Delhi High Court upholds sodomy conviction of father-uncle duo, sentences them to life

The Delhi High Court on Monday upheld conviction of a father-uncle duo charged with sodomosing the minor daughter of one of the accused but set aside their conviction for the offence of gang rape on the ground that there was no penile-vaginal penetration, a requirement for rape charge under the unamended Section 375 of Indian Penal Code (IPC) [Kamal v State]..A Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani also upheld the sentence of life imprisonment handed down by the trial court along with a fine of ₹10,000.The Court further observed that even though sexual violence against a child is anyways abhorrent, but when it happens within a father-daughter relationship, it descends into depravity and has elements of sin.The Court was was dealing with an appeal against a trial court order that convicted a father and uncle of offences under Sections 376(2)(g) (gang-rape) and 377 (sodomy) read with Section 34 of the Indian Penal Code for raping a minor girl..“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 Court was told that the prosecutrix used to live with her aunt. However, during the summer vacations in 2012, her father brought her home. The duo then committed gang-rape and sodomy upon her. This continued till July 2012, the Bench was informed.The girl then revealed the incident to her teacher, after which a complaint was registered and both the accused were arrested and then convicted by the trial court for gang-rape and sodomy..The High Court, however, set aside the finding of the trial court where it convicted the two men of gang-rape, on the ground that the requirement of penetration was necessary to constitute rape under the un-amended Section 375. The Court said that the expanded definition of rape as in the amended Section 375 (with retrospective effect from February 2013) did not exist in the statute books at the time of the commission of the present offence and therefore, the two men cannot be charged with the same..Regarding the offence of sodomy under Section 377 of IPC, the judges suggested three requirements for an act to fall under the definition of ‘carnal intercourse against the order of nature’ as appearing in Section 377. These are:It must have to do with flesh and sensuality, namely it must be carnal;There must be intercourse between individuals, without restricting it only to human-to-human intercourse;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’.In instant case, the Court noted that based on the victim's testimony the accused used to remove her clothes, lie on top of her and put their penis against her vagina and anus and also commit 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..The Court thus modified the trial court order and while acquitting the accused of rape charges, maintained the conviction and sentence for sodomy..While the two convicts were represented by Senior Advocate Chinmoy Pradeep Sharma along with advocates Rakhi Dubey, Himanshu Gera and CK Chaturvedi, Additional Public Prosecutor Ashish Dutta appeared for the State..[Read Judgment]