SAKSHI versus UNION OF INDIA

Citation: [2004] SUPP. 2 S.C.R. 723 · Decided: 26-05-2004 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Dismissed

Judgment (excerpt)

SAKS HI 
v. 
UNION OF INDIA 
MAY 26, 2004 
[RAJENDRA BABU, CJ. AND G.P. MATHUR, J.] 
Penal Code, 1860: Sections 354, 375, 376 & 277/Code of Criminal 
Procedure, 1973; Sections 273 & 327 
A 
B 
Sexual violence against women and children-Writ Petition for C 
enlargement of scope of Sections 3751376 !PC so as to include in it certain 
acts of sexual abuse against minor children/women-Held: A statute 
enacting an offence and imposing a penalty therefor has to be strictly 
construed-An enactment is a penal provision that by itself is a reason for 
not ascribing to it a broader meaning than it would ordinarily bear. It is D 
not appropriate to alter the definition of rape by way ofjudicial interpretation 
when there appears to be no ambiguity in it-Prosecution of an accused 
for an offence under Section 376 !PC on radically enlarged meaning of 
Section 375 !PC would be violative of Article 20(1) of the Constitution. 
E 
Recording of evidence of child victim of sexual abuse/witnesses-
Manner of recording-Held: Rules of procedure are meant to advance and 
not to obstruct the cause of justice-It is permissible for the Court to 
enlarge the meaning of such provisions in order to elicit the truth and 
render justice-While recording the evidence of such victim/witness to F 
avoid inducement of extreme fear/trauma in her/his mind from mere sight 
of the accused, a dividing screen could be put in between the victim/witness 
and the accused-Sufficient break should be given as and when required-
Provisions of Section 327(2) should also be applied in an enquiry trial of 
offences under Sections 354 & 357 !PC-Directions issued-Constitution 
of India, 1950-Articles 14, 20 & 21. 
G 
Legislation : 
Increase in child abuse cases in alarming proportion-Need for 
legislation-8tressed. 
H 
723 
724 
SUPREME COl.iRT REPORTS [2004] SUPP. 2 S.C.R. 
A 
Doctrines : 
B 
c 
Doctrine of "stare decisis "-Meaning and applicability of 
Words and Phrases : 
'sexual intercourse'-Meaning of in the context of Section 375 !PC. 
The main question which arose for consideration in the writ 
petition was as to whether by a process of judicial interpretation the 
provisions of Section 375 IPC could be so altered so as to include all 
forms of penetration such as penile/vaginal penetration, penile/oral 
penetration, penile/anal penetration, finger/vagina and finger/anal 
penetration and object/vaginal penetration within its ambit. 
The petition was considered by the Court when it directed the 
D petitioner to formulate issues and legal propositions for consideration 
by the Court. Accordingly, petitioner has formulated the following 
issues : 
(a) whether the term "rape" should be understood to include not 
E only forcible penile/vaginal penetration but all forms of forcible 
penetration including penile/oral penetration, penile/anal penetration, 
object or finger/vaginal and object or finger/anal penetration. 
(b) That all forms of non-consensual penetration should not be 
F subsumed under Section 375 of the Indian Penal Code and the same 
should not be limited to penile vaginal penetration only. 
(c) That in view of the widespread prevalence of child sexual 
abuse and bearing in mind the provisions of the Criminal law 
(Amendment) Act, 1983 which specifically inserted Section 376(2)(f) 
G envisaging the offence of"rape" of a girl child howsoever young below 
12 years of age, whether the expression "sexual intercourse" as 
contained in Section 375 of the Indian Penal Code should 
correspondingly include all forms of penetration; and whether the 
expression "penetration" should not be so clarified in the Explanation 
H to Section 375 of the Indian Penal Code. 
SAKSHI v. U.0.I. 
725 
(d) That a restrictive interpretation of "penetration" in the A 
Explanation to Section 375 (rape) defeats the very purpose and intent 
of the provisions for punishment for rape under Section 376(2)(t). 
(e) That as to whether penetration abuse of a child below the age 
of 12 should no longer be arbitrarily classified according to the 'type' B 
of penetration (ignoring the 'impact' on such child) either as an 
"unnatural offence" under Section 377 IPC or otherwise as "outraging 
the modesty of a woman" under Section~ IPC. 
(t) That as to whether non-consensual penetration of a child under 
the age of 12 should continue to be considered as offences under Section C 
377 ("Unnatural Offences") on par with certain forms of consensual 
penetration (such as consensual homosexual sex) where 

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