“Pouring Red Water Into Anus Does not amount to Carnal Intercourse Under Section 377”: Bombay High Court Grants Bail

A single bench of Justice Bharathi Dangre, on 25th August 2022 granted bail to a person accused of an unnatural offense, assault, or criminal force to a woman with intent to outrage her modesty under the Indian Penal Code 1860 and sexual assault under the Protection of Children from Sexual Offences Act, 2012. After the chargesheet was filed, the accused filed a bail application, which was rejected by the Additional Sessions Judge, Thane.

The matter pertains to an incident that took place on 30th September 2019. The victim, who was 7 years old, was playing outside her house with her friend. After 12:30, when the girl returned back, a person with a beard removed her apparel. After which he expanded the anus of the victim with his hand and poured red colour water into it. This was informed to the complainant i.e., the mother of the victim.

The victim then gave a statement to the police stating that when she was playing, an uncle called her inside the house, removed her clothes, slept on her, and poured red colour water inside her anus, after which he threw the bottle outside. However, on medical examination, it was found that the complainant's and victims’ statements are different from the victim’s mothers.

The court in its order stated that the victim has stated that her vagina was not touched nor manipulated. Further, section 377 punishes “carnal intercourse” and section 375 defines “sexual intercourse” both of which are different. In order to understand the definition of carnal intercourse, the court referred to Major Law Lexicon by P. Ramanatha Ayair’s Law Lexicon in 4th Edition, which defines carnal as “anything pertaining to the flesh or to the sensual”. The court referred to the definition of intercourse from the Blacks Law Dictionary which defines it as “physical sexual contact, especially involving the penetration of the vagina by the penis”. The court also referred to section 377 clause no. 361 and 362 of the draft IPC 1837.

The court referred to section 377 of the IPC along with the explanation and stated that “only the penal vaginal sexual intercourse is natural and all other forms of carnal intercourse such as anal or oral are unnatural”. The act of expanding the anus by hands and pouring some substance into it, prima facie cannot be said to be covered in the term “carnal intercourse” which necessarily must involve pertaining the flesh or sensual pleasure.

The court while allowing the application and granting bail to the accused stated that, as far as the offense under the POCSO act is concerned the act of sleeping on the victim attracts a punishment of 5 years out of which the accused had already undergone 3 years. Therefore, the accused deserves to be released on bail.

Case Title: Rafique Afzal Shaikh versus State of Maharashtra