Nisha PurohitContributing Author, Rightantra A crucial question of law emerges concerning the definition of “Rape” as contained under Section 375 of the Indian Penal Code, 1860 (“IPC”), as evidenced by the Criminal Law Amendment Act, 2013 (“Act of 2013”), that whether the term “Rape” as defined in the amended section 375 includes 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. In the present case of Santhosh v. State of Kerala, a Criminal Appeal was filed, by the accused, against the judgement of the Additional District & Sessions Judge, in the High Court of Kerala. The facts of the case unfold unfortunate instances of repeated sexual assault, on a minor girl, by a neighbour. The girl, a sixth-grade student, had informed the doctor, about her neighbour's repeated sexual attacks on her, at a medical camp held at her school. Following that, the doctor notified the child's mother and directed her to file a police report. While her mother first hesitated to contact the police, as enquiries from ChildLine officials began to pour in, she filed a report and a case was filed by the police.
It was before the Hon’ble Court to decide the question that whether the penetration to “any part of the body of such woman” as mentioned in section 375(c) of the IPC, brings within its ambit a penile sexual act committed between the thighs held together; which do not qualify to be called an orifice. Whether the extended definition intends 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 posed. The court found that section 375 as amended by Act 13 of 2013, expanded the definition of "rape" by extending it beyond penile penetrative assault into vaginal assault. It held that an offence of rape has been committed by the appellant to obtain sexual gratification by an act of manipulation of the body of the victim as he had penetrative sexual acts between the thighs of the victim held together. Furthermore, the court found him guilty of offences under Section 376(1) read with Section 375(c), 354, and 354A(1)(a) of IPC thereby confirming the sentences passed by the Sessions Court under the above-mentioned sections. However, calling it an unfortunate event for the victim, the court found that a basic requirement for establishing the offences under the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) and also various provisions of IPC is that to prove the age of an unfortunate victim by producing collected material or simply put, the evidence. Since 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 IPC are not attracted. This is not the first time that “penile accessing” was treated as sufficient to constitute an offence of rape. The fact that rape is not merely a physical assault, rather the rapist degrades the very soul of the helpless victim and distracts the entire personality and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case. This was held in State of Himachal Pradesh v. Raghubir Singh (1993), Chenthamara v. State of Kerala (2008), State of Orissa v. Thakara Besra, and Another (2002), and several other judgements. Long before the modification in 2013, the aforementioned trend of highly consistent court interpretations, plainly suggests that the offence of "rape" was being treated to a very broad meaning, to encompass any type of penile-vaginal penetration and even an attempt thereto. With reference and in line with the Justice Verma Committee Report, such widened interpretation is consistent with the objective of the legislature, which responded to the need of the hour, as society has been confronted with a rising number of such sexual assault events regularly. With rising cases of such depravity, the time has come for more stringent regulations as a measure of both prevention and retribution.
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