The Gauhati High Court, in a significant ruling related to a POCSO case, emphasized that hymen rupture is not a necessary indication in all instances of penetrative assault. This decision marks a shift in understanding and evaluating evidence in such cases, focusing on the broader context of assault rather than physical signs alone. The judgment highlights the importance of thoughtful evaluation and a thorough approach when dealing with cases of sexual violence governed by the POCSO Act.
Gauhati: According to a recent ruling by the Gauhati High Court, the absence of hymen tear or genital injuries not automatically invalidate a victim’s claim of penetrative sexual assault. Justice Kaushik Goswami clarified that any degree of insertion, even if superficial and without causing visible injuries, can establish the offense of penetrative assault.
This decision came in a case under the POCSO Act, where a man accused of digitally penetrating a 13-year-old girl. Despite the initial acquittal based on a lack of physical evidence, the High Court emphasized the need for a broader understanding of assault beyond visible injuries.
The High Court criticized the trial court’s approach as “manifestly erroneous” and clarified,
“To establish the charge of penetrative sexual assault, full penetration or insertion is not necessary; even partial penetration/insertion, without causing visible injuries, suffices under the law.”
The court further explained that,
“Superficial digital insertion, which may not result in physical injuries or hymen tears, can still constitute penetrative assault. The absence of hymen tear was deemed inconsequential in determining the nature of the assault.”
The Court noted that a 13-year-old girl would typically not fabricate allegations of sexual assault and that her account can be trusted without additional confirmation if it is deemed credible, honest, and inspires confidence without doubt.
The judgment on February 29 emphasized,
“In cases of sexual assault on a minor girl, especially one as young as 13 years old at the time, it is crucial to remember that such victims are unlikely to falsify such serious accusations. Hence, the testimony of the victim must be scrutinized diligently and with utmost sensitivity.”
The court presiding over a case involving a 13-year-old girl who reported being sexually assaulted by a man while she staying at his house for educational purposes.
According to the allegations, the accused individual took the girl out one evening and engaged in inappropriate touching and attempted rape. When the girl resisted, he proceeded to insert his finger into her vagina before eventually taking her back home.
The victim claimed that she confided in her grandmother and the accused’s wife about the incident but received no support from either of them. The following day, a teacher noticed the girl crying at school and promptly informed a district child protection officer.
After the intervention of the child protection officer, a criminal complaint eventually filed. In the initial first information report (FIR), the girl did not explicitly mention the accused inserting his finger into her body. However, she later disclosed this detail in subsequent statements given to the police and maintained this version of events throughout the trial.
The High Court observed that the victim’s disclosure of the events in fragments appeared unusual, particularly in light of the lack of immediate support from her grandmother and the accused’s wife. Additionally, the fact that she initially recount the events to a male officer contributed to her initial discomfort. The High Court explained that it natural for the child victim to feel uneasy about disclosing “the act of digital insertion” to her teacher and the male officer at first.
According to the High Court,
“The victim’s statements regarding the surrounding circumstances have received complete support from other witnesses.”
In reaching its conclusion, the High Court expressed confidence in the testimony provided by the victim.
The High Court opted to overturn the trial court’s decision to acquit the accused based on giving him the benefit of doubt.
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However, instead of convicting the accused, the High Court noticed that the trial court incorrectly framed the charges. The trial court charged the accused with penetrative sexual assault under Section 4 of the POCSO Act (which carries a minimum sentence of 10 years in jail) instead of charging him with aggravated penetrative sexual assault under Section 5 (n) of the POCSO Act (which carries a minimum sentence of 20 years in jail) for the offense committed by a relative or a person residing in the same shared household.
As a result, the High Court sent the case back to the trial court for further proceedings.
The Court stated,
“The Court opined that the accused/respondent No.1 cannot be convicted under a provision of law that imposes a higher punishment without affording him an opportunity. Therefore, considering the aforementioned, I am of the considered opinion that the case should be remanded back to the Trial Court for the purpose of re-framing the charge,”
The accused directed to attend the trial court on April 22, with instructions for the trial to ideally conclude within three months thereafter.
Based on these findings, the State’s appeal against the trial court’s prior acquittal granted.
Representing the State government by Additional Public Prosecutor Mizoram Linda L Fambawl.
Advocate B Lalramenga represented the accused individual.
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