Ejaculation Without Penetration Does Not Qualify as Rape, Says Chhattisgarh HC While Reducing Conviction to Attempt to Rape

Key Points:

On February 16, 2026, the Chhattisgarh High Court delivered its judgment in the case of Vasudeo Gond v. State of Chhattisgarh. Justice Narendra Kumar Vyas ruled that ejaculation without penetration does not constitute the completed offence of rape but amounts to an attempt to commit rape. The court held that rape is established only when there is penetration; otherwise, it falls under the category of attempt.

The court made this observation in a case dating back to 2004, in which the trial court had sentenced the accused to seven years’ imprisonment for rape. This conviction was later modified in 2005. The High Court revised the trial court’s decision, changing the conviction from rape to attempt to rape and reducing the sentence accordingly.

According to the prosecution, the accused approached the victim when she was alone at home, lured her with a request to go to a shop, and then forcibly dragged her to his house. There, he allegedly removed both their clothes and committed sexual acts against her will. He reportedly locked her in a room, tied her hands and legs, and stuffed cloth in her mouth. An FIR was lodged in Dhamtari, Chhattisgarh.

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During the appeal, the High Court re-examined the evidence, particularly the victim’s testimony and medical findings. The victim gave inconsistent statements during cross-examination. “The victim’s own statement creates doubt as in one stage of her evidence, she has stated that the appellant has penetrated his private part in her vagina and in her further evidence, she has stated that the appellant had kept his private part above her vagina for about 10 minutes,” the court observed.

Medical evidence showed that the hymen was intact, and there were no definite signs of rape. It was noted that only the tip of one finger could be introduced into the vagina, indicating possible partial penetration. “The doctor in her evidence has also stated that the victim complained of pain in her private part,” the court recorded. The doctor also noted redness in the vulva, pain complaints, and the presence of white discharge but could not give a conclusive opinion on rape, reiterating the possibility of partial penetration.

The court emphasized that under Section 375 of the IPC, penetration is the essential element of rape. It stated,

It further clarified that even slight penetration is sufficient to constitute rape, provided there is clear evidence of some part of the male organ entering within the labia majora. However, in this case, the victim’s contradictory statements and inconclusive medical findings created doubt regarding actual penetration.

The court also distinguished between preparation and attempt, noting that acts such as forcibly taking the victim to a room, closing the door, stripping both parties, rubbing genitals, and partial penetration went beyond preparation and showed intent proximate to the offence.

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It observed, “The act of the appellant forcibly taking the victim inside the room, closing the doors with the motive of carnal knowledge, was the end of ‘preparation’ to commit the offence. His subsequent action of stripping the victim and himself, and rubbing his genitals against those of the victim and partial penetration, was an endeavour to commit sexual intercourse. These acts were deliberately done with manifest intention and were reasonably proximate to the consummation of the offence.”

The court concluded that the accused’s conduct went beyond the stage of preparation and amounted to an attempt, involving partial penetration without ejaculation. It held that “the appellant is guilty of attempting to commit rape as punishable under Section 511 read with Section 375 IPC as it stood in force at the time of occurrence.”

Accordingly, the conviction under Section 376(1) IPC was set aside and replaced with one under Section 376/511 IPC. The sentence was reduced to three years and six months’ imprisonment. The court granted set-off for time already served, noting that the accused had spent about 10 months and four days in jail during trial from June 3, 2004, to April 6, 2005, and additional time before being granted bail on July 6, 2005, totaling approximately one year, one month, and four days, under Section 428 CrPC.

The court stated, “The appellant is entitled to get set-off as per Section 428 of the CrPC or Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023.” The appellant was directed to surrender within two months to serve the remaining term of imprisonment.

[VP]

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