Section 377 IPC drawn even when penetration with sexual intent occurs on any part of the body other than the vagina: P&H High Court

Significant observation and widening the field of application of article 377 of the CPI (Offences against nature), the High Court of Punjab and Haryana argued that this offense is drawn even in a situation where the penetration is on any other part of a victim’s body (other than the vagina) with sexual intent.

The bench of Judge Vinod S. Bhardwaj further observed that article 377 must be drawn in cases of penetration with sexual intent, other than what is envisaged in article 375 CPI (penile-vaginal rape/penetration).

Significantly, this High Court decision also clarifies that, simply because there is no injury or mark of violence on the person of the victim, it cannot be said that this provision will not be invoked. in the case of a “carnal relationship”. intercourse” (a term which was explained by the Court in its judgment).

The case in brief

Essentially, the Court was seized of a request for review filed by three minor boys (children in conflict with the law) against the judgment of conviction pronounced against them for the commission of an offense punishable by Article 377 of the IPC and Article 10 of the POCSO law because they were found guilty of committing acts against nature with an eight-year-old boy.

In the High Court, the lawyer for Children in Conflict with the Law (CCL) argued that the 8-year-old victim had never given evidence of being sodomized and had only said that the CCL had committed a “bad act /bad act” with him. .

It was their main argument before the Court that during the medical examination, which was carried out without delay, no external marks of injury or detection of semen or sperm on the victim’s body or clothing were found. found, and therefore it was argued that the victim cannot be said to have been subjected to forced sex or sodomized.

It was therefore argued that the finding of conviction recorded under article 377 of the CPI was erroneous. Similar arguments have been made regarding the penovaginal non-applicability of Section 10 of the POCSO (Aggravated Sexual Assault) Act in this case.

Court’s observations

With regard to the scope of application of Article 377 CPI, the Court mainly underlined that, since the legislator had used the expression “carnal relationship” as opposed to “relation with penetration” or “sexual relationship” in Section 377, it is therefore clear that an offense under Section 377 is distinct and different from the contemplated offense against “sexual intercourse”.

Furthermore, in an attempt to clarify the meaning of the word “sexual intercourse”, the Court also observed that in determining whether or not there is intercourse, the question to be considered is whether the visiting organ is at least partially enveloped by a visiting organism.

In this regard, while rreferring to cases of Kamal v. State (Delhi High Court) and Kerala State vs. Kundumkara Govindumthe Court further held as follows:

(According to the) understanding of the word “carnal intercourse”, it is obvious that to attract section 377, the act in question must have to do with the flesh and sensuality and the same must involve penetration other than the penile-vaginal penetration.”

Essentially, in Kamal’s case, the Delhi High Court had observed that any physical act meeting all the ingredients below is in itself a “carnal intercourse against the order of nature” listed in Section 377 of the ICC :

I. it must be flesh and sensuality, that is, it must be carnal;

ii. there must be relationships between individuals, without limiting them only to relationships between man and man;

iii. it must be penetration other than penovaginal 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”.

Further, in Govindum of Kundumkara case, the Kerala High Court had tenuous than an act of intercourse between the thighs East a carnal relationship against the order of nature and therefore, committing a relationship by inserting the male organ between the thighs of another is an offense against nature.

In this context, the High Court of Punjab and Haryana also rejected the interpretation made by CCL’s counsel that IPC Section 377 is only attracted in a contingency where there is anal penetration. It is important to note that the Court further ruled as follows

The suggestive interpretation of the applicant according to which article 377 CPI can only be attracted for the occurrence of a contingency where there is anal penetration finds no basis in the law… The offense under the article 377 ICC may also be brought against two women when the element of penetration, as projected by the plaintiffs learned lawyer, may not be a possible contingency… Article 377 may be invoked even in a situation where the penetration is on any other part of a victim’s body, the predominant intention in committing the act, however, must be sexual.” (emphasis added)

In conclusion, the Court rejected the petitioners’ argument that a conviction is wrong for lack of any outward marks of injury around the victim’s body and held that the lower court’s finding was correct.

The victim in the present case happens to be an 08 year old child who was allegedly overpowered by 03 older boys and in these circumstances it is unlikely that the victim was able to offer defiance or resistance to the perpetrators of the offence. Furthermore, the prosecution took no position that the victim would have violently resisted the petitioners and in the absence of such a position of the prosecution, and such a suggestion having been made to the witness during his rebuttal questioning in defence, the testimony of the victim cannot be doubted on the sole ground of the absence of any mark of external injury. The conclusions thus advanced on behalf of the applicants’ lawyer according to which the infringement of article 377 of the CPI and/or article 10 of the POCSO law are not established, are rejected and are likely to be rejected. ,“, judged the Court in confirming the conviction.

Case title - Ankit And Others v. State Of Haryana
Case Citation:

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