S.377 Continues To Apply In Cases Involving Minors: Kerala High Court Upholds Conviction For Oral Sex

Justice A. Badharudeen was delivering the judgment in a criminal appeal filed against conviction under Sections 450 (house-trespass to commit offence), 354 (Assault or criminal force to woman with intent to outrage her modesty), and 377 (unnatural offences) IPC.

The prosecution case is that the appellant criminally trespassed upon the residential house of the victim girl and sexually seduced her, threatened and intimidated the girl, forcefully overpowered and denuded her and thereby her modesty was outraged.

The Sessions Court convicted the appellant of the offences under Section 450, 354 and 377 of the IPC by relying on the testimony of the victim and the other evidence submitted before the Court.

The appellant challenged the conviction on the ground that there was no medical corroboration and there was delay in reporting the offence. The alleged offence was committed on 12.12.2010 and the FIS was marked on 27.12.2010 and FIR was registered on 04.01.2011.

The appellant had also contended that since the ingredients of Section 377 IPC were not established, the foundation for invoking Section 450 collapsed.

The Court noted that in Anwesh Pokkuluri and Others v Union of India [(2018) 10 SCC (1)], the Supreme Court has held that the consensual sexual relationship between two adults, is not an offence under Section 377 of IPC. The Court added that the said dictum is not applicable when the victim is a minor. 

"Thus by the above decision the Apex Court held that the consensual sexual relationship between two adults, viz., man and a man, man and a woman and a woman and a woman is not an offence under Section 377 of IPC. But the said dictum of law would not apply when the victim is a minor." Court said. 

The Court relied on the testimony of the minor victim and found that the accused forcibly entered the house and committed acts constituting “carnal intercourse against the order of nature”, including forced oral penetration which attracted Section 377. 

"Thus from the oral evidence of PW1, the ingredients to bring home an offence punishable under Section 377 of IPC is fully made out and thus the prosecution succeeded in establishing the said offence. Therefore, the said finding entered into by the Additional Sessions Judge is only to be confirmed." Court noted. 

With the offence under Section 377 established, the Court concluded that the trespass was committed with the requisite intent to commit an offence punishable with life imprisonment, thereby justifying conviction under Section 450 IPC.

With regard to the delay in filing the FIR, the prosecution submitted that there was no deliberate delay in lodging the FIR on 12.12.2010 or a very near date as the victim revealed the incident a little bit late due to fear of fatality.

The Court noted that PW1's account was detailed, consistent, and withstood cross-examination without material contradictions. Her narration of the incident, including the manner of assault and subsequent threats, inspired confidence.

“Even though PW1 was subjected to searching cross examination, nothing elicited either to shake or to make her testimony unbelievable….On 27.12.2010 they reached the Vanitha cell and lodged Ext.P2 and produced MO1 and MO2 before the police. Apart from the evidence of PW2(mother of the victim), PW3(father of the victim) also support of the versions of PWs 1 and 2. The evidence of PW2 and PW3 also failed to be shaken by the defence with the aid of cross examination, though they were cross-examined thoroughly.” Court noted.

The Court found that the absence of definitive medical findings did not undermine the prosecution case, especially where the victim's testimony clearly established the ingredients of the offences.

Addressing the delay, where the incident occurred on 12 December 2010, but the statement was recorded on 27 December and FIR registered on 4 January 2011, the Court held that such delay was not fatal.

“As regards to the delay in lodging the FIS and consequential registration of FIR are concerned, PW1 and PW2 categorically justified the reasons for the delay and the same are found to be acceptable in cases where sexual assault against a minor is the subtractum of the prosecution case. Thus the contentions raised by the learned counsel for the accused/appellant to unsettle the conviction imposed by the learned Sessions Court is found to be untenable.” Court held.

The Court thus upheld the conviction imposed by the Sessions Court but partly allowed the appeal by modifying the sentence for the offence punishable under Section 377 of IPC as rigorous imprisonment for a period of five years, while maintaining all other sentences imposed by the Additional Sessions Judge as confirmed.

Case Title: Anil N v State of Kerala

Case No: Crl.A 581/ 2016

Citation: 2026 LiveLaw (Ker) 240

Counsel for Appellant: P. Vijaya Bhanu (Sr.), M. Revikrishnan, Vipin Narayan

Counsel for Respondent: Renjith George (Sr. PP)