In a significant order, Punjab and Haryana High Court has widened the scope of IPC Section 377 while noting that this offence is attracted even when the penetration happens to be any other part of the body of a victim with sexual intent.
The bench held noted that Section 377 (Unnatural offences) of IPC is to be attracted in the event of penetration with sexual intent, other than what is contemplated under Section 375 IPC.
The bench also clarified that merely because there is no injury or mark of violence on the victim’s body, it can’t be said that Section 377 won’t be attracted in case of a ‘carnal intercourse’.
High Court bench of Justice Vinod S. Bhardwaj was hearing a revision petition filed by three minor boys (children in conflict with the law) against a lower court order convicting them under Section 377 of IPC and Section 10 of Protection of Children against Sexual Offences Act.
Principal Magistrate, Juvenile Justice Board, Sonepat had found him guilty of committing unnatural acts with an eight-year-old boy.
The counsel representing Children in Conflict with Law (CCL) argued that the eight-year-old victim had not deposed that he was sodomized and he had only alleged that the CCLs had committed “wrong act/bad act” with him.
It was further contended that the medical examination was conducted without any delay. The counsel went on to add that there were no marks of injury or detection of semen on the body or clothes of the victim, and therefore, it cannot be held that the victim was subjected to forcible intercourse or was sodomized.
CCLs’ counsel called the conviction under Section 377 misconceived. Similar arguments were made in connection to the penile-vaginal no-applicability of Section 10 of the POCSO Act.
High Court Observations
The bench noted, “While dealing with the scope of Section 377 IPC, the Court primarily emphasized that since the legislature had used the phrase “carnal intercourse” as against “penetrative intercourse” or “sexual intercourse” in Section 377, therefore, it is clear that an offence under Section 377 is separate and different from the offence contemplated against “sexual intercourse”.
While trying to clarify the meaning of the word intercourse, the bench stated that in order to determine as to whether there is intercourse or not, the question which is to be considered is whether the visiting organ is enveloped at least partially by a visiting organism.
Referring to the cases Kamal Vs. Delhi High Court and State of Kerala Vs. Kundumkara Govindum, the bench stated, “Understanding of the word “Carnal intercourse”, it is evident that in order to attract Section 377, the Act in question must have to do with flesh and sensuality and that the same must involve penetration other than penile-vaginal penetration.”
What Constitutes Carnal Intercourse?: Kamal Vs Delhi High Court
In the Kamal vs Delhi High Court matter, the High Court bench noted that any physical act answering to all the ingredients below is per-se ‘carnal intercourse against the order of nature’ appearing in section 377 of IPC:
i. it must have to do with flesh and sensuality, namely it must be carnal;
ii. there must be intercourse between individuals, without restricting it only to human-to-human intercourse;
iii. it must involve penetration other than penile-vaginal penetration, since by the very nature, intent and purpose of section 377, it must refer to an unnatural act, such as ‘penile-anal penetration’, ‘digital penetration’ or ‘object penetration’.
Committing Intercourse Between Thighs Is Carnal Intercourse: State of Kerala Vs Kundumkara Govindum
Kerala High Court had held, “an act of committing intercourse between the thighs is carnal intercourse against the order of nature and therefore, committing intercourse by inserting the male organ between the thighs of another is an unnatural offence.”
Predominant Intent In Commission of Act Has To Be Sexual: Punjab and Haryana HC
“The suggestive interpretation of the petitioner that Section 377 IPC cannot be attracted but for occurrence of an eventuality where there is an anal penetration does not find support in the statute…The offence under Section 377 IPC may also be attracted against two women where the element of penetration, as projected by the learned counsel for the petitioners, may not be a possible eventuality…Section 377 can be attracted even in a situation where the penetration happens to be on any other part of the body of a victim, the predominant intent in the commission of the Act, however, has to be sexual,” Justice Vinod S. Bhardwaj noted.
The High Court bench held that the finding of the lower court was right and discarded the petitioners’ contentions that conviction is bad for want of any external mark of injury around the body of the victim
“The victim in the instant case happens to be a child of 08 years of age who was allegedly over-powered by 03 boys of a bigger age and under the said circumstances it may not be likely to assume that the victim was in any position to offer a challenge or resistance to the perpetrators of the offence. Besides, there is no stand taken by the prosecution that the victim had violently resisted the petitioners and in the absence of any such stand of the prosecution, and any such suggestion having been put-forth to the witness while being subjected to cross-examination in defence, the testimony of the victim cannot be disbelieved solely on the ground of absence of any marks of external injury. The submissions thus advanced on behalf of the counsel for the petitioners that offence under Section 377 of the IPC and/or Section 10 of the POCSO Act are not made out, is dispelled and is liable to be rejected,” the bench held.
