'Rubbing Male Organ Between Victim's Thighs Culminating In Ejaculation Is Not Rape, But Attempt To Rape: J&K High Court

The High Court of Jammu & Kashmir and Ladakh recently held that rubbing a male organ between a victim's thighs, resulting in ejaculation but without any actual penetration, constitutes an "attempt to rape" rather than the completed offence of rape.

Justice Sanjay Parihar observed that while such conduct unmistakably demonstrates an intention to commit rape, the absence of penetrative sexual assault warrants a conviction under Section 376 read with Section 511 of the Ranbir Penal Code (RPC), rather than Section 376 RPC alone.

"The evidence on record clearly establishes that the appellant had disrobed himself, torn the victim's pyjama and subjected her to a sexual assault by pressing his genital organ between her thighs, culminating in ejaculation. Such conduct unmistakably demonstrates his intention to commit rape, though the allegation of actual penetrative sexual assault remains unproved in view of the medical evidence on record," the Court stated.

With this observation, the High Court modified a trial court's judgment that had convicted the appellant (Showkat Ahmad Seer), of rape and sentenced him to 10 years of rigorous imprisonment. The High Court reduced the sentence to 5 years of imprisonment.

What were the allegations against the accused?

The prosecution’s case rested on an incident from July 2016, where the minor victim had gone to a nearby field for irrigation. The appellant allegedly approached her, threatened to kill her, and forcibly took her to a nearby forest area where he tore her pyjama and subjected her to sexual assault.

The victim's mother claimed to have rushed to the spot after hearing cries and saw the appellant fleeing.

Following the investigation, a trial court in Handwara found the appellant guilty under Section 376 RPC and sentenced him to ten years in prison along with a fine of ₹50,000. The appellant challenged this conviction before the High Court.

Medical Evidence and Lack of Penetration

During the appeal, the accused’s counsel heavily relied on the medical evidence, which did not support the allegation of penetrative sexual assault.

The medical expert, who had examined the victim, categorically opined that the victim had not undergone coitus. The doctor found that the hymen was intact and the introitus admitted only a little finger with difficulty.

However, the medical examination did reveal a laceration on the victim's perineum (the area between the vaginal canal and the anus).

Justice Parihar noted that while the medical evidence ruled out the possibility of coitus, the laceration on the perineum 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, upon noticing the tender age of the victim and being mindful of the consequences that might follow the actual penetration, forced or rubbed his male organ between the thighs of the victim, resulting in the perineum laceration," the Court observed.

'Determined Attempt' to Commit Rape

The High Court concluded that the circumstances made the prosecution's case probable only to the extent that there was an attempt to commit rape.

Relying on the Supreme Court's precedent in Madan Lal vs. State of J&K, the Bench reiterated the legal distinction between mere assault and an attempt to commit rape.

The Court highlighted that going beyond the stage of preparation, such as stripping the victim, undressing oneself, and forcibly rubbing the penis resulting in ejaculation without penetration, crosses the threshold from outraging modesty (Section 354) into an attempt to commit rape (Sections 376 read with 511).

The Court ultimately held that the trial court had misappreciated the evidence by recording a conviction for the completed offence under Section 376 RPC.

"The evidence on record, though insufficient to establish the commission of rape beyond reasonable doubt, unmistakably demonstrates that the appellant had made a determined attempt to commit the offence," the Court concluded.

Consequently, the High Court altered the conviction to Section 376 RPC read with Section 511 RPC. Considering the appellant's age at the time of the occurrence and the period already undergone in custody, the Court sentenced him to 5 years in prison and imposed a fine of ₹10,000.

Case Title: SHOWKAT AHMAD SEER v UT OF JK THROUGH POLICE STATION QALAMABAD

Bench: Justice Sanjay Parihar