{"id":258826,"date":"2021-12-21T13:00:08","date_gmt":"2021-12-21T07:30:08","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=258826"},"modified":"2021-12-24T10:09:50","modified_gmt":"2021-12-24T04:39:50","slug":"del-hc-convicts-father-friend-under-s-377-ipc","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/12\/21\/del-hc-convicts-father-friend-under-s-377-ipc\/","title":{"rendered":"‘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’"},"content":{"rendered":"

Delhi High Court: <\/strong>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,<\/p>\n

\n

\u201c\u2026to 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.\u201d<\/span><\/p>\n<\/blockquote>\n

Instant two appeals arose from a judgment and a sentencing order.<\/p>\n

The present matter concerned sexual offences against a \u2018minor\u2019, 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, <\/em>(2019) 13 SCC 715<\/a>, and Section 228 (A) of the Penal Code, 1860 and Section 327 (2) of the Criminal Procedure Code, 1973.<\/p>\n

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.<\/p>\n

Background of the Matter<\/span><\/h4>\n

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.<\/p>\n

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\u2019s 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.<\/p>\n

Prosecutrix revealed the said incident to her teacher who happened to be the daughter of the prosecutrix\u2019s 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.<\/p>\n

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.<\/p>\n

During the course of the trial, the prosecution cited 17 witnesses, while the appellants led no defence evidence.<\/p>\n

Analysis, Law and Decision<\/span><\/h4>\n

Statement of Prosecutrix | Section 164 CrPC<\/span><\/strong><\/p>\n

High Court firstly noted that, the prosecutrix\u2019s version in her statement under Section 164 CrPC, as also in her examination-in-chief and cross-examination in court, remained consistent and unwavering.<\/p>\n

In Court\u2019s 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.<\/p>\n

Bench further expressed that,<\/p>\n

\n

Where the evidence of the prosecutrix inspires confidence, it must be relied upon, without seeking corroboration <\/em>of her statement in material particulars. <\/span><\/p>\n<\/blockquote>\n

Medical Evidence<\/span><\/h4>\n

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.<\/p>\n

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.<\/p>\n

In view of the above Court reached the following conclusion:<\/p>\n