Penetrative Sexual Act Between The Thighs Of Victim Held Together Is Rape As Defined U/S 375 IPC: Kerala High Court

The Kerala High Court on Monday held that when the body of the victim is manipulated to simulate a sensation akin to penetration of an orifice, the offence of rape is attracted.

A Division Bench of Justice K. Vinod Chandran and Justice Ziyad Rahman A.A observed as such: 

"...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 decision was rendered by the Court in a matter that involved unfortunate instances of repeated sexual assault of various degrees on a minor girl by her neighbour. 

The Bench was hearing an appeal filed by Accused against his conviction under sections 3(c) r/w 5(m), S.6,S.9(l) (m) r/w S.10, S.11(i) & (iii) r/12 of POCSO Act and under S.354,354A(1)(i) &(iii),377,375(c) r/w S.376(2) (i) of IPC. After trial, he was found guilty for the offences under S11(i) r/w 12, 9(l) (m) r/w. 10, S. 3(c) r/w 5 (m) and S.6 of the POCSO Act, S. 375(c) r/w Sections 376(2) (i), 377, 354, 354A(1)(i) of IPC. He was sentenced to imprisonment for life by the Trial Court.

Facts: 

The events come to light after the victim minor appeared for a medical camp with her mother owing to frequent complaints of a stomachache.  During the course of the examination, the victim revealed that she had been sexually assaulted by her neighbour six months ago on various occasions. 

A complaint was thereby registered before the police and the matter was heard before the Trial Court. Upon perusal of the materials produced, the Court found the accused guilty of the offences mentioned above. 

Thereby, the accused moved the High Court with an appeal.  

Issue: 

The preliminary question of law posed before the Bench for consideration was 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 as imaginably possible.

As per the prosecution case, the sexual act alleged against the accused is that of inserting the penis of the accused between the thighs of the victim.

The Court was called upon to decide the question of whether penetration to "any part of the body of such woman" under section 375(c) of the Code brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice.

Observations of the Court:

On this aspect, the Division Bench noted that the provision includes penetration to other parts of the body of a woman and it is not confined to the vagina, urethra or anus. 

The Court also asserted that emphasis was 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. 

Additionally, the Bench found as follows:

"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." 

So 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.

" It is established from the evidence of PW1 that, the appellant had committed the offence of rape as he had penetrative sexual act between the thighs of the victim held together; an act of manipulation of the body of the victim to obtain sexual gratification, which culminated in ejaculation".

The Court finally held that the prosecution failed to provide any evidence to prove the age of the victim, the offences under the provisions of the POCSO Act and also under section 376(2)(i) of the Indian Penal Code are not attracted. However the sexual acts committed by the appellant is sufficient to attract the offence of section 375(c) read with section 376 (1) of IPC.

High Court thus partially allowed the Appeal by holding the appellant/accused not guilty under Sections 11(i) r/w S.12, 9(l)(m) r/w 10, S. 3(c) r/w 5(m) and S.6 of Protection of Children from Sexual Offences Act, 2012. He is also found not guilty under Section 376(2)(i) and Section 377 of IPC. He is found guilty of offences under Section 376(1) read with Sections 375(c), 354 and 354A(1) (i) of IPC. As he is found guilty of offence under section 376(1) read with Section 375(c) instead of Sections 376(2) (i) and 377 by the Sessions Court, the sentence of life imprisonment with the meaning of imprisonment of remainder of natural life, is modified as life imprisonment.

Case Title: Santhosh v. State of Kerala

Click Here To Read The Order