What is an unnatural offence and how is it punishable?

Question: What is an unnatural offence and how is it punishable?

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Answer

Section 377 of IPC defines unnatural offences as:

“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.”

The punishment in case of unnatural offences is as severe as that of rape. Unnatural offences cover all forms of penetration other than penile-vaginal and consent is immaterial in case of unnatural offences. The punishment may extend to imprisonment for life or imprisonment up to ten years and a fine.

Thus, while convicting an accused under section 377 of IPC all the factors are taken into account which includes:

1. nature of the crime,
2. age of the victim and accused,
3. chances of reformation,
4. the consequence of the conviction,
5. consent of the victim.

The age of the accused is a determining factor while giving punishment. In the Raju v. State of Haryana case[(1998) Cr LJ 2583 (2592)], 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 taking into consideration the nature of the offence and age of the appellant held that the accused should be kept in an environment of an institution other than jail to ponder and repent over his perversity.

Further, chances of reformation of accused are also a significant factor in the determination of sentence of the accused. In the case of Amit v. State of UP [ (2012) 4 SCC 107], the accused committed unnatural sex with a minor girl aged 3 years and later killed him. The trial court imposed the 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 the 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 the future. The court held that given a chance, he may reform over a period of years.

The intention of the accused is also a determining factor while giving punishment. Also, the age of the victim plays a role while convicting. In the case of Ou v. The State of Maharashtra (2009), the accused tried to penetrate inside a 14-month-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 of 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.

At last, consent is wholly immaterial in the determination of unnatural offences; however, in some cases, it works as a mitigating factor.

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