Carnal Intercourse against order of Nature as punishable under Sec.377 IPC: What constitutes it? HC explains

  

While deciding a plea under Sec.377 IPC, the Delhi High Court has explained as to what will constitutes 'Carnal Intercourse against order of Nature'.

The divisional Bench comprising of Justice Siddharth Mridul and Justice Anup J Bhambhani laid down conditions for the same.

Brief Facts of the Case

The minor girl in the present case has allegedly been sexually assaulted by her father and his friend. The allegation was that the prosecutrix's father and his friend committed offences punishable under Sec. 376(2)(g) and 377 of IPC. The appeals arise out of a common judgment of conviction and the sentencing order the case

High Court Observation

The Court on the outset noted that to sexually violate an innocent child is in any case an abhorrent act; but when that happens within the filial father-daughter relationship, the act descends to a different depth of depravity.

"Crime in society is one thing; but crime within the closest confines of the family, adds to it the element of sin. Such acts must be dealt, with the requisite level of severity."

Accepting the statement made by the prosecutrix under Sec. 164 of CrPC as well her deposition in court, the High Court reiterated that a court must not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not fatal, to throw-out an otherwise reliable prosecution case.

Reffering to SC Ruling in State of Himachal Pradesh Vs. Raghubir Singh, 1993 Latest Caselaw 85 SC, the Court reiterated that where the evidence of the prosecutrix inspires confidence, it must be relied upon, without seeking corroboration of her statement in material particulars.

The Court then said that the requirement of penetration has been held to be necessary to constitute the offence of Rape as per SC decision in Aman Kumar vs. State of Haryana, 2004 Latest Caselaw 90 SC .

The Court further said that the restrictive meaning of the phrase ‘sexual intercourse’ will not deter it from interpreting the phrase ‘carnal intercourse’ in its fullest ambit, and relied on legal interpretation to the phrase ‘sexual intercourse’ as given in SC decision which is heterosexual intercourse involving penetration of the vagina by the penis.

The Court thus noted that ‘penetration’ a necessary ingredient of the offence of ‘carnal intercourse’ as well:

"This interpretation turns inter-alia on the explanation appended to Section 375, which points to the requirement of ‘penetration', for an act to amount to sexual intercourse. A similar explanation appearing in Section 377 makes ‘penetration’ a necessary ingredient of the offence of ‘carnal intercourse’ as well. The offence under section 377 would therefore arise when there is ‘penetrative intercourse’ which is ‘against the order of nature’."

 In view of the above, it laid down three-situations which will comprise ingredients of ‘carnal intercourse against the order of nature’ under Sec.377 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’.

It though added:

"Subject to the requirement of the above ingredients, 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. Accordingly, though we hesitate to give the phrase ‘carnal intercourse against the order of nature’ any exhaustive meaning, we hold, that as a matter of law, any physical act answering to all the above ingredients, committed upon a minor is per-se ‘carnal intercourse against the order of nature".

 Accordingly, the Court upheld the order of conviction of both the convicts and held them guilty of the offence under Sec. 377 read with Section 34 IPC but concluded that the offence under Sec. 376(2)(g) IPC as arrived upon by the trial court was flawed.

Read Judgement Here:

 

 

 

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(With input from news agency language)

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