POCSO Act | Charge Of Penetrative Sexual Assault Can Be Invoked In Case Of Non-Tear Of Hymen: Gauhati High Court

The Gauhati High Court has made it clear that the charge of penetrative sexual assault under the POCSO Act can be invoked even on slightest penetration and it is not necessary to show victim's hymen-tear in such cases.

It thus set aside the judgement of a trial court by which it acquitted an accused in a criminal case registered under Section 6 of the POCSO Act, on the ground that the trial court has framed the wrong charge under Section 4 of POCSO instead of Section 6 of the Act.

The single judge bench of Justice Kaushik Goswami observed:

“In the present case, 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

that charge of penetrative sexual assault is made out the moment there is some degree of insertion, therefore, non-tear of the hymen is of no consequence.

The case of the prosecutrix was that on September 08, 2016 an FIR was lodged by the informant victim who is aged about 13 years stating that she was living at the house of the accused/respondent No. 1 for her primary education. It was alleged on September 05, 2016, she accompanied the accused in his vehicle who was going to Damcherra, to be dropped in the house, which is situated on the way.

It was further alleged that the accused stopped his vehicle at the outskirt of Bualzau Village while it was raining heavily and forcefully dragged the informant victim down towards the jhum hut, wherein he took off her pant and underwear. It was further alleged that the accused touched the informant victim's breast and private parts. Accordingly, a case was registered under Section 6 of the POCSO Act, 2012.

However, upon completion of investigation and submission of the chargesheet, the Court of Special Judge, POCSO, Aizawl was pleased to frame charge under Section 4 of the POCSO Act, 2012 instead of Section 6 of the said Act.

Furthermore, the accused was acquitted by the trial court vide impugned judgment and order dated September 20, 2019 after relying upon the testimony of the Medical Officer who examined the informant victim that there was no injury in her genital parts and her hymen was found intact.

The State of Mizoram filed the present appeal before the High Court challenging the impugned judgment of the trial court.

It was the contention of the accused that since there were contradictions and variations in the statement of the victim child during cross-examination, with regard to the filing of the FIR, her testimony is not trustworthy and cannot be accepted.

The High Court bench noted:

“In a case of sexual assault on a minor girl, what is important to keep in mind is that a minor girl that too of the age of 13 years at the time of occurrence would not ordinarily lie about being sexually assaulted. Therefore, the version of the informant victim has to be considered with utmost care before discerning the same. In fact, if the version of the informant victim inspires confidence and appears to be trustworthy, credible, unblemished and of sterling quality, no further corroboration is required.”

The Court further observed that according 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”.

“She clearly deposed that she experienced physical pain while the accused/respondent No.1 inserted his finger into her vagina, following which he got up and dressed himself. It is thus obvious that there was insertion of the finger of the accused/respondent No.1 into the informant victim's vagina, notwithstanding the extent to which such finger was inserted. 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.

It was further observed by the Court that since, the accused had committed penetrative sexual assault on the informant victim, when she was living in his house, this is an offence under Section 5(n) of the POCSO Act and therefore the punishment has to be under Section 6 of the Act.

Thus, the High Court noted that the trial court has framed the wrong charge and has conducted the trial.

“Be that as it may, it is evident that the Trial Court has framed the wrong charge and has conducted the trial. In such a situation, the accused/respondent No.1 cannot be convicted under a provision of law prescribing higher punishment without giving him an opportunity,” the Court said.

Thus, the Court set aside the impugned judgment and order passed by the trial court and remanded back the matter to the trial court for reframing the charge and dispose of the case in accordance with law.

“It is expected that the Trial Court, shall conclude the proceedings preferably within a period of three months from the date fixed for appearance of the accused/respondent No.1 i.e. 22.04.2024,” the Court directed.

Citation: 2024 LiveLaw(Gau) 23

Case Title: State of Mizoram v. Lalramliana

Case no.: Crl.A./9/2020

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