Unshaken Testimony of Minor Victim Sustains Conviction for Attempted Rape Despite Intact Hymen

In brief

The question

1. Whether an absence of penetration or conclusive medical evidence of rupture of the hymen negates a conviction for attempt to commit rape under Section 376 read with Section 511 of the IPC.

The court held

The Court dismissed the appeal in part, upholding the conviction and sentence under Section 376 read with Section 511 of the IPC (7 years RI).

It also directed

The convictions under Sections 366 and 342 of the IPC were set aside as those specific elements were not established, and the Trial Court was directed to take necessary action for the execution of the remaining sentence.

01Facts

On 03.10.2003 (Durga Puja), the appellant deceitfully induced a five-year-old girl to accompany him on the pretext of visiting idols, taking her from her grandmother's guardianship.

¶ 2

Instead, he took her to his rented room, bolted the door, and attempted to commit rape, causing physical injuries including genital swelling and a bite mark on her chest.

¶ 8(i), 14

The victim disclosed the incident to her grandmother (PW-1) and father (PW-9) upon returning home.

¶ 2

The Trial Court convicted the appellant under Sections 366, 342, and 376/511 of the IPC, sentencing him to 7 years of rigorous imprisonment.

¶ 1

The appellant challenged the conviction primarily on the grounds of delayed FIR and lack of conclusive medical evidence regarding penetration.

¶ 6

02Issues

i.1. Whether an absence of penetration or conclusive medical evidence of rupture of the hymen negates a conviction for attempt to commit rape under Section 376 read with Section 511 of the IPC.

¶ 9, 12, 15

ii.2. Whether the evidence presented was sufficient to sustain convictions for kidnapping (Section 366) and wrongful confinement (Section 342) alongside the sexual assault charge.

¶ 26

03Law Applied

The Court applied Sections 376 and 511 of the IPC regarding the attempt to commit rape, alongside Section 375 (Pre-2013).

¶ 9, 10

The Court relied on State of M.P. v. Mahendra @ Golu, establishing that as soon as the stage of "preparation" ends and an overt act towards commission begins—such as stripping the victim and rubbing genitals—it constitutes an "attempt" under Section 511 even if penetration fails.

¶ 9

Following Deepak Kumar Sahu v. State of Chhattisgarh, the court held that the testimony of a child victim, if credible and inspiring confidence, outweighs the absence of external injuries or inconclusive medical reports, as medical evidence is not sine qua non for conviction in sexual assault cases.

¶ 12

Provisions in the judgment · 7 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 366 Section 342 Section 376 Section 511 Section 354 Section 375

Code of Criminal Procedure, 1973 Section 164

04Reasoning

The Court found the five-year-old victim’s testimony (PW-7) to be "unsullied and credible," noting her consistency regarding the pain and the identity of the assailant despite her age.

¶ 13, 25

While the medical expert (PW-15) found the hymen intact, the Court clarified that under Section 511, the actual accomplishment of penetration is not required; the appellant’s acts of luring the child, bolting the door, and inflicting a bite mark constituted a clear "attempt".

¶ 15, 25

Paternal discovery of redness and swelling by PW-9 served as immediate physical corroboration.

¶ 16

Regarding Sections 366 and 342, the Court observed that the child was escorted home by the appellant’s own son, which invalidated the requisite elements of kidnapping for marriage/illicit intercourse or sustained wrongful confinement in the legal sense.

¶ 26