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The Gauhati High Court has held that there is no hard and fast rule requiring a rape survivor to physically resist an assault by biting, kicking or pushing the accused for her testimony to be believed.

The Court observed that different victims react differently to sexual assault and that the absence of active physical resistance cannot by itself be a ground to discard the survivor testimony.

A Division Bench of Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma observed:

“The fact that the victim did not violently or aggressively resist the appellant while he was in the process of committing rape upon her, may be on account of various reasons and also depends to a large extent on the personality of the victim. Different people have different reactions to the same situation, and there cannot be any hard-and-fast rule that in every case of rape there must be active resistance on the part of the victim by way of biting, kicking, etc. The tender age of the victim, i.e., 14 years, is also a relevant consideration with regard to the aforesaid aspect of the matter. The victim may not even raise hue and cry or inform her immediate neighbors on account of shame and embarrassment, but that is no reason to discard her testimony".

The High Court made the observation while dismissing an appeal filed by appellant challenging his conviction under POCSO. The Trial Court had sentenced him to 20 years of rigorous imprisonment and imposed a fine of Rs.10,000 for sexually assaulting a minor girl.

The case arose from an incident dated June 26, 2022 when the accused allegedly entered the house of the victim while her parents were away and sexually assaulted her in the kitchen. The victim younger sister was also present in the house and claimed to have witnessed the incident.

The victim's father subsequently lodged a police complaint. During the investigation the victim underwent medical examination which revealed an abrasion in her genital area and a ruptured hymen. However, spermatozoa were not detected in the vaginal smear.

During the appeal, the accused argued that there were material contradictions between the testimonies of the victim and her younger sister. He pointed out that the victim had neither raised an alarm nor informed her neighbours about the incident. He also argued that she had not physically resisted the assault by biting, kicking or pushing him.

The defence further claimed that he had been falsely implicated because of a dispute with the victim's father over a tea garden leased to him.

Rejecting these arguments, the High Court observed that the victim's tender age was also a relevant consideration while assessing her response to the assault.

“The victim may not even raise hue and cry or inform her immediate neighbors on account of shame and embarrassment, but that is no reason to discard her testimony” the Court observed.

The Bench further noted that there were no material omissions or contradictions between the victim's testimony before the Court and her statements recorded before the investigating officer and the Magistrate. It clarified that the inconsistencies in the younger sister's testimony which had already been discarded by the Trial Court as tutored did not provide a reason to reject the victim's account.

The High Court also relied on the medical evidence indicating injuries to the victim's private parts and rupture of her hymen observing that it supported her version of the incident.

Rejecting the plea of false implication, the Bench noted that the specific allegations concerning the alleged dispute over the tea garden had not been put to the informant during cross examination. It therefore found no sufficient material to accept the defence version.

Finding no infirmity in the Trial Court's judgment and sentence, the High Court dismissed the appeal and affirmed the accused conviction and 20 year imprisonment.

Counsel for the Appellant: P.C.R. Das, D. Chutia and S.J. Sarmah.

Counsel for the Respondents: B. Bhuyan, Senior Advocate and Additional Public Prosecutor, for the State of Assam; and B. Haldar, Legal Aid Counsel, for Respondent No. 2.

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