Gauhati High Court: Penetrative sexual assault involves even slightest penetration, without hymen-tear

Staff Reporter

Guwahati: The Gauhati High Court, in a significant decision, has clarified that the charge of penetrative sexual assault under the POCSO Act can be invoked even on the slightest penetration, and it is not necessary to show hymen-tear of the victim in such cases.

The absence of a tear in the hymen or lack of genital injuries is not always a reason to disbelieve a victim’s testimony that she was subjected to penetrative sexual assault, the Gauhati HC held.

The single-judge bench of Justice Kaushik Goswami, while hearing the case (Crl.A./9/2020), observed: “The finding of the Trial Court to the effect that ‘the absence of any sign of laceration, bruise, scratch mark, etc. on the external and internal body of the victim raises suspicions and doubt on the evidence of the victim and does not inspire confidence’ is manifestly erroneous and not a possible view.”

It was further noted by the HC that a charge of penetrative sexual assault can be made out the moment there is some degree of insertion, and so, non-tear of the hymen is of no consequence.

To wrap up the case, on September 8, 2016, an FIR was lodged by the informant victim, aged about 13 years, stating that she was living at the house of the accused (respondent No. 1 in the case) for her primary education. It was alleged that on September 5, 2016, she was a passenger in the vehicle of the accused, who was going to Damcherra, and was to be dropped off at her house situated on the way.

It was further alleged that the accused stopped his vehicle on the outskirts of Bualzau village and dragged the victim to a jhum hut, where he took off her pants and underwear. It was further alleged that the accused touched the informant victim’s private parts. Accordingly, a case was registered under Section 6 of the POCSO Act, 2012.

However, it was pointed out that, on completion of the investigation and submission of the chargesheet, the Court of Special Judge, POCSO, Aizawl, framed the charge under Section 4 of the POCSO Act, 2012, instead of Section 6 of the said Act.

Subsequently, the accused was acquitted by the trial court vide the impugned judgement and order dated September 20, 2019, relying upon the testimony of the medical officer who examined the informant victim and found that there was no injury to her genital parts and her hymen was found intact.

Thereafter, the State of Mizoram filed the present appeal before the Gauhati High Court, challenging the impugned judgement of the trial court.

The accused contended that there were contradictions and variations in the statement of the victim child during cross-examination and that her testimony was not trustworthy.

The HC bench noted that in a case of sexual assault on a minor girl, a girl of the age of 13 years at the time of occurrence would not ordinarily lie about being sexually assaulted. It considered the version of the informant victim to be “trustworthy, credible, unblemished, and of sterling quality,” and that no further corroboration is required.

According to the testimony of the victim, since the accused could not insert his penis into her vagina, he inserted his finger, upon which she “felt pain,” the Court further observed.

“As such, in a case where there was superficial digital insertion, a medical examination would not necessarily detect any sign of physical injuries in the genital area of the child. Additionally, superficial digital insertion may not cause tear of the hymen,” the Court said.

Thus, the Court noted that the findings of the trial court are palpably wrong, manifestly erroneous, and demonstrably not sustainable.

Thus, the HC set aside the impugned judgement and order passed by the trial court and remanded the matter to the trial court for reframing the charge and disposing of the case in accordance with the law.

The court directed the trial court to conclude the proceedings within a period of three months from the date fixed for the appearance of the accused on April 22, 2024.

 Also Read: Man arrested for sexual assault in Guwahati city (sentinelassam.com)

Also Watch: