Even Minimal Penetration Is Sufficient To Establish Sexual Intercourse: Delhi High Court In Attempt To Rape Case Of Minor

A Bench of Justice Swarana Kanta Sharma observed that “It is essential to acknowledge that even minimal penetration is sufficient to establish sexual intercourse.”

The case involved allegations against the accused of forcibly establishing physical relations with two young girls, referred to as 'X' and 'Y', who are aged seven and five, respectively. The complainant, who was the mother of the victims, filed the FIR. The trial court convicted the appellant based on the evidence and sentenced him to five years' rigorous imprisonment for IPC Section 376 read with 511 and one year for IPC Section 342.

Advocate Rohan J. Alva appeared for the Appellant and Advocate Satish Kumar appeared for the Respondent.

The appellant's counsel argued that there were contradictions in the witnesses' statements and that the prosecution failed to prove its case beyond reasonable doubt. They pointed out inconsistencies between the FIR, statements under Section 164 of Cr.P.C, and trial testimonies. They also contested the medical evidence and highlighted contradictions in victim testimonies regarding the presence of 'Y' during the incident.

The State's prosecutor argued that the appellant's contentions were already raised in the trial court and that the evidence, including the testimonies of the complainant and victims, supported the prosecution's case.

The Court considered arguments from both the appellant's counsel and the state's prosecutor, along with the evidence presented. The appellant's counsel claimed that the delay in filing the complaint indicated it was an afterthought, but the Court found that the nature of the incident involving minor victims could have caused reluctance due to potential harm to their reputation.

The testimonies of key witnesses were reviewed by the Court. The Court found inconsistencies in 'X's testimony regarding 'Y's presence but highlighted her clarification which asserted that her sister 'Y' 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 that after a thorough review of the medical evidence, including the statement of PW-7, it was evident that rape is 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.

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

Cause Title: Rahul v. State of Delhi

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