Gauhati High Court Reduces Sentence Of Man Convicted For Sexually Assaulting Minor Daughter After Modification In Trial Court Verdict

The division bench of Justice Michael Zothankhuma and Justice Parthivjyoti Saikia took note of the victim's statement that her father committed rape upon her. It compared it with the statement of the doctor who said that girl told him that her father had attempted to rape her but she pushed him aside and he could not proceed further.

The court said there was no cross-examination either of the victim girl or the doctor.

“There is no doubt that the hymen of the victim girl was found intact. So, complete penetration can easily be ruled out. It is true that in order to constitute penetrative sexual intercourse, slightest penetration is sufficient. But in the case in hand, we have before us the evidence of the doctor who quoted the victim girl as saying to her that the appellant tried to insert his penis into her vagina. If this piece of evidence is accepted, then it can be held that there was no penetrative sexual assault,” it added. 

An FIR regarding the incident was lodged by the victim’s mother in 2018 at Tengakhat P.S. under Section 376 of the IPC read with Section 4 of the Protection of Children from Sexual Offences (POCSO) Act. Section 4 pertains to penetrative sexual assault. The accused was convicted in November 2019.

In 2020, he approached the High Court challenging the judgement and sentence order of the POCSO Court by which he was convicted under Section 4 and sentenced to 15 years of rigorous imprisonment and Rs. 1,000/- fine.

The division bench observed that the victim girl had stated that she was raped by the appellant but medical evidence, on the other hand, shows that the hymen of the victim was intact.

“We are of the opinion that there is a doubt about the veracity of the allegation of rape or penetrative sexual intercourse upon the victim girl. The evidence available before us clearly shows that the appellant touched the body of the victim girl with sexual intention,” it added.

The court further stated that the offence under Section 6 (aggravated penetrative sexual assault) has not been proved against the appellant beyond all reasonable doubt but the offence under Section 8 (sexual assault) is proved beyond all reasonable doubt against the appellant.

Therefore, the court partially allowed the appeal and modified the judgement to the extent that the appellant stands convicted under Section 8 of the POCSO Act. It sentenced the appellant to undergo rigorous imprisonment of 5 years for the offence under Section 8 of the POCSO Act.

Though the trial court had convicted the accused under Section 4, it had also observed that the charge ought to have been framed under Section 6 of POCSO Act. However, it did not consider it prudent to alter the charge and delay the trial. 

Case Title: KS v. The State of Assam

Citation: 2023 LiveLaw (Gau) 32

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