Chhattisgarh HC Reduces Man's Sentence U/S 377 IPC For Sodomising Friend After Watching Porn, Says He Deserves Some Repreive

The Chhattisgarh High Court has recently reduced the sentence of a man convicted for having unnatural/anal sexual intercourse with a friend after watching certain pornographic contents on his mobile phone.

Justice Rajani Dubey, though maintained the conviction under Section 377 (Unnatural offences) IPC, was of the view that the accused-appellant deserves some reprieve, especially considering his incarceration for the last five years. The Bench observed –

“Considering the facts and circumstances of the case, overall evidence adduced by the prosecution, the mode and manner in which the incident had taken place, in my view, some reprieve in the matter of sentence deserves to be given to him.”

The court however set aside the man's conviction under Section 4 (Punishment for penetrative sexual assault) of POCSO after observing that the prosecution "failed to prove" that the victim was a minor at the time of the incident. 

It however said, "but for the offence punishable under Section 377 of the IPC, he shall be required to undergo rigorous imprisonment for 07 years. The amount of fine for the offence under Section 377 of IPC as imposed by the learned trial Court will remain the same and in default of payment thereof, he shall be required to undergo six month's rigorous imprisonment.The criminal appeal is allowed in part with the above modification in the sentence". 

Case Background

On October 15, 2020, the victim/complainant lodged a complaint with the police informing that on the same day, at around 11.00 AM, he had visited the quarter of his neighbour, i.e. the appellant. At that time, the appellant was watching his mobile in his room. The victim being a friend also sat on the bed of the appellant and started watching the appellant's mobile.

It was alleged that the appellant was watching pornographic movie/clips by putting a pen drive in the mobile. After a few while, when the victim/complainant was leaving the appellant's room to return to his quarter, the appellant caught hold of his hand and forcefully laid him down on his bed, pulled down his (victim's) pant and committed unnatural sex inserting his penis in victim's anus which caused immense pain to the victim.

Following the registration of FIR, the medical examination of the appellant as well as of the victim was conducted. Upon finding prima facie material against the appellant, the police filed charge-sheet against him for commission of offences under Section 377 of IPC and Section 4 of the POCSO Act.

After appreciation of evidence of record, the trial Court found the appellant guilty for both the charges and sentenced him to undergo 10 years rigorous imprisonment for each of the offences and also imposed the fine amounts. Both the sentences were directed to run concurrently. Being aggrieved, the appellant filed this criminal appeal challenging the findings of the trial Court.

Court's Observations

The Court went through the birth certificate which indicated the date of birth of victim to be March 09, 2003. However, it noted that the said birth certificate was issued on August 31, 2013 after 10 years of the birth of victim. The question which arose for consideration was whether the birth certificate issued with such a long delay can be relied upon for determination of age of victim in criminal cases.

It held that the birth certificate is a strong proof for determination of the age of a person. For regulating the registration of births and deaths and matters connected therewith, the Parliament enacted the Registration of Births and Deaths Act, 1969. Section 13(3) thereof provides as follows –

“Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.”

The father of the victim admitted that the victim was born in Jamuna, Kotma, District Anuppur (Madhya Pradesh) and his birth certificate was issued by the competent authority of Korba in the year 2013. Further, the prosecution did not file any document of Kotwar of Jamuna, Kotma, District Annuppur (M.P.) nor it filed any documents regarding the inquiry proceeding of competent authority of Korba regarding delay in registration of date of birth in view of Section 13(3).

The Principal of a primary school, which was previously attended by the victim, was also examined as a prosecution witness. She admitted that at the time of admission of the victim in class 6, the date of birth was recorded in the Dakhil Kharij Panji on the basis of date of birth written in transfer certificate of class 5th.

She pleaded lack of knowledge as to from which school the victim had come after studying 5th class. She also could not tell about documents, if any, which were brought by the victim at the time of his admission in her school in order to prove his date of birth.

The Court relied upon the case of Alamelu & Anr. v. State, represented by Inspector of Police, (2011) where the Supreme Court held that the transfer certificate which is issued by government school and is duly signed by the headmaster would be admissible in evidence under Section 35 of the Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the victim in the absence of any material on the basis of which the age was recorded.

Therefore, as in the present case, as the source on the basis of which the date of birth of the victim was recorded in the register was unclear and since credibility of the birth certificate was under suspicion as the same was issued after about 10 years of the birth of victim, the Court found it difficult to arrive at a definite conclusion that the victim was a minor at the time of incident.

“After considering the facts and circumstance of the case and the evidence with regard to the age of the victim, the finding of the learned trial Court to the effect that the victim on the date of incident was minor, is set aside and the appellant is acquitted from the charge under Section 4 of POCSO,” it ordered.

So far as the culpability of the appellant for commission of offence under Section 377 of the IPC was concerned, the Bench examined the statement of the victim. He consistently deposed that while he was sitting on the bed, the appellant started watching pornographic movie/clip in his mobile. Thereafter, the appellant pulled down his pant and slept over him. He also stated that he started screaming and the appellant inserted his penis in his anus.

The doctor also opined that the injuries found around the anal region of the victim confirms commission of unnatural sexual offence. That apart, forensic report also reaffirmed the presence of semen and human sperm in anal slides of victim.

“This Court does not find any illegality or infirmity in convicting the appellant under Section 377 of IPC and the conviction of the appellant under this section is maintained while acquitting him under Section 4 of POCSO as the prosecution has utterly failed to prove the age of the victim below 18 years of age as discussed above in this judgment,” it held.

Although the conviction of the appellant for commission of offence under Section 377 of IPC was upheld, the Court took into consideration the plea on behalf of the appellant that he has faced severe mental agony in the last few years and therefore, a sympathetic view may be taken in favour of him as far as his sentence is concerned.

Justice Dubey weighed in the mode and manner in which the incident occurred and accordingly, she was of the view that the appellant deserves “some reprieve” in his period of sentence.

It thus partly allowed the appeal. 

Case Title: X v. State of Chhattisgarh

Counsel for the Appellant: Mr. T.K. Jha, Advocate

Counsel for the State: Ms. Nand Kumari Kashyap, Panel Lawyer

Citation: 2025 LiveLaw (Chh) 31

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