Gauhati High Court Says Rape Survivor Need Not Physically Resist, Upholds 20-Year POCSO Sentence
Must a survivor fight back for her word to be believed? Not so, says the Gauhati High Court: a rape survivor need not physically resist by biting, kicking or pushing the accused for her testimony to be accepted. The Court upheld a 20-year sentence under the POCSO Act for the sexual assault of a 14-year-old girl in Assam.
Guwahati: A minor victim’s failure to put up active resistance is no ground to disregard her evidence, the Gauhati High Court has held while dismissing a criminal appeal against a conviction under Section 4(2) of the Protection of Children from Sexual Offences Act [Damba Rabidas v. State of Assam and Another].
Justice Sanjeev Kumar Sharma wrote the judgment, pronounced on November 12, 2026 for a Division Bench that also included Justice Michael Zothankhuma. The appeal, Crl.A. No. 102 of 2026, was directed against the Special Judge, Golaghat’s judgment of June 25, 2025, which had imposed 20 years’ rigorous imprisonment and a fine of Rs 10,000 on the appellant.
“No hard-and-fast rule” on resistance
The defence had argued that the victim’s conduct made her account doubtful. The Bench did not accept that. It held:
“The fact that the victim did not violently or aggressively resist the appellant while he was in the process of committing rape upon her, may be on account of various reasons and also depends to a large extent on the personality of the victim. Different people have different reactions to the same situation, and there cannot be any hard-and-fast rule that in every case of rape there must be active resistance on the part of the victim by way of biting, kicking, etc. The tender age of the victim, i.e., 14 years, is also a relevant consideration with regard to the aforesaid aspect of the matter. The victim may not even raise hue and cry or inform her immediate neighbors on account of shame and embarrassment, but that is no reason to discard her testimony.”
Between the victim’s evidence in court and her statements to the investigating officer and the Magistrate, the Court found no material omissions or contradictions. The inconsistencies in the younger sister’s evidence, which the trial court had already set aside, gave no reason to reject the victim’s account.
What the prosecution alleged
As the prosecution told it, the appellant walked into the victim’s house on June 26, 2022, when her parents were away, and sexually assaulted her in the kitchen. Her father lodged the police complaint. The medical examination found an abrasion and injuries to the private parts, though no spermatozoa were detected in the vaginal smear. The victim’s younger sister also claimed to have seen the incident, but the trial court discarded her evidence as tutored.
What the defence urged
Before the High Court, the defence highlighted contradictions between the two sisters’ testimonies, said the victim neither raised an alarm nor told her neighbours, and pointed out that she had not bitten, kicked or pushed the appellant. It also claimed that the appellant had been falsely implicated because of a dispute with the informant over a tea garden the appellant had taken on lease.
The tea garden plea falls flat
The Bench noted that the defence witness’s account of an altercation and a threat was never put to the informant in cross-examination, beyond a general suggestion, and called it “a made-up story”. It added that the medical evidence of injuries “supports the version of the victim and conversely negates” the plea of false implication.
Finding “no infirmity in the impugned judgment and sentence”, the Court affirmed the conviction and dismissed the appeal.
Why the judgment matters
Appeals in sexual offence cases often lean on the notion that a “real” victim fights back, raises an alarm or tells someone at once. The ruling rejects that assumption, particularly where the victim is a child, and asks courts to weigh a survivor’s testimony on its consistency and the supporting evidence rather than on how she reacted during the assault. It also signals that a false implication plea must be properly put to prosecution witnesses in cross-examination if it is to carry weight.
Case Title: Damba Rabidas v. State of Assam and Another [Crl.A. No. 102 of 2026]
Neutral Citation: 2026:GAU-AS:16601-DB
Bench: Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma, Gauhati High Court
Date of Judgment: November 12, 2026 (reserved November 4, 2026)
For Appellant: Advocates S.J. Sarmah, P.C.R. Das and D. Chutia
For State: Senior Counsel and Additional Public Prosecutor B. Bhuyan
For Informant (Respondent No. 2): Legal Aid Counsel B. Haldar
If you know of a child at risk of abuse or exploitation, call CHILDLINE at 1098.
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