Even Minimal Penetration Is Sufficient To Establish Sexual Intercourse: Delhi High Court

Observing that the nature of the offence as to whether it constitutes rape or an attempt to commit rape needs to be considered carefully, the Delhi High Court has said that even minimal penetration is sufficient to establish sexual intercourse by a man.

Justice Swarana Kanta Sharma made the observation while upholding the conviction of a man in 2008 for attempting to rape a seven year old girl child in 2006 and confining her in a room. The court also upheld the sentence of rigorous imprisonment for five years and fine of Rs. 5,000 awarded to him.

“…the nature of the offence 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 court observed.

The FIR was registered by the minor’s mother who alleged that the man had taken both her minor daughters to a room and forcibly established physical relations with the seven year old.

The court had admitted the man’s appeal in 2009 and suspended his sentence till its pendency.

Dismissing the appeal, Justice Sharma said that the minor victim’s testimony made it clear that she alone was led into the room while her younger sister waited outside. On the aspect of commission of rape, the court said that the testimony also made it clear that there was penetration effected by the man.

“From a comprehensive analysis of the material on record and from the statement of PW-7, it is clear that although rape has been ruled out because there has been no penetration, there has been an attempt of rape because the appellant tried to penetrate, thereby causing tenderness, because of which PW-4 had begun feeling pain. However, the appellant was unable to complete the act since the victim's mother had arrived on the spot,” the court said.

Justice Sharma also observed that it cannot be said that the victim was tutored, especially in absence of any specific suggestion made to that effect during the trial.

“Accordingly, the present appeal stands dismissed. In view thereof, the appellant is directed to surrender before the concerned Trial Court within a period of fifteen days to serve the remaining portion of the sentence,” the court ordered.

Case Title: RAHUL v. STATE OF DELHI

Citation: 2023 LiveLaw (Del) 752

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