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

The absence of a tear in the hymen or lack of genital injuries is not always a ground to disbelieve a victim’s testimony that she was subjected to penetrative sexual assault, the Gauhati High Court recently held [State of Mizoram v. Lalramliana and Anr]..Justice Kaushik Goswami explained that the offence of penetrative sexual assault is established the moment there is any degree of insertion, even if it is a superficial insertion which may not necessarily cause injuries or bruises to the victim’s body..The Court made the observation while dealing with a case 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. A trial court had earlier acquitted the accused after noting a medical officer’s report that there were no genital injuries on the victim to indicate that she had been subjected to penetrative sexual assault.Terming with the trial court’s approach manifestly erroneous, the 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 observed that a 13-year-old girl would not ordinarily lie about being subjected to such sexual assault and that her version of events can be relied upon without further corroboration if it appears trustworthy, credible, unblemished of sterling quality and if it inspires confidence.“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 Court was dealing with a case where a 13-year-old reported that she was sexually assaulted by a man in whose house she had been staying for the purpose of her studies.The accused man is said to have taken her out with him one evening and groped her before trying to rape her. When she resisted, he is said to have inserted his finger into her vagina, before eventually taking her back home. .The victim claimed that she disclosed the incident to her grandmother as well as the wife of the accused and found no support from either of them. The next day, her teacher found her crying at school and alerted a district child protection officer.After the intervention of this officer, a criminal complaint was eventually registered. The girl did not initially mention that the accused had inserted his finger into her body in the first information report (FIR). However, she later disclosed this aspect of the case in subsequent statements made to the police and maintained this version of events during the trial.The 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 High Court explained.“Her statements as regarding the surrounding circumstances has been fully supported by the other witnesses,” the High Court added, while concluding that the victim’s testimony inspired confidence..The High Court proceeded to set aside the trial court’s decision to acquit the accused by giving him the benefit of doubt. However, the High Court did not proceed to convict the accused upon noticing that the trial court had framed charges wrongly.Instead of framing a charge for aggravated penetrative sexual assault (punishable with a minimum sentence of 20 years in jail) under Section 5 (n) (sexual assault by a relative or a person living in the same shared household) of the POCSO Act, the trial court had cited a charge of penetrative sexual assault under Section 4 (which is punishable with a minimum sentence of 10 years in jail).Therefore, the 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. The accused was, therefore, ordered to appear before the trial court on April 22, and the trial court was ordered to conclude the trial preferably within three months thereafter.With these observations, the State’s appeal challenging the trial court’s earlier acquittal was allowed..Additional Public Prosecutor, Mizoram Linda L Fambawl represented the State government. Advocate B Lalramenga appeared for the accused man..[Read Judgment]