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Synopsis

In a significant ruling, the Gauhati High Court has clarified the application of the Protection of Children from Sexual Offences (POCSO) Act, stating that even the slightest penetration warrants a charge of penetrative sexual assault and “non-tear of the hymen is of no consequence.”

Justice Kaushik Goswami, presiding over the case, criticised the trial court's rationale, which acquitted the accused due to a technicality regarding the charge framed. The High Court emphasising that the absence of physical signs such as hymen tear does not discredit the victim's testimony, held that “to bring home the charge of penetrative sexual assault, full penetration of the penis or full insertion of any object or part of body into the vagina is not required, even part penetration/insertion, which may not necessarily cause injury or bruises to the genitals, is sufficient for the purpose of the law.”

The case involved an accusation of penetrative sexual assault under Section 6 of the POCSO Act. The incident in question occurred on September 5, 2016, when a 13-year-old girl alleged that she was sexually assaulted by the accused. According to the victim's account, she was staying at the house of the accused for the purpose of primary education. One day, while accompanying the accused in his vehicle, he diverted to the outskirts of another village during heavy rainfall. There, he forcibly dragged her to a jhum hut, where he allegedly assaulted her, removing her clothing and touching her inappropriately. The victim recounted her resistance and the accused's use of force, which ultimately led to his insertion of a finger into her vagina, causing her pain.

During the trial, the victim also stated that she confided in her grandmother and later her father about the incident. She also detailed her distress to her school teacher, leading to her referral to the District Child Protection Unit.

Despite testimonies from multiple witnesses, including the victim herself and her father, the trial court acquitted the accused, citing lack of physical evidence of assault and on the ground of framing of wrongful charge under Section 4 instead of Section 6 of the Act.

The trial court relied on the testimony of the Medical Officer who examined the victim and concluded the absence of any injury on the genitals of the victim and finding the hymen of the victim intact.

The State of Mizoram challenged this decision, asserting that the victim's testimony should be given paramount importance in cases of sexual assault involving minors. The High Court agreed, highlighting the victim's consistent account of experiencing physical pain during the assault.

Considering the key question “whether this Court is to disbelief the testimony of the informant victim as regards her allegation of penetrative sexual assault in the absence of any injuries noted in her vagina/genital part during medical examination,” the court's judgment answering this, emphasised that even superficial penetration constitutes sexual assault under the POCSO Act, stating “charge of penetrative sexual assault is made out the moment there is some degree of insertion,”  and the testimony of the victim was held to be trustworthy without the need for any corroboration.

The court held that, given the continuity in the chain of events, supported by other witnesses, and the manner in which the victim had disclosed the incident from beginning to end, it conclusively proved her trustworthiness.

The court further said that “in order to constitute offence of penetrative sexual assault under Section 3 of the said Act, full penetration is not required. The words “to any extent” in the said provision indicates that even if any object or a part of the body is inserted partly, an offence of penetrative sexual is constituted.” Additionally, the court noted that “superficial digital insertion may not cause tear of the hymen.”

Consequently, the High Court overturned the trial court's decision and remanded the case for retrial, directing the lower court to frame the correct charges and expedite proceedings. The court also stressed the importance of concluding the trial within three months from the appearance of the accused.

 

Cause Title: State of Mizoram v Lalramliana and Anr [Crl.A./9/2020]