{"id":320230,"date":"2024-04-17T17:30:03","date_gmt":"2024-04-17T12:00:03","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=320230"},"modified":"2024-04-26T17:09:58","modified_gmt":"2024-04-26T11:39:58","slug":"charge-of-penetrative-sexual-assault-can-be-made-on-some-degree-of-insertion-non-tear-of-hymen-of-no-consequence-gauhc-legal-news","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/04\/17\/charge-of-penetrative-sexual-assault-can-be-made-on-some-degree-of-insertion-non-tear-of-hymen-of-no-consequence-gauhc-legal-news\/","title":{"rendered":"[POCSO Act] Charge of penetrative sexual assault can be made on some degree of insertion; non-tear of hymen of no consequence: Gauhati HC remands matter back to Trial Court"},"content":{"rendered":"
\n

Gauhati High Court:<\/span> The present criminal appeal under Section 378<\/a> of the Criminal Procedure Code, 1973<\/a> (‘CrPC’) was preferred against the impugned acquittal Judgment and Order dated 20-9-2019 passed by the Special Judge, POCSO, Aizawl Judicial District, Aizawl (‘the Trial Court’), registered under Section 6<\/a> of the Protection of Children from Sexual Offences Act, 2012<\/a> (‘POCSO Act’), wherein the Trial Court acquitted respondent by giving benefit of doubt.<\/p>\n

Kaushik Goswami, J.*<\/span>, opined that the charge of penetrative sexual assault was made out the moment there was some degree of insertion and therefore, non-tear of the hymen was of no consequence. The Court further opined that the victim was trustworthy, and her evidence was to be believed and there was no need to look for any corroboration. The Court further held that the Trial Court had framed the wrong charge and had conducted the trial. Thus, the Court quashed and set aside the Judgment and Order dated 20-9-2019 passed by the Trial Court and remanded the matter back to the Trial Court for re-framing the charge.<\/p>\n

Background<\/p>\n

On 8-9-2016, an FIR was lodged by the informant-victim who was aged about 13 years stating that she was living at the house of the accused-Respondent 1 for her primary education and on 5-9-2016, she accompanied Respondent 1 in his vehicle who was going to Damcherra, to be dropped at her father’s house, which was situated on the way. Thereafter, Respondent 1 stopped his vehicle at the outskirts of Bualzau Village while it was raining heavily and forcefully dragged the victim down towards the jhum hut, wherein he took off her pant and underwear and touched her private parts.<\/p>\n

The victim submitted that she refused and resisted Respondent 1, but he forcibly caught her and since he could not insert his penis into her vagina, he inserted his finger inside her vagina due to which she felt pain. Thereafter, the victim told her grandmother, father, Respondent 1’s wife, and lastly her teacher about the said incident, after which she was taken to the District Child Protection Office and on 8-9-206, she submitted FIR. Thus, a case was registered under Section 6<\/a> of POCSO Act<\/a> and upon completion of investigation and submission of the chargesheet, the Trial Court framed charge under Section 4<\/a> of POCSO Act<\/a> instead of Section 6. Thereafter, the Trial Court acquitted Respondent 1 by its Judgment and Order dated 20-9-2019.<\/p>\n

Analysis, Law, and Decision<\/p>\n

The Court stated that from the testimony of the Medical Officer who examined the victim, it appeared that there was no injury in victim’s genital parts and her hymen was intact and that the Medical Officer could not discern any signs which would indicate that the girl had been sexually assaulted. The Court noted that the Trial Court relied on the evidence of the Medical Officer and disbelieved the version of the victim and thus, acquitted Respondent 1.<\/p>\n

The Court opined that “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 victim’s version must be considered with utmost care before discerning it. In fact, if the version of the victim inspires confidence and appears to be trustworthy, credible, unblemished and of sterling quality, no further corroboration is required”<\/span>.<\/p>\n

The Court relied on Ganesan v. State<\/span>, (2020) 10 SCC 573<\/a>, wherein the Supreme Court observed and held that “where the testimony of victim is found reliable and trustworthy, conviction on the basis of her testimony is permissible”<\/span>. The Court observed that the victim was consistently maintaining her version as regards being sexually assaulted by Respondent 1. Though in the FIR she did not disclose that Respondent 1 had inserted his finger into her vagina, but while her statement was recorded under Section 164<\/a> of CrPC<\/a>, she disclosed the said fact. Further, from the deposition of the Investigating Officer, it appeared that she had also disclosed the said fact in her statement recorded under Section 161<\/a> of CrPC<\/a>.<\/p>\n

The Court opined that in view of the continuity in the chain of events, supported by the other witnesses and the manner in which the victim had disclosed about the incident right from the beginning to the end, it conclusively proved that she was trustworthy. The Court stated that it had to be mindful as how a child would disclose incident of sexual abuse that too committed by a person in whose home, she was residing. The Court relied on Court on its Own Motion v. State<\/span>, 2018 SCC OnLine Del 10301<\/a>, wherein the Delhi High Court held that children did not disclose in one go but did so in piece meal and that a contradictory initial account was not a reason in itself to disbelieve the subsequent accounts by the victims.<\/p>\n

The Court opined that it was natural for the victim not to disclose initially the factum of penetrative sexual assault while lodging the FIR. In the present case, though she had disclosed the incident to her grandmother, and to the wife of Respondent 1, she gained no support from them. It was extremely unfortunate that despite her unwillingness, her grandmother compelled her to go with Respondent 1 to live in his house. The Court opined that it was natural for the victim to feel uncomfortable in directly disclosing ‘the act of digital insertion’ to her teacher who was a male officer, especially where her own grandmother had neither empathized with her situation nor had given her any support. Therefore, merely because the victim had not disclosed the fact with regards to the act of digital insertion at the time of filing the FIR, did not make her subsequent accounts of digital insertion unbelievable.<\/p>\n

The Court further observed that to constitute offence of penetrative sexual assault under Section 3<\/a> of POCSO Act<\/a>, full penetration was not required and even if any object or a part of the body was inserted partly, an offence of penetrative sexual was constituted. The Court relied on State of U.P. v. Chhotey Lal<\/span>, (2011) 2 SCC 550<\/a>, wherein the Supreme Court held that evidence of prosecutrix alone was sufficient for sustaining a conviction and absence of injuries on the prosecutrix was not sufficient to discredit her evidence.<\/p>\n

The Court stated that the victim clearly deposed that she experienced physical pain while Respondent 1 inserted his finger into her vagina, following which he got up and dressed himself. The Court thus opined that it was obvious that there was insertion of the finger into the 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 might not cause tear of the hymen. The Court opined that the charge of penetrative sexual assault was made out the moment there was some degree of insertion and therefore, non-tear of the hymen was of no consequence. The Court further opined that the victim was trustworthy, and her evidence was to be believed and there was no need to look for any corroboration.<\/p>\n

The Court opined that 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”<\/span> was manifestly erroneous, and not a possible view. Thus, the findings of the Trial Court were palpably wrong, manifestly erroneous and demonstrably not sustainable and therefore, the Trial Court Judgment acquitting Respondent 1 was per se bad and was liable to be interfered with.<\/p>\n

The Court held that as Respondent 1 had committed penetrative sexual assault on the victim, when she was living in his house, this was an offence under Section 5(n)<\/a> of POCSO Act<\/a> and therefore the punishment had to be under Section 6<\/a> of POCSO Act<\/a>. The Court further held that the Trial Court had framed the wrong charge and had conducted the trial. In such a situation, Respondent 1 could not be convicted under a provision of law prescribing higher punishment without giving him an opportunity. Thus, the Court quashed and set aside the Judgment and Order dated 20-9-2019 passed by the Trial Court and remanded the matter back to the Trial Court for re-framing the charge. The Court directed Respondent 1 to appear before the Trial Court on 22-4-2024.<\/p>\n

[State of Mizoram v. Lalramliana, 2024 SCC OnLine Gau 403<\/a>, decided on 29-2-2024<\/span>]<\/p>\n

*Judgment authored by: Justice Kaushik Goswami<\/span><\/strong><\/p>\n\n

Advocates who appeared in this case :<\/p>\n

For the Petitioner: Linda L Fambawl (PP\/Addl. PP, Mizoram)<\/p>\n

For the Respondent: B Lalramenga, Counsel<\/p>\n

Buy Protection of Children from Sexual Offences Act, 2012   HERE<\/a><\/h3>\n

\"protection<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The version of the informant\/victim must be considered with utmost care before discerning it. 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Appellant aged 67 years was convicted under Sections 376\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=700%2C400&ssl=1 2x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2016\/09\/Bombay-HC.jpg?resize=1050%2C600&ssl=1 3x"},"classes":[]},{"id":257509,"url":"https:\/\/www.scconline.com\/blog\/post\/2021\/11\/22\/putting-penis-into-mouth\/","url_meta":{"origin":320230,"position":2},"title":"POCSO | Putting penis into mouth will fall under which category – Aggravated Sexual Assault or Penetrative Sexual Assault? All HC answers","author":"Bhumika Indulia","date":"November 22, 2021","format":false,"excerpt":"Allahabad High Court: Anil Kumar Ojha, J., while addressing a matter of child sexual assault, expressed that, Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":335628,"url":"https:\/\/www.scconline.com\/blog\/post\/2024\/11\/20\/patnahc-directs-release-of-old-man-after-10-years-who-was-wrongly-convicted-u-s-6-pocso-act-instead-of-s-4\/","url_meta":{"origin":320230,"position":3},"title":"‘Convicted u\/Section 6 of POCSO Act instead of Section 4’; Patna HC directs release of an old man after 10 years’ imprisonment; enhances victim compensation from Rs 4 to 5 lakhs","author":"Simranjeet","date":"November 20, 2024","format":false,"excerpt":"The Trial Court did not notice the facts that the offence was committed in 2014 and at that time there was no such punishment as rigorous imprisonment for the remainder of natural life in Section 6 of POCSO Act.","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"Patna High Court","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Patna-High-Court.webp?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Patna-High-Court.webp?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Patna-High-Court.webp?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Patna-High-Court.webp?resize=700%2C400&ssl=1 2x"},"classes":[]},{"id":317939,"url":"https:\/\/www.scconline.com\/blog\/post\/2024\/03\/20\/practice-directions-criminal-proceedings-pocso-act-notification-gauhati-hc-legal-news\/","url_meta":{"origin":320230,"position":4},"title":"Gauhati High Court adopts Practice Directions for proceedings filed under POCSO Act","author":"Sucheta","date":"March 20, 2024","format":false,"excerpt":"On 15-03-2024, the Chief Justice issued a Notification regarding adoption of Practice Directions for Criminal Appeals\/Revisions or Criminal Petitions filed under the POCSO Act in Gauhati High Court and the Outlying Benches.","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"Gauhati High Court","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Gauhati-High-Court.webp?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Gauhati-High-Court.webp?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Gauhati-High-Court.webp?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/03\/Gauhati-High-Court.webp?resize=700%2C400&ssl=1 2x"},"classes":[]},{"id":199805,"url":"https:\/\/www.scconline.com\/blog\/post\/2018\/08\/07\/man-convicted-under-pocso-act-for-penetrative-sexual-assault-on-her-daughter\/","url_meta":{"origin":320230,"position":5},"title":"Man convicted under POCSO Act for penetrative sexual assault on his daughter","author":"Bhumika Indulia","date":"August 7, 2018","format":false,"excerpt":"Delhi High Court: A Division Bench comprising of S. 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