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In a recent decision, modifying the rape conviction of a man to attempt to rape, the Calcutta High Court has held that penetration even of the slightest degree is necessary to establish the offence of rape.

The bench of Justice Joymalya Bagchi and Justice Bivas Pattanayak was hearing an appeal of one Dipak Singha against an order convicting him for commission of offence punishable under Section 376(2)(f) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and also to pay a fine of Rs.10,000/-. The victim in the matter was an 11-year-old child. 

The Court took note of the fact that Singha had entered the room of the child when she was sleeping, embraced and kissed her and took off her panty and attempted to rape her. However, he could not do so as she had protested and shouted.

Considering the above, the Court observed that it is not a case of rape. The Court said, 

"It is settled law that 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. 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 Court thus modified the conviction of rape to attempt to rape. As Singha had already gone prison time for 8 years, his sentence was reduced from 10 years to time served. 

Cause Title: Dipak Singha vs State of West Bengal