Citation: CRL. A. No. 1311 of 2016, Court: High Court
Citation: CRL. A. No. 1311 of 2016,
Court: High Court of Kerala at Ernakulam
Date of Judgement: 2nd August, 2021
Bench: K. Vinod Chandran (J), Ziyad Rahman A. A. (J)
FACTS
- On 14/01/2015 victim with her mother goes to medical camp at Thirumarady Government School due to complaint of Stomach pain. There the victim revealed certain incidents of sexual assault committed on her, by her neighbour some six months ago.
- Complaint was made by Child Line Authority on 10/03/2015 due to family reputation and social stigma on the child.
- Victim 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 followed by ejaculation.
SESSION COURT’S DECISION
Additional Session Judge held the accused guilty for the offences under Section 11(i) r/w 12, Section 9(1)(m) r/w 10, Section 3(c) r/w 5(m) and Section 6 of POCSO Act, Section 375(c) r/w Section 376(2)(i), 372, 354, 354(A)(1)(i) of IPC. Appellant was sentenced to life imprisonment for life meaning imprisonment for the remainder of his natural life.
ISSUES
- Whether corroborating evidence is required to support the prosecutrix statement?
- Whether the age of victim sufficiently proved as required under POCSO Act and Section 376(2)(i) IPC?
- Whether the penetration to “any part of the body of such woman” as mentioned in Section 375(c) of IPC, brings within its ambit a penile sexual act committed between the thighs held together, which do not qualify to be called an orifice?
- Could Section 377 IPC be attracted in the present case?
KEY TAKEAWAYS
- Whether corroborating evidence is required to support the prosecutrix statement?
No
Court held that there are certain inconsistencies and variations in victim’s statement but that by itself cannot be a reason to discard the evidence in its entirety. Court observed that sexual offences are usually committed in utmost secrecy. Incidents of sexual assault were committed about 8 months prior to registration of crime, which implies that it was not possible to get any scientific evidence.
In Vijay @ Chinee v. State of Madhya Pradesh[1], supreme court held that statement of the prosecutrix, if found to be worthy of credence and is reliable, requires no corroboration. Also, in State of Orissa v. Thakara Besra and Another[2], court held that testimony of the prosecutrix must be appreciated in the background of the entire case.
Court also referred to State of Himachal Pradesh v. Raghubir Singh[3], in which supreme court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted.
As there was no single contradiction, however certain omissions are there in prosecutrix statement, so there was no corroboration required.
- Whether the age of victim sufficiently proved as required under POCSO Act and Section 376(2)(i) IPC?
No
Court observed that prosecution failed to establish any evidence indicating the age of the victim. No certificate from school was produced neither headmistress or class teacher testify the age. Only evidence was the victim’s statement as of her age being 11 years.
Prosecution contention that accused in his statement under Section 313 CrPC had admitted victim’s age as 11 years was also rejected as court found it necessary that crucial facts are to be established by the prosecution by adducing positive evidence and cannot rest on the shoulders of the accused.
So, court held that accused is not guilty of the charges under the provisions of POCSO Act, and Section 376(2)(i) IPC.
- Whether the penetration to “any part of the body of such woman” as mentioned in Section 375(c) of IPC, brings within its ambit a penile sexual act committed between the thighs held together, which do not qualify to be called an orifice?
Yes
Court referred to State of UP v. Babulnath[4] and Chenthamara v. State of Kerala[5], where “penile accessing” was treated as sufficient to constitute an offence of rape. This means that prior to 2013 amendments very wide interpretation was taken of “rape” to include any form of penile- vaginal penetration.
The Justice Verma committee for review of Criminal Law Amendment Bill, 2012 in Para 68 of their report observe that,
“We have kept in mind that the offence of rape be retained but redefined to include all forms of non-consensual penetration of a sexual nature. Penetration should itself be widely defined as in the South African legislation to go beyond the vagina, mouth or anus.”
One of the key objectives of Criminal Law Amendment Bill, 2013, as stated in its Statement of objects and reasons, reads as follows,
“(c) widen the definition of rape; broaden the ambit of aggravated rape; and enhance the punishment thereof.”
While discussing the evolution of rape laws, court observed that at every stage of evolution, the emphasis was on the wider amplitude contemplated for the definition to the maximum extent possible, so as to include all forms of penetrative sexual assaults, in the definition of rape, even those not contemplated ordinarily.
Court examining the amended definition of Section 375 in light of the gradual evolution of definition of rape, held that the expression “cause penetration in to the vagina, urethra, anus or any part of body of such woman” requires wider interpretation so as to include any orifices naturally present or any part of the body manipulated to simulate a penetration and have the sensation of an orifice.
Taking the dictionary meaning of words “manipulate” and “penetrate”, in the expression “manipulates any part of the body of a woman so as to cause penetration”, there is no doubt left 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.
- Could Section 377 IPC be attracted in the present case?
No
Government pleader referring to State of Kerala v. Kundumkara Govindam and Another (1969 Crl LJ 818) contended that sexual act of placing the penis in between the thighs that are held together, would make out a case for Section 377 as well. The Court rejecting this contention, held that the interpretation of a penetration intercourse in present case, earlier fell under Section 377 IPC; but now due to evolution of rape laws it is attributed within Section 376 with an expansive definition under Section 375 IPC.
Section 377 IPC could still be attracted in cases of penetrative sexual assaults against the order of nature, which are not falling under Section 375. Section 377 is still relevant provision in unnatural sexual acts which are against the order of nature beyond imagination. But, in present case, it was not applicable as Section 375 was sufficiently applicable.
DECISION
The appeal was partly allowed by holding the accused not guilty under Section 11(i) r/w Section 12, Section 9(1)(m) r/w Section 10, Section 3(c) r/w Section 5(m) and Section 6 of POCSO Act as well as Section 376(2)(i) and Section 377. However, accused was held guilty under Section 376(1) r/w Section 375(c). Sentence of Life imprisonment with the meaning of imprisonment of remainder of natural life was modified to life imprisonment.
[1] 2010 (8) SCC 191.
[2] AIR 2002 SC 1963.
[3] 1993 (2) SCC 622.
[4] 1994 (6) SCC 29.
[5] 2008 (4) KLT 290.
