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Synopsis

While upholding the conviction of a man for attempting to rape a 7-year-old girl child, the bench of Justice Swarana Kanta Sharma of the Delhi High Court observed, “It is essential to acknowledge that even minimal penetration is sufficient to establish sexual intercourse”.

"...The nature of the offense needs to be carefully considered, whether it constitutes rape or an attempt to commit rape. It is essential to acknowledge that even minimal penetration is sufficient to establish sexual intercourse”, the single judge bench stated in its order dated August 21.

As per the prosecution, the convict, a neighbour had taken the seven-year-old girl along with her younger sister to a room and forcibly established physical relations with her while confining her in a room and making the younger child wait outside.

The court noted that it was clear that although rape had been ruled out because there had been no penetration, there had been an attempt of rape because the appellant tried to penetrate, causing tenderness, because of which the victim had felt pain.

The court made the observations in an appeal filed by a man against the trial court order which sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000 and in default of the fine, to further undergo simple imprisonment for six months. The appellant was also convicted under Section 342 IPC and, for the same, he was sentenced to undergo rigorous imprisonment for one year.

The testimonies of key witnesses were reviewed by the court. The judge found inconsistencies in the victim's testimony regarding her sister's presence but highlighted her clarification which asserted that her sister was, in fact, outside the room.

“Thus, her assertion that the appellant had inserted his penis into her vagina should be approached cautiously, especially as she had stated that it was only afterward that she experienced pain. Therefore, the nature of the offence needs to be carefully considered, whether it constitutes rape or an attempt to commit rape”, the court said.

Court also said that "after a thorough review of the medical evidence, including the statement of PW-7, it was evident that rape was ruled out due to lack of penetration. However, there was an attempted rape, as the appellant tried to penetrate, causing tenderness and pain to PW-4. The attempt was thwarted by the victim's mother's arrival. The appellant's claim that 'X's testimony was influenced was rejected by the Court stating that general explanations to a child witness are not tutored versions".

Conclusively, court found no issues with the trial court's judgment and upheld the conviction order. It dismissed the appeal, and the appellant was directed to surrender within 15 days to serve the remaining sentence.

Case Title: Rahul v. State of Delhi