By – Arshita Anand
The Delhi High Court affirmed a father-uncle duo’s conviction for sodomising one of the accused’s juvenile daughter, but overturned their conviction for gang rape on the grounds that there was no penile-vaginal penetration, a condition for rape under the Indian Penal Code’s unamended Section 375.
The trial court’s sentence of life in prison with a Rs. 10,000 fine was also confirmed by a bench of Justices Siddharth Mridul and Anup Jairam Bhambhani.
The Court went on to say that while sexual assault against children is always wrong, it descends into depravity and includes components of sin when it occurs in a father-daughter relationship.
The Court was hearing an appeal against a trial court decision convicting a father and uncle of raping a juvenile girl under Sections 376(2)(g) (gang-rape) and 377 (sodomy) read with Section 34 of the Indian Penal Code.
“We do not hesitate to repeat, 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. 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, with the requisite level of severity,” the Bench said.
The prosecutrix used to reside with her aunt, according to the court. Her father, on the other hand, took her home during the summer vacations of 2012. She was subsequently subjected to gang rape and sodomy by the two. The Bench was informed that this persisted until July 2012.
After the girl told her instructor about the occurrence, a report was filed, and both of the accused were arrested and convicted of gang-rape and sodomy by the trial court.
The High Court, on the other hand, overturned the trial court’s gang-rape convictions, arguing that the need of penetration was sufficient to establish rape under the unamended Section 375.
The increased definition of rape under the modified Section 375 (with retroactive effect from February 2013) did not exist on the statute books at the time of the current case, according to the Court.
The judges proposed three prerequisites for an act to fall under the definition of ‘carnal intercourse against the order of nature’ as found in Section 377 of the IPC when it comes to the crime of sodomy. These are the following:
- It has to do with flesh and sexuality, in other words, it has to be carnal.
- Individual intercourse is required, rather than just human-to-human intercourse;
- It must entail penetration other than penile-vaginal intercourse, because section 377 must allude to an unnatural act, such as ‘penile-anal penetration,’ ‘digital penetration,’ or ‘object penetration,’ by its very nature, intent, and purpose.
According to the victim’s evidence, the accused used to strip her naked, lie on top of her, and press their penis against her vagina and anus, as well as engage in acts of digital penetration on her.
The Bench added that attempting to define the phrase ‘carnal intercourse against the nature of order’ 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 judgment said.
