Bench:

Rajendra Babu CJ, G.P. Mathur

Issue:

Should sexual abuse of minor children and women by penetration other than penile/vaginal penetration be treated as offences falling under Section 354 of the IPC as outraging the modesty of a woman or under Section 377 IPC as unnatural offences?

Facts:

• The petitioner is an NGO who filed a writ petition in the context of increased sexual violence against children and women.
• The crime or violence committed against the women and children shall be categorized as per the following where Section 375 and Section 376 enumerates rape and its provisions and Section 377 as unnatural offences and Section 356 as outraging the modesty of a woman.
• The bifurcation of the offence committed purely depends upon the interpretation of the statutes.

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Appellant's contentions:

It was contended that the sexual abuse of children and womenby penetration other than penile/vaginal penetration as penile/anal penetration, finger/vaginal and finger/anal penetration and object and vaginal penetration shall be treated as offences committed under Section 375 and Section 376 of IPC which envisages rape and its punishment respectively.

Respondent's contentions:

The respondent claimed that sexual penetration as penile/anal penetration, finger/vaginal and finger/anal penetration and object and vaginal penetration are most unnatural forms of perverted sexual behaviour for which Section 377 provides stringent punishment.

Judgement:

The Court disposed of the writ petitionwith following directions that “Section 327 (2) Cr.P.C i.e. Notwithstanding anything contained in sub- section (1), he inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in camera: Provided that the presiding judge may, if he thinks fit, or on an application shall also be applicable in inquiry or trial offences under sections 354 and 377 IPC.

In holding trial of child sex abuse or rape

(a) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the President Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

It was in addition to the directions as per State of Punjab v. Gurmit Singh that such trial in camera would enable the victim of crime to be a little comfortable and answer the questions with greater ease and thereby improve the quality of evidence of a prosecutrix because there she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of the public. It was further directed that as far as possible trial of such cases may be conducted by lady Judges wherever available so that the prosecutrix can make a statement with greater ease and assist the court to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities.

Furthermore, the suggestions made by the petitioners will advance the cause of justice and are in the larger interest of society. The cases of child abuse and rape are increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that the Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves.”

-Para 33,34,35 (Sakshi vs Union of India)