Raipur, Feb. 19 -- The Chhattisgarh high court has held that ejaculation without penetration does not attract the offence of rape but constitutes attempt to rape, as it converted a man's conviction from rape under Section 376(1) to attempt to rape under Sections 376/511 of the Indian Penal Code (IPC). Justice Narendra Kumar Vyas passed the order on February 16 in an appeal filed by a rape convict who challenged a 2005 trial court's order that convicted him of rape and wrongful confinement (Section 342, IPC) and sentenced him to seven-year imprisonment. According to the prosecution, on May 21, 2004, the appellant allegedly forcibly dragged the victim to his house and committed sexual intercourse without her consent. The complainant said he locked her inside a room, tied her hands and legs, and stuffed cloth into her mouth. The high court noted that the victim during her cross examination had said that the "appellant had kept his private part above her vagina for about 10 minutes but did not penetrate". ".The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape," the court said in its order. The court further noted that the medical examination revealed that the hymen was not ruptured and there was no definite opinion with respect to commission of offence of rape. It, however, indicated of possibility of "partial penetration". "Even slight penetration is sufficient for conviction under Section 376 of IPC," the court said. ".in order to constitute penetration, there must be clear and cogent evidence to prove that some part of the virile member of the accused was within labia of the pudendum of the woman." Accordingly, the high court converted the appellant's conviction from rape to attempt to rape under Section 376/511 of the Indian Penal Code and sentenced him to rigorous imprisonment for three-and-a-half years along with a fine of Rs.200....