Placing vibrating device on vaginal opening amounts to penetrative sexual assault and rape: Kerala High Court

Placing a vibrating device on vaginal opening amounts to penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and rape under Indian Penal Code (IPC), the Kerala High Court recently held [Joshy KJ v State of Kerala].

Justice A Badharudeen said that law does not require proof of deeper penetration to attract either offence.

The Court made the observation on July 28 while dismissing an appeal filed by a man convicted of raping and sexually assaulting a 17-year-old girl.

The issue before the Court in this case was whether the prosecution had established the element of 'insertion' as required under the provisions under Section 375(b) of the IPC (rape involving insertion of any object or body part to women's private parts) and Section 3(b) of the POCSO Act (penetrative sexual assault involving insertion of any object or body part into a child's private parts).

The Court ruled that the expression 'insert to any extent' as per the provisions would be satisfied even if there is an object placed on the labia majora or vulva which forms part of the vagina.

"That means, placing a vibrating machine on the orifice of the vagina viz., labia majora, or vulva, by itself would be sufficient to find insertion of M.O1 on the vagina and the same is sufficient to hold that a person committed penetrative sexual assault as defined under Section 3(b) punishable under Section 4 of the POCSO Act. Similar is the position with regard to the offence of rape defined under Section 375(b) of the IPC," the judgment said.

The case concerns an incident that took place in July 2019 when the victim, then aged 17, was working at a cosmetology centre, where the man worked as the manager.

According to the prosecution, the man took her to a treatment room, attached a penis shaped accessory to a vibrating machine and forcibly placed it on her private parts after removing some of her clothing.

He also threatened her against disclosing the incident.

A special POCSO court later found him guilty of rape, penetrative sexual assault, assault with intent to disrobe under Section 354B IPC and criminal intimidation under 506(i) IPC. It sentencing the accused to 10 years of rigorous imprisonment.

The man moved before the High Court, arguing that the prosecution had failed to prove penetration.

He pointed out that the victim had not stated during the police investigation that the vibrating device had been pressed against her vagina.

He also relied on the absence of medical evidence and the delay of more than two years in registering of the FIR.

The Court rejected his contentions, observing that the victim had consistently stated that the vibrating device had been forcibly placed on her private parts while it was switched on and added that this was enough to satisfy the legal requirement of 'insertion' since both the statutes use the words 'to any extent'.

The omission in her statement before the police about the device being pressed to her private parts would therefore, not undermine the prosecution case.

The Court also found that the victim had adequately explained the delay in reporting the offence by stating that she had remained silent because the accused had threatened to defame her and because she feared her employer.

Finding no reason to interfere with the trial court's judgment, the Court upheld both the conviction and sentence imposed on the accused.

Advocates MG Sreejith, Vidyajith M, Bincy Jose, Rojin Devassy, Gopika KV and State Brief Gajendra Singh Rajpurohit appeared for the convict.

Public prosecutor Sajeev PK appeared for the State.

[Read Judgment]