted by the High Court was that the investigating officer had initially reached the same conclusion during the investigation. According to the officer’s testimony, negative medical findings and other evidence had originally led him to conclude that only an attempt to rape under Sections 376 and 511 RPC was made out. The charge was later elevated to rape after the victim’s statement before a magistrate.
The Court relied on the Supreme Court’s judgment in Madan Lal vs State of J&K (1997), which held that where an accused removes a victim’s clothes, undresses himself and forcibly rubs his genital organ against the victim’s private parts but fails to achieve penetration before ejaculation, the act amounts to an attempt to commit rape.
The High Court noted that although the victim’s claim of penetration was not supported by medical findings, the overall evidence clearly established that the accused had torn her clothes, undressed himself and carried out a sexual assault that ended in ejaculation, demonstrating a determined effort to commit rape.
Holding that the trial court had misread the medical evidence while convicting the appellant for the completed offence of rape, the High Court set aside the 10 year sentence and altered the conviction to attempt to rape.
Taking into account the appellant’s age at the time of the offence, the nature of the act and the period already spent in custody, the Court sentenced him to five years’ imprisonment and imposed a fine of ₹10,000. It also directed that the period already undergone in custody be adjusted against the modified sentence. (KDC)
