The Kerala High Court held that if an act, though non-penetrative, provides sexual gratification to the accused similar to that of penetrative sex, it will be termed as rape under the Indian Penal Code.

Sexual abuse representative image: A silhouette of a woman on the right and a silhouette of a man on the left.Representative image
news Court Wednesday, August 04, 2021 - 15:57

Warning: Some details in this story could be triggering for survivors of sexual assault.

In a landmark judgment that widens the ambit of the rape law, the Kerala High Court has held that the act of an accused rubbing his penis on the thighs of a victim will constitute rape under the Indian Penal Code. The court held that if an act, though non-penetrative, provides sexual gratification to the accused similar to that of penetrative sex, it will be termed as rape under the Indian Penal Code. A bench of Justices K Vinod Chandran and Ziyad Rahman AA was hearing a criminal appeal filed by a man convicted for the rape of a minor, who had asked the court to examine whether his attempt of trying to penetrate the gap between the survivor’s thighs also constitutes the act of rape. 

The counsel for the accused told the court that the sexual act of highest degree alleged against the accused is that he had inserted his penis between the thighs of the victim and that such an act would not attract the offence of rape as defined under Section 375. 

However, the Kerala High Court bench noted that the law on rape was amended through the years to widen the scope of the definition of the offence of rape, and now also includes penetration of any part of a woman's body. The court said this needs a wider interpretation to include any act by an accused to try and manipulate a woman’s body to simulate penetration — in this case, the gap between closed thighs. 

The case and the question before the court

The court said it was dealing with the question of whether the term “rape” as contained in Section 375 IPC also takes into account sexual assaults that are beyond penile penetration into the vagina, urethra, anus and mouth (the known orifices in the human body where sexual penetration is possible). The court was to decide whether penetration into “any part of the body of a 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.

The case is from 2015, when an 11-year-old girl and her mother went to a government medical camp in Thirumarady in Ernakulam district, and the girl complained of stomach pain. During the medical examination, the girl told the doctor that a neighbour had previously sexually assaulted her. The doctor advised the mother to file a complaint, but fearing society, the mother postponed it. However, after inquiries from Childline officials began, the woman filed a complaint. An FIR was registered and the accused neighbour was arrested. The man was booked under various sections of the POCSO Act (Protection of Children from Sexual Offences Act), including aggravated sexual assault and sexual harassment, and also under sections of the Indian Penal Code, including rape. The accused was found guilty by a lower court in Kerala and was sentenced to life imprisonment for the remainder of his life and fined.

The arguments in court

The accused man filed an appeal, questioning the six-month delay in filing the FIR after the incident and the ‘concocted story’ of a medical camp by the prosecution against him. He also stated that he cannot be charged under rape under the IPC since the “sexual act alleged against the accused is that of inserting the penis of the accused between the thighs of the victim,” and that he had not "penetrated any orifice" for it to constitute rape under law.

Appearing on behalf of the minor, the special Government Pleader submitted that the offence of rape is not confined to penetrative sexual intercourse. The counsel also submitted that the man’s act of placing his penis in between the thighs that are held together would make out a case for Section 377 of IPC as well since it is “against the order of nature.”

In her statement, the court said, the minor survivor had revealed “multiple instances of sexual assaults such as, making her 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 followed by ejaculation (though the child called it the place of urination) etc." She also revealed that the accused man, who was known to their family, coerced her into staying silent.

What the court said

The court held that an overall reading of the evidence reveals that “sexual assaults of varying degrees were committed on her by the appellant on several occasions.” The court said that there are many Supreme Court decisions and that of the Kerala High Court as well, where it was held that penetration of even slightest degree will be sufficient to attract the offence of rape. 

“When the amended definition of Section 375 is examined in the light of the gradual evolution of definition of rape and the expansion thereof, in our view, the expression “cause penetration into the vagina, urethra, anus or any part of body of such woman,” as used therein, requires a 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,” the court said. 

“...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,” the High Court ruled. “...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 held. 

The court, however, pulled up the prosecution for laxity in not establishing the age of the victim anywhere, which is what the accused had cited to contest the charges under the POCSO Act framed against him. The court held that since the prosecution failed to provide any evidence of the age of the survivor, the offences under the provisions of the POCSO Act 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,” the court said. The High Court upheld the lower court’s order convicting the accused under Sections 354 (rape) and 354A(1)(i). 354A(1)(i) stating that any man who makes any physical contact and advances involving unwelcome and explicit sexual overtures shall be guilty of the offence of sexual harassment. The court also modified the lower court’s order that sentenced him to ‘life imprisonment meaning imprisonment of the remainder of his natural life’ to just ‘life imprisonment.’

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