This may be the first Case in which the Supreme Court had an occasion to refer the much criticised Judgment in Suresh Kumar Koushal and Anr v. Naz Foundation & Ors . In this case the Supreme Court rejected the argument of the defence that the boy had voluntarily come to the accused and stayed with him, holding that “recently, this Court inSuresh Kumar Koushal and Another v. Naz Foundation and Others has also refused to strike down Section 377, even if such acts are indulged in by consenting individuals”. It is also held that “Indian society and also the International society abhor pederasty, an unnatural sex, i.e. carnal intercourse between a man and a minor boy or a girl. When the victim is a minor, consent is not a defence, irrespective of the views expressed at certain quarters on consensual sex”.“Consent of a passive agent is not at all a defence, but, in the instant case, though a suggestion was made that the boy had not resisted, being in the company of the accused for few days, is of no consequence, he being a minor. Prosecution has clearly established that, after subjecting the boy to Pederasty, he was strangulated to death”.
The case relates to a gruesome murder of a minor boy aged 10 years after subjecting him to carnal intercourse and then strangulating him to death. The accused was challenging the death sentence awarded by the trial Court and confirmed by the High Court.
S.377 of Indian Penal Code is held constitutionally valid by the Apex Court in Suresh Kumar Koushal and Anr v. Naz Foundation & Ors overruling the Delhi High Court Judgment in the Naz Foundation Case. While discussing the evidence relating to the commission of the offence under Section 377 IPC , Justice K.S. Radhakrishnan who wrote the judgment held as follows;
“Section 377 is mainly confined to act of sodomy, buggery and bestiality, which intends to punish a man when he indulges in a carnal intercourse against the order of nature with a man or, in the same manner, with a woman. Sodomy is termed as Pederasty when the intercourse is between a man and a young boy, that is, when the passive agent is a young boy. Modi's Medical Jurisprudence and Toxicology state that if a passive agent is not accustomed to sodomy, abrasions on the skin near the anus is likely to appear and lesions will be most marked in children while they maybe almost absent in adults, when there is no resistance to the anal coitus. Galster's Medical Jurisprudence and Toxicology say that lesions like recent lacerations, bruising, inflammation of the mucous membrane could be noticed in passive agent.
Section 377 postulates penetration by the penis into the anus and the merest penetration suffices to establish the offence. PW4 has clearly noticed that "Anus dilated and appears patalous, perional margin and mucosa appear inflamed". DNA test also proved that anal smear matched with the DNA profile of smear stains, which also matched with the control sample of the accused. Consent of a passive agent is not at all a defence, but, in the instant case, though a suggestion was made that the boy had not resisted, being in the company of the accused for few days, is of no consequence, he being a minor. Prosecution has clearly established that, after subjecting the boy to Pederasty, he was strangulated to death”.
While dealing with question of sentence the Court held that “Legislative policy is discernible from Section 235(2) read with Section 354(3) of the Cr.P.C., that when culpability assumes the proportions of depravity, the Court has to give special reasons within the meaning of Section 354(3) for imposition of death sentence. Legislative policy is that when special reasons do exist, as in the instant case, the Court has to discharge its constitutional obligations and honour the legislative policy by awarding appropriate sentence that is the will of the people. We are of the view that incarceration of a further period of thirty years, without remission, in addition to the sentence already undergone, will be an adequate punishment in the facts and circumstances of the case, rather than death sentence”.
The Bench also re-iterated the principles relating to the imposition of Capital sentence. In Para-31 of the judgment it is held as follows; “In Bachan Singh, this Court has categorically stated, "the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society", is a relevant circumstance, that must be given great weight in the determination of sentence. This was further expressed in Santosh Kumar Satishbhushan Bariyar . Many-a-times, while determining the sentence, the Courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the Court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. Facts, which the Courts, deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case”.