‘To sexually violate innocent child within filial relationship descends on different path of depravity’: Del HC convicts father, friend under S. 377 IPC; emphasises on ingredients of ‘carnal intercourse against the order of nature’

Delhi High Court: The Division Bench of Siddharth Mridul and Anup Jairam Bambhani, JJ., while addressing a very unfortunate incident, involving sexual offences to the extent of rape and carnal intercourse with a child, expressed that,

“…to sexually violate an innocent child is in any case an abhorrent act; but, when that happens within the filial father-daughter relationship, of which purity of affection is a sine-qua-non, the act descends to a different depth of depravity.”

Instant two appeals arose from a judgment and a sentencing order.

The present matter concerned sexual offences against a ‘minor’, the names of the prosecutrix, of one of the convicts and some key witnesses were anonymized in keeping with the verdict of the Supreme Court in Nipun Saxena v. Union of India, (2019) 13 SCC 715, and Section 228 (A) of the Penal Code, 1860 and Section 327 (2) of the Criminal Procedure Code, 1973.

Appellants impugned judgment whereby they were convicted by the trial court for offences under Sections 376(2)(g) and 377 read with Section 34 IPC. They also challenged the sentencing order.

Background of the Matter

Prosecutrix had alleged that her father (A1) and his friend (A2) committed upon her offences as defined under Sections 376(2)(g) and 377 IPC.

Prosecution case before the trial court was that the prosecutrix used to ordinarily stay in the care and custody of her bua, who subsequently appeared as PW-9 at the trial and that on the commencement of the prosecutrix’s summer holidays in 2012, her father took her from the care and custody of her bua to the house of Manorama Begum where A1 and A2 inter alia committed gang-rape and sodomy upon the prosecutrix.

Prosecutrix revealed the said incident to her teacher who happened to be the daughter of the prosecutrix’s bua and appeared as PW-1 at the trial. The prosecutrix also informed the counsellor/coordinator working in the said NGO about the offences committed upon her.

Upon registration of the FIR under Sections 376(g) and 377 IPC, the prosecutrix was taken to the All India Institute of Medical Sciences (AIIMS) New Delhi for medical examination. Subsequently, A1 and A2 were arrested.

During the course of the trial, the prosecution cited 17 witnesses, while the appellants led no defence evidence.

Analysis, Law and Decision

Statement of Prosecutrix | Section 164 CrPC

High Court firstly noted that, the prosecutrix’s version in her statement under Section 164 CrPC, as also in her examination-in-chief and cross-examination in court, remained consistent and unwavering.

In Court’s opinion, the examination-in-chief of the Investigating Officer, PW-15 elicited nothing that materially impacted the evidence that came on record either for or against the appellants.

Bench further expressed that,

Where the evidence of the prosecutrix inspires confidence, it must be relied upon, without seeking corroboration of her statement in material particulars.

Medical Evidence

From the MLC it was gathered that the hymen of the prosecutrix who was only about 10 years of age, was found torn, there was redness around her vaginal introitus (opening of the vagina) and there was redness in the vaginal area.

For the sake of completeness, the two appellants were put through a medical examination at AIIMS, and it was opined that there was nothing to suggest that either of them was incapable of performing sexual intercourse under normal circumstances, nor was any other abnormality noticed that would in any manner preclude the commission of the offence by either of the appellants.

In view of the above Court reached the following conclusion:

  • The prosecutrix’s statement recorded under Section 164 CrPC and her deposition in court, in which she says that appellant A2 committed upon her the carnal acts as described in her own wording, are cogent, credible and trustworthy. Furthermore, the prosecutrix’s statement, as recorded under Section 164 CrPC as also in her deposition in court, in relation to what her father appellant A1 did to her is also cogent, credible and trustworthy.
  • Bench stated that they are not depending solely on the prosecutrix’s statement under Section 164 CrPC or on her deposition in Court but are also supported in its inferences by the medical evidence that came on record, by way of the MLC of the prosecutrix. This made the allegations against the appellant all the more plausible, absent any other explanation and in fact, no explanation or evidence had been brought forth by the defence in the said behalf.

Hence, Bench found nothing erroneous or amiss in the conclusions arrived at by the trial court, that both appellants were guilty of the acts alleged against them.

Question to be addressed:

On the basis of evidence on record, what offences are made out and stand proved against the appellants?

High Court stated that the appellants were charged with offences punishable under Sections 376(2)(g) and 377 read with Section 34 IPC. It is important to note here that the offences are alleged to have been committed on various dates on or before 22.07.2012, by reason of which they would be covered by the IPC as it existed prior to its amendment by the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013) with retrospective effect from 03.02.2013. Accordingly, Section 376(2)(g) as it existed prior to amendment by Act 13 of 2013 needs to be considered in light of the definition of “rape” as contained in the unamended Section 375 of the IPC.

Court observed that the expanded definition of rape as contained in amended Section 375 with retrospective effect from 3-3-2013, did not exist on the statute book at the time of the commission of the offence by the appellants i.e., on or before 22-7-2012 and there was neither any allegation nor had anything come forth in evidence to show that the appellants committed any penetrative sexual intercourse with the prosecutrix.

Therefore, in Court’s view, the finding of the trial court that the appellants were guilty of the offence under Section 376(2)(g) was untenable and accordingly set aside.

Moving further, the Court stated that while amending Sections 375 and 376 (2) (g) by the amending Act 13 of 2013, the Legislature had not made any amendment to Section 377 IPC which continues to read as under:

“377. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

(emphasis supplied)

What does the phrase ‘carnal intercourse against the order of nature’ appearing in Section 377 IPC mean?

Bench elaborated stating that Section 377 IPC referred not to sexual intercourse but to carnal intercourse, whereby the intention of the legislature was to engraft a different offence in Section 377 IPC vis-à-vis Section 375 IPC, which is why a different phrase was employed.

High Court opined that ‘carnal intercourse against the order of nature’ appearing in Section 377 must have the following ingredients:

  1. it must have to do with flesh and sensuality, namely it must be carnal;
  2. there must be intercourse between individuals, without restricting it only to human-to-human intercourse;
  3. 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’.

“…we however completely agree that attempting to define the phrase ‘carnal intercourse against the order of nature’ with exactitude is neither possible, and perhaps not even desirable.”

 Bench held that,

“…any physical act answering to all the above-stated ingredients committed upon a minor is per-se ‘carnal intercourse against the order of nature.”

 What did the prosecutrix state in her testimony?

The Bench noted that the prosecutrix’s testimony was clear, cogent and unwavering insofar as it concerns the allegation against appellant A2, that he committed digital penetration of the prosecutrix’s anus.

In her statement under Section 164 CrPC and in her deposition in court, the prosecutrix stated that appellant A2 would gag her mouth with cloth, bind her limbs and then do ‘batamizi’ with her.

On further elaboration, she said that appellant A2 would remove her clothes and then lie on top of her and touch her chest, vagina and anus. He would then put his penis against her vagina and anus and also insert his finger into her anus. She had deposed that the whole ordeal would last about half an hour.

The prosecutrix alleged that after appellant A2 was finished, her father appellant A1, would commit all the aforesaid acts upon her other than the act of digital penetration.

Therefore, in view of the above, no further analysis was required that offences under Section 377 read with Section 34 IPC were made out against the appellant A2.

In Court’s opinion, the actions of the father were covered under Section 34 IPC, namely the acts done by him in furtherance of a common intention to commit the offence and would make him liable for all acts committed by appellant A2 in the same manner as if the acts were done by appellant A1 himself.

Hence the trial court’s conclusion was correct except the conclusion with regard to the offence under Section 376(2)(g) IPC was flawed.

In the present matter, the offending acts went beyond the physical element of sexual assault but would have severely damaged the mind and psyche of the victim which trauma may linger for very long.

Without at all appearing to be Biblical, crime in society is one thing; but crime within the closest confines of the family, adds to it the element of sin.

 In view of the above discussion and modification to the judgment and conviction and sentencing order, the appeal were dismissed. [A v. State, 2021 SCC OnLine Del 5396, decided on 20-12-2021]

Advocates before the Court:

For the Appellant: Mr. Chinmoy Pradeep Sharma, Senior Advocate with Ms. Rakhi Dubey and Mr. Himanshu Gera, Advocates.

For the Respondent: Mr. Ashish Dutta, APP for the State.

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