Expanding minor’s anus by hands, pouring liquid into it… prima facie no carnal intercourse: HC

Justice Bharati H Dangre noted that unnatural offences under Section 377 of the Indian Penal Code (IPC) involved penetrative sexual intercourse.

The HC granted bail to the accused on the condition that he should not establish contact with the girl or her family. It also asked the man to cooperate with the probe and report to the police station every Monday.

The accused was booked in September 2019 for offences punishable under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 377 (unnatural offences) of IPC and provisions of sexual harassment and assault under the Protection of Children from Sexual Offences (POCSO) Act.

As per the FIR, the incident took place on September 30, 2019, when the girl was playing outside her house with a friend. When the two returned home, the friend informed the girl’s mother that a bearded person had removed the girl’s clothes, expanded her anus with his hands and poured red-coloured water into it.

The mother then lodged a complaint with the police, leading to the man’s arrest. A special court in August 2020 rejected the man’s bail plea, following which he moved HC.

Advocates Ganesh Gole and Ateet Shirodkar, appearing for the man, told HC that no offence under Section 377 could be made out. They claimed that as the offences under POCSO provide punishment from three to five years, and the man has already been incarcerated for nearly three years, he should be released on bail.

The HC observed that in regard to the offences under POCSO, the “victim’s version that the applicant slept over her, would fall within sexual assault and sexual harassment, which would, on conviction, entail imprisonment up to five years… but as on date, since the applicant is incarcerated for almost three years, he deserve his release on bail”.

It noted that the findings of a October 1, 2019, medical examination report of the girl, were “consistent with sexual intercourse/assault” and no injuries to the anus were recorded.

The court added that surprisingly, while the medical exam conducted three days after the incident had recorded that the girl was subject to “penetrative sexual contact”, the police complaint did not mention the same.

“What would amount to an unnatural offence is not defined, but as indicated in Section 377, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, is liable for punishment under the said Section,” Justice Dangre noted, adding that the “grave offence” can invite imprisonment up to 10 years.

She added, “Carnal intercourse in Section 377 is clearly distinguishable from sexual intercourse as defined in Section 375 (rape) IPC… Carnal knowledge is an archaic or legal euphemism for sexual intercourse but the modern statutes like the POCSO Act apply the term ‘sexual penetration’… It would at the most, indicate that as per Section 377, only the penal vaginal sexual intercourse is natural and all other forms of carnal intercourse such as anal or oral are unnatural.”

“The alleged 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… the flesh or sensual pleasure.”

The HC clarified that its observations are prima facie and shall not bind the special judge while conducting the trial in the case.