Published on : 11 Feb, 2023, 10:15 am
A transwoman (assigned male at birth but identifying as a woman) who, while she was still a male in 2016, sexually assaulted a minor boy, was convicted by a Kerala court under Section 377 of the Indian Penal Code (IPC) which punishes ‘unnatural sex’.
A special fast track court trying offences under the Protection of Children from Sexual Offences Act (POCSO Act) said that even in the Supreme Court’s landmark judgment in Navtej Singh Johar, Section 377 was only read down to the extent of decriminalising consensual homosexual activity among adults.
“By this decision, the rigour of Section 377 IPC alone is watered down. Non-consensual act of unnatural sex with an adult or any manner of unnatural sex with a minor be it with consent or not will attract the offence punishable under Section 377 IPC,” special judge Aaj Sudarshan stated.
In the present case, the transwoman was found to have forced oral sex on the minor boy.
While the punishment for such an offence would be under Section 376 of the IPC (rape), since the victim is a male, the offence will not lie.
“So, when the accused, who was of a male gender in 2016 had done oral sex on PW3, it definitely comes under the definition of unnatural offence as contained in Section 377 IPC,” the judge reasoned.
Therefore, the special judge deemed it fit to convict her of the offences punishable under Sections 377 IPC as well as Section 3(d) read with Section 4 of the POCSO Act which also provides for punishment for forcing oral sex on a minor.
The prosecution case against the accused transwoman in this case was that in 2016, while she still presented as a man, she befriended the minor boy at a railway station and then travelled with him on the train. When they reached another station, she sexually assaulted the boy in a public toilet.
Public Prosecutor Vijay Mohan RS submitted that the incident came to light only when the mother of the minor boy saw some Facebook messages between her son and the accused. She confronted her son who ended up telling her about what had transpired.
The defence counsel, advocate M Unnikrishnan, pointed out that the FIR was registered against one Sachu Samson who presently goes by the name Shefina.
He contended that Shefina has been transgender all throughout and that she had also undergone gender affirmation medical procedures.
However, the minor boy in cross examination deposed that even though the physical structure of Shefina’s face had changed, she was the same person who assaulted him. He also said that the now female presenting Shefina was a male person at the time of the incident.
A doctor, was also arrayed as a witness, who deposed that there was nothing to suggest that Shefina was incapable of performing the sexual act alleged.
These two depositions convinced the Court to reject the defence argument that Shefina had been a transwoman all along.
While arguing on the question of sentence, the defence argued that Shefina is 31 years old and has no criminal antecedents.
She has been ostracised from society and her family due to her gender identity but she has been a source of comfort for her ailing 72-year-old mother. It was also submitted that she has one more gender affirmation surgery scheduled for which she raised money.
The Court recorded that during the hearing Shefina broke down emotionally and confided in the court that due to the attitude of society against her, she had been suicidal but stayed alive only due to her positivity and her need to show society that she can excel as a transwoman.
However, the Court said that the effects sexual abuse on a person is not confined to a small period of time but has perasive long-term ramifications. Therefore, it sentenced her to undergo rigorous imprisonment for a period of 7 years and pay a fine of ₹25,000.
“From the facts and circumstances of this case, it is found that it is not a fit case to invoke the provisions of the Probation of Offenders Act, 1958. The object of imposing sentence to an accused is also to be seen as a deterrence to the society,” the judgment stated.
In case of realisation of the fine amount, the Court ordered that the entire amount be paid to the victim as compensation.
In its judgment, the Court also recorded that the Director General of Police has been informed that Shefina is a transwoman and that special arrangements are to be made for detaining her at a women’s prison until she is transferred to a special jail for transgender convicts.
The DGP was also directed to see to it that dignity and honour of the accused is safeguarded while she is detained at the women’s prison.
