August 5, 2021
Rape Law Judgement By Kerala HC: The Kerala High Court in a landmark judgement on Wednesday addressed the wide scope of Section 375 (rape) of the Indian Penal Code.
While hearing a case the court ruled that the act of the accused rubbing his penis on the thighs of the a survivor will constitute rape as per law. The court directed that if an act provides even simulation of penetrative sex or the sexual gratification of it to the accused, it will be termed as rape.
The judgement was given by a bench headed by Justices K Vinod Chandran and Ziyad Rahman AA while hearing an appeal filed by a convicted rapist. The man accused of raping a minor girl argued in front of the court whether his attempt of penetrating the gap between the girl’s thighs can be called rape.
The High Court bench then observed that the rape law in India has been amended through the years and now it also includes penetration of any part of a woman’s body. The court said the law needs wider interpretation to include acts to try and manipulate a woman’s body to simulate penetration.
What was the case about?
In 2015, an 11-year-old girl visited a government medical camp with her mother. She was complaining of a stomach ache. During the examination, the minor told the doctor that a neighbour had sexually assaulted her. When the doctor asked the girl’s mother to file a complaint against the accused she decided to stay silent as she feared society.
However, after receiving calls from the Childline officials, the woman finally filed a complaint against the accused man. He was then arrested. The accused was charged for rape, sexual harassment, committing sexual offences against a child (POCSO).
He was later convicted in the case and sentenced to life imprisonment for the remainder of his life.
As per the survivor’s counsel, the convict had sexually assaulted the minor in multiple ways. By allegedly “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”
The man was known to the girl’s family so he coerced her to stay silent.
What the court ruled?
The court observed that the term rape mentioned under section 375 of the Indian Penal Code also takes into account sexual assaults beyond penetration into the vagina, urethra, anus and mouth. The law also includes penetration into “any part of the body of a woman” mentioned under 375 (c).
Since the gap between thighs does not count as an orifice, the court ruled that “any part” of a woman’s body includes the thigh gap.
“…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,” a bench of Justices K Vinod Chandran and Ziyad Rahman has recently ruled in a landmark verdict.
The bench was hearing an appeal of a man against a trial court verdict involving a case where he repeatedly assaulted a minor girl in his neighbourhood sexually. He was sentenced to life by the trial court against which the man moved the high court. The sexual act which was alleged in this case was that of penetration between the thighs of the victim.
“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.
“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.
As stated in the court order, the case dates back to 2015 when a medical camp was conducted in Thirumarady Government School. The victim appeared along with her mother with the complaint of stomach pain. During the medical examination, the victim was sexually assaulted by a neighbour. The doctor had informed the mother and asked her to make a police complaint. The case then went over which section of the IPC will be imposed and whether the assault will be considered rape.
“As the provision stands at present in 375(c) what constitutes rape reads as: (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”. It includes penetration to other parts of the body of woman and it is not confined to vagina, urethra and anus,” the order said.
“The word penetration means: “a movement into or through something or some one” The word, ‘penetrate’, as per The Concise Oxford Dictionary, means ‘the act or process of making way into or through something’; ‘to enter or pass through or force a way into or through’. When the above provision is read with the said definitions in common parlance, 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,” it said.
“We are of the view that such an interpretation is in tune with the intention of the legislature which rose to the need of the hour; the society having been confronted with increasing number of such incidents of sexual assault on a routine basis. The time has come for more stringent provisions with increasing instances of acts of such depravity both as a measure of prevention and retribution,” it added.
The court ruled, “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.”
“…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 judgement added.
Since the prosecution had not mentioned the age of the survivor in the legal documents, the convict was not charged under the POCSO act. The High Court ruled the convict is still guilty of committing crimes under Section 375, Section 376 (1), Sections 354 (rape) and 354A(1)(i). 354A(1)(i).
The High Court in its judgement stated that any man who makes any physical contact and advances involving unwelcome and explicit sexual overtures shall be held guilty of the offence of sexual harassment.
courtesy HT
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