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Hymen tear not necessary in all cases of penetrative sexual assault: Gauhati High Court in ‘POCSO Act 2012’ case

The Gauhati High Court clarified that in cases of penetrative sexual assault under the POCSO Act, the presence or absence of hymen tear should not be a determining factor.

The court emphasized that the charge of penetrative sexual assault is established as soon as there is any degree of insertion, irrespective of whether the hymen is torn or not.

The Gauhati High Court recently ruled in the case of State of Mizoram v. Lalramliana and Anr. that the absence of hymen tear or visible genital injuries should not always lead to skepticism regarding a victim’s claim of penetrative sexual assault.

Justice Kaushik Goswami elaborated that the act of penetrative sexual assault is confirmed as soon as there is any level of insertion, regardless of whether it is superficial and does not result in physical harm or bruises to the victim’s body.

The Gauhati High Court noted this while handling a case falling under the Protection of Children from Sexual Offences Act (POCSO Act), wherein a man was accused of inserting his finger into a 13-year-old’s vagina.

POSCO Act_PROTECTION OF CHILDREN – SEXUAL OFFENCES

Previously, the accused had been acquitted by a trial court based on a medical officer’s report, which indicated the absence of genital injuries on the victim, suggesting that she had not experienced penetrative sexual assault.

Terming with the trial court’s approach manifestly erroneous, the Gauhati High Court said:

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 … 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. In view of the above, 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 court also noted that it’s unlikely for a 13-year-old girl to falsely claim such sexual assault, and her account can be trusted without additional confirmation if it seems credible, reliable, and inspires confidence, being of impeccable quality.

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,” the February 29 judgment stated.

The  Gauhati High Court observed that it was not natural for the victim to have disclosed the events in such a piecemeal manner, particularly when she did not initially get any support from her grandmother and the wife of the accused, and since she initially had to narrate the events before a male officer. It is only natural that the victim child initially felt uncomfortable in directing disclosing “the act of digital insertion” to her teacher and the male officer, the Gauhati High Court explained

Her statements as regarding the surrounding circumstances has been fully supported by the other witnesses,” the  Gauhati High Court added, while concluding that the victim’s testimony inspired confidence.

Therefore, the Gauhati High Court remanded the matter back to the trial court.

The accused/respondent No.1 cannot be convicted under a provision of law prescribing higher punishment without giving him an opportunity … In view of the above, I am of the considered view that the matter be remanded back to the Trial Court for re-framing the charge,” the Court said.  

As a result, the accused received an order to attend the trial court on April 22, with the directive for the trial court to ideally conclude the trial within three months following that date.

The State’s appeal against the previous acquittal by the trial court was granted based on the mentioned observations.

Representing the State government, Additional Public Prosecutor Mizoram Linda L Fambawl was present.

Advocate B Lalramenga represented the accused individual in court.

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