CHENTHAMARA Vs. STATE OF KERALA

JUDGEMENT

(1.) IS actual entry of penis through vagina essential, to constitute "rape" under Section 375 of the Indian Penal Code ('IPC' for short) ? In the absence of penile-vaginal entry, will the offence of "rape" be made out, under Section 375 IPC ? What does the expression "penetration" in Explanation to Section 375 IPC mean ? These are the main questions which arise for consideration in this revision.

(2.) FACTS briefly : A girl aged 12 years is the alleged victim in this case. The accused is her neighbour. On the crucial day, she went to his house, as usual, to play chess. She played chess with accused's brother and also the accused. Thereafter, the accused asked the girl to keep the chess back in the room. When she went to the room with the chess board, accused accompanied her and, on reaching the room, he closed her mouth, took her to a corner of the room and committed rape on PW1. The accused let the child go, on seeing blood trickling down her leg.

(3.) LEARNED counsel appearing for revision petitioner vehemently contended that the conviction of attempt to rape is totally unsustainable, since both trial court as well as appellate court held that there was no "penetration" or even "partial penetration" into the vagina. "Penetration" is an essential ingredient of Section 375 IPC, but there was no "penetration" or even "partial penetration", as per the evidence of the doctor PW4, and Ext.P2 wound certificate also. Hence, it cannot be said that there was any attempt to rape, it is argued. The doctor, PW4 stated in the chief examination itself that the hymen was intact and it was stated by the doctor that in a case where hymen is intact, there may not be even "partial penetration", it is pointed out. To constitute an attempt to rape, there must be at least a partial penetration, is the argument.