Ker HC | Penetration between thighs of the victim held together; will it fall within the ambit of Rape? HC answers

Kerala High Court

Kerala High Court: In a historic decision the Division Bench of K.Vinod Chandran and Ziyad Rahman A.A., JJ., held that the sexual act of penetration committed between the thighs of the victim held together is an act of manipulation of the body of the victim to obtain sexual gratification, and the same falls within the ambit of the amended definition of rape.

The instant case raised before the Court unfortunate instances of repeated sexual assault of various degrees, on a minor girl by a neighbour, who is married with children. To be precise, the Bench was to decide the question whether, the penetration to “any part of the body of such woman” as mentioned in section 375(c) of the Indian Penal Code, brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice?

Additionally, does the extended definition intend to cover any manipulation of the body of a woman in such a manner as to simulate an effect, providing sexual gratification, akin to penile penetration; was the question before the Bench.

Factual Fulcrum

The incident came in light when in a medical camp conducted in Thirumarady Government School the victim revealed certain incidents of sexual assault committed on her, by her neighbour during the course of examination. However, it was only after the Child Line authorities pursued upon it an FIR was filed by the victim’s family.

After evaluation of the entire materials, the Special Court found the appellant/accused guilty of 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 and was sentenced to undergo imprisonment for various terms including life imprisonment.

The victim had revealed multiple instances of sexual assaults such as, making her to hold the genitals of the appellant till he ejaculated, showing obscene pictures, attempt to put his penis into the mouth of the victim, the incident of sexual acts between her thighs and pushing it up and down followed by ejaculation. She also stated about various incidents of touching her private parts and chest.

As per the prosecution case, the sexual act alleged against the accused was that of inserting the penis of the accused between the thighs of the victim; which would not amount to rape as defined under section 375(c).

Analysis and Opinion by the Court

On inconsistencies in Victim’s Statements

The Bench had taken the view that though there were certain inconsistencies and variations in the statement of victim, but that by itself could not be a reason to discard the evidence in its entirety as it is a well 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. Moreover, the deviations were only in respect of the irrelevant particulars of the incidents such as, the persons who were present in the house at the relevant time, number of occasions of assaults etc. However, overall reading of the evidence reveals that, sexual assaults of varying degrees were committed on her by the appellant on several occasions. Noticing that the victim was in 6th standard at the time of the incident, the Bench expressed,

“We cannot assume that, she would be able to narrate the specific details of repeated acts merely from her imagination. Moreover, the language and expressions used by her for describing the sexual acts and the sexual organs clearly convey her unfamiliarity with the sexual acts…We cannot expect that an ordinary school going girl from a village area would have such capacity to imagine stories of that nature for falsely implicating the appellant.”

Therefore, denying the objection raised by the accused regarding veracity of the victim’s statements, the Bench stated that it would not have been possible for her to narrate incidents of this nature with such clarity, unless she was subjected to such acts. Therefore, it was held

that the deposition of the prosecutrix inspired confidence, and the discrepancies/inconsistencies pointed out by the appellant, were not of any significance and did not affect the credibility of her statement.

Evidence has to be weighed and not counted

On the objection with regard to absence of any corroborating evidence, the Bench stated that the incident in question could not have any ocular evidence because sexual offences are usually committed in utmost secrecy and when nobody is available, moreover, it had to be noted that the incidents of sexual assault were committed about eight months prior to the date of registration of crime and it was not possible to get any scientific evidence. The medical examination of the victim also could not have provided any evidence, as the specific case of the prosecution is commission of sexual assaults with the penis placed between the thighs to simulate a coitus and not penetration into any of the natural orifices of the victim.

The Bench opined that legal position regarding the conviction on sole testimony of prosecutrix even without any corroboration is now well settled through a large number of decisions. In Vijay v. State of Madhya Pradesh (2010 (8) SCC 191), it was held by the Supreme Court that, “the statement of the prosecutrix, if found to be worthy of credence and is reliable, it requires no corroboration. The court can convict the accused on the sole testimony of the prosecutrix.”

On Delay in filing FIR

The sexual assaults came to light during the medical camp conducted in the school of the victim on 14-01-2015 and it was reported that the incident took place six months prior to the said date. Noticeably, the FIS of PW3 was submitted only on 09-03-2015 and the FIR was registered on 10-03-2015.

Regarding the delay in disclosure of the alleged acts and delay in registering the FIR, the Bench was of the view that the delay in disclosure was only natural since the victim deposed that she was threatened with police action, if disclosure is made of the sexual assaults to her parents. The Bench expressed,

“We perfectly understand the effect of a threat so leveled especially to a school going girl who was sexually abused against her wishes. 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.”

Hence, the Bench found the delay on the part of the victim was justifiable. Further, considering the mental state of the mother of the victim and her family, of being saddled with the disrepute of a rape and that its consequences could not be wished away, the Bench opined that on being faced with the circumstance of a neighbour having sexually violated a school going child it was only natural for the family of the victim to go on denial mode and not report the same for reason of the consequent ill-repute to the family. The Doctor obviously reported the matter and the Child Line authorities pursued it upon which the victim’s family had no option. The whole scenario belied the defence set up of the victim having spoken on the instigation of the mother because if it were so the victim’s family would have immediately registered the crime.

Is mere admission by the accused with regard to victim’s age sufficient to consider victim a minor and hold the accused guilty in POCSO Act?

“We painfully notice that there is a callous lapse on the part of the prosecuting agency and the Court too failed to alertly intervene to cure such defect victim. The only mention of her age is where the Sessions Court questioned PW1 as part of verification of her capacity/competence to depose.” 

Noticing that the sole reliance with regard to prove the age of the victim was based by the prosecution on the statement of accused under section 313 CrPC wherein he had admitted her age as 11 years, the Bench stated that, the case of the prosecution, particularly in those aspects which form the basic ingredient of any offence, cannot rest on the shoulders of the accused.

Similarly, the statements made by the witness during ‘voir dire’ is not substantive evidence and only assures the Court of the competence to testify and understand the proceedings and could not have the character of an incriminating material brought out in the evidence led on trial. Hence, the Bench held that the lack of evidence as to the age of the victim was a serious lapse on the part of the prosecution and the same made the charges under the provisions of POCSO Act unsustainable. The Bench stated, 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.

Whether sexual act between thighs of the victim amount to Rape?

Noticeably, the sexual act of highest degree alleged against the appellant was that, he had inserted his penis between the thighs of the victim; therefore, the defence side contended that such an act would not attract the offence of rape as defined under section 375.

Analysing the legislative history of definition of “rape” as it now stands and the evolution thereof through judicial precedents and statutory amendments, the Bench stated that the definition of ‘rape” had under gone a sea change as per amendment vide Criminal Law Amendment Act, 2013.

Definition of rape After Criminal Law Amendment, 2013

  1. “A man is said to commit “rape” if he –

c. …manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or”

 Since the offence was committed prior to 2018 amendment of Criminal Law regarding rape, the Court weighed on section 375 as it stood after the amendment in 2013. Unlike the old definition of rape the amended definition takes 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.

Opining that in the amended provisions, the legislative intention is very evident, the Bench stated that the words “or any part of body of such woman” as used therein, required wider interpretation so as to include any orifices naturally present or any part of the body manipulated to simulate a penetration and have the effect/sensation of an orifice.

Interpreting the said definition the Bench emphasised on the word “manipulation” which by itself includes an artificial creation. Hence, the Bench stated that the effect of manipulating the thighs to be held tightly together is to cause penetration of the crevice, when the muscles engulf the object which penetrates to create or simulate the same effect as in a normal penile-vaginal intercourse. The dictionary meaning of “manipulate: includes “control or influence cleverly or unscrupulously.” The word penetration means: “a movement into or through something or someone”.

Hence, it was held by the Bench 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.

Whether the said Act falls in category of unnatural sex under Section 377 of IPC?

Although, in State of Kerala v. Kudumkara Govindan, 1968 SCC OnLine Ker 138, the Court had dealt with commission of a sexual act of very same nature and it was held that sexual act committed between the thighs would attract the offence under Section 377 as it is against the order of nature, the Bench opined that a penetrative intercourse which earlier fell under Section 377 has been culled out from there and is placed under Section 376 by virtue of the expanded definition of rape under section 375. Section 375 as amended by Act, 2013, widened the definition of “rape’ by expanding its ambit beyond the penile penetrative assault into vagina, therefore, several penetrative sexual assaults, which would otherwise be triable under Section 377, now come within the operative field of Section 375.

Hence, the Bench held that the acts committed by the appellant/accused fall within Section 375, and Section 377 would not be attracted. Accordingly, the conviction of the appellant under Section 377 of IPC was set aside.

Verdict

In the light of the above, the Bench reached to the conclusion 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. However, since the prosecution had failed to provide any evidence to prove the age of the victim, the conviction under the provisions of the POCSO Act and also under section 376(2)(i) of the IPC  were set aside.[Santhosh v. State of Kerala, 2021 SCC OnLine Ker 2967, decided on 02-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Padmalayan, Public Prosecutor

For the Respondent: S. Ambikadevi, Spl. Govt. Pleader (For Atrocities against Women And Children And Welfare Of Women And Children)

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