An Unfortunate Impenetrability of Law - The Law on Rape in Chhattisgarh High Court
By Shalini Gera
Chhattisgarh High Court has outraged women rights activists once again – by holding that a man, who has kidnapped a woman, disrobed her, bound her hands and feet, placed his penis on top of her vagina, and ejaculated on her – cannot be held guilty of rape, since he did not penetrate her. Thus, the accused, who had been convicted by the session’s court in Raipur to 7 years of rigorous imprisonment under section 376 IPC had his sentence cut in half by the Chhattisgarh High Court in Bilaspur, for an offence committed in 2004. Relying on the definition of rape as it stood then, the High Court has held that ejaculation with penetration is a sine qua non for the offence of rape.
This judgment comes almost exactly one year after another startling judgment from the same court, indeed the same judge, which acquitted a man of the offences of raping his wife, having unnatural sex, and committing culpable homicide, after he had such violent, non-consensual, anal intercourse with his wife that her rectum was perforated, leading to bleeding, infection and death. The wife revealed the barbaric cruelty of the intercourse in her dying declaration before the SDM, which was relied upon by the trial court in Jagdalpur to convict the accused under sections 376, 377 and 304 of the IPC. However, the High Court held that since the accused was married to the victim, he could take the benefit of the “marital rape” exception in our criminal law, and thus he stood acquitted on all charges.
The two judgements not only rely upon a completely mechanical interpretation of the law of rape, devoid of all context, compassion and reason, but are also similar in how they engage with evidence to trivialize the testimonies of the victims.
Vasudeo Gond Vs State of Chhattisgarh, CRA 355 of 2005
It is true that prior to the IPC amendment of 03.02.2013, the definition of rape in section 375 of the IPC was limited to peno-vaginal penetration which took place against the woman’s will, without her free and properly informed consent, or in the instance of her age being less than 16 years. The first proviso specifically states that “penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” But had the judgment come to a finding that no penetration took place at all, pointed to the limited definition of rape at the time of the commission of the offence in 2004, and stopped at that, it might have been more palatable.
However, the judgment does not do that.
The judgment actively sidelines all evidence that points to penetration/ or partial penetration. The victim in her testimony stated that accused penetrated his penis into her vagina, but later also said that he kept it over her private parts without penetration. Plausibly, these acts happened sequentially, however, her testimony is discounted because it is considered contradictory. Further, the doctor notes that the victim complained of pain in her private parts, there was redness of the vulva, and the presence of white liquid on her private parts. However, as the hymen is not ruptured, the doctor raises the possibility of ‘partial penetration.’ This is also not considered by the court. Furthermore, two articles described as “slides” (vaginal slides?) are shown to have human sperm, which should lay to rest any question about penetration and ejaculation. But they are only mentioned in passing, in paragraph 8 and not considered in the judgment at all.
In paragraph 22, the judgment notes that partial penetration has occurred:
“… [i]t is quite vivid that an offence of attempt to commit rape is made out against the appellant as there is partial penetration by the appellant. As such, the act of the appellant forcibly taking the victim inside the room, closing the doors with motive of carnal knowledge, was the end of ‘preparation’ to commit the offence. His following action of stripping the victim and himself, and rubbing his genitals against those of the victims and partial penetration which was indeed an endeavour to commit sexual intercourse….”
There are a multitude of judgments by the apex court, which hold that partial penetration is sufficient to establish the offence of rape under the pre-2103 definition. Thus, what is described above should have satisfied the Court of the presence of all ingredients of rape, yet this judgment holds that only an “attempt to rape,” has happened, and not rape, as ejaculation has taken place outside the body of the victim. “Ejaculation without penetration constitutes an attempt to commit rape and not actual rape,” says the judgment, with the underline in the original.
This judgment, thus, further limits the definition of rape in the pre-2013 IPC – not only is penetration necessary, but it must take place at the same time as ejaculation, for the act to be counted as penetration, and for the offence to be counted as rape. This is an unnecessarily restrictive definition of rape, and one without any legitimate legislative, social or moral backing.
One notes with relief that the new definition of rape after the 2013 amendment, requires neither penetration, nor ejaculation as a mandatory precondition. Coerced oral sex without penetration, or penetration of a woman’s private parts with objects other than a penis also qualify as rape.
Gorakhnath Sharma Vs State of Chhattisgarh, CRA 2025 SCC OnLine Chh 2287
However, even this progressive definition of rape excludes marital rape from its ambit, leading to unfortunate interpretations by judiciary as seen in the Gorakhnath case. This judgment illiberally expands the scope of the marital rape exception from rape, as defined section 375 to coercive unnatural sex defined in section 377, without any legislative, moral or social mandate.
The Chhattisgarh High Court simply stated in its judgment that:
“Thus, it is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with her wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance, therefore, this Court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out.”
Further, the court doubted the veracity of the dying declaration, and the testimony of the victim and went on to exonerate the accused of the charge of culpable homicide under S. 304 also.
It is notable the Supreme Court itself has read down the marital rape exception and restricted it to cases where the wives had attained the age of 18 years (Independent Thought vs Union Of India, AIR 2017 SC 4904). The Karnataka High Court, in Hrishikesh Sahoo v. State of Karnataka (WP 48367 of 2018) has ruled such a marital rape exception as contrary to Article 14 and held that a man can be punished under section 376 of the IPC for raping his wife. The marital rape exclusion is not an immovable, immutable block that resists creative legal interpretations in face of flagrant brutality, and Chhattisgarh High Court would have done well to have taken note of such precedents rather than mechanically reproducing the legal text and legitimizing such cruelty.