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IN THE HIGH COURT OF DELHI AT NEW DELHI
Siddharth Mridul, Anup Jairam Bhambhani, JJ.
Kamal - Appellant
Versus
State - Respondent
CRL.A. 37 & 140 of 2020
Decided On : 20-12-2021
Indian Penal Code, 1860-section 228(A)- Criminal Procedure Code, 1973-sections 376(2)(g) and 377 - section 327(2) - ‘carnal intercourse – Ingredients of - Sexual offences against a ‘minor’, the - gravamen of the offence of rape, prior to its amendment as aforesaid, was ‘sexual intercourse with a woman’; and the Explanation to section 375 laid down that ‘penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape - Requirement of penetration.
Finding of the Court : 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’ - to 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.
Result : Appeal dismissed
JUDGMENT :
Anup Jairam Bhambhani, J.
The present two appeals arise from a common judgment and sentencing order and are therefore being taken-up for consideration and disposal together. Since this matter concerns sexual offences against a ‘minor’, the names of the prosecutrix, of one of the convicts and some key witnesses have been anonymised in keeping with the verdict of the Hon’ble Supreme Court in Nipun Saxena and Anr. vs. Union of India & Ors., (2019) 2 SCC 703; para 25, 45, 53 and Sakshi vs. Union of India & Ors., (2004) 5 SCC 518; para 32, 34 and section 228(A) of the Indian Penal 2 Code, 1860 (‘IPC’) and section 327(2) of the Criminal Procedure Code, 1973 (‘CrPC’).
2. By way of the present appeals, the appellants have impugned judgment dated 09.10.2019 whereby they stand convicted by the learned trial court for offences under sections 376(2)(g) and 377 read with section 34 IPC. The appellants have also challenged sentencing order dated 18.10.2019, whereby the appellants have been sentenced to imprisonment for life along with fine of Rs. 10,000/- for the offence under section 376(2)(g) IPC; and to imprisonment for life along with fine of Rs. 10,000/- for the offence under section 377/34 IPC. Furthermore, the appellants have also been sentenced to simple imprisonment of 06 months in default of payment of fine. The benefit of section 428 CrPC has been afforded to the appellants.
3. The matter arises from an allegation by the prosecutrix that her father (A1) and his friend Kamal (A2) committed upon her offences as defined under sections 376(2)(g) and 377 IPC during the period 13.05.2012 to 22.07.2012. The case came to be registered upon a complaint made by the prosecutrix, which came to be registered as FIR No. 286/2012 dated 25.07.2012 at P.S.: Sunlight Colony, New Delhi.
4. The case of the prosecution before the learned 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’s summer holidays in 2012, her father took her from the care and custody of her bua to the house of one Manorama Begum alias Rahima (also referred to as Manora Begum by the prosecutrix), where A1 and A2 inter alia committed gang-rape and sodomy upon the prosecutrix. The last such sexual assault is alleged to have been committed on 22.07.2012, whereupon on 25.07.2012 the prosecutrix informed her teacher, who is associated with the NGO, Agha Khan Foundation, in Jangpura, New Delhi, and also teaches English at the prosecutrix’s school, namely the MCD School at Hazrat Nizamuddin, Delhi. This teacher also happens to be the daughter of the prosecutrix’s 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.
5. The prosecution alleged that following this disclosure by the prosecutrix, a Senior Program Officer at the NGO approached P.S.: Nizamuddin Basti along with the counsellor/coordinator; whereupon they were referred to the jurisdictional Police Station, being P.S.: Sunlight Colony, where FIR No. 286/2012 was then registered under sections 376(g) and 377 IPC.
6. Upon registration of the FIR, the prosecutrix was taken to the All India Institute of Medical Sciences (AIIMS), New Delhi, for medical examination. Subsequently, A1 was arrested by Investigating Officer, PW-15 : W/S.I. Kamini Gupta, P.S.: Sunlight Colony on the intervening night of 25.07.2012 and 26.07.2012; and A2 was arrested on 26.07.2012.
7. The prosecutrix’s statement under section 164 CrPC was recorded by the learned Metropolitan Magistrate (South Delhi) on 26.07.2012.
8. Upon completion of the trial, A1 and A2 were convicted essentially based on the following evidence :
(b) The medical evidence brought on record.
9. In the course of trial, the prosecution cited
Point of Law : Sexual abuse on child - ‘carnal intercourse’ - Offence under section 377 would therefore arise when there is ‘penetrative intercourse’ which is ‘against the order of nature’.
A husband cannot be prosecuted under Section 377 IPC for consensual acts with his wife, but charges under the POCSO Act may apply based on the nature of the allegations.
If a man and a woman indulged in anal sex with their free consent in private, no offence under Section 377 IPC is made out.
(1) Conviction cannot be based solely on statements made by accused under sub-section (1) of Section 313 of Cr.P.C.(B) Gang rape – Enhancement in sentence is not justified many years after incident.
The court held that Sections 375 and 377 IPC do not apply to marital relationships, and a dying declaration must inspire full confidence and be corroborated to support a conviction.
The absence of injury does not discredit the victim's testimony, especially considering the victim's young age and the nature of the assault. The need to protect children from sexual assault and hara....
The court affirmed the conviction under the POCSO Act while ruling that the appellant cannot be punished under both the POCSO Act and IPC for the same act, modifying the sentence accordingly.
(1) Rape – If age of wife is not below 15 years then any sexual intercourse or sexual act by husband with his wife cannot be termed as rape.(2) If provisions of latter enactment are so inconsistent o....
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