The Kerala High Court was dealing with a plea of rape convict challenging the special court conviction order. (AI-generated Image)Observing that the prosecution had failed to establish penetration, a key requirement for rape under the law prevailing in 2005, the Kerala High Court has modified a rape conviction to attempted rape of a minor, and reduced the accused’s sentence from 10 years’ rigorous imprisonment to five years of jail.Dealing with the accused’s plea challenging the special court’s sentence, Justice A Badharudeen noted that since the offence occurred in 2005, it was governed by the legal standards before the 2013 amendment to Section 375 of the Indian Penal Code (IPC), which defines the crime of rape.“When a person is attempting to do an act with the intention to do so, and he would do some overt acts, and when he could not complete the offence by doing the remaining overt act or acts, the law would punish such a person for the commission of the offence of attempting to commit the said offence, for which the punishment is half of the punishment provided for such offence,” the court said on May 18. Justice A Badharudeen noted that there was no convincing evidence to show penetration to complete the offence of rape.The order added that when reading the evidence of the mother and the friend of the mother, supported by the presence of contusion on the vaginal orifice of the survivor, it could be seen that there was an attempt on the part of the accused to commit rape on the minor survivor.Also Read | ‘Violated survivor, orphaned child’: Jammu and Kashmir and Ladakh High Court denies bail to gang-rape accusedIt continued, “But, there is no convincing evidence to show penetration to complete the offence of rape as on the date of occurrence, which is before the amendment of Section 375 of IPC with effect from February 2013.”‘Offence governed by law prior to 2013 amendment’The doctor who examined the survivor categorically gave evidence regarding the examination of the minor.According to her, a contusion was present around the vaginal orifice of the victim, though the hymen was intact.Even though from the evidence discussed, the special judge found that the accused committed the offence punishable under IPC Section 376, the evidence available would not suggest the necessary ingredients to constitute an offence under the same section, which is punishable under Section 376 (before the amendment of Section 375 of IPC).But the ingredients to prove an attempt to commit the offence of rape have been established by the prosecution based on the evidence.It is necessary to address the ingredients to attract the offence under Section 375 before the section’s amendment with effect from February 3, 2013.It reads as under 375 rape, a man is said to commit “rape” who, except in the case excepted, has sexual intercourse with a woman under circumstances falling under any of the six descriptions.First, against her will, secondly, without her consent, thirdly, with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.Fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.Fifth, with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.Sixth is, with or without her consent, when she is under sixteen years of age.Case of contention over ‘rape’ or ‘attempt to rape’The case originated from an incident in October 2005, involving a two-year-old survivor. The prosecution alleged that the accused committed rape while the child was playing at the house of a family friend. In 2016, the special court for the trial of offences against children found the accused guilty under Section 376(2)(f) of the IPC and sentenced him to 10 years of rigorous imprisonment.Appearing for the accused-petitioner, advocates S Rajeev, K K Dheerendrakrishnan, and V Vinay submitted that the ingredients to constitute the offence punishable under Section 376 were not established by the prosecution, in a case where the victim, who was admittedly aged two years, failed to be examined by the prosecution.Story continues below this adAlso Read | ‘Mere breach of promise to marry not rape’: Chhattisgarh High Court sets aside man’s convictionThey further argued that even though the evidence of the doctor is suggestive of the fact that contusion was present around the vaginal orifice of the survivor, the same by itself would not show that there was penetration to complete the offence under Section 375 of IPC, where it was reported by the doctor that the hymen of the survivor was intact.Jagriti Rai works with The Indian Express, where she writes from the vital intersection of law, gender, and society. Working on a dedicated legal desk, she focuses on translating complex legal frameworks into relatable narratives, exploring how the judiciary and legislative shifts empower and shape the consciousness of citizens in their daily lives. Expertise Socio-Legal Specialization: Jagriti brings a critical, human-centric perspective to modern social debates. Her work focuses on how legal developments impact gender rights, marginalized communities, and individual liberties. Diverse Editorial Background: With over 4 years of experience in digital and mainstream media, she has developed a versatile reporting style. Her previous tenures at high-traffic platforms like The Lallantop and Dainik Bhaskar provided her with deep insights into the information needs of a diverse Indian audience. Academic Foundations: Post-Graduate in Journalism from the Indian Institute of Mass Communication (IIMC), India’s premier media training institute. Master of Arts in Ancient History from Banaras Hindu University (BHU), providing her with the historical and cultural context necessary to analyze long-standing social structures and legal evolutions. ... Read More © IE Online Media Services Pvt Ltd