SANTHOSH Vs. STATE OF KERALA

JUDGEMENT

(1.) The documents before us unfold unfortunate instances of repeated sexual assault of various degrees, on a minor girl by a neighbour, who is married with children. Along with it, comes the unpardonable lethargy of the prosecuting agency, in collecting and producing materials to prove the age of the unfortunate victim, a basic requirement for establishing the offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and also various provisions of Indian Penal Code. There also emerges a question of law of crucial importance, on the definition of "Rape" as contained under Section 375 IPC, in the light of Criminal Law Amendment Act, 2013 (Act, 13 of 2013) i.e, whether, the term "Rape" as contained in the amended section 375 takes in, 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. To be precise, we are called upon to decide the question whether, the penetration to "any part of the body of such 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. Does the extended definition intend 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; is the question we pose ourselves.

(2.) At first let us examine the factual matrix of the case, which are as follows; The appellant before us, is the accused in S.C. No. 530/2015 on the file of the Additional Session Judge (For the trial of cases relating to atrocities and sexual offences against women and children,) Ernakulam, wherein cognizance was taken for the offences punishable under sections 3(c) r/w 5(m), S.6,S.9(l) (m) r/w S.10, S.11(i) & (iii) r/12 of POCSO Act and under S.354,354A(1)(i) &(iii),377,375(c) r/w S.376(2) (i) of IPC. After trial, he was found guilty for the offences under S11(i) r/w 12, 9(l) (m) r/w. 10, S. 3(c) r/w 5 (m) and S.6 of the POCSO Act, S. 375(c) r/w Sections 376(2) (i), 377, 354, 354A(1)(i) of IPC and was sentenced to undergo imprisonment for various terms including life imprisonment for life, which shall mean imprisonment for the remainder of his natural life, and fine.

(3.) The entire episode commenced from a medical camp conducted in Thirumarady Government School, on 14.01.2015 where the victim voluntarily appeared along with her mother for addressing her constant complaint of stomach pain. During the course of examination, the victim revealed certain incidents of sexual assault committed on her, by her neighbour, the accused herein, particularly the one committed six months prior to the said date. The doctor, who was examined as PW2, informed the mother of the victim (PW3) immediately, and instructed her to make a complaint before the police. Presumably, PW3 having serious concerns about the consequences of the revelation upon the reputation of the family and the social stigma on the child, failed to make a complaint immediately. Later when inquiries started coming in from Child Line authorities, she submitted a complaint and accordingly Koothattukulam Police registered Crime 176 of 2015 after recording the FIS of the victim (PW1), on 10.03.2015.