Penetration necessary to establish offence of rape: Calcutta High Court reduces sentence of accused

The Calcutta High Court recently reduced the prison sentence of a man accused of raping a 11-year-old girl, after noting that penetration was not established in the case [Dipak Singha v. State of West Bengal]..A Bench of Justices Joymalya Bagchi and Bivas Pattanayak held that the case was one of attempt to commit rape."It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses," the Bench observed. .The High Court was hearing an appeal against a 2013 trial court judgment and order convicting the appellant for the offence punishable under Section 376(2)(f) [rape on a woman below 12 years of age] of the Indian Penal Code. He was sentenced to rigorous imprisonment for ten years and a fine of ₹10,000..The Amicus Curiae in the matter pointed out that the survivor had not mentioned any penetration as was corroborated by the medical officer witness, and thus prayed for the appellant's acquittal.Counsel for the State submitted that the evidence of the offence is corroborated by a neighbour-witness as well, adding that a lack of injury cannot be grounds to disbelieve the prosecution's case.On this, the Bench ruled,"Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape.".The High Court relied on the depositions and cross-examinations of the survivor and her father to note that the girl did not speak of penetration, but instead said that appellant had tried to rape her, but could not do so as she protested.It, thus, converted the conviction of the appellant to one under Section 376(2)(f) read with Section 511 (offences punishable with imprisonment for life or other imprisonment along with the existing offence) of the IPC..Noting that the appellant had already spent more than eight years in prison, the Bench stated,"Under such circumstances and in view of the alteration of his conviction as aforesaid, I modify the sentence imposed on him and direct the appellant be sentenced to suffer imprisonment for the period already undergone and to pay a fine of ₹10,000 in default, to suffer rigorous imprisonment for six month more."The High Court added that any period of detention undergone during the stages of trial, enquiry and investigation shall be set off from the sentence..Advocate Pawan Gupta was Amicus Curiae, while Public Prosecutor Gopal Mukherji and Advocate Amita Gaur appeared for the State..[Read Judgment]