K. Hema, J.

1. Is actual entry of penis through vagina essential, to constitute "rape" under section 375 of the Indian Penal Code ('IPC' for short)? In the absence of penile-vaginal entry, will the offence of "rape" be made out, under Section 375 IPC? What does the expression "penetration" in Explanation to section 375 IPC mean? These are the main questions which arise for consideration in this revision.

2. Facts briefly: A girl aged 12 years is the alleged victim in this case. The accused is her neighbour. On the crucial day, she went to his house, as usual, to play chess. She played chess with accused's brother and also the accused. Thereafter, the accused asked the girl to keep the chess board back in the room. When she went to the room with the chess board, accused accompanied her and, on reaching the room, he closed her mouth, took her to a corner of the room and committed rape on PW1. The accused let the child go, on seeing blood trickling down her leg.

3. The accused was charge sheeted for offence under Section 376 IPC. After trial, learned Assistant Sessions Judge found the accused to be guilty of attempt to commit rape and convicted and sentenced him to undergo rigorous imprisonment for a period of three years for attempt to commit rape, under Section 511 read with Section 376 IPC. In appeal, the said conviction was confirmed by learned Sessions Judge but, sentence was reduced to rigorous imprisonment for a period of one year. The accused challenges the conviction and sentence in this revision.

4. Learned counsel appearing for revision petitioner vehemently contended that the conviction for attempt to rape is totally unsustainable, since both trial court as well as appellate court held that there was no "penetration" or even "partial penetration" into the vagina. "Penetration" is an essential ingredient of section 375 IPC, but there was no "penetration" or even "partial penetration", as per the evidence of the doctor PW4, and Ext.P2 wound certificate also. Hence, it cannot be said that there was any attempt to rape, it is argued. The doctor, PW4 stated in the chief examination itself that the hymen was intact and it was also stated by the doctor that in a case where hymen is intact, there may not be even "partial penetration", it is pointed out. To constitute an attempt to rape, there must be at least a partial penetration, is the argument.

5. It is also contended that though medical evidence would reveal that there was an injury on the "labia", that will not be sufficient to constitute "penetration" or "partial penetration", as required for a conviction for attempt to rape under section 511 of 376 IPC. According to learned counsel for petitioner, the act committed by accused would only attract offence under section 354 IPC, but "indecent assaults are often magnified into attempts at rape" and in this case also there was just a mere sexual assault which falls short of "penetration" or "partial penetration" but it was held to be a case of attempt to commit rape.

6. Relying upon the dictum laid down in the decision of Supreme Court in in Aman Kumar v. State of Haryana [2004 (4) SCC 379], it was strongly argued by learned counsel for petitioner that the approach in magnifying indecent sexual assaults as rape is to be deprecated and such approach is neither correct nor legal. In the absence of any evidence of any "penetration" or "partial penetration", the sexual act committed would only constitute offence under section 354 IPC, as held in Aman Kumar's case, it is argued. The following extract from the above decision was relied upon by learned counsel for petitioner:

"Significantly, the evidence of the prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpab