- The Hon'ble Punjab and Haryana HC has, in Ankit And Others v. the State of Haryana, recently made a significant comment, broadening the scope of Section 377 of the IPC, which stated that it would amount to an offense even if the penetration occurs on any other area of the victim's body (other than the vagina) with sexual intent. It was held by Justice Vinod S. Bhardwaj's bench that Section 377 is to be invoked in the case of penetration with sexual intent. Significantly, the High Court's ruling further clarifies that just because there is no harm or mark of violence on the victim's person does not mean that this clause would not be used in the instance of a 'carnal intercourse.’
- Section 377 of the IPC articulates that whoever willfully has sexual intercourse against the order of nature with any man, woman, or animal shall be punished.
- Section 10 of the POCSO Act states that if any person, in whose care and protection the child is or on whom the child relies, commits sexual assault; or if two or more people commit sexual assault using a weapon, it is considered to be aggravated sexual assault and is punishable by a minimum of five years in prison which may be extended up to seven years, and the accused is liable to pay a fine.
- In this case, the Hon'ble HC Court was dealing with a revision petition filed by three minor boys, children in Conflict with the Law (CCL), challenging their conviction for the commission of an offense punishable under Section 377 of the IPC and Section 10 of the POCSO Act for engaging in unnatural acts with an eight-year-old boy.
- The CCL's attorney claimed in front of the Hon'ble HC that the 8-year-old victim never attested about being sodomized and simply stated that the CCLs had done 'Wrong Act/Bad Act' with him. Their main argument before the Court was that no external marks of injury, or detection of semen or spermatozoa, on the victim's body or clothes were found during the medical examination, which was conducted without delay, and thus it couldn't be said that the victim was subjected to forcible intercourse or was sodomized. Therefore, it was contended by the CCL that the conviction under Section 377 of the IPC was erroneous.
- The case of Kamal v. Delhi HC was referred to by the Hon'ble Court in which it was held that any physical activity that has anything to do with flesh and sensuality which involves intercourse, followed by penetration other than 'penile-vaginal intercourse,' must allude to unnatural conduct, such as 'penile-anal penetration,' 'digital penetration,' or 'object penetration.' The same is defined under section 377 of the IPC.
- Furthermore, the Hon’ble HC also referred to the case of State of Kerala v. Kundumkara Govindum,where it was held that an unnatural offense is committing carnal intercourse against the order of nature and is defined as the Act of committing intercourse between the thighs. Thus, committing intercourse by inserting the male organ between the thighs is an unnatural offense.
- It is also noteworthy that in Khanu v. Emperor, AIR 1925 Sind 286, the definition of the phrase "intercourse" was explored and defined as "Intercourse may be characterized as mutual frequent activity by members of autonomous organization."
- In light of the aforementioned cases, the Hon'ble Court held that according to the meaning of the term "Carnal intercourse," it is evident that to attract Section 377. The Hon'ble Court also rejected the CCLs' opinion that Section 377 IPC is invoked only for anal penetration and stated that their argument "Section 377 IPC cannot be used until an anal penetration takes place" is not supported by the law and that the offense under Section 377 IPC may also be brought against two women when the element of penetration, as represented by the learned counsel for the petitioners, is not a possibility. Section 377 can be used even if the penetration occurs on any other area of a victim's body when the primary motivation in the conduct of the Act must be sexual.
- Therefore, the Hon'ble Court rejected the petitioners' contention and found that the lower court's decision was adequate.
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