Chhattisgarh High Court Says Ejaculation on Female Genitals Without Penetration Amounts Only Attempted Rape

Observing that “ejaculation without penetration constitutes an attempt to commit rape and not actual rape,” the Chhattisgarh High Court has set aside a conviction for rape and instead held the accused guilty of attempt to commit rape in a 2004 sexual assault case.

Court said that penetration, and not ejaculation, is the sine qua non for the offence of rape under the pre-2013 Section 375 of the IPC (corresponding to Section 63 of the Bharatiya Nyaya Sanhita), and that while even slight penetration is sufficient, it must be proved by clear and cogent evidence.

"There must be clear and cogent evidence to prove that some part of the virile member of the accused was within labia of the pudendum of the woman, no matter to what extent," court held. 

In the present case, the prosecutrix gave inconsistent statements, at one stage, stating there was penetration, and later saying the accused had kept his private part above her vagina without penetrating. The medical report also recorded that the hymen was intact and that no definite opinion regarding rape could be given, though it mentioned possibility of partial penetration.

Holding that inconsistent testimony on penetration cannot sustain a conviction for rape, the bench of Justice Narendra Kumar Vyas set aside a seven-year sentence under Section 376 (1), IPC (corresponding to Section 64 of the Bharatiya Nyaya Sanhita) awarded to the convict by the trial court on April 6, 2005.

The case arose from a 2004 incident in Dhamtari district where the accused was alleged to have dragged the victim into his house, stripped her, and sexually assaulted her before locking her inside a room. The trial court had convicted him of rape and wrongful confinement.

Reappreciating the evidence, the high court noted that while the prosecutrix initially stated that penetration had occurred, she later clarified that the accused had kept his private part above her vagina for about ten minutes and had not penetrated. The medical report recorded that the hymen was intact and no definite opinion regarding rape could be given, though it mentioned possibility of partial penetration.

Given the contradictions in the victim’s deposition and absence of definitive medical confirmation, court held that the offence of rape was not proved beyond reasonable doubt.

At the same time, the bench found that the accused’s acts of forcibly taking the woman inside, closing the door, stripping her and himself, and engaging in genital contact went beyond preparation and constituted a direct and proximate attempt to commit rape.

Court referred to Supreme Court's rulings distinguishing preparation from attempt, including Madan Lal v. State of Jammu and Kashmir (1998) where the Supreme Court held that stripping the victim, undressing oneself, rubbing genitals, and going beyond preparation amounts to attempt to commit rape even if penetration does not occur, and State of M.P. v. Mahendra @ Golu (2022), where the Court elaborated the distinction between preparation and attempt, holding that attempt begins when the accused makes a direct movement towards commission of the offence after preparation, and that partial penetration would amount to rape, while failure before penetration may still amount to attempt.

Applying these precedents, the high court held that in the present case, the evidence clearly made out an offence under Section 376 read with Section 511 of the IPC (corresponding to Section 62 of the BNS).

Accordingly, the conviction was altered from rape to attempt to commit rape, and the sentence was reduced to three years and six months’ rigorous imprisonment, while the conviction under Section 342 of the IPC [corresponding to Section 127 (2) of the BNS] was affirmed.

Case Title: Vasudeo Gond vs. State of Chhattisgarh

Judgment Date: February 16, 2026

Bench: Justice Narendra Kumar Vyas