IMPORTANT POINT
Sine qua non of offence of rape is penetration and not ejaculation before penetration.

JUDGMENT

Arijit Pasayat, J.-Taking lift on a bicycle after a late night movie show and travelling in darkness can result in some harrowing traumas for a teenaged girl, as the victim in the present case experienced.

2. Accused-appellant Koppula Venkat Rao calls in question legality of his conviction as recorded by the Trial Court and upheld by Learned Single Judge of the Andhra Pradesh High Court under Section 376 of the Indian Penal Code, 1860 (in short the IPC ). He was sentenced to undergo 10 years RI by the Trial Court which was reduced to 5 years by the High Court.

3. Accusations which led to the trial of the accused are essentially as follows:

On 10.6.1991, at about 6.00 p.m. the victim along with her friend and two others started by walk from their village to go to a nearby place for witnessing a movie. They reached cross-roads of the village where the accused along with his friends who were going to Borrampalem on their bicycles met them and gave lift to the victim girl and her friends and all of them witnessed the picture at a movie hall. At the time of return accused nourished an idea of quenching his lust by committing sexual intercourse with the victim, invited her to board his bicycle and the victim girl agreed to accompany him and sat on his bicycle and the accused rode the bicycle at high speed and reached near a cattle shed, stopped the bicycle dragged the victim by using criminal force into the cattle shed took out her sari, and got on top of her before actual intercourse ejaculated. The accused left the victim on hearing some sound and went away along with his bicycle. Thereafter, the victim girl came on to the road. The parents of the victim girl took her to the village. The father of the victim girl approached the village elders on the same night who promised to summon the accused on the next day. But the accused did not turn up till the evening. On 12.6.1991, when the victim girl along with her parents were on the way to Police Station the S.I. of police met them and asked them to go to the Government Hospital, and there he recorded the statement of the victim girl and on the basis of statement a crime was registered in crime No. 39/91 and investigation was started. After investigation, charge sheet was filed. The accused pleaded innocence and faced trial.

4. Prosecution examined 12 witnesses. PW-1 is the victim while PW-2 and PW-3 are her mother and father respectively. PW-5 is the doctor who examined the victim and PW-12 is the doctor who examined the accused.

5. Placing reliance on the evidence PW-1, the Trial Court convicted the accused as aforesaid holding that the victim was subjected to rape by the accused. Conclusions were upheld by the High Court. Both the Courts held that since ejaculation was there, it amounted to rape and whether actual intercourse was there is immaterial, ejaculation being the ultimate act of sexual intercourse.

6. In support of the appeal, learned counsel for the appellant submitted that the prosecution version has many loose ends and the courts below have not analysed the evidence in their proper perspective. Additionally, the evidence of PW-1 and the doctor s evidence clearly rules out the commission of rape as alleged. Even if the prosecution version is accepted in its totality, no case of rape is made out and at the most a case of attempt to rape is made out. Actual intercourse and not ejaculation is the sine qua non of the offence.

7. Per contra, learned counsel for the respondent-State submitted that the well-reasoned orders of the Trial Court and the High Court unerringly point out that accused had committed rape on the victim, as established beyond a shadow of doubt. The version of the prosecutrix alone can form the foundation of conviction.

8. The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the thir