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Synopsis

The Kerala High Court, clarifying the scope of Section 377 of the Indian Penal Code (IPC), has observed that the said section addresses acts that are "carnal and against the order of nature," rather than focusing on the nature of the relationship between the individuals involved. The Court emphasised that the fact that the accused is the father of the victim does not automatically bring the incestuous act within the purview of Section 377 IPC, which deals with "unnatural offences.”

The Division Bench, comprising Justice Raja Vijayaraghavan V and Justice G. Girish, upheld the conviction of the accused father for the rape of his daughter under Section 376 of IPC and the Prevention of Children from Sexual Offences (POCSO) Act, but set aside the sentence imposed under Section 377of the Code. The court observed : “What Section 377 I.P.C. contemplates is the vulgarity and un-naturality in the act of sexual intercourse which could be termed as carnal and against the order of nature, and not in respect of the un-naturality due to the relationship between the persons indulging in the said act. Therefore, the mere fact that the appellant/accused herein is the father of the survivor, does not bring the incestual sex perpetrated by him upon her daughter, within the purview of Section 377 I.P.C.”

The case involved a young victim who reported ongoing sexual abuse by her father since she was in the fourth grade. The victim detailed instances of sexual exploitation and physical violence when she resisted. Initially, the Sessions Court convicted the father under multiple sections, including Sections 376 and 377 IPC and various provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

However, the father appealed, arguing that the conviction was based solely on the victim's testimony, and there was a delay in reporting the crime. It was further contended that the medical examination of the survivor does not confirm the offence of rape as she failed the “two finger test”.

The High Court addressed these concerns, noting that the abuse occurred at home and was unlikely to have other witnesses. The Court dismissed the appeal's claims regarding the delay and minor discrepancies in the victim’s account, stating that these did not undermine the testimony's credibility. “The minor discrepancies of omission to state some incidents to the Investigating Officer, are of no consequence,” the court said.

The court, with regards the argument pertaining to “two finger test” stated that even the slightest penetration is sufficient to constitute the offence of rape, as defined under Section 375. The court further highlighted that “ascertaining rape on the basis of the criteria of the capacity of the vagina of the survivor to admit multiple fingers, has been strongly deprecated by the Apex Court in State of Jharkhand v. Shailendra Kumar Rai [2022)”, ruling that a person accused of rape cannot claim exoneration simply because the "two-finger test" conducted on the survivor produced results that seem favourable to him.

The court also rejected the accused's contention that the Sessions Court relied solely on the testimony of the victim, stating that “Having regard to the nature of the offence involved in this case, which took place within the four walls of the home of the survivor at a time when her mother was out for her work, it would be preposterous to expect any other ocular evidence pointing to the offence alleged against the appellant.”

The court, however, with regards the charge under Section 377 noted that “it is not possible to conclude that the offence under the caption ‘unnatural offences’ envisaged under Section 377 I.P.C is attracted in the facts and circumstances of this case.”

Conclusively, the court partly allowed the appeal, setting aside the conviction and sentence under Section 377 IPC and POCSO, but upheld the conviction under Section 376 IPC.

 

Cause Title: Shaji M v State of Kerala [CRLA 813 of 2018]