Penile penetration into any body part manipulated to feel like orifice is rape: Kerala HC upholds conviction for penetration between thighs

The Kerala High Court recently held that the manipulation of any part of the body of the victim to get the feeling or sensation of penetrating an orifice would attract the offence of rape as defined under Section 375 of the Indian Penal Code. (Santhosh v. State of Kerala).A Division Bench of Justices Vinod Chandran and Ziyad Rahman AA, therefore, held that offence of rape would be attracted if penetration of penis is made between thighs (of the victim) held together."We have no doubt in our mind that, when the body of the victim is manipulated to hold the legs together for the purpose of simulating a sensation akin to penetration of an orifice; the offence of rape is attracted. When penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375," the Court held.The order was passed in a case where a man had appealed his conviction for raping a child..Advocate PP Padmalayan, representing the appellant, primarily contended that the sexual act of highest degree alleged against the appellant is that, he had inserted his penis between the thighs of the child and such an act would not attract the offence of rape as defined under section 375..The Court said that the case raised important questions regarding the scope of 'rape' as laid down in Section 375 of Indian Penal Code - whether penile penetration beyond vagina, urethra, anus and mouth will amount to 'penetration'."A question of law of crucial importance, on the definition of 'Rape' as contained under Section 375 IPC, in the light of Criminal Law Amendment Act, 2013 i.e, whether, the term 'Rape' as contained in the amended section 375 takes in, sexual assaults beyond penile penetration into vagina, urethra, anus and mouth; the known orifices in the human body to which such penetration is imaginably possible," the judgment noted..It concluded that emphasis is always placed on the wider amplitude contemplated for the definition, to the maximum extent possible, so as to include all forms of penetrative sexual assaults in the definition of rape; even those not contemplated ordinarily."Considering the intention of the legislature, followed by the enactment of Criminal Law Amendment Act, 2013 and gradual evolution of the concept of the offence of “rape” from time to time, the irresistible conclusion is that, the definition of rape as contained in section 375 would take in, all forms of penetrative sexual assault onto vagina, urethra, anus or any other parts of the body so manipulated to get the feeling or sensation of an orifice," the Court said. .The child, a class six student, had at a medical camp conducted at her school, informed the doctor about her neighbour's repeated sexual assaults on the her. Thereafter, the doctor informed the child's mother and instructed her to file a complaint with the Police. While her mother delayed approaching the police initially, when inquiries started coming in from Child Line authorities, she submitted a complaint and a case was registered by the Police..The appellant in the instant case was convicted by the Additional Session Judge, Ernakulam, for the offences punishable under the Protection of Children from Sexual Offences Act, and for rape under IPC and was sentenced to undergo imprisonment for various terms including life imprisonment and fine..The appellant submitted that the statements made by the child at different stages of the investigation were inconsistent. It was also contended that the complaint was raised and registered by the child and her mother after significant delay.Further, it was argued that the prosecution failed in proving the age of the child which is the most important ingredient of the offences under POCSO Act and also under section 376(2) (i).The Court said that on closer scrutiny of the child's statements, "in every single instance, she described the sexual abuse of that one occasion of showing obscene pictures and then molestation by touching on her private parts and eventually ejaculating between her thighs, vividly."While the Court observed that there are certain inconsistencies, it held that it is the settled position of law that, in such circumstances, the attempt of the court should be to separate the grains of truth as discernible from the entire evidence..Regarding the delay in lodging complaint, the Court stated that it finds justification for the delay as "the abhorrent act would definitely have left a scar in the mind of the victim and it is not easy of disclosure; the ramifications of which probably eluded her.".On the contention regard the age of the child, the Court agreed with the appellant and pulled up the prosecution for the "callous lapse on the part of the prosecuting agency and the Court too failed to alertly intervene to cure such defect" The only mention of the child's age was in statements made during voir dire which cannot be construed as substantive evidence, the Court said. The same makes the charges under the provisions of POCSO Act, unsustainable, the Court held, stating, "The age is the most significant and basic element to attract the offences under that Act and unless it is established by adducing positive evidence, the rigour of the provisions in the POCSO Act cannot be pressed into service. In such circumstances, we can only express our pain and anguish on the apathetic attitude of the prosecuting agency, while arriving at the conclusion that the accused is not guilty of the charges under the provisions of POCSO Act, so also of the offence under section 376(2) (i) of the Indian Penal Code.".While the Court set aside the conviction of the appellant for offences under the POCSO Act, it upheld the conviction and sentence by holding that the sexual acts committed by the appellant is sufficient to attract the offence of Section 375(c) read with Section 376 (1) of IPC."We are of the view that such an interpretation is in tune with the intention of the legislature which rose to the need of the hour; the society having been confronted with increasing number of such incidents of sexual assault on a routine basis. The time has come for more stringent provisions with increasing instances of acts of such depravity both as a measure of prevention and retribution," the Court ruled..[Read Judgement]