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Synopsis

The Kerala High Court (HC) has held that even the slightest physical contact with the external genitalia of a victim amounts to penetrative sexual assault under Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

A division bench comprising Justice PB Suresh Kumar and Justice Jobin Sebastian, relying on Chenthamara v. State of Kerala (2008) and Kunjumon v. State of Kerala (2011), noted: “an attempt at penetration into the vagina would amount to accessing the vagina and even a slightest penetration into vulva or labia majora would constitute “rape”, although there would be no vaginal penetration in such cases.”

The court’s observation came while it upheld the conviction of a man found guilty of sexually assaulting a 4-year-old girl. The case arose when the minor victim complained of genital pain to her mother, who took her to a Community Health Centre, Kasaragod. The attending doctor’s suspicion of sexual abuse led to the registration of a case after he intimated the matter to Childline. The victim, belonging to the Scheduled Tribe community, revealed that the accused, her neighbour, sexually assaulted her. The accused was charged under Sections 376AB of the Indian Penal Code (IPC), Sections 5(m) and 6 of the POCSO Act, and relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The trial court in Kasaragod convicted the accused based on the victim’s testimony and medical evidence, sentencing him to life imprisonment and imposing a fine of ₹25,000.

The accused/ appellant challenged the conviction before the High Court, arguing that the victim's testimony was unreliable and contending a lack of conclusive medical proof of penetration. The accused also pointed to medical reports showing the victim’s hymen was intact, asserting that the prosecution failed to establish an essential ingredient of rape under Section 376 IPC.

However, the HC rejected this argument, clarifying that under Section 375 IPC, as amended in 2013, penetration need not be limited to full insertion but includes contact in and around the external female genitalia. The court highlighted that the POCSO Act’s definition of ‘penetrative sexual assault’ closely mirrors the IPC’s definition of rape. Although the POCSO Act does not explicitly define ‘vagina’, the term can be interpreted using the IPC's broader definition through Section 2(2) of the POCSO Act. The bench held that a narrow interpretation of 'vagina' would defeat the purpose of the POCSO Act, which aims to protect children from all forms of sexual exploitation.

“It is obvious that penile vaginal entry namely the actual passing of the penis into the vagina, is not essential to constitute rape, and even penile access towards the vagina, without there being any entry of the penis into the vagina would constitute rape, if the penis gets physical contact in that process of access with any of the external portions of the female genital organ, such as vulva, labia majora, etc,” the court stated, while acknowledging that the hymen of the victim though not ruptured, the same cannot be held against her.

Emphasising the credibility of the victim's testimony, the court noted that corroboration is not always necessary if the testimony is found reliable and  inspires the confidence of the court. “There is no law that her testimony can be acted upon only if the same is corroborated by other evidence. On the other hand, the victim in a rape case stands on a higher pedestal than an injured witness,” the court said.

The court underscored the need to exercise caution in cases filed due to grudges between parties. However, it highlighted the absence of any animosity between the victim's family and the accused that could suggest false implications in the present case. “In the case at hand, there is no material to show that the victim or her mother had an axe to grind against the accused,” it remarked.

While dismissing the appeal, the court modified the life sentence to 25 years of rigorous imprisonment.

 

Cause Title: Raveendran v. Deputy Superintendent of Police & Anr [Crl.Appeal No. 1469/2019]

Appearance: Advocates TG Rajendran and TR Tarin appeared for the appellant, while Public Prosecutor Bindu OV represented the State.