Penile sexual assault between thighs of victim held together amounts to rape: Kerala HC

Kochi, August 5

The Kerala High Court has held that any manipulation of the body of a woman such as penetrative sexual act between the thighs of a victim to simulate a sensation akin to penetration of an orifice is rape.

The decision came in an appeal filed by a man against a trial court verdict in a matter that involved unfortunate instances of repeated sexual assault of various degrees on a minor girl by him, who is also her neighbour.

“...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,” ruled a bench of Justices K Vinod Chandran and Ziyad Rahman on Monday.

The court said when penetration is thus made in between the thighs so held together, it would certainly amount to “rape” as defined under Section 375.

“In short, considering the intention of the legislature as revealed from the above proposals, 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 court said this while deciding whether the penetration to “any part of the body of such woman” as mentioned in section 375© of the Indian Penal Code like 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 is rape.

“We have already found that, Section 375 as amended by Act 13 of 2013, widened the definition of “rape” by expanding its ambit beyond the penile penetrative assault into vagina.

One of the consequences of such amendment is that, several penetrative sexual assaults, which would otherwise be triable under Section 377, now come within the operative field of Section 375,” the court said.

However, Section 377 would still be attracted in cases of penetrative sexual assaults against the order of nature, which are not falling under Section 375, the court said.

In its order, the court said it is established from the evidence 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.

Partly allowing the appeal, the court said as 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© read with section 376 (1) of IPC”, the court said.

As he is found guilty of offence under Section 376(1) read with Section 375© 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, the high court said.

“The sentences passed by the Sessions Court under Sections 354 and 354A(1)(i) are hereby confirmed. The sentences shall be undergone concurrently,” the court said in the order. PTI

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