Document Evidence:
High Court observed the photographs and found that all the photographs are not only nude photographs, but they are also dirty nude photographs, exposing various types of perversity. They are of various unnatural activities, which are prohibited by the provisions of Section 377 of IPC.
The evidence shows that A1 and A2 were involved in taking illegal nude photographs. Over 500 photo negatives were found in their possession during a raid. It is also documented in a seizure list. A camera used for these photos was also recovered and identified by victims as the one A1 used. The negatives were developed into photos, which victims confirmed were taken by A1 and A2. These photos were used as proof in court. Victims identified A1 and A2 in the photos. The person who developed the photos and the investigating officer (IO) also confirmed the evidence. A1 and A2 were proven to be living in the raided house where the photos were taken. All this evidence together proves their involvement in the crime.
Offence under Section 377 of IPC: Unnatural Offences:
The pertinent aspect is that such photographs include the unnatural offences, which are covered under Section 377 of IPC. Section 377 for ready reference 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.
Section 377 IPC, which criminalizes “carnal intercourse against the order of nature,” requires proving that such an act occurred and that it involved a person or animal. The Delhi High Court’s 2010 Naz Foundation judgment[1] clarified that Section 377 applies only to non-consensual acts or those involving minors (under 18), as adults (18+) have the right to privacy for consensual acts in private. However, this judgment does not affect cases already finalized under Section 377. In other words, if someone was convicted before this ruling, it cannot be re-opened, and the law still applies to acts involving minors or non-consensual acts. The court emphasized that Parliament would need to amend the law to fully address such issues, but until then, the partial validity of Section 377 remains.
The evidence shows that A1 and A2 engaged in illegal sexual acts. Photographs recovered from their possession clearly depict penetration and unnatural acts, as confirmed by witnesses like Sandeep and Shila. Additionally, multiple victims, including a minor, identified A1 and A2 in these photos, proving their involvement in crimes under Section 377 of the IPC.
The High court considered evidence against A4 under Section 377 (unnatural offences) based on testimonies and photographs. Nitaben identified 28 photos showing herself and others, including A4, engaged in the offensive act. Additional photos from other victims also placed A4 in such activities, confirming his involvement. The prosecution argued that these photos proved A4’s participation in unnatural offences, which was supported by Nitaben’s testimony. The court accepted this evidence as valid and conclusive. Since the prosecution successfully proved A4’s role in the act through multiple witnesses and photographic evidence, the case against him under Section 377 was established. The judgment relied on both direct identification and corroborating material to uphold the charges.
Counsel for A4 tried to contend the evidence of Nitaben and stated that with trick photography presence of any person can be inducted in any photograph. It was also contended that there was no identification parade held before the Executive magistrate or the concerned authority. Thus Counsel for A4 submitted that the evidence of Nitaben is required to be discarded or, in any case, cannot be relied upon for constitution of offence by A4.
The court rejected A4’s defense claiming “trick photography” because his side never cross-examined the key witness, Nitaben (PW-14), during the trial to challenge her identification of him in the photos. Without cross-examination, the defense could not argue that the photos were fabricated or that A4’s presence was concocted, as this argument was raised only during the appeal stage. The prosecution’s evidence included multiple photos (Ex.63) identified by Nitaben and other victims, which clearly showed A4 engaging in unnatural offences. These photos were corroborated by her testimony. The court ruled that the absence of an “identification parade”, i.e. a formal process to identify suspects, was irrelevant here because Nitaben already knew A4 personally, making such a procedure unnecessary.
The prosecution also provided evidence from the photographer and investigation officers, who confirmed the authenticity of the photos developed from negatives, further supporting the case. The defense’s argument about “trick photography” was dismissed because no evidence was presented during the trial to support this claim, and the photos themselves were deemed credible. The court emphasized that Nitaben’s identification of A4 in the photos was not vague but was backed by concrete evidence, including the visual proof of his presence in the offensive acts. Since the defense failed to challenge the evidence during the trial, the court upheld the prosecution’s case, stating that the photos and testimonies together confirmed A4’s involvement in the unnatural offence under Section 377 of IPC.
Offences Related to Obscene Material:
High Court further examined the evidence led by the prosecution for the offences punishable under Sections 292 and 293 of IPC related to the obscene material.
Section 292 of IPC:
A1 and A2 were found with more than 500 negatives of highly obscene photographs which were of nude and sexual acts of adults and the same with minors. The huge quantity, systematic storage, and proof that they were selling/exporting these photos abroad clearly showed commercial intent i.e. sale or distribution for profit. This directly falls under Section 292(2) clauses (a), (b), and (c) i.e. possession of obscene material for sale, hire, distribution, and/or business. Hence A1 and A2 held guilty and convicted under Section 292 of IPC.
A4 participated in many of these obscene photo shoots also in those including with minors. His own medical records and admissions proved he knew A1 was making and planning to sell and export these photos for money. So he knowingly took part in producing and helping circulate obscene material. Hence A4 held guilty under Section 292 of IPC.
A3 was acquitted, as no evidence at all that A3 appeared in any photo, possessed them, sold them, or was even connected to the whole activity. Mere suspicion is not enough.
References:
[1] Naz Foundation vs Government Of Nct Of Delhi And Others, [2009 (6) SCC 712]
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