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Punjab and Haryana HC expands scope of Sec 377 IPC and “sexual intent”

The Court held that penetration was not a necessary ingredient for invoking the offence and the sexual intent was an imperative aspect

Sabrangindia 12 Mar 2022

Sec .377
Image Courtesy:livelaw.in

The Punjab and Haryana High Court has expanded the scope ofSection 377 of the Indian Penal Code (IPC)that deals with“Unnatural” sexual offences. The court has held that it will be invoked even if penetration is on any other part of the body.

The argument of the Counsel for petitioners, that in the absence of the medical record showing any penetration, the offence under Section 377 of the IPC would not be attracted, was rejected by the bench of Justice Vinod S. Bhardwaj. He held that section 377 of IPC will be applicable when there is penetration with sexual intent other than what is contemplated under section 375 of IPC explaining the offence of rape.

The Court also stated, “The aforesaid explanation is illustrative and prescribes that an incidence of penetration would be sufficient to constitute carnal intercourse. The said explanation cannot be read to assign a meaning that penetration is necessary to constitute carnal intercourse.”

In the case of Ankit and others V. State of Haryana (CRR-121-2022),a revision petition was filed by the petitioners before the Punjab and Haryana High Court which was dismissed on March 2by the bench of Justice Vinod S. Bhardwaj, on the grounds of no infirmity, illegality, or any error in the judgment passed by the lower Court in convicting the petitioners for the offences punishable under Section 377 of the IPC and Section 10 of the Protection of Children from Sexual Offenses (POCSO) Act. Advocate U.K Agnihotri represented the petitioners and the State was represented by Mr. Kanwar Sanjiv Kumar, Astt. A.G. Haryana.

Facts of the case

A complaint was filed by Vinod Kumar against the petitioners (Children in conflict with law and here-in-after referred to as ‘CCL’) stating that on September 15, 2018 his son, aged 8 years had gone to the Primary School, Village Khandrai, at around 6:00 P.M. where the accused committed Sodomy and unnatural act of carnal intercourse with his son.

Accordingly, an FIR was registered, investigation was conducted and the above mentioned accused-CCLs were apprehended.

Based on the evidence produced, the Principal Magistrate (Juvenile Justice Board, Sonepat) stated that the prosecution had been able to successfully establish the guilt of CCLs and held the CCLs Ankit, Mohan and Deepak, guilty for commission of offences under Section 377 of the IPC and Section 10 of the POCSO Act.

This judgment of conviction dated March 09, 2021 and the order of sentence of dated March 12, 2021 were challenged by means of filing CRA/35/2021 before the Fast Track Court, Sonepat.

Upon hearing the respective parties and after consideration of the submissions advanced by the counsel appearing on their behalf, the learned Sessions Judge, Fast Track Court, Sonepat dismissed the appeal preferred by the CCLs vide its order dated December 02, 2021. Hence, the revision petition was filed before the High Court.

Arguments

Counsel for the petitioners argued that the finding of conviction recorded against the petitioners is perverse and is not substantiated by the evidence available on record. It was also contended that the prosecution failed to establish the occurrence of the event in the nature of carnal intercourse against the order of nature with the victim, which was in reference to the statement given by Dr. Sachin, the Medical Officer who had conducted medical examination of the minor survivor and did not find any external injuries and marks on his body.

Further reference was made to the statement of the survivor, and it was contended that the survivor never deposed that he was being sodomised. Instead, he had only stated that the CCLs (Children in conflict with Law) had done ‘Wrong Act/Bad Act’ with him.

Therefore, the Counsel submitted that absence of any external marks of injury or detection of semen or Spermatozoa on the body or clothes of survivor, rules out any possibility of the survivor being subjected to forcible intercourse or having been sodomised. Thus, he argued, that the finding of conviction recorded under Section 377 of the IPC is misconceived.

With regards to Section 10 of the POCSO Act, it was further argued that the necessary ingredients of aggravated sexual assault are not made out therefore the conviction of the petitioners is not sustainable. Counsel further argued that, there is no medical evidence to corroborate penetration to attract the provision of Section 3 and Section 4, thus allegations are not supported by corroborative medical evidence. To support his arguments, the Counsel relied on various Judgments of Hon’ble Supreme Court, one of which is Dalbir Singh versus State of Haryana (2003 (1) R.C.R (Criminal) 727) that says, “To contend that self-serving testimony of a child witness which is un-corroborated in material particulars cannot be accepted and must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him.”

Counsel for the State referring to the above mentioned judgment stated that the testimony of the child witness cannot be discarded and that the judgment relied upon by the counsel for the petitioners in the matter of “Dalbir Singh versus State of Haryana”rather supports the case of the prosecution as the judgment holds that “a conviction can be based for the testimony of child witness and that such a testimony can be relied on even in the absence of an oath, provided, the witness understands the nature of questions and gives rational answers to the same.”

Further, the Counsel for State contended that when the survivor/child witness appeared as PW-11, the Court had duly recorded its satisfaction and its statement was recorded only after being satisfied that the state of mind of the child is mature enough and that he is able to depose rationally. Therefore, the testimony of the child/survivor cannot be disbelieved.

It was further argued that the judgment holds that there is no rule or practice that in every case, the evidence of such a witness has to be corroborated before a conviction can be allowed to stand. Rather, it is only a rule of prudence and is only desirable to seek corroboration of such evidence from other reliable evidence on record. Therefore, mere absence of any external mark of injury cannot be the basis to discard the testimony of child witness.

The Counsel for State relied upon the judgements of the Hon’ble Supreme Court one of which is “Ganesan versus State represented by its Inspector of Police” (2020 (10) SCC 573) to submit that when the child witness/survivor was mature, trustworthy and reliable, and has been thoroughly and fully cross-examined, conviction can be based on sole evidence of such victim in the case of sexual assault.

Observations of the Court

The Court observed that the counsel for the petitioners placed reliance on Section 3 of the POCSO Act which is punishable under Section 4 of the said Act. However, in the instant case, the petitioners were convicted for offence under Section 10 of the POCSO Act which deals with punishment for aggravated sexual assault as prescribed under Section 9 of the POCSO Act.

Section 9 (m) prescribes that whoever commits sexual assault on a child below 12 years would be liable for having committed aggravated sexual assault.

Section 7 of the POCSO Act deals with sexual assault which is read as under:

“Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

The above provisions of Section 7 of the Act, fairly shows that penetration is not sine qua non for attracting the penalty of sexual assault.

The Court held that as the victim was about 8 years of age, hence, by operation of Section 9 (m), the offence fell in the category of aggravated sexual assault which is punishable with a term as prescribed under Section 10 of the POCSO Act.

Referring to the testimony/statement of the victim the Court said that “reliability and admissibility of the statement of the said witness cannot be discredited merely for want of corroboration through medical evidence especially when the charge is of a non-penetrative sexual assault”. Thus, the conviction under Section 10 of the POCSO Act is proper.

Observations on Section 377

Further referring to the conviction under Section 377 of the IPC, which reads as under:

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.

The argument of the Counsel for petitioners, that in the absence of the medical record showing any penetration, the offence under Section 377 of the IPC would not be attracted was rejected.

The Court also stated, “The aforesaid explanation is illustrative and prescribes that an incidence of penetration would be sufficient to constitute carnal intercourse. The said explanation cannot be read to assign a meaning that penetration is necessary to constitute carnal intercourse.”

Considering all the contentions made by the Counsel for petitioners and emphasising upon various judgements defining the term “carnal intercourse”, “intercourse”, referring to the aspect of “absence of injury on the person of the victim”etc., the court held that it did not find any illegality, infirmity, or any error in the judgment passed by the lower Courts in convicting the petitioners for the offences punishable under Section 377 of the IPC and Section 10 of the POCSO Act. Finding no merits in the submissions advanced by the learned counsel for the petitioners, revision petition was dismissed accordingly.

The judgement of the High Court may be read here: 

Expanding scope of sexual assault

In the Supreme Court case of Attorney General for India .V. Satish and another (Criminal Appeal no. 1410 of 2021) the major focus was on the interpretation of Section 7 of the Act. The Court also referred to the meaning of the term “touch”, “physical contact” or “skin to skin contact” “carnal intercourse” etc.

In this case, the Hon’ble Supreme Court set aside the judgment of Bombay High Court (Satish v. the State of Maharashtra)which held that skin to skin contact is a prerequisite for an offence of sexual assault to be made out under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The case before the apex court arose out of appeals filed by the Attorney General of India, the National Commission for Women and the State of Maharashtra against two judgements of the Bombay High court.

Justice Ganediwala of Bombay High Court made the following observations in her judgment, “The act of pressing of breast of the child aged 12 years, in the absence of any specific details as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

The Supreme Court observed, “Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision”.

It further observed that the High Court erred in holding the accused-Satish guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act. The High Court was wrong in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.

Libnus v. State of Maharashtra (2021)

((*TRIGGER WARNING: GRAPHIC DESCRIPTION OF CHILD SEXUAL ABUSE))

In this case, the accused was charged with the offence of aggravated sexual assault on a 5-year-old girl. When the mother and father of the victim were not at home, the accused Libnus came to their house asking for the father of the victim. On finding out that both parents of the child were out, he held the hands of the victim, lowered her pants and thereafter unzipped his pants and showed his penis to her and then asked her to lay down on the wooden cot. A complaint was lodged against the accused for offences under IPC and the POCSO Act.

The High Court in the appeal filed by the accused-Libnus set aside the conviction for the offences under Sections 8 and 10 of the POCSO Act and upheld the conviction for the offences under Sections 448 and 354-A(1)(i) of IPC read with Section 12 of the POCSO Act. While interpreting Section 7 of the POCSO Act, the Justice Ganediwala relied on the principle of ejusdem generis to hold that the expression ‘any other act’ in the definition of ‘sexual assault’ under Section 7 of the Act encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned. The acts of ‘holding the hands of the prosecutrix’ or ‘opening the zip of the pant’ not being of the same nature or closure do not fit in the definition of ‘sexual assault’.

The Supreme Court observed thus,

“The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.”

The court held that in the case of accused Libnus, the High Court has committed a grave error in holding that acts of “holding the hands of the prosecutrix” or “opened the zip of the pant” do not come under the definition of sexual assault. The Court held that such acts constitute sexual assault under Section 7 and the fact that the victim was below 12 years of age, the accused is guilty of commission of aggravated sexual assault under Section 9(m) of the Act and is liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act.

Related:

SC directs reinstatement of Gwalior judge compelled to resign after alleged sexual harassment by HC judge

Punjab and Haryana HC expands scope of Sec 377 IPC and “sexual intent”

The Court held that penetration was not a necessary ingredient for invoking the offence and the sexual intent was an imperative aspect

Sec .377
Image Courtesy:livelaw.in

The Punjab and Haryana High Court has expanded the scope ofSection 377 of the Indian Penal Code (IPC)that deals with“Unnatural” sexual offences. The court has held that it will be invoked even if penetration is on any other part of the body.

The argument of the Counsel for petitioners, that in the absence of the medical record showing any penetration, the offence under Section 377 of the IPC would not be attracted, was rejected by the bench of Justice Vinod S. Bhardwaj. He held that section 377 of IPC will be applicable when there is penetration with sexual intent other than what is contemplated under section 375 of IPC explaining the offence of rape.

The Court also stated, “The aforesaid explanation is illustrative and prescribes that an incidence of penetration would be sufficient to constitute carnal intercourse. The said explanation cannot be read to assign a meaning that penetration is necessary to constitute carnal intercourse.”

In the case of Ankit and others V. State of Haryana (CRR-121-2022),a revision petition was filed by the petitioners before the Punjab and Haryana High Court which was dismissed on March 2by the bench of Justice Vinod S. Bhardwaj, on the grounds of no infirmity, illegality, or any error in the judgment passed by the lower Court in convicting the petitioners for the offences punishable under Section 377 of the IPC and Section 10 of the Protection of Children from Sexual Offenses (POCSO) Act. Advocate U.K Agnihotri represented the petitioners and the State was represented by Mr. Kanwar Sanjiv Kumar, Astt. A.G. Haryana.

Facts of the case

A complaint was filed by Vinod Kumar against the petitioners (Children in conflict with law and here-in-after referred to as ‘CCL’) stating that on September 15, 2018 his son, aged 8 years had gone to the Primary School, Village Khandrai, at around 6:00 P.M. where the accused committed Sodomy and unnatural act of carnal intercourse with his son.

Accordingly, an FIR was registered, investigation was conducted and the above mentioned accused-CCLs were apprehended.

Based on the evidence produced, the Principal Magistrate (Juvenile Justice Board, Sonepat) stated that the prosecution had been able to successfully establish the guilt of CCLs and held the CCLs Ankit, Mohan and Deepak, guilty for commission of offences under Section 377 of the IPC and Section 10 of the POCSO Act.

This judgment of conviction dated March 09, 2021 and the order of sentence of dated March 12, 2021 were challenged by means of filing CRA/35/2021 before the Fast Track Court, Sonepat.

Upon hearing the respective parties and after consideration of the submissions advanced by the counsel appearing on their behalf, the learned Sessions Judge, Fast Track Court, Sonepat dismissed the appeal preferred by the CCLs vide its order dated December 02, 2021. Hence, the revision petition was filed before the High Court.

Arguments

Counsel for the petitioners argued that the finding of conviction recorded against the petitioners is perverse and is not substantiated by the evidence available on record. It was also contended that the prosecution failed to establish the occurrence of the event in the nature of carnal intercourse against the order of nature with the victim, which was in reference to the statement given by Dr. Sachin, the Medical Officer who had conducted medical examination of the minor survivor and did not find any external injuries and marks on his body.

Further reference was made to the statement of the survivor, and it was contended that the survivor never deposed that he was being sodomised. Instead, he had only stated that the CCLs (Children in conflict with Law) had done ‘Wrong Act/Bad Act’ with him.

Therefore, the Counsel submitted that absence of any external marks of injury or detection of semen or Spermatozoa on the body or clothes of survivor, rules out any possibility of the survivor being subjected to forcible intercourse or having been sodomised. Thus, he argued, that the finding of conviction recorded under Section 377 of the IPC is misconceived.

With regards to Section 10 of the POCSO Act, it was further argued that the necessary ingredients of aggravated sexual assault are not made out therefore the conviction of the petitioners is not sustainable. Counsel further argued that, there is no medical evidence to corroborate penetration to attract the provision of Section 3 and Section 4, thus allegations are not supported by corroborative medical evidence. To support his arguments, the Counsel relied on various Judgments of Hon’ble Supreme Court, one of which is Dalbir Singh versus State of Haryana (2003 (1) R.C.R (Criminal) 727) that says, “To contend that self-serving testimony of a child witness which is un-corroborated in material particulars cannot be accepted and must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him.”

Counsel for the State referring to the above mentioned judgment stated that the testimony of the child witness cannot be discarded and that the judgment relied upon by the counsel for the petitioners in the matter of “Dalbir Singh versus State of Haryana”rather supports the case of the prosecution as the judgment holds that “a conviction can be based for the testimony of child witness and that such a testimony can be relied on even in the absence of an oath, provided, the witness understands the nature of questions and gives rational answers to the same.”

Further, the Counsel for State contended that when the survivor/child witness appeared as PW-11, the Court had duly recorded its satisfaction and its statement was recorded only after being satisfied that the state of mind of the child is mature enough and that he is able to depose rationally. Therefore, the testimony of the child/survivor cannot be disbelieved.

It was further argued that the judgment holds that there is no rule or practice that in every case, the evidence of such a witness has to be corroborated before a conviction can be allowed to stand. Rather, it is only a rule of prudence and is only desirable to seek corroboration of such evidence from other reliable evidence on record. Therefore, mere absence of any external mark of injury cannot be the basis to discard the testimony of child witness.

The Counsel for State relied upon the judgements of the Hon’ble Supreme Court one of which is “Ganesan versus State represented by its Inspector of Police” (2020 (10) SCC 573) to submit that when the child witness/survivor was mature, trustworthy and reliable, and has been thoroughly and fully cross-examined, conviction can be based on sole evidence of such victim in the case of sexual assault.

Observations of the Court

The Court observed that the counsel for the petitioners placed reliance on Section 3 of the POCSO Act which is punishable under Section 4 of the said Act. However, in the instant case, the petitioners were convicted for offence under Section 10 of the POCSO Act which deals with punishment for aggravated sexual assault as prescribed under Section 9 of the POCSO Act.

Section 9 (m) prescribes that whoever commits sexual assault on a child below 12 years would be liable for having committed aggravated sexual assault.

Section 7 of the POCSO Act deals with sexual assault which is read as under:

“Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.”

The above provisions of Section 7 of the Act, fairly shows that penetration is not sine qua non for attracting the penalty of sexual assault.

The Court held that as the victim was about 8 years of age, hence, by operation of Section 9 (m), the offence fell in the category of aggravated sexual assault which is punishable with a term as prescribed under Section 10 of the POCSO Act.

Referring to the testimony/statement of the victim the Court said that “reliability and admissibility of the statement of the said witness cannot be discredited merely for want of corroboration through medical evidence especially when the charge is of a non-penetrative sexual assault”. Thus, the conviction under Section 10 of the POCSO Act is proper.

Observations on Section 377

Further referring to the conviction under Section 377 of the IPC, which reads as under:

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.

The argument of the Counsel for petitioners, that in the absence of the medical record showing any penetration, the offence under Section 377 of the IPC would not be attracted was rejected.

The Court also stated, “The aforesaid explanation is illustrative and prescribes that an incidence of penetration would be sufficient to constitute carnal intercourse. The said explanation cannot be read to assign a meaning that penetration is necessary to constitute carnal intercourse.”

Considering all the contentions made by the Counsel for petitioners and emphasising upon various judgements defining the term “carnal intercourse”, “intercourse”, referring to the aspect of “absence of injury on the person of the victim”etc., the court held that it did not find any illegality, infirmity, or any error in the judgment passed by the lower Courts in convicting the petitioners for the offences punishable under Section 377 of the IPC and Section 10 of the POCSO Act. Finding no merits in the submissions advanced by the learned counsel for the petitioners, revision petition was dismissed accordingly.

The judgement of the High Court may be read here: 

Expanding scope of sexual assault

In the Supreme Court case of Attorney General for India .V. Satish and another (Criminal Appeal no. 1410 of 2021) the major focus was on the interpretation of Section 7 of the Act. The Court also referred to the meaning of the term “touch”, “physical contact” or “skin to skin contact” “carnal intercourse” etc.

In this case, the Hon’ble Supreme Court set aside the judgment of Bombay High Court (Satish v. the State of Maharashtra)which held that skin to skin contact is a prerequisite for an offence of sexual assault to be made out under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The case before the apex court arose out of appeals filed by the Attorney General of India, the National Commission for Women and the State of Maharashtra against two judgements of the Bombay High court.

Justice Ganediwala of Bombay High Court made the following observations in her judgment, “The act of pressing of breast of the child aged 12 years, in the absence of any specific details as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’.”

The Supreme Court observed, “Restricting the interpretation of the words “touch” or “physical contact” to “skin to skin contact” would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision”.

It further observed that the High Court erred in holding the accused-Satish guilty for the minor offences under Sections 342 and 354 of IPC and acquitting him for the offence under Section 8 of the POCSO Act. The High Court was wrong in holding that there was no offence since there was no direct physical contact i.e. “skin to skin” with sexual intent.

Libnus v. State of Maharashtra (2021)

((*TRIGGER WARNING: GRAPHIC DESCRIPTION OF CHILD SEXUAL ABUSE))

In this case, the accused was charged with the offence of aggravated sexual assault on a 5-year-old girl. When the mother and father of the victim were not at home, the accused Libnus came to their house asking for the father of the victim. On finding out that both parents of the child were out, he held the hands of the victim, lowered her pants and thereafter unzipped his pants and showed his penis to her and then asked her to lay down on the wooden cot. A complaint was lodged against the accused for offences under IPC and the POCSO Act.

The High Court in the appeal filed by the accused-Libnus set aside the conviction for the offences under Sections 8 and 10 of the POCSO Act and upheld the conviction for the offences under Sections 448 and 354-A(1)(i) of IPC read with Section 12 of the POCSO Act. While interpreting Section 7 of the POCSO Act, the Justice Ganediwala relied on the principle of ejusdem generis to hold that the expression ‘any other act’ in the definition of ‘sexual assault’ under Section 7 of the Act encompasses within itself, the nature of the acts which are similar to the acts which have been specifically mentioned. The acts of ‘holding the hands of the prosecutrix’ or ‘opening the zip of the pant’ not being of the same nature or closure do not fit in the definition of ‘sexual assault’.

The Supreme Court observed thus,

“The very object of enacting the POCSO Act is to protect the children from sexual abuse, and if such a narrow interpretation is accepted, it would lead to a very detrimental situation, frustrating the very object of the Act, inasmuch as in that case touching the sexual or non-sexual parts of the body of a child with gloves, condoms, sheets or with cloth, though done with sexual intent would not amount to an offence of sexual assault under Section 7 of the POCSO Act. The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.”

The court held that in the case of accused Libnus, the High Court has committed a grave error in holding that acts of “holding the hands of the prosecutrix” or “opened the zip of the pant” do not come under the definition of sexual assault. The Court held that such acts constitute sexual assault under Section 7 and the fact that the victim was below 12 years of age, the accused is guilty of commission of aggravated sexual assault under Section 9(m) of the Act and is liable to be punished with the imprisonment for a term not less than five years under Section 10 of the POCSO Act.

Related:

SC directs reinstatement of Gwalior judge compelled to resign after alleged sexual harassment by HC judge

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