Penetration, however little, is an offence under Section 377 (unnatural offences) of the Indian Penal Code (IPC), the Calcutta High Court recently observed while refusing to quash a criminal case involving charges under Section 377 and allegations of sexual torture of a medical student by his senior. [Dr Raunak Hajari @ Raunak Hajari & Anr v. The State of West Bengal & Anr]
Justice Shampa Dutt (Paul) further observed that even incomplete anal intercourse would constitute penetration, and that the same could be an ingredient to constitute the offence under Section 377 of the IPC.
“Penetration, however little is an offence. In the present case the opinion in the medical report is “No injury or evidence of complete anal intercourse could be detected” (so penetration however little (incomplete) in this case)…No injury or evidence of ‘Complete anal intercourse’ could be detected “is to be proved in trial as even incomplete anal intercourse prima facie proves penetration however little and is thus an essential ingredient (evidence) to prove the commission of offence under Section 377 IPC in this case,” the judgment stated.
The Court was hearing a case in which the accused was charged for committing an offence under Section 377 IPC, which now penalises non-consensual unnatural sexual intercourse after the Supreme Court’s ruling in Navtej Singh Johar v. Union of India.
Further, both the accused were charged with Sections 506 (criminal intimidation) and 120B (criminal conspiracy) of the IPC.
The complainant had alleged that he was forcibly undressed and sexually tortured for about two hours by a doctor, who was one of the two accused in the case. The complainant further claimed that both accused had threatened him against speaking about the incident to others.
The accused, however, contended that the complainant had filed a false case against them on account of political rivalry. In this regard, it was also highlighted that the complainant had addressed a letter to the Chief Minister on the alleged incident while also mentioning a meeting with a Member of West Bengal’s Legislative Assembly. As such, the accused claimed that the complaint was only filed to settle a political score.
Both the accused, therefore, moved the present plea to quash the case filed against them.
Commenting on the gravity of the allegations, Justice Dutt remarked that the incident, if true, was horrifying, and could lead to a mental breakdown and leave a person scarred for life.
“Filing a complaint of such nature on having to face the ordeal for two and half long hours by a student against a superior who is in a position of influence (here in a doctor) in a Medical College requires extreme courage and mental strength and in the interest of justice, the case should proceed towards trial so that the parties have the opportunity to access the protection of justice.”
Notably, a medical report prepared after examining the victim had stated that his anal orifice was healthy and that there was no fresh or recent injury. The report had presented an opinion that no injury or evidence of complete anal intercourse could be detected.
The Court observed that the medical officer who conducted the exam and prepared the report should be examined in trial so that the above finding could be clarified. For this, a trial is necessary in the interest of justice, the Court said.
The judge also noted that there were several statements in the case diary which supported the allegations of the complainant and made out a prima facie case against the accused. Hence, the Court declined to halt the criminal trial that was pending in the 2019 case.
The Court thus refused to quash the case after pointing out that the petitioners would also have an opportunity to be heard at trial.
Senior Advocate Milon Mukherjee and Advocates Usof Ali Dewan and Asif Dewan appeared for the petitioners. Advocates Arijit Ganguly and Sanjib Kumar Dan represented the State.