POCSO Act | Complete Penetration Or Rupture Of Hymen Not Necessary To Prove Penetrative Sexual Assault: Gauhati High Court Reiterates

The Gauhati High Court has upheld the conviction of a man under Section 6 of the POCSO Act, observing that penetrative sexual assault does not necessarily require complete penetration or rupture of hymen, and that the victim's testimony in the present case was sufficient to sustain the conviction.The Court was hearing a criminal appeal filed by one Satish Ray, challenging his conviction arising out of a Special POCSO Case. The appellant had been convicted for aggravated penetrative sexual assault on a 9 year old girl and sentenced to rigorous imprisonment for 20 years. A Division Bench comprising of Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma observed, “Keeping in view the fact that the victim was a child of only 9 years, there would have naturally been some injury and most likely, rupture of the hymen, if there was complete penetration of the penis. However, sexual intercourse in law and the term penetrative sexual assault provided in Section 3 of the POCSO Act would also have to be held to mean the slightest degree of penetration of the vulva or the labia majora.”“Thus, the redness around the hymen and the tenderness to touch can be explained, in view of there being a slight degree of penetration, as per the testimony of the victim. This aspect of the matter has not been put to the Doctor by the appellant and as such, we are of the view that even though the evidence of Doctor is suggestive of the fact that there was no recent sexual intercourse, the evidence of the victim proves that there had been slight penetration of her private parts by the penis of the appellant,” the bench further held.In this regard, Court relied on Wahid Khan vs. State of Madhya Pradesh (2010) where the Supreme Court held that just because hymen is intact does not mean that rape was not committed. Complete penetration is not necessary.The appellant argued that the victim's statement under Section 164 CrPC, where she had used the expression “bad act”, did not conclusively prove sexual intercourse. It was also argued that the medical evidence did not establish penetration since the victim's hymen was intact and the doctor had found no evidence of sexual intercourse or injury except redness around the hymen.The Court rejected this argument. It noted, “The victim having clearly testified that the appellant had inserted his penis into her vagina, we do not find any reason to doubt the truthfulness of the said testimony, even though her statement under Section 164 Cr.P.C only spoke of a 'bad act' being committed on her after the appellant took off her clothes and his trouser.”The Court concluded, “even though the evidence of Doctor is suggestive of the fact that there was no recent sexual intercourse, the evidence of the victim proves that there had been slight penetration of her private parts by the penis of the appellant.”Accordingly, the Court found no reason to interfere with the Trial Court and appeal was accordingly dismissed.Case Name: Satish Ray (Mandal) @ Satish Mandal @ Satish Ch Ray v. State of Assam & Anr.LL Citation: 2026 LiveLaw (Gau) 74Case Number: Crl.A./267/2023 Click here to read the judgment

POCSO Act | Complete Penetration Or Rupture Of Hymen Not Necessary To Prove Penetrative Sexual Assault: Gauhati High Court Reiterates

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POCSO Act | Complete Penetration Or Rupture Of Hymen Not Necessary To Prove Penetrative Sexual Assault: Gauhati High Court Reiterates

Bhavya Singh

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