Penetration is the essential element (sine qua non) for a conviction of rape. In the absence of proof of penetration, but with evidence of sexual assault and ejaculation, the act constitutes an attempt to commit rape under Section 511 IPC.

J U D G M E N T

(A. Muhamed Mustaque, C.J.)

On 19.04.2023, a ninety year old woman was found screaming by her son, examined as PW-8, who resided in close proximity to the house of his youngest brother, where the victim, their mother, was residing at the time of the incident. On the following day, on 20.04.2023, an FIR alleging the commission of the offence of Rape was registered at Gyalshing Police Station based on the information provided by the grandson (PW-3) of the victim, who is also the nephew of PW-8. The Appellant has been convicted for offences punishable under Sections 376(2)(j) and 450 of the Indian Penal Code, 1860 (IPC), and has challenged the said conviction and sentence before this Court.

The Trial Court held the Appellant guilty for the offences of rape and house trespass in order to commit an offence punishable with imprisonment. For the offence under Section 376 (2)(j) IPC, the Appellant was sentenced to undergo rigorous life imprisonment for the remainder of his life without eligibility for clemency/parole during the period of his imprisonment along with a fine of Rs. 30,000 (Rupees Thirty Thousand). For the offence under Section 450 of IPC, he was sentenced to undergo rigorous imprisonment for a term of ten (10) years and to pay a fine of Rs. 10,000 (Rupees Ten Thousand). Both sentences were directed to run concurrently.

The victim was physically frail and weak, required assistance to walk and have food and was incapable of giving any statement owing to the advanced stage of dementia, which rendered her unable to recognize even her own family members. She was found to be mentally incapable of undergoing either examination or cognitive assessment and was unable to comprehend or respond to any questions put to her. The Specialist (Psychiatry) (PW-1), the Medical Officer (PW-2) and the Special Educator (PW-9), affirmed her mental state and physical condition.

This case presents a peculiar situation wherein the Investigation Officer was unable to record the statement of the victim due to her severely deteriorated mental and physical condition. The victim subsequently passed away on 21.06.2023. Consequently, the prosecution was deprived of the direct testimony of the victim. The only eyewitness to the incident was PW-8. The Trial Court primarily relied upon his testimony which was corroborated by the statements of the victim’s youngest son (PW-4), the ward panchayat (PW-6), the victim’s grandson (PW-3) and the forensic evidence, to convict the Appellant.

The principle question arising for consideration is whether the testimony of the PW-8 is reliable and if so, whether the prosecution has successfully established the essential ingredients constituting the offence of rape. The PW-8 deposed that he found the Appellant on top of the victim and he described what he witnessed as the commission of rape. However, he did not describe the precise nature of the sexual act on the victim. According to PW-8, he had gone to feed grass to his cows and he heard his mother crying out “Aiya Aiya”. At that time, all other family members had gone to the dispensary for a medical check-up, leaving his mother/victim alone at home. Upon rushing to the house after hearing his mother scream, he found the Appellant with his trousers lowered below his knees, on top of his mother and allegedly committing rape on her. He further noticed that his mother’s Bakkhu (traditional dress) had been pushed up and that she was naked from the waist down.

The first issue concerns the identification of the Appellant, followed by the reliability of PW-8’s testimony. The evidence clearly establishes that the Appellant and PW-8 belonged to the same village and were previously acquainted which is an undisputed fact. Immediately after witnessing the incident, PW-8 attempted to contact PW-6, although the latter did not initially answer his call. Thereafter, when PW-6 returned the call, PW-8 narrated the entire incident to h