17 March, 2013
Conviction of accused under Section 377 IPC (Sodomy) - Accused not entitled to benefit of probation as punishment provided for the offence is more than 10 years
PUNJAB AND HARYANA HIGH COURT
Before :- M.M. Kumar, J.
Criminal Revision No. 1200 of 1988
Kailash alias Kala Versus State of Haryana, D/d. 9.4.2003
For the Respondent :- Mr. N.K. Joshi, AAG, Haryana
A. Criminal Procedure Code, Section 360 - Probation of Offenders Act, 1958, Sections 4 and 3 - Concession of probation cannot be extended where the punishment provided for the offence is more than 10 years.
B. Sexual Offences Act, 1967, Section 1(7) - Indian Penal Code, Section 377 - Homosexuality is an offence in India - Law in England on homosexuality is quite different - There homosexuality amongst consenting adults in private has been accepted as a tolerable behaviour and is no longer considered as an offence as provided by Section 1(7) of Sexual Offences Act, 1967.
C. Criminal Procedure Code, Section 360 - Probation of Offenders Act, 1958, Sections 3 and 4 - Indian Penal Code, Section 377 - Conviction of accused under Section 377 IPC for committing sodomy - Accused not entitled to benefit of probation as punishment provided for the offence is more than 10 years. AIR 1983 S.C. 359 relied.
[Paras 4 and 5]
M.M. Kumar, J. - This petition filed under Section 401 of the Code of Criminal Procedure, 1973, (for brevity 'the Code') challenges judgment dated 3.11.1988 passed by the Sessions Judge, Karnal, upholding the conviction and modifying the sentences awarded by the Sub Divisional Judicial Magistrate, Panipat in his order dated 2.12.1987. The Sub Divisional Judicial Magistrate in his order has convicted the petitioner for offences of buggery under Sections 377, 452 and 506 IPC and vide order dated 4.12.1987 have sentenced him to undergo two years R.I. and a fine of Rs. 400/- under Section 377. Under Section 452, he was sentenced to undergo R.I. for a period of one year and pay a fine of Rs. 100/-. Under Section 506, the petitioner was further sentenced to undergo R.I. for a period of two months. All these sentences were to run concurrently. The learned Sessions Judge while dismissing the appeal and modifying the sentences had recorded the following order :-
- "5. After his arrest the accused was also subjected to medical examination and according to report Ex. PW10-A by Dr. R.M. Singh PW-10, there was nothing to suggest if the accused was not capable of doing sexual intercourse.
- 6. At the time of trial Om Parkash PW1 and Jiwan Dass PW2 did not entirely corroborate the prosecution story and they were turned hostile. But the remaining witnesses toed to the line of prosecution. Relying upon their evidence the learned trial Court found the accused guilty of the offences charged and sentenced him as detailed above. Not satisfied, he had come up in appeal. I have heard the appellant in person and the learned Public Prosecutor.
- 7. The appellant has not advanced any argument before me. His only plea is that he is innocent. I have carefully gone through the evidence on the record and I find that there is hardly anything on the record to disbelieve the testimony of Naresh Kumar PW3. He has stated that the accused committed carnal intercourse with him against the order of nature on the night in question. He identified him under the electric light. He had seen him earlier also in the same Cinema. His evidence finds corroboration from the medical evidence on the record. Soon after the occurrence he was examined by Dr. Surinder Kumar PW9 who found an abrasion on his left elbow and round contusion on his left cheek. He further fond that his Anal opening was loose. All these things suggest of Naresh Kumar having been subjected to carnal intercourse. Again the Assistant Director (Serology) found human semen on the underwear and pants which were worn by Naresh Kumar at the time of occurrence. Some blood stains were also found on his underwear. Both these pieces of evidence lend corroboration to the testimony of Naresh Kumar.
- 8. The complainant in this case had no motive to falsely implicate the accused. As already mentioned above identification of the accused was not difficult because of electric light and also because he (accused) was already known to him (the complainant). Under these circumstances the learned trial Court has rightly held the accused guilty of the offences of which he has been charged. I do not find any merit in this appeal and dismiss the same.
- 9. So far as the sentence is concerned it appears to be a bit heavy. I reduce the sentence from two years R.I. and a fine of Rs. 400/- to one year R.I. and a fine of Rs. 400/- for the offence under Section 377 IPC. Similarly the sentence imposed under Section 452 IPC is reduced from one year R.I. and fine of Rs. 100/- to six months R.I. and a fine of Rs. 100/. The sentence imposed under Section 506 IPC is maintained. In default of payment of fine of Rs. 400/- the appellant will undergo three months R.I. and in default of payment of fine of Rs. 100/- the appellant will further undergo one month R.I. All the substantive sentences will run concurrently. Subject to this modification the appeal fails."
3. Mr. Som Nath Saini, learned counsel for the petitioner has argued that benefit of Sections 3 and 4 of the Probation of Offenders Act, 1958 (for brevity 'the Act') read with Section 360 of the Code must be extended to the petitioner and he should be released on probation. In support of his argument, the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of State of Haryana v. Prem Chand, 1997 S.C. (Crl.) 176 and Ram Naresh Pandey v. State of Madhya Pradesh, AIR 1974 S.C. 35. On merit, the learned counsel has submitted that the prosecution witnesses namely PW-1 Om Parkash and PW-2 Jeewan Dass did not support the prosecution story and they had turned hostile. Therefore, the whole prosecution version has been rendered doubtful and the petitioner deserves to be acquitted . The learned counsel has also pointed out that lenient view must be taken in such like cases and the sentences undergone should be considered sufficient because this type of acts are not considered as offences in countries like England.
4. I have thoughtfully considered the submissions made by the learned Counsel for the petitioner. It is evident that the petitioner has been convicted and sentenced under Section 377 IPC for having committed sodomy on one Naresh Kumar. He had also threatened the complainant with knife. Section 377 IPC postulates imposition of life imprisonment or imprisonment of either description for a term, which may extend to 10 years with fine. Section 377 IPC reads as under :-
- "377. Unnatural offences - 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.
- Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section."
- "3. Power of court to release certain offenders after admonition - When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to so, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition.
- Explanation - For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
- 4. Power of Court to release certain offenders on probation of good conduct - (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having record (regard ?)to the circumstances of the case including the nature of the offence and the character of the offence, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceedings three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
- Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, it any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
- (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the case.
- (3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a Probation Officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
- (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other manner as the court may having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
- (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the Probation Officer concerned."
- 360. Order to release on probation of good conduct or after admonition - When any person not under twenty-one years of age is convicted of an offence punishable with the fine only, or with imprisonment for a term of seven years, or less, or when any person under twenty-one years of age, or any woman is convicted of an offence not punishable with death, or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence any, when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour :
- Provided that, where any first offender is convicted by a Magistrate of the second class, not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section, should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
- (2) Where proceedings are submitted to a Magistrate of the first class, as provided by sub-section (1) such Magistrate may thereupon pass such sentence or make such order as he might have passed or made, if the case has originally been heard by him and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself, or direct such inquiry or evidence to be made or taken.
- (3) In any case in which a person is convicted of theft, theft in a building dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1898), punishable with not more than two years imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence, or any extenuating circumstances punishment, release him after due admonition.
- (4) An order under this section may be made by any Appellate Court or by the High Court, or Court of Session, when exercising its powers of revision.
- (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its power of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law :
- Provided that, the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court, by which the offender was convicted.
- (6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.
- (7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode, or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
- (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension;
- (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody, until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such court may, after hearing the case, pass sentence.
- (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
- Analogous law - Sections 562, 563 and 564 of the Code (V of 1898)."
6. The other argument that the prosecution version has not been supported by Om Parkash PW-1 and Jeewan Dass PW-2 would also not require any detailed consideration in view of the fact that the complainant Naresh Kumar was medically examined and Dr. Surinder Kumar PW-9 had found two injuries on the person of the complainant. The doctor has further stated that the anus opening was loose. A copy of the Medico Legal Report (M.L.R.) has been duly proved as Ex.PW9/A. The Director, Forensic Science Laboratory, Madhuban has also submitted his report Ex.PX, wherein the stains of blood and human semen on the underwear worn by the complainant have been found. Human semen was detected on his pant also. The accused was also subject to medical examination and Dr. R.N. Singh PW-10 in his report Ex.PW-10/A concluded, that there was nothing to suggest if the accused was not capable of doing sexual intercourse. There is no motive for the complainant to involve the accused falsely. The identification of the accused has also been established as the complainant was already known to him. The offence committed by the appellant stands proved beyond any reasonable doubt. Therefore, I do not find any legal infirmity in the conviction of the accused.
7. The last argument of the learned counsel has also not impressed me. Law in England on homosexuality is quite different. There homosexuality amongst consenting adults in private has been accepted as a tolerable behaviour and is no longer considered as an offence as provided by Section 1(7) of Sexual Offences Act, 1967 (for brevity '1967 Act'). In September 1957 the Wolfenden Committee recommended that homosexuality behaviour between consenting adults in private should no longer be a criminal offence. Initially, those recommendations were rejected by the Home Secretary. However, British Parliament felt persuaded by the formulations of Lord Patrick Devlin who in his book Enforcement of Morals (Oxford University Press 1978) had heavily relied upon the theory of liberty propounded by John Stuart Mill for abolition of certain sexual offences. Deviating from Austin who taught us that law is a command which political inferior must follow for fear of punishment, Lord Devlin proceeded to accept Mills' view announcing that the only purpose for which physical force conceived by Austin "could rightfully be used against any member of the community was to prevent harm to others; his own good, physical or moral was not sufficient warrant" (Devlin supra chapter V 'Democracy and Morality'). The theory of 'prevention of harm to others' propounded by Mill as propagated by Lord Devlin was used as a handy support to Wolfenden Committee recommendation which led the British Parliament to abolish homosexuality amongst consenting adults in private as an offence. Extreme limits of logic sometime expose the pervsity of a doctrine and fail to promote public good. Professor H.L.A. Hart has examined in details this doctrine in his lectures collected in the book titled Law, Liberty and Morality (Stanford University Press, California, 1963) and has not approved Lord Devlin's views. However, we in this country should feel satisfied with the principles Prof. Hart has propounded deviating from Lord Devlin's formulations rather than blindly following the amendments made by the British Parliament. The practice of adopting English Laws is not always conducive to our own society and therefore, we must rely on our own laws best suitable to our society and needs. Various fundamental differences in both the societies must be realised by all concerned especially in the area of sexual offences. Naturally if laws are according to the temperament of a society to which it caters to and it is only then that society could be run smoothly according to laws because such a society would then readily comply with those laws. Prof. Hart in his book has observed as under :-
- "Lord Devlin appears to defend the moderate thesis. I say "appears" because, though he says that society has the right to enforce a morality as such on the ground that a shared morality is essential to society's existence, it is not at all clear that for him the statement that immorality jeopardizes or weakens society is a statement of empirical fact. It seems sometimes to be an a priori assumption, and sometimes a necessary truth and a very odd one. The most important indication that this is so is that, apart from one vague reference to "history" showing that "the loosening of moral bonds is often the first stage of disintegration, no evidence is produced to show that deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society. No reputable historian has maintained this thesis, and there is indeed much evidence against it. As a proposition of fact it is entitled to no more respect than the Emperor Justinian's statement that homosexuality was the cause of earthquakes. Lord Devlin's belief in it, and his apparent indifference to the question of evidence, are at points traceable to an undiscussed assumption. This is that all morality - sexual morality together with the morality that forbids acts injurious to others such as killing, stealing, and dishonestly - forms a single seamless web, so that those who deviate from any part are likely or perhaps bound to deviate from the whole. It is of course clear (and one of the oldest insights of political theory) that society could not exist without a morality which mirrored and supplemented the law's proscription of conduct injurious to other. But there is again no evidence to support and much to refuge, the theory that those who deviate from conventional sexual morality are in other ways hostile to society.
- xxx xxx xxx xxx xxx
- There seems, however, to be central to Lord Devlin's thought something more interesting, through no more convincing, than the conception of social morality as a seamless web. For he appears to move from the acceptable proposition that some shared morality is essential to the existence of any society to the unacceptable proposition that a society is identical with its morality as that is at any given moment of its history, so that a change in its morality is tantamount to the destruction of a society. The former proposition might be even accepted as a necessary rather than an empricial truth depending on a quite plausible definition of society as a body of men who hold certain moral views in common. But the latter proposition is absurd. Taken strictly, it would prevent us saying that the morality of a given society had changed, and would compel us instead to say that one society had disappeared and another one taken its place. But it is only on this absurd criterion of what it is for the same society to continue to exist that it could be asserted without evidence that any deviation from a society's shared morality threatens its existence.
- It is clear that only this tacit identification of a society with its shared morality supports Lord Delin's denial that there could be such a thing as private immorality and his comparison of sexual immorality, even when it takes place "in private", with treason. No doubt it is true that if deviation from conventional sexual morality are tolerated by the law and come to be known, the conventional morality might change in a permissive direction, though this does not seem to be the case with homosexuality in those European countries where it is not punishable by law. But even if the conventional morality did so change, the society in question would not have been destroyed or "subverted". We should compare such a development not to the violent overthrow of government but to a peaceful constitutional change in its form, consistent not only with the preservation of a society but with its advance."
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