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The Indian Penal Code
Section 377 in The Indian Penal Code
Section 511 in The Indian Penal Code
Section 12 in The Indian Penal Code
Section 375 in The Indian Penal Code

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Gujarat High Court
Lohana Vasantlal Devchand And ... vs The State on 24 July, 1967
Equivalent citations: AIR 1968 Guj 252, 1968 CriLJ 1277, (1968) GLR 1052, (1968) 0 GLR 1053
Bench: J Sheth

ORDER

(1) This is a revision petition, filed by the three petitioners, who were the original accused No. 1, 2 and 3 respectively in a Criminal Case No. 686 of 1966 in the Court of Judicial Magistrate, First Class, Rajkot. The accused Nos. 1 and 3 were convicted of an offence, punishable under Section 377 of the Indian Penal Code and the accused No. 2, i.e., the petitioner No. 2 was convicted for attempting to commit that offence, by the learned Judicial Magistrate, First Class, Rajkot, Shri Rajni M. S. Patel.

(2) The petitioner No. 1 was sentenced to suffer 11/2 years' rigorous imprisonment and to pay a fine of Rs. 500 and in default of payment of fine, to suffer 6 months simple imprisonment. The petitioner No. 3 was sentenced to suffer one year's rigorous imprisonment and to pay a fine of Rs. 400 and in default of payment of fine, to suffer 4 months' simple imprisonment. The petitioner No. 2 is sentenced to suffer 9 months' rigorous imprisonment and to pay a fine of Rs. 200 and in default of payment of fine to suffer 3 months' simple imprisonment. Being dissatisfied with that order of conviction and sentence, the three petitioners had filed a Criminal Appeal No. 5 of 1967 in the Court of Sessions Judge, Rajkot.

(3) The learned Sessions Judge, Rajkot, Shri M. C. Trivedi has maintained the order of conviction, passed against the present petitioners. He has found that the petitioner No. 2 has committed an offence punishable under Section 377, read with Section 511 of the Indian Penal Code. The sentence of imprisonment inflicted on each of these petitioners had been confirmed by him. The sentence of find and the sentence of imprisonment in default of payment of fine, passed against each of these petitioners are set aside. Against the order, the present revision petition has been filed by the petitioners from the jail.

(4) As an interesting question arose in this revision petition and the petitioners were not represented by an Advocate, Shri H. M. Mehta was appointed as Amicus Curiae.

(5) The learned Advocate, Shri Mehta urged that the order of conviction, passed against each of these petitioners, cannot be sustained in law, as there is only uncorroborated testimony of Babulal Vithaldas, Ex. 23, the victim of the offence. Even if the conviction is based on such uncorroborated testimony of the victim of the offence, conviction cannot be said to be illegal. As a rule of prudence, corroboration may be sought. In the instant case, there was corroboration to the evidence of Babulal by his conduct. On being questioned as to why he was weeping, he reported about the incident to one Shambhumal who in his turn, took this boy Babulal to one Dharamsi and thereafter they approached the Police Station and the complaint came to be recorded. Further corroboration was from the medical evidence. The learned Judicial Magistrate, First Class, as well as the learned Sessions Judge have found that there was sufficient corroboration and further found that the evidence of this boy Babulal against whom, no reason was shown to indicate that he was in any way interested in falsely implicating these petitioner, is true evidence and deserves credence. It cannot, therefore, be said that the order of conviction could not have been passed in law.

(6) An important and interesting question that arises in this Revision Petition is whether the petitioner No. 2, Mansukhlal could have been convicted of the offence under Section 377 read with Section 511 of the Indian Penal Code, on account of his Act of putting his male organ in the mouth of Babulal Vithaldas, if that Act was one by him voluntarily. It was contended by the learned Advocate, Shri Mehta, for the petitioners, that no offence under Section 377 of the Indian Penal Code cold be said to have been established on account of such an Act, as it could not be said that there was any penetration and if there is no penetration, there would not be any carnal intercourse. Just like a kiss, it being only done to stimulate a desire to have a carnal intercourse. Section 377 of the Indian Penal Code with which we are concerned in the present Revision Petition, runs as under:- "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Explanation of it, runs as under:-

"Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in Section".

It will, therefore, mean that even mere penetration will be sufficient to constitute the carnal intercourse. There need not be necessarily a seminal discharge for constituting the carnal intercourse. Admittedly, this Act of the petitioner No. 2 was done voluntarily and orifice of the mouth is not naturally meant for having such carnal intercourse. It could, therefore, in my opinion, without any doubt be said that this act will be against the order of nature. The important question for consideration would be, whether it could be said that the petitioner No. 2 had carnal intercourse with this boy Babulal or could it be said that there was an attempt to commit this offence in question and whether it could be said that there was such an attempt made, by his voluntarily putting his male organ in the mouth which was an orifice, not to be used in the order of nature, for the purpose of carnal intercourse.

(7) The learned Advocate, Shri Mehta, invited my attention to the opinion expressed by the learned author, Mr. Havelock Ellis, in his book 'Psychology of Sex' Twelfth Impression, 1948, London. The relevant comments on page 41 made by him are as under:- "While the kiss may be regarded as the typical and normal erogenic method of contrectation for the end of attaining tumescene, there are others only less important. Any orifical contact 'between persons of opposite sex' is sometimes almost equally as effective as the kiss in stimulating tumescene; all such contacts, indeed, belong to the group of which the kiss is the type, Cunnilinctus (often incorrectly termed cunnilingus) and fellatio cannot be regarded as unnatural for they have their prototypic forms among animals, and they are found among various savage races. As forms of contrecttion and aides to tumescene they are thus natural and are sometimes regarded by both sexes as quintessential forms of sexual pleasure, though they may not be considered aesthetic. They become deviations, however, and this liable to be termed "perversions", when they replace the desire of coitus"

These latter words which are underlined by me (put in '..........' here - Ed.), are very important, if the stage of aforesaid act was for stimulating the sex urge, it may be urged that it was only a prelude to carnal intercourse. But when there is a deviation liable to be termed perversion, it would not be a mere prelude to carnal intercourse as it replaces the desire of coitus. In the instant case, it could hardly be said that the act was a prelude to sexual intercourse, i.e., it was with a view to excite passions, for having a sexual intercourse. The obvious reason being that this act was done not against a person of opposite sexual intercourse, i.e., a woman and eventually, there was no question exciting passions for a sexual intercourse. In the instant case, the evidence reveals that after the petitioners Nos. 1 and 3 held already committed the offence in question, which was carnal intercourse per anus, the boy began to get a lot of pain and hence, the petitioner No. 2 could not succeed in having that act. He, therefore, voluntarily did the act in question by putting his male organ in the mouth of this boy and there was also a seminal discharge and the boy had to vomit it out. It is ,therefore, evident that this act was the actual replacement of the desire of coitus.

(8) As urged by the learned Assistant Government Pleader, Mr. Vidhyarthi, what is important is whether there was an act of imitating the actual act of sexual intercourse or carnal intercourse. If it was an imitative act of sexual intercourse to appease his sex urge or the sexual appetite, it would be an unnatural offence, punishable under Section 377 of the Indian Penal Code. What is important to be seen is what is passing in the mind of a person performing such an act. If it is for the purpose of his imitating an act of sexual intercourse to appease his sexual urge and to satisfy his passions, it would amount to an offence, punishable under this act. He urged that in such a case, instrument of preparing one self for a sexual intercourse, becomes an instrument of user. That is clearly indicative of the fact that it is an act which is an imitative act of sexual intercourse to appease one's sexual appetite and that being against the order of nature as this orifice is not meant for such carnal intercourse, it amounts to an offence punishable under Section 377 of the Indian Penal Code.

(9) The learned Assistant Government Pleader, Mr. Vidhyarthi, invited my attention to Corpus Juris Secundum, Volume 81, pp. 369 and 370. Before I refer to it, it will be proper also to refer to page 367, as the learned Advocate Shri Mehta has urged before me that an opinion is expressed therein, in view of the statutory definition of 'Sodomy'. It is stated therein at page 367 that:

"In its broadest meaning, sodomy is the carnal copulation by human beings with each other against nature or with a beast in which sense it includes the crime against nature, bestiality, buggery, cunnilingus and fellatio. In its narrower sense sodomy is the carnal copulation between two human beings per anus, or by a human being in any manner with a beast.

Carnal copulation, as the phrase has ben used in the law relating to sodomy, means sexual intercourse, including such intercourse through the mouth. The phrase 'carnal copulation' has employed in a statute defining sodomy, must be given a meaning consistent with the entire context of the statute and does not have one meaning in connection with such copulation between human beings and a different meaning with respect to copulation between a human being and an animal."

At page 368 and 369, the following comments have been made:-

"Words used in statutory definitions of the crime of sodomy have been frequently construed as more comprehensive and as not depending on, or limited by the common law definition of the crime, at least as not dependent on the narrower definition of sodomy afforded by some of the common-law authorities and are generally interpreted to include within their provisions all Acts of unnatural copulation, whether with mankind or beast. Other authorities, however, have taken a contrary view, holding that the words used in the statute are limited by the common law definition of the crime where the words of the statute themselves are not explicit as to what shall be included

It is competent for the legislature to declare that the doing of certain Acts shall constitute the crime against nature even though they would not have constituted that crime at common law, and the statutory crime against nature is not necessarily limited to the common law crime of sodomy, but in imposing a punishment for the common law crime it is not necessary for the legislature to specify in the statute the particular Acts which shall constitute the crime.

Under statutes providing that whoever has carnal copulation with a beast, or in any opening of the body, except sexual parts, with another being, shall be guilty of sodomy, it has been held that the act of cunnilingus is not a crime, but that taking the male sex organ in to the mouth is sodomy On the other hand, under such a statute it has been held that the crime of sodomy cannot be committed unless the sexual organ of accused is involved, but there is also authority to the contrary. Under a statute defining sodomy as the carnal knowledge and connection against the order of nature by man with man, or in the same unnatural manner with woman, it has been held that the crime cannot be committed by woman with woman."

At page 370, the following observations have been made:-

"A statute providing that may person who shall commit any act or practice of sexual perversity, is either with mankind or beast, on conviction shall be punished, is not limited to instances involving carnal copulation, but is restricted to cases involving the sex organ of at least one of the parties. The term sexual perversity" does not refer to every physical contact by a male with the body of the female with intent to cause sexual satisfaction to the actor, but the condemnation of the statute is limited to unnatural conduct performed for the purpose of accomplishing abnormal sexual satisfaction for the actor. Under a statute providing that any person participating in the act of copulating the mouth of one person with the sexual organ of another is guilty of the offence a person is guilty of violating the statute when he has placed his mouth on the genital organ of another, and the offence may be committed by two persons of opposite sex".

It is true that in the Indian Penal Code, there is no such statutory definition of sodomy. The general words used, are 'whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal', shall be committing the offence under Section 377 of the Indian Penal Code. Words used are quite comprehensive and in my opinion, an act like the present act, which was an imitative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377 of the Indian Penal Code. This conclusion of mine gets support from the decision given in the case of Khanu v. Emperor, AIR 1925 Sind 286. The observations made therein are as under:--

"The principal point in this case is whether the accused (who is clearly guilty of having committed the sin of Gomorrah coitus oer os) with a certain little child, the innocent accomplice of his abomination, has thereby committed an offence under Section 377, Indian Penal Code.

Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings. Is the act here committed one of carnal intercourse? If so, it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings which in the case of coitus per os is impossible".

For a moment, I will pause here, as an argument is advanced by the learned Advocate, Shri Mehta, appearing on behalf of the petitioners that this theory that the sexual intercourse is only meant for the purposes of conception is an out-dated theory. It may be true. But at the same time, it could be said without any hesitation that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male organ in the mouth of a victim for the purposes of satisfying his sexual appetite, would be an act of carnal intercourse against the order of nature. Further observations made therein, which are material for our purposes, are as under:-- "Intercourse may be defined as mutual frequent action by members of independent organisation. Commercial intercourse is thereafter referred to; emphasis is made on the reciprocity".

It has been further observed as under:--

"By metaphor the word 'intercourse' like the word 'commerce' is applied to the relations of the sexes. Here also 'there is the temporary visitation of one organism by a member of other organisation, for certain' clearly defined and limited objects. The primary object of the visiting orgainsation is 'to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis'."

In my opinion, this is an important test laid down in this decision and I am in respectful agreement with it. It is further observed therein as under:--

"But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity. Looking at the question in this way it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy".

At page 287, it is observed as under:--

"it is to be remembered that the Penal Code does not, except in Section 3377, render abnormal sexual vice punishable at all. In England indecent assaults are punishable very severely. It is possible that under the Penal Code, some cases might be met by prosecuting the offender for simple assault, but that is a compoundable offence and in any case the patient could in no way be punished. It is to be supposed that the Legislature intended that a Tegellinus should carry on his nefarious profession perhaps vitiating and depraving hundreds of children with perfect immunity?

I doubt not therefore, that cotius per os is punishable under Section 377, Indian Penal Code."

In my opinion, much importance cannot be attached to a circumstance that in the Indian Penal Code, there is no section like relevant sections in England where indecent assaults are punishable very severely. It may be not be a good criterion or a material factor to arrive at the correct meaning of the words used in this Section. But looking to the ordinary meanings of these words given in the dictionary and bearing in mind the test laid down, namely, that the primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent of the sexual crisis, the act in question will, in my opinion, amount to an offence punishable under Section 377 of the Indian Penal Code.

(10) In the case of Khandu v. Emperor, 35 Cri LJ 1096 = (AIR 1934 Lah 261), Lahore High Court has also taken the same view. It has been observed therein as under:-

"Carnal intercourse with a bullock through nose is an unnatural offence punishable under Section 377, Penal Code."

The aforesaid decision of Sind Judicial Commissioner's Court was followed.

At pp. 1096 and 1097 (of Cri LJ) = (at p. 262 of AIR ) there are material observations which can be referred to with advantage, at this stage:-

"Mr. Ram Lal Anand I, who appears for the Crown has asked me, in fairness to the appellant to examine the question of law whether the act of the appellant amounts to an offence under Section 377 of the Indian Penal Code. He points out that there are some remarks in Rel. on. Govindarajulu Naicken, (1886) 1 Weir 382 which show that cotius per os (through the mouth) with a woman would not amount to an offence under Section 377, Indian Penal Code. The remarks, however are obiter dicta, Counsel relies on a Division Bench of decision of the Sind Judicial Commissioner's Court, where the learned Judicial Commissioner held in 87 Ind Cas 97: 26 Cri LJ 945: AIR 1925 Sind 286, that cotius per os does fall within the provisions of Section 377, Indian Penal Code. I agree with the view taken in the case last mentioned and on that analogy held that the offence of the appellant is punishable under Section 377, Indian Penal Code."

The learned author Retanlal, in his book Law of Crimes, 21st Edn., at p. 986, has made the following comments after referring to the Sind decision referred to, by me earlier;

"Where the accused forced open a child's mouth, and put in his private parts and proceeded to a completion of his lust, it was held that this did not constitute the offence of sodomy (Jacob's case, (1870) Russ & Rly. 331). In a Madras case it is considered doubtful whether the act of having connection with a woman in the mouth amounts to this offence: Govindarajulu Naicken, (1886) 1 Weir 382. Will this not be carnal intercourse against the order of nature? If it is, the act will amount to an offence under this Section. This decision, i.e., the Jacob's case proceeded upon a special statute which punished the crime of buggery. Under the Penal Code such an act will come under the provisions of this section." In K. J. Ayer's Manual of Law Terms and Phrases (as Judicially Expounded), 5th Edn., edited by Mr. R. Mitra, 1964 Edition, on p. 563, the meaning of the word 'sodomy is stated to be as under:- "Sodomy -A carnal knowledge committed against the order of nature by a man with a man or in the same unnatural manner with a woman, or by a man or woman in any manner with a beast. This is called buggery."

In Stroud's Judicial Dictionary, 3rd Edn., on p. 347, the word 'buggery' is said to be synonymous with 'sodomy'. In my opinion, sodomy will be a species and unnatural offence will be a generis. In our Indian Penal Code, an unnatural offence is made punishable under Section 377 of the Indian Penal Code. Unless we restrict the meaning of unnatural offence, for which there is no justification, the act in question will be an act, punishable under Section 377 of the Indian Penal Code. The learned Advocate, Mr. Mehta laid stress on the explanation given to the Section 377 of the Indian Penal Code, which runs as under:- "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."

He urged that what penetration connotes is piercing or forcing one's way, etc. In the instant case, it cannot be said that there was any such penetration. It can only be said that there was an insertion of penis in the orifice of mouth of the victim. In the offence of rape also, which is defined in Section 375, explanation runs as under:- "Penetration is sufficient to constitute sexual intercourse necessary to the offence of rape."

As already observed by me earlier, what is sought to be conveyed by the explanation is that even mere penetration will be sufficient to the constitute carnal intercourse necessary to the offence referred to in this Section 377 of the Penal Code. Seminal discharge, i.e., the full act of intercourse is not the essential ingredient to constitute an offence in question. The word penetration has been given a wider meaning in Webster's New 20th Century Dictionary, unabridged, 2nd Edn., on p. 1324 as under:-

"Penetration: v.t.; penetrated, p.t., pp.; penetrating, ppr. (L. Penetratus, pp. Of penetrare; Penas, within, and root tra, seen in intrare, to enter, trans, across).

1. to enter by piercing; to find or force a way into or though; as, the dart penetrated his skin; oil penetrates wood.

2. to have an effect throughout; to spread through; to permeate.

3. to imbue; to cause to feel; to move deeply; as, to penetrate with grief.

4. to reach mentally; to understand; to grasp the hidden meaning of; as, to penetrate his motives."

In the instant case, there was an entry of a male penis in the orifice of the mouth of the victim. There was the enveloping of a visiting member by the visited organism. There was thus reciprocity; intercourse connotes reciprocity. It could, therefore, be said without any doubt in my mind that the act in question will amount to an offence, punishable under Section 337 of the Indian Penal Code.

(11) The learned Session Judge has convicted this petitioner No. 2 only for an offence, punishable under Section 377, read with Section 511 of the Indian Penal Code. It could not, therefore, be said in view of the aforesaid discussion that the conviction of this petitioner No. 2 is bad in law. He has been rightly convicted of the offence in question.

(12) The learned Advocate, Shri Mehta had invited my attention to certain sections of Sexual Offences Act, 1956. It is a statue in force in England. Under the heading "Unnatural Offences", there are two sections. Section 12 reads as under:-- "(1) It is felony for a person to commit buggery with another person or with an animal................."

Section 13 runs as under:--

"It is an offence for a man to commit an act of gross indecency with another man, whether in public or private, or to be a party to the commission by a man of an act of gross indecency with another man, or to procure the commission by a man of an act of gross indecency with another man."

Section 14 deals with indecent assault with woman. Section 15 deals with indecent assault with man. Section 16 deals with an assault with intent to commit buggery.

These three sections fall under the heading 'Assaults'. A perusal of these sections of Sexual Offences act, 1956, reveals that only particular types of unnatural offences have been made punishable in England. Section 12 deals with buggery. Buggery is synonymous with sodomy. It, therefore, means that a particular species is made punishable. Gross indecency with a man is also made punishable under Section 13. In our Indian Penal Code, there is no such specification. All the unnatural offence have been made punishable under Section 377 of the Indian Penal Code. We have, therefore, to see whether the act in question falls within that section or not.

(13) As seen earlier, the act in question will amount to an offence, which would be punishable under Section 377 of the Indian Penal Code. The English decision, therefore, cannot be of any guide to determine the question that is posed in this case. The sentence awarded to any of these petitioners cannot be in the circumstances of the case, be said to be excessive. A boy who had come to Rajkot has been the victim of offence on the night of incident in question. Two persons actually committed the act of sodomy. One another person, who could not do it on account of acute pain felt by the boy, resorted to the act in question, namely, of putting his male organ in his mouth. I, therefore, see no justifiable reason to interfere with the discretion of the learned Magistrate in awarding the punishment which has been confirmed by the learned Sessions Judge so far as the substantive imprisonment is concerned. The result is that the petition fails.

(14) I will be failing in my duty, if I do not make a note in regard to the valuable assistance rendered by Mr. Vidhyarathi, the Assistant Government Pleader and Mr. H. M. Mehta, appointed on behalf of the petitioners as amicus curiae.

(15) The petition is dismissed. Rule is discharged.

(16) Petition dismissed.