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The Delhi High Court has convicted the father of a minor daughter and his friend for rape under Section 377 of the Indian Penal Code (IPC) and has noted that the act(s) hinges upon another depth of depravity.

"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 the requisite level of severity."
- Delhi HC

Justice Siddharth Mridul and Justice Anup Jairam Bhambhani of the Delhi High Court upheld the conviction of the father and his friend for offences under section 377 of IPC carried against the daughter. The Court also listed ingredients for 'carnal intercourse against order of nature.'

The Court was hearing 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. It was alleged 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.

The victim gave a detailed testimony of her ordeal which the Justices have reiterated in the order:

The vicitim stated that her own father picked her up from her 'bua' (aunt's) house and got her to her second mother's house. Her father would bring his friend Kamal along. The vicitim has further elborated on her ordeal in graphic detail stating Kamal committed digital penetration of the prosecutrix’s anus. He would gag her mouth with cloth, bind her limbs and then do ‘batamizi’ (badtamizi) with her. On further elaboration, she has said that Kamal would remove her clothes and then lie on top of her and touch her chest, vagina and anus. He would then put his penis against her vagina and anus and also insert his finger into her anus. She has deposed that the whole ordeal would last about half-an-hour. The victim alleged that after Kamal was finished, her father, would commit all the aforesaid acts upon her other than the act of digital penetration

The Court observed that the victim's testimony in her statement under section 164 CrPC, as also in her examination-in-chief and cross-examination in court, remained "consistent and unwavering, in all material respects."

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.

The Court noted that the gravamen of the offence of rape, prior to its amendment as aforesaid, was ‘penetration’. The expanded definition of rape as contained in amended section 375 with retrospective effect does not apply as the offence was committed in 2012. Hence, the parties are not guilty of rape as there was no penal penetration involved.

The Court further noted that the intention of the Legislature was to engraft a different offence in section 377 IPC vis-à-vis section 375 IPC, which is why a different phrase was employed. 43.

“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,” the Court noted.

The Court referred to the Supreme Court decision in where ‘sexual intercourse’ has been defined as heterosexual intercourse involving penetration of the vagina by the penis. Thus the Court listed the following ingredients for ‘carnal intercourse against the order of nature’:

1. it must have to do with flesh and sensuality, namely it must be carnal;
2. there must be intercourse between individuals, without restricting it only to human-to-human intercourse;
3. 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’.

“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 stated.

The Court therefore upheld the conviction as set out by the Trial Court with an amendment as to the charges under 326 (g).

In concluding remarks the Court stated:

“Furthermore, considering the depravity of the acts committed against the prosecutrix by a so-called uncle, with the connivance of her own father, we are also of the view that the offending acts go way beyond the physical element of sexual assault but would have severely damaged the mind and psyche of the victim, which trauma may linger for very long"

 

Case Title: Kamal V. State