A Kerala Court recently convicted a transwoman who sexually assaulted a minor boy in 2016, got punishment for “unnatural sex” under Section 377 of the IPC.
Special Judge Aaj Sudarshan stated, “The rigour of Section 377 IPC alone is weakened by this decision. Non-consensual act of unnatural sex with an adult or any form of unnatural sex with a minor, whether with or without consent, will result in an offence punishable under Section 377 IPC.”
The transwoman in this case was found to have forced oral sex on the minor boy. While such an offence would be punishable under Section 376 of the IPC (rape), because the victim is male, the offence will not lie.
The judge reasoned, “So, when the accused, who was of a male gender in 2016, engaged in oral sex on minor boy, it definitely falls under the definition of unnatural offence as contained in Section 377 IPC.”
Therefore, the special judge found it appropriate to convict her of the offences punishable under Sections 377 IPC as well as Section 3(d) read in conjunction 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 still presenting as a man, she befriended the minor boy at a railway station and then travelled on the train with him. She sexually assaulted him in a public washroom when they arrived at another station.
According to Public Prosecutor Vijay Mohan RS, the incident was only discovered when the mother of the minor boy saw some Facebook messages between her son and the accused. She confronted her son, who eventually told her what had happened.
The defense counsel, Advocate M Unnikrishnan, stated that the FIR was filed against Sachu Samson, who is now known as Shefina. He contended that Shefina had always been transgender and had undergone gender affirmation medical procedures.
However, during cross examination, the minor boy testified that, despite changes in the physical structure of Shefina’s face, she was the same person who assaulted him. A doctor was also called as a witness, and he testified that there was no evidence that Shefina was incapable of performing the alleged sexual act.
During the hearing, Shefina broke down emotionally and confided in the court that she had been suicidal due to society’s attitude towards her, but she stayed alive only because of her positivity and her desire to show society that she can excel as a transwoman.
However, the Court stated that the effects of sexual abuse on a person are not limited to a short period of time but have long-term consequences. Therefore, it sentenced her to undergo rigorous imprisonment for a period of 7 years and pay a fine of ₹25,000.
The judgement stated, “Based on the facts and circumstances of this case, it is determined that it does not qualify for the provisions of the Probation of Offenders Act, 1958. The goal of imposing a sentence on an accused is also to serve as a deterrent to society.”
In case of realization of the fine amount, the Court ordered that the entire amount be paid to the victim as compensation.
The Court also stated in its decision that the DGP has been informed that Shefina is a transwoman and that special arrangements will be made for her detention at a women’s prison until she is transferred to a special jail for transgender convicts.
