INDIAN PENAL CODE

PROJECT REPORT ON

“UNNATURAL OFFENCE”
SECTION 377

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INDEX

SNO PARTICULARS PAGE

NO
1 TABLE OF CASES 4

2 UNNATURAL OFFENCES (SECTION 377, INDIAN 5

PENAL CODE)

3 ESSENTIALS OF SEC. 377 6 - 11

4 CONSTITUIONALITY OF SECTION 377, INDIAN 12 - 16

PENAL CODE

5 BIBLIOGRAPHY 17

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TABLE OF CASES
Cases

Amit v State of UP (2012) 4 SCC 107.........................................................................................................9

Chittranjan Das v. State of Uttar Pradesh AIR 1974 SC 352....................................................................10
Fazal Rab Choudhary v State of Bihar AIR 1983 SC 323.....................................................................8, 10
Kedarnath S/o Bhagchand v State of Rajasthan 1985 (2) WLN 560............................................................6
Khandu v Emperor AIR 1934 Lah 261........................................................................................................7
Khandu v Emperor, AIR 1934 Lah 261.......................................................................................................5
Lohana Vasantlal Doechand v. State of Gujarat [AIR 1968 Guj. 252],.......................................................6
Lohana Vasntlal Devchand v. State AIR 1968 Guj 252...............................................................................7
Mihir alias Bhikari Charan Sahu v State 1992 Cr LJ 488 (Ori)...................................................................8
Naz Foundation v. Govt. of NCT, 2010 CrLJ 94.........................................................................................4
Nowshirwan Irani v. Emperor AIR 1934 Sind 206.....................................................................................8
Om Prakash v State of Haryana 2 Crimes 250 (251) (Punj & Har.)..........................................................10
Ou v The State of Maharashtra CRIMINAL APPLICATION NO.2581 OF 2009......................................9
Raju v State of Haryana 1998 Cr LJ 2583 (2592)........................................................................................9
Ratan Mia v State of Assam 1988 Cr LJ 980 (Gab).....................................................................................8
State of Kerala v. Kundumkara Govindnan and Anr 1969 CrLJ 252...........................................................6
Suresh Kumar Koushal & others v. NAZ Foundation & others CIVIL APPEAL 10972 OF 2013............11

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UNNATURAL OFFENCES (SECTION 377, INDIAN PENAL
CODE)
The term Unnatural Offence is defined under Chapter XVI of the Indian Penal Code, which
contains the “Offences Affecting the Human Body”. The provision on “Unnatural Offences”
under Sec. 377 is as follows:

“Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal shall be punished with imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to fine.”

This law was modeled on the Buggery Act, 1533 which made buggery an unnatural offence
against the will of God and man. “Acts of sodomy were penalized by hanging under the Buggery
Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the
charter for the subsequent criminalization of sodomy in the British colonies”.1

TYPES OF UNNATURAL OFFENCES:

Sec. 377 provides punishment for what is known as bestiality, buggery, lesbianism and sodomy.
These offences consist in having a carnal intercourse against the order of nature by a man with a
man or in the same unnatural manner with a woman or by a man or woman in any manner with a
beast.2

BUGGERY: It is the crime of a man having intercourse per anum with a man or a woman or
animal.3Consent is no defence and both the parties are guilty.

BESTIALITY: The offence of a human of either sex having unnatural sexual relations with an
animal per anum or per vaginam. 4 Its means the sexual intercourse either by a man or by a
woman carried out in any way with a beast or bird.5 Carnal intercourse with a bullock through a
nose was held to be an offence under sec. 377.6

SODOMY: It denotes intercourse per anus by a man with a man or with a woman or with an
animal. Sodomy may be either homosexual or heterosexual. In case the parties are of same sex, it
will be termed as homosexual and if the parties are of opposite sex it will be called as

1
Naz Foundation v. Govt. of NCT, 2010 CrLJ 94.
2
Ram Jethmalani, “The Indian Penal Code”, Thomson Reuters at P. 1674
3
K. D. Gaur, “ Textbook on Indian penal Code”, Universal Law Publishers at P. 558
4
Ibid at P. 558
5
K. D. Gaur, “Commentary on the Indian Penal Code”, Universal Law Publishers at P. 1248
6
Khandu v Emperor, AIR 1934 Lah 261

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heterosexual. The person affecting the intercourse is known as the “agent” and the other party is
called the “patient”.7

ESSENTIALS OF SEC. 377

In Calvin Francis v Orissa8, the Orissa HC observed that in order to attract culpability under
Sec. 377 it has to be established that:

(i) The accused had carnal intercousrse with man, woman or animal

(ii) Such intercourse was against the order of nature

(iii)The act by the accused was done voluntarily

(iv)There was penetration.

CARNAL INTERCOURSE

The word ‘carnal’ has been defined as relating to physical, especially sexual, needs and
activities.9 This section further makes it clear that penetration is sufficient to constitute the carnal
intercourse. The word ‘intercourse’ was considered in numerous cases.

In the case of State of Kerala v. Kundumkara Govindnan and Anr. 10 It was held that there is no
intercourse unless the visiting member is enveloped at least partially by the visited organism, for
intercourse connotes reciprocity. In intercourse between the thighs, the visiting male organ is
enveloped at least partially by the organism visited, the thighs: the thighs are kept together and
tight. The word 'inserts' means place, fit, thrust.' Therefore, if the male organ is 'inserted' or
'thrust' between the thighs, there is 'penetration' to constitute unnatural offence. Committing
intercourse between the thighs of another is carnal inter, course against the order of nature.

7
K. D. Gaur, “Commentary on the Indian Penal Code”, Universal Law Publishers at P. 1248
8
1992(2) Crimes 455
9
oxford
10
State of Kerala v. Kundumkara Govindnan and Anr 1969 CrLJ 252

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In Lohana Vasantlal Doechand v. State of Gujarat 11it was observed that even mere penetration
will be sufficient to constitute the carnal intercourse and there need not be necessary a seminal
discharge for constituting the carnal intercourse.

In the case of Kedarnath S/o Bhagchand v State of Rajasthan 12 where the dead boy of a boy of
13 years old was found near a well and in the post mortem various injuries were found on his
body and also human spermatozoa was found in the rectum of the deceased. So only on the basis
of presence of human spermatozoa it was concluded that the boy was subject to carnal
intercourse.

WITH MAN, WOMAN OR ANIMAL

The offence of carnal intercourse committed is punishable if committed against any man, woman
or animal. “Man” and “Woman” have been defined in Sec. 10, Indian Penal Code as a male
human being of any age and as a female human being of any age respectively.

Yet there are offenders who have misconducted themselves with animals such as cows and
buffaloes, mares and fowls.13 The word “animal” has been defined in Sec. 47, IPC as any living
creature other than a human being. But Carnal knowledge, whether by man or woman, with an
inanimate object would not be within the rule, for the section is enacted to punish an unnatural
offence.14

AGAINST THE ORDER OF NATURE

Every organ of the body has a particular function to perform but if the particular organ is being
used for a purpose other than its natural use, it is termed as “unnatural” or “against the order of
nature.”

15
In the case of Khandu v Emperor it was held that “the natural object of carnal intercourse is
that there should be the possibility of conception of human beings, which in the case of coitus
per os is impossible”. The courts in India have interpreted the term “Carnal intercourse against

11
Lohana Vasantlal Doechand v. State of Gujarat [AIR 1968 Guj. 252],
12
Kedarnath S/o Bhagchand v State of Rajasthan 1985 (2) WLN 560
13
Dr. Hari Singh Gour’s,” Penal Law of India”, Law Publishers (India) Pvt. Ltd. at P. 3681
14
Ibid at P. 368
15
Khandu v Emperor AIR 1934 Lah 261

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the order of nature” so broadly that it now includes from oral and anal sex to penetration into
artificial orifices such as folded palms or between thighs.

In the case of Lohana Vasntlal Devchand v. State16, the issue was whether oral sex amounted
to an offence under Sec. 377, Indian Penal Code. It was held that the "orifice of the mouth is not,
according to nature, meant for sexual or carnal intercourse." Hence, it was held to be against the
order of nature.

In the case of Calvin Francis v Orrisa17 the Orissa High Court observed that an act like putting
male organ into victim's mouth which was an initiative act of sexual intercourse for the purpose
of his satisfying the sexual appetite, would be an act punishable under Section 377, IPC.

ATTEMPT TO COMMIT OFFENCE

The offence under this section requires penetration, however little. Hence, an attempt to commit
this offence should be an attempt to thrust the male organ of the offender into the anus of the
passive agent. A mere preparation for the operation is not enough. 18Some activity on the part of
the accused in that particular direction ought to be proved.19

In the case of Nowshirwan Irani v. Emperor20it was held that where offender made every
preparation to satisfy his lust by carnal intercourse but he spent himself before he could thrust his
organ in, he cannot be held guilty of an attempt to commit this offence.

PUNISHMENT PROVIDED & ACTUAL SENTENCING UNDER SEC.377

The punishment provided under Sec. 377 is of imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to fine. But
the actual sentence awarded by our judiciary is not usually heavy 21 which has been observed in
number of cases. Based upon some Considerations the sentence has been reduced in following
cases:-

16
Lohana Vasntlal Devchand v. State AIR 1968 Guj 252
17
Calvin Francis v Orrisa 1992 (2) Crimes 455
18
Dr. Hari Singh Gour’s,” Penal Law of India”, Law Publishers (India) Pvt. Ltd. at P.3682
19
B at P. 2175
20
Nowshirwan Irani v. Emperor AIR 1934 Sind 206
21
http://shodhganga.inflibnet.ac.in/bitstream/10603/137067/14/14_chapter_05.pdf

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1. No use of Force.

In the case of Fazal Rab Choudhary v State of Bihar 22 the accused was convicted for an offence
under Sec. 377 on a young boy and was sentenced to rigorous imprisonment of 3 years. But in
appeal the punishment was reduced to 6 months as he didn’t use any force on the boy. While
reducing the sentence the court observed that: “Neither the notions of permissive society nor the
fact that in some countries homosexuality has ceased to be an offence has influenced our
thinking.”

2. Financial Status of Offender

In Mihir alias Bhikari Charan Sahu v State 23 the court confirmed conviction of the accused
under section 377 IPC, but considering that the accused has a broken family life and belonged to
lower· strata of society, his sentence of rigorous imprisonment for three years was reduced to
two years.

3. Age of Offender

In the case of Ratan Mia v State of Assam 24is another glaring example where accused was less
than 21 years old boy committed unnatural offence under Sec. 377 and the court reduced the
sentence of 6 months rigorous imprisonment imposed by the trial court, In spite of the fact that
section 6 of the Probation of Offenders Act, 1959 would not permit him to be released on
probation.

In the case of Raju v State of Haryana25 the appellant who was 20/21 years old was found guilty
of committing sodomy upon a female of 9 years and sentenced to three years imprisonment. The
Court held the accused should be kept in an environment of an institution other than a jail to
ponder and repent over his perversity and that the punishment under the circumstances is
adequate.

4. Chances of Reformation.
22
Fazal Rab Choudhary v State of Bihar AIR 1983 SC 323
23
Mihir alias Bhikari Charan Sahu v State 1992 Cr LJ 488 (Ori).
24
Ratan Mia v State of Assam 1988 Cr LJ 980 (Gab).
25
Raju v State of Haryana 1998 Cr LJ 2583 (2592)

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Along with age, chances of reformation of accused are also an important factor in determination
of sentence. In Amit v State of UP26 the accused committed unnatural sex with a minor girl of
aged 3 years and later killed him. The trial court imposed death penalty for the offence of
murder. The Supreme Court converted the death sentence of the accused into imprisonment for
life on the ground that accused was a young person aged about 28 years only. Also, there was no
evidence to show that he had committed similar offences before and there was also nothing on
evidence to show that he is likely to repeat similar crimes in future. The court held that given a
chance, he may reform over a period of years.

5. Intention of the Accused

In the case of Ou v The State of Maharashtra27 the accused tried to penetrate inside a 14 months
old child. The complete penetration did not happen because the child cried out in pain which was
heard by outsiders and also her mother in the adjoining house and they prevented further harm.
The intention to commit the act was clearly seen in this case. The court also stated that “the
extremely tender age of the child makes the acts of the accused even more deplorable calling for
stringent punishment”. The accused was sentenced to life imprisonment by the lower courts.
However, the Supreme Court modified the punishment and reduced it to 10 years because the act
of the accused was stopped in between and there was no complete penetration.

6. Consent as Mitigating Factor

In Fazal Rab Choudhary v State of Bihar28 two men were engaged in a consensual relationship.
The lower courts sentenced the accused to a rigorous imprisonment of three years. The accused
filed a special leave petition in the Supreme Court demanding reduction of sentence. In this case,
there was no force used and the act was consensual. The court held that in judging the depravity
of the action for determining quantum of sentence, all aspects of the matter including the nature
of the offence and whether any force was used by the accused must be taken into account.

7. Highly Qualified Person

26
Amit v State of UP (2012) 4 SCC 107
27
Ou v The State of Maharashtra CRIMINAL APPLICATION NO.2581 OF 2009
28
Fazal Rab Choudhary v State of Bihar AIR 1983 SC 323

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In the case of Chittranjan Das v. State of Uttar Pradesh, 29the appellant a highly qualified and
cultured individual, was suffering from mental aberration committed the offence of sodomy.
While confirming the conviction, the apex court in the view of serious consequences of loss of
service as a result of conviction of appellant, reduced the sentence to the period of two months
already undergone and observed that it will meet the ends of justice.
Also in the case of Om Prakash v State of Haryana30 where the accused was a teacher found
guilty of committing sodomy on a student, considering the educational background and serious
consequences concerning his job, the High Court reduced the period of sentence already
undergone.

29
Chittranjan Das v. State of Uttar Pradesh AIR 1974 SC 352
30
Om Prakash v State of Haryana 2 Crimes 250 (251) (Punj & Har.)

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CONSTITUIONALITY OF SECTION 377, INDIAN PENAL
CODE

The debate on the topic whether the Sec. 377 is constitutional or not began with the Public
Interest Litigation which was filed by the Naz Foundation, an activist foundation in the year
2001. The purpose of this PIL was the legalization of the homosexual intercourse between two
consenting adults. But in the year 2003, Delhi HC refused to consider this petition and held that
the petitioners had no locus standi in this matter.

But Supreme Court allowed the petition and sent back to the Delhi HC. Eventually, by the
decision of the Court in Naz Foundation v. Govt. of NCT of Delhi, the court overturned the
150 years old law. The court found that Sec 377 is unfair and unreasonable and hence it is a
breach of Art. 14 of the Constitution and also held that that sexual orientation is a ground
analogous to sex and that discrimination on the basis of sexual orientation is not permitted by
Article 15. It declared that Sec 377 so far as it criminalizes the consensual sexual acts of adults in
private is violative of Art. 14, 15 and 21.

A batch of appeals was later filed against the decision of the Delhi High Court in the SC. The
matter went to the SC in the case of Suresh Kumar Koushal & others v. NAZ Foundation &
others31.The petitioners in the present case were Suresh Kumar an astrologer, various religious
organizations and the Delhi Commission for Protection of Child Rights. The respondents
included various NGOs and organizations involved in the LGBT movement as well as mental
health professionals.

International position of LGBT community.

1. There have been many positive developments in favor of Lesbian, Gay, Bisexual and
Transgender (LGBT) community on the international front. In May 2015, Ireland legalized
same-sex marriage. The country which had decriminalized homosexuality in 1993 became
the first country to allow same sex marriage a national level by popular vote.

31
Suresh Kumar Koushal & others v. NAZ Foundation & others CIVIL APPEAL 10972 OF 2013

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2. In June 2015, the US Supreme Court ruled that same sex marriages were legal. Near home,
Nepal legalized homosexuality in 2007 and the new Constitution of the country too gives
many rights to the LGBT community.
3. France, UK, Canada, United States, Australia and Brazil have de-criminalized
homosexuality. Other countries like Belgium, Brazil, Canada, France, Iceland, Ireland,
Luxembourg, Norway, Portugal, South Africa, Spain, Sweden and Uruguay allow either
same sex marriage or a civil union.
4. India currently stands with a host of countries such as Nigeria, Ghana, Iran, Saudi Arabia,
Afghanistan, Mauritania, Qatar and Pakistan which criminalizes homosexuality.32\

STATE OF WEST BENGAL v SANJAY @ BATUL HALDER (2015)

Date of Judgment - 30 March, 2015

In the present case, the accused was alleged to have committed carnal intercourse with his step
son (aged 13 years), whom he disliked and used to beat him a lot. One day, the accused and his
step son went out on bicycle and after some time the accused returned without the victim. The
mother of the victim searched for him a lot but failed. So she filed FIR for his lost son. There
was a witness who saw the victim and his father together. Thereafter the place was searched and
the body of victim was found. The post mortem of the victim revealed the transverse ligature
mark on his neck, injuries on lips, ears, anal orifice up to 5 cm. The position of his anal passage
was found consistent with the fact that the victim was subject to regular carnal intercourse. The
Court also considered the fact that the victim told his mother few days before his death that his
step father used to “do bad things with him as husband and wife”. This was held to fall within the
scope of Sec. 32(1) of the Indian Evidence Act, 1872 as dying declaration. The Court held it is
not necessary that such circumstance should be proximate, for, even distant circumstances can
also become admissible under the sub-section, provided it has nexus with the transaction which
resulted in the death. Considering all the circumstantial evidences, the court convicted the
accused for offences under Sec. 302, 377 and 201 and sentenced to 25 years of imprisonment.

32
http://iasscore.in/national-issues/-should-homosexuality-section-377-of-ipc-be-decriminalized-

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STATE v JITENDER(2016)

Date of Judgment – 13th Jan, 2016

Tried by – Metropolitan Magistrate, Delhi(South East)

In this case, the accused did carnal intercourse against the order of nature on the victim; a boy
aged 8 years in his own room. The fact was discovered by the mother when he heard her child
crying and noticed that blood was coming out of his anus. As per the medical examination report
possibility of anal insertion of penis or penis like object was made out and also the report stated
there was a superficial tear at anal verge extending into anal canal, the margins of the tear were
reddish, tender and there was bleeding on touch. The accused contended that the injuries caused
to the boy were as a result of the ‘jaal’ in front of the bathroom but the court held that the ‘jaal’
had no sharp edges to cause such injuries to the boy. As the prosecution proved their case beyond
reasonable doubt, the accused was held guilty of the offence under Sec 377, IPC.

PRAMOD MANDAL v STATE (GNCT OF DELHI) (2018)

Date of Judgment – 15th January, 2018.

Tried by – Addl. Session Judge, Adarsh Nagar, Delhi

Appellate Court – High Court, Delhi

The victim in the present case is a girl who is 9 years old who was studying in a primary school.
Her teacher noticed some injury marks upon her body and informed her mother. She came to
know that she was being abused by her father. Mother lodged an FIR against the accused(her
husband). The victim’s statements were recorded thereby it was established used to do carnal
intercourse with her in her mother’s absence. Victim’s medical report also established that the
victim had lost her virginity. The trial court held the accused guilty and sentenced him rigorous
imprisonment of 10 years under Sec 377, Indian Penal Code and imprisonment for life under
Sec. 376(2) (f) , Indian Penal Code. The accused had approached the High Court of Delhi against
his conviction but the appeal was dismissed as being a father of a child of a tender age he should
have protected her from all evils but he instead did dehumanizing acts with her and violated the
privacy and sanctity of his daughter.

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Whether or not Section 377 is ultra vires the Constitution?

This was finally decided in the latest judgment of Navtej Singh Johar v Union of India33

On 6 September 2018, the court delivered its unanimous verdict, declaring portions of the law
relating to consensual sexual acts between adults unconstitutional. This decision overturns the
2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which the court upheld the law.
However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts,
and bestiality remain in force.

The court found that the criminalisation of sexual acts between consenting adults violated
the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief
Justice Misra pronounced that the court found "[c]riminalising carnal intercourse" to be
"irrational, arbitrary and manifestly unconstitutional".The court ruled that LGBT people in India
are entitled to all constitutional rights, including the liberties protected by the Constitution of
India. It held that "the choice of whom to partner, the ability to find fulfilment in sexual
intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the
constitutional protection of sexual orientation". The judgement also made note that LGBT
community is entitled to equal citizenship and protection under law, without discrimination.

Section 377 is partly against the right to equality prescribed in Article 14 of the
Constitution. When talked about homosexual and heterosexual acts, it violates the very
principle contained in Articles 14 and 15. Article 14 speaks for the equal status that is
available to each and every person residing in the territory of India. That means, even
the people who are not the citizens of India possess this fundamental right. Fundamental
rights form the basic structure of our Constitution and could not as well as should not be
violated in any case. Whereas Article 15 prescribes for zero discrimination on the basis
of sex, religion , caste et al. Before the verdict, there was aggravated form of
discrimination against the third gender or the people belonging to the LGBTQ
community. This led to the violation of both the fundamental rights. Not providing the
column of third gender in various governmental, institutional forms was another example
of showing as if these people didn’t exist. Talking about the heterosexual acts, anal or
oral sex might be against the societal norms or the set and confirmed standard of

33
W.P. 76 of 2016

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society; it certainly should not be made illegal. Society has every right to regulate the
social relationships of a person but poking its nose in the personal lives of other people,
certainly shouldn’t be allowed. And on the basis of this, if the government is making
laws, it certainly shows lack of forward-mindedness on its part. Criminalising such acts,
both homosexual and heterosexual violates the fundamental right contained in Article 21
which ensures right to life and personal liberty. Talking about bestiality, I think it should
be kept out of the purview of IPC and dealt only in the PCA.

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BIBLIOGRAPHY

S.N. MISHRA, INDIAN PENAL CODE, CENTRAL LAW PUBLICATIONS, ALLAHABAD,

2017, 12th ed.

KI VIBHUTI, PSA PILLAI’S CRIMINAL LAW, LEXIS NEXIS, 2019, 14th ed.

BARE ACT – INDIAN PENAL CODE, 1860.

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