Transgender Person Convicted For Sexual Offence Committed Before Sex Change

A transgender person has been convicted by a Kerala Court for sexually abusing a 16 year-old-boy in 2016. 

The Special Judge of the Fast Track Special Court (POCSO), Thiruvananthapuram Aaj Sudarsan sentenced the convict to a rigorous imprisonment for a period of seven years for the offence punishable under Section 377 IPC. 

The Court in this case perused Section 377 of the Indian Penal Code. It noted that although the Apex Court had watered down the rigour of the provision through the decision in Navtej Singh Johar v. Union of India (2018), non-consensual act of unnatural sex with an adult or any manner of unnatural sex with a minor, be it with consent or not, would attract the offence under Section 377. 

"When the child, as in the instant case, is a male child, an offence against the accused under Section 376 IPC will not lie. So, when the accused, who was of a male gender in 2016 had done oral sex on PW3, it definitely comes under the definition of unnatural offence as contained in Section 377 IPC. The evidence adduced clearly attracts an offence punishable under Section 377 IPC and 3(d) r/w 4 of the POCSO Act," it was observed. 

It was submitted by the Public Prosecutor R.S. Vijay Mohan that the accused person had befriended the victim boy, who had been 15 years and 11 months on the date of the incident, at the Chirayinkeezhu railway station, and travelled with him to Thampanoor, where the victim was sexually assaulted in a public toilet at the KSRTC Bus Stand, Thampanoor.

The accused had been booked under Sections 377 IPC, 3(d) r/w 4, 7 r/w 8 of the POCSO Act, 2012 by the Sub Inspector of Police, Thampanoor Police Station. The incident came to light when the mother of the victim, who saw the messages in Facebook Messenger, realized that an untoward act had taken place. When she confronted the victim about it, he disclosed the incident to her.

The defence counsel, Advocate M. Unnikrishnan submitted before the Court that the accused had not been informed by the police as to the reasons for the arrest. It was contended that when the accused informed the police that complaints against illegal detention would be made to superior officer, the police framed the accused in the present case.

The defence counsel also pointed that the FIR had been registered against one Sachu Samson, while the one facing trial was a female, namely, Shefina. It was argued by the defence that the accused had been a transgender all throughout. A Certificate produced by the accused also showed that the person had undergone Gender Affirmative Medical Intervention.

During the cross examination, the victim (PW3) categorically deposed before the Court that only the physical structure of the accused had changed but the face had remained the same. The victim explained that the accused, who had the appearance of a female at the time of the trial, had been a male at the time of the incident.

A doctor in the evidence had said that “there is nothing to suggest that the above said person [accused] is not incapable of performing sexual act”.

"This piece of evidence along with the oral evidence of PW3 regarding identifying the accused in court clearly cuts at the root of the defence and establishes that the identity of the accused that she was a male at the time of the commission of the offence," the Court observed. 

The court also rejected the arguments of the defence on this aspect, and held that the reading of the entire evidence pointed to fact that the victim had "identified the accused standing in the dock (transformed transgender to female) as his perpetrator". 

On the argument regarding the delay in registration of the FIR, the court said the victim could have hidden the incident from his parents and peers out of shame or distress or dishonour. 

On finding the accused guilty of the offence, the court proceeded to the question of sentence. 

"Sexual abuse or sexual harassment is never contained to a present moment. It lingers across a person’s lifetime and has pervasive long-term ramifications. From the facts and circumstances of this case, it is found that it is not a fit case to invoke the provisions of the Probation of Offenders Act, 1958. The object of imposing sentence to an accused is also to be seen as a deterrence to the society. Sentencing the accused in this case is based on the evidence adduced and the gravity of the offence committed by her (accused) along with the factors concerning her (accused)," said the court.

The accused was accordingly sentenced to rigorous imprisonment for a period of 7 years and fine of Rs. 25,000/-.  

The Court added that in case of realization of the fine amount, the entire amount would have to be given to the victim as compensation under Section 357(1)(b) Cr.PC.

Case Title: State v. Sachu Samson