Read Order: Ankit and Others v. State of Haryana 

Monika Rahar

Chandigarh, March 8, 2022: While dealing with a revision petition filed by three juveniles who committed Sodomy and an unnatural act of carnal intercourse with an 8-year old boy, the Punjab and Haryana High Court, after perusing several pronouncements as well as the understanding of the word “Carnal intercourse”, has held that in order to attract Section 377 of IPC, the Act in question must have to do with flesh and sensuality and the same must involve penetration other than penile-vaginal penetration. 

After referring to the ‘explanation’ attached with section 377 of IPC, the Bench of Justice Vinod S. Bhardwaj observed that the 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. Section 377 cannot be restricted by use of the word “Penetrative intercourse” when the same has not been specified in the statutory provision”, Justice Bhardwaj added. 

Further, the Bench opined that Section 377 can be attracted even in a situation where the penetration happens to be on any other part of the body of a victim, the predominant intent in the commission of the Act, however, has to be sexual. 

In this case, the three petitioners were made accused in an FIR registered on the information given by the father of an 8-year old boy, alleging that they committed Sodomy and an unnatural act of carnal intercourse with his son. The Principal Magistrate, Juvenile Justice Board, Sonepat found them guilty for commission of offences under Section 377 of the IPC and Section 10 of the POCSO Act. Further, the first appellate Court also dismissed their appeal, hence the revision was filed. 

The Court at the outset perused the argument of the petitioners’ counsel on POCSO Act offences. After doing a conjoint reading of Sections 3, 4, 7, 9, 10 of the POCSO Act, the Court observed that it clearly showed that penetration was not sine qua non for attracting the penalty of sexual assault and that any act that would involve touching the private parts/genitalia or primary/secondary sexual characteristics of a child with a sexual intent involving physical contact without penetration would amount to a sexual assault. 

As the victim was about 8 years of age, hence, the Court opined that 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. 

On the probative value of the child witness, the Court took the stand that the victim was over-powered by the accused persons and was subjected to the wrong Act and that the witness was consistent throughout on the involvement of the accused. Thus, the Court concluded that the reliability and admissibility of the statement of the said witness could not be discredited merely for want of corroboration through medical evidence especially when the charge is of a non-penetrative sexual assault. 

Further, the Court addressed the petitioners’ contention that in the absence of the medical record showing any penetration, the offence under Section 377 of the IPC would not be attracted in view of the explanatory notes attached to this Section. 

While referring to the explanation to Section 377 IPC, the Court opined that the explanation was illustrative and it could not be read to assign a meaning that penetration was necessary to constitute carnal intercourse. 

Reflecting on the legislative intent behind consciously using the term “carnal intercourse” as against “penetrative intercourse” or “sexual intercourse” under Section 377 IPC, the Court stated, “The use of phrase “carnal intercourse” as against “penetrative intercourse” or “sexual intercourse” is a conscious act of the legislature reflecting the clear intent of the legislature to engraft an offence under Section 377 to be separate and different that the offence contemplated against “sexual intercourse”. The omission of the legislature is neither negligent nor an outcome of over-sight. It is a conscious and deliberate act considering that Section 375 IPC, prior to its amendment, specifically used the word “Sexual intercourse with a women”. Hence, legislature cannot be perceived to be ignorant of the said phrase and has to be presumed to have consciously chosen a different phrase i.e. “Carnal intercourse” with an object and purpose.”

Further, the Court dwelling into the meanings of the words “Intercourse” and “Penetrate”, opined that to determine as to whether there is intercourse or not, what is to be considered is whether the visiting organ is enveloped at least partially by a visiting organism. 

Thus, on this issue, the Court opined, “Hence, Section 377 can be attracted even in a situation where the penetration happens to be on any other part of the body of a victim, the predominant intent in the commission of the Act, however, has to be sexual. Hence, the argument of the petitioners that conviction is bad for want of any external mark of injury around the body of the victim is liable to be rejected as not being well-founded.”

Lastly, perusing the object of the POCSO Act, the Court opined that it reinforces the need for the Courts to adopt a stance in the matters relating to offences against children and a misplaced sympathy is likely to defeat the statutory object and purpose. 

Considering that the victim was a child of only 8 years as on the date of occurrence, his dignity having been violated by sheer brute force, the Court was not inclined to accept the said plea for taking a lenient view of the matter. 

Thus, the instant revision petition was accordingly dismissed. 

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