A. Pasayat, J.:— Petitioner faced trial for allegedly having committed coitus per os (sin of Gomorrah), was found guilty and convicted under section 377 of the Indian Penal Code, 1860 (in short ‘I.P.C’), and sentenced to undergo rigorous imprisonment for a period of two years by the learned Judicial Magistrate, First Class, Bhubaneswar. The conviction was maintained by the learned Additional Sessions Judge, Bhubaneswar, while the sentence was reduced to one year's rigorous imprisonment.
2. Factual position as described by the prosecution is that on 28-7-1987 at about 5 p. m. the petitioner called Swapna (p.w 1), a girl aged 6 years, who was playing with his daughter, and inserted his genital organ inside her mouth for which she came spitting and narrated the fact before her mother. After return of her father, a school teacher, the incident was narrated to him and first information report was lodged at 6.45 p. m. in the police station. The girl and the accused were sent for medical examination and on completion of investigation charge-sheet was submitted and the petitioner faced trial.
3. The plea of the accused was complete denial of the accusation.
4. Six witnesses were examined to further the prosecution version. P.w 1 is the victim girl, p.w 2 and p.w 3 are her father and mother respectively. P.w 4 is a witness to the seizure, p.w 5 is the medical officer and p.w 6 is the Investigating Officer. No witness was examined by the accused. On evaluation of the evidence, the learned Judicial Magistrate found the petitioner guilty and convicted and sentenced him as aforestated. He did not extend the benefits of the provisions of Probation of Offenders Act, 1958 to the petitioner.
5. Petitioner tried to highlight certain infirmities before the Courts below. His primary attack was to the acceptability of evidence tendered by the victim girl (p.w 1). She being a child witness, it was urged that her evidence was not free from vulnerability and no credence should be attached to her evidence. Non-examination of neighbours was also highlighted. The Courts below repelled the contentions with observations that the evidence of the victim girl was worthy of credence and merely because she was a child witness, her evidence was not to be discarded. It was held that her evidence was truthful even after careful scrutiny. Non-examination of neighbours was held not to be of any material consequence.
6. The learned counsel for petitioner in support of the revision application has urged primarily three points for consideration. (i) Acceptability of the prosecution version mainly depended on the veracity of the alleged victim girl's evidence, and her evidence is too brittle to be worthy of acceptance', (ii) non-examination of disinterested witness like neighbours casts grave shadow of doubt over prosecution version; and (iii) in any event, the offence as alleged did not fall within the ambit of section 377, I.P.C. A plea for lenient sentence in the alternative has been made.
7. I shall first deal with the point whether the evidence of p.w 1, the victim girl, is worthy of credence. Her evidence has been scrutinised in great detail by the Courts below. Though a child because of the impressionable age can be the victim of tutoring, yet with careful scrutiny, evidence of falsity can be separated from truth. A child witness usually because of his/her age is divorced from the complexities of life, and prone to be swayed by tutoring. Therefore, the evidence of a child witness has to be weighed with caution. The trial Court has the opportunity of assessing truthfulness of the witness from demeanour and behaviour in Court and discorning whether truth was spoken or tutoring is evident. When after careful examination, the trial Court has accepted the child witness's evidence to be truthful and the conclusion has been affirmed by the appellate Court, it is impermissible to take a different view while exercising revisional jurisdiction. The evidence prima facie does not reflect falsehood.
8. So far as non-examination of the neighbours is concerned, it has not been shown as to how the evidence was material. The neighbour was described as a post-occurrence witness. Therefore, non-examination of a neighbour does not in any way affect the credibility of the prosecution case.
9. The last is the most interesting contention, which centres round the question whether the act complained of is an offence encompassed by section 377, I.P.C
10. In order to attract culpability under section 377, I.P.C, it has to be established that (i) the accused bad carnal intercourse with man, woman or animal; (ii) such intercourse was against the order of nature; (iii) the act by the accused was done voluntarily; and (iv) there was penetration. Carnal intercourse against the order of nature is the gist of the offence in section 377. By virtue of the Explanation to the section, it is necessary to prove penetration, however little, to constitute the carnal intercourse. Under the English law, to constiture a similar offence the act must be in that part where sodomy is usually committed. According to that law; the unnatural carnal intercourse with a human being generally consists in penetration per anus. In R. v. Jacobs (1817) Russ and Ry 331 C.C.R, and in Govindarajulu In re, (1886) 1 Weir 382, it was held that the act in a child's mouth does not constitute the offence. But in Khanu v. Emperor; A.I R. 1925 Sind 286, it was held that coitus per os is punishable under the section.
11. In terms of section 377, I.P.C, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, commits the offence. Words used are quite comprehensive and an act like putting male organ into victim's mouth which was an initiative act of sexual intercourse for the purpose of his satisfying the sexual appetitie, would be an act, punishable under section 377, I.P.C.
12. In Corpus Juris Secundum, Volume 81, pp. 368-370, 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 into 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.
A statute providing that any 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 or 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.”
13. Though there is no statutory definition of ‘sodomy’, section 377 is comprehensive to engulf any act like the alleged act. View similar to mine was expressed in Lohana Vasantlal Devchand v. The State, A.I.R 1968 Guj. 252, and in Khanu's case (supra). The orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse. ‘Intercourse’ may be defined as mutual frequent action by members of independent organisation. Commercial intercourse is therefore referred to; emphasis is made on the reciprocity. 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 the other organisation, for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. But there is no intercourse unless the visiting member is enveloped at least partially by the visited organism, for intercourse connotes reciprocity and in this view it would seem that sin of Gomorrah is no less carnal intercourse than the sin of sodomy. These aspects have been illuminatingly highlighted in Khanu's case (supra).
14. In Stroud's Judicial Dictionary, the word ‘buggery’ is said to be synonymous with sodomy. In K.J Ayer's Manual of Law Terms and Phrases (as Judicially Expounded), the meaning of the word ‘sodomy’ is stated to be 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. As observed in Lohan Vasantlal Devchand's case (supra), sodomy will be a species and unnatural offence will be a generis. In the view of the matter, there can be no scope for any doubt that the act complained of is punishable under section 377, I.P.C.
15. The residual plea of the learned counsel for the petitioner was that the act may have been due to momentary lack of control over feelings. It is urged that there has been sufficient social ostracisation and humiliation as the victim girl was a friend of the petitioner's daughter and a lenient sentence would be meet and proper.
16. In Khanus case (supra), it was held that coitus per os is punishable under the section though not with the same severity as coitus per anus. In England under Sexual Offences Act, 1967, buggery is no longer an offence if committed in private between two consenting adults of and above the age of 21. But there has been criticism that the State's tight to suppress a social vice has been taken away. (See Observations of Lord Devlin as quoted by Cross and Jones in their Introduction to Criminal Law, 9th Edition, pp. 18-19.
17. Considering the submissions made, and the social ostracisation and humiliation likely to have been suffered by the petitioner, while negativing the prayer for release of the petitioner on probation. I modify the custodial sentence to the period already undergone., but impose a fine of Rs. 1,000/- (one thousand) with default sentence of sis months' rigorous imprisonment. If the fine is realised, fifty percent thereof shall be paid to the victim girl (p.w 1).
18. The revision application is dismissed with modification of sentence as indicated above.
Revision dismissed.
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