Delhi High Court Upholds Conviction U/S 377 IPC; Sets Out Ingredients Of 'Carnal Intercourse Against Order Of Nature'

The Delhi High Court has observed that any physical act answering to all the ingredients below committed upon a minor is per-se 'carnal intercourse against the order of nature' appearing in section 377 of IPC:

i. it must have to do with flesh and sensuality, namely it must be carnal;

The Bench of Justice Siddharth Mridul and Justice Anup J Bhambhani observed thus:

"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'."

The Court also observed that to sexually violate an innocent child is an abhorrent act; however, when the same 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.

"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. Such acts must be dealt, with the requisite level of severity," the Court added.

The development came while the Court was dealing with two appeals arising out of a common judgment of conviction and the sentencing order in connection with a case wherein sexual offences were committed against a minor. The allegation was that the prosecutrix's father, one of the convicts, and his friend Kamal, the other convict, committed offences punishable under sec. 376(2)(g) and 377 of IPC during the period of May to July 2012.

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.

The Court upheld the order of conviction by agreeing that both convicts were guilty of the offence under sec. 377 read with section 34 IPC; however it said that the conclusion as regards the offence under sec. 376(2)(g) IPC as arrived upon by the trial court was flawed.

Accordingly, the conviction order and sentencing order regarding the offence under section 377 read with section 34 IPC were upheld and modified.

"For our purposes in the present case, we need only observe that the expanded definition of rape as contained in amended section 375 with retrospective effect from 03.02.2013, did not exist on the statute book at the time of commission of the offence by the appellants i.e. on or before 22.07.2012; and there is neither any allegation nor has anything come forth in evidence to show that the appellants committed any penetrative sexual intercourse with the prosecutrix. Accordingly, in our view, the finding of the learned trial court that the appellants are guilty of the offence under section 376(2)(g) is untenable; and is accordingly set-aside," the Court said.

The Court also touched upon the meaning of the phrase 'carnal intercourse against the order of nature' under sec. 377 of IPC. Accordingly, the Court concluded the following after going through the jurisprudence of the said provision:

- Though the restrictive meaning of the phrase 'sexual intercourse' will not deter the court from interpreting the phrase 'carnal intercourse' in its fullest ambit, we must be guided by the legal interpretation given by the Hon'ble Supreme Court to the phrase 'sexual intercourse' in Sakshi (supra), which is heterosexual intercourse involving penetration of the vagina by the penis.

- 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'.

With the said observations, the appeals were dismissed.

Case Title: KAMAL v. State