Instrumental Vaginal Penetration Amounts to Rape

Source: Kerala High Court 

Why in News? 

A Bench of Justice A. Badharudeen, in Joshy K.J. v. State of Kerala (2026), upheld the conviction of an appellant for raping a 17-year-old girl, holding that placing a vibrating instrument on the victim's vaginal opening in vibrating mode amounts to penetrative sexual assault under the POCSO Act as well as rape under the Indian Penal Code. 

What was the Background of Joshy K.J. v. State of Kerala (2026) Case? 

• The appellant, who managed a Cosmetology centre run by the 2nd accused, was alleged to have forcefully laid the 17-year-old victim on a treatment bed, removed her undergarment, and placed a penis-like instrument fitted with a vibrator on her vagina in vibrating mode. 
• He allegedly threatened the victim to prevent her from disclosing the incident to anyone. 
• Though the victim disclosed the incident to the 2nd accused, he dismissed it as a joke; the 2nd accused was separately arrayed for failing to report the incident as statutorily required, but was acquitted by the trial court. 
• The trial court convicted the appellant under Sections 376(1), 375(b), 354B, and 506(i) IPC, and under Section 4(1) read with Section 3(b) of the POCSO Act. 
• The appellant challenged the conviction before the Kerala High Court, raising grounds including delay of two years in lodging the FIR, absence of medical or scientific evidence, and the victim's impending attainment of majority at the time of the incident. 

What were the Court's Observations? 

• On the definition of penetrative sexual assault: The Court held that placing a vibrating instrument on the labia majora or vulva itself constitutes sufficient insertion to attract Section 3(b) of the POCSO Act, punishable under Section 4, and correspondingly amounts to rape under Section 375(b) IPC. 
• On the victim's age: The Court rejected the contention regarding the victim nearing majority, holding it irrelevant since she was proved to be below 18 years — and thus a 'child' under the Act — through her SSLC book and birth certificate. 
• On delay in lodging the FIR: The Court found the delay adequately explained, noting the victim had been under threat and could only disclose the incident after the 2nd accused's arrest in an unrelated case. 
• On reliability of the victim's testimony: The Court noted that the victim was subjected to voir dire examination and found competent to testify, and that her statement remained consistent despite minor contradictions, including her explanation for not immediately disclosing the duration of the assault or her discomfort. 
• On sentencing: Since the statutory minimum sentence had already been imposed, the Court held that no further reduction was permissible in law. 
• On relief granted: Finding no infirmity in the trial court's appreciation of evidence, the High Court dismissed the appeal and upheld the conviction. 

What is Penetrative Sexual Assault under the POCSO Act? 

Section 3 – Penetrative Sexual Assault: 

A person commits penetrative sexual assault if he: 

• Penetrates his penis, to any extent, into the vagina, mouth, urethra, or anus of a child, or makes the child do so with him or any other person; 
• Inserts, to any extent, any object or body part (other than the penis) into the vagina, urethra, or anus of the child, or makes the child do so with him or any other person; 
• Manipulates any part of the child's body so as to cause penetration into the vagina, urethra, anus, or any part of the child's body, or makes the child do so with him or any other person; or 
• Applies his mouth to the penis, vagina, anus, or urethra of the child, or makes the child do so to himself or any other person. 

Section 4 – Punishment for Penetrative Sexual Assault: 

• Sub-section (1): Punishable with rigorous imprisonment of not less than 10 years, extendable to imprisonment for life, along with fine. 
• Sub-section (2): Where the victim is below 16 years of age, punishment is imprisonment of not less than 20 years, extendable to imprisonment for life — meaning imprisonment for the remainder of the person's natural life — along with fine. 
• Sub-section (3): Fine imposed under sub-section (1) must be just and reasonable, and is to be paid to the victim to cover medical expenses and rehabilitation. 

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