20-year POCSO sentence upheld for adoptive father who repeatedly raped 13-year-old; Gauhati High Court flags ‘two-finger test’ as impermissible

The appellant was tried for repeatedly raping his 13-year-old adopted daughter from April 2022.

The victim initially disclosed the incidents to a village resident, PW-4, on 9 September 2022; villagers thereafter convened a meeting, where the appellant allegedly confessed, and PW-1 lodged the FIR on 10 September 2022.

The prosecution case was that the victim had earlier informed her foster mother, who instructed her not to disclose the incidents.

The appellant was charged under Sections 376 and 201 IPC read with Section 6 of the POCSO Act. His wife was separately charged under Section 201 IPC read with Sections 17 and 21 of the POCSO Act.

The victim was not cited as a prosecution witness in the charge-sheet but was examined by the Trial Court as Court Witness No. 1.

The Special Judge, POCSO, Karbi Anglong, convicted the appellant under Section 6 of the POCSO Act, relating to aggravated penetrative sexual assault under Section 5(n), and sentenced him to 20 years’ rigorous imprisonment with a fine of ₹10,000.

He was acquitted under Section 201 IPC, while his wife was acquitted of all charges.

Whether the testimony of the victim, examined as a Court Witness, together with her Section 164 Cr.P.C. statement and surrounding evidence, proved beyond reasonable doubt that the appellant had repeatedly raped her?

Whether the delay of approximately five months in lodging the FIR rendered the prosecution case doubtful?

Whether the medical evidence, including the two-finger examination, could corroborate or undermine the allegation of rape?

Whether the appellant’s explanation under Section 313 Cr.P.C.—that the victim falsely implicated him after being disciplined for refusing to attend school and messaging a boy—created a reasonable doubt?

Whether the alleged extra-judicial confession before the villagers could be relied upon as corroborative evidence?

The Court applied Section 6 of the POCSO Act, which prescribes punishment for aggravated penetrative sexual assault, including the circumstances covered by Section 5(n), where the offender repeatedly commits penetrative sexual assault on a child; Sections 376 and 201 IPC were also part of the charge, though the appellant was acquitted under Section 201 IPC.

The Court relied on the principle that the credible and consistent testimony of a sexual-offence victim can, by itself, sustain a conviction, particularly where it is corroborated by surrounding circumstances and the victim’s prior statement.

On delay, it applied Apren Joseph v. State of Kerala, Deepak v. State of Haryana, State of Punjab v. Gurmit Singh, State of H.P. v. Gian Chand and State of U.P. v. Manoj Kumar Pandey, holding that delay in rape cases, especially where the accused is a relative or trusted family member, is not necessarily fatal if reasonably explained.

Regarding medical evidence, the Court relied on Lillu v. State of Haryana and State of Jharkhand v. Sainendra Kumar Rai to hold that the two-finger test lacks scientific basis, violates the survivor’s privacy and dignity, and that the condition of the hymen neither proves nor disproves sexual assault.

As to the extra-judicial confession, the Court applied the principles stated in Pritinder Singh v. State of Punjab and the authorities cited therein: such a confession is a weak form of evidence, but may support conviction if voluntary, truthful, credible and corroborated.

The Court found the victim’s evidence consistent, specific and materially corroborated by her Section 164 Cr.P.C. statement, her prompt disclosure to PW-4 and PW-1 once the abuse became unbearable, and the evidence that she had been living in a shelter home after the incident.

The delay was held satisfactorily explained because the victim was a young adopted child, the alleged perpetrator was her foster father, and her foster mother had discouraged disclosure.

The Court held that the absence of injuries did not discredit the allegation.

Although it criticised the doctor’s use of the two-finger test as legally and medically impermissible, it clarified that hymenal findings cannot determine whether rape occurred; the victim’s trustworthy testimony remained the principal evidence.

The appellant’s Section 313 explanation was treated as an afterthought because the alleged mobile-phone messaging was not put to the victim or other witnesses in cross-examination, and no defence evidence was led to substantiate the proposed false-implication theory.

The Court also accepted PW-1’s unchallenged evidence that the appellant confessed before the villagers.

While recognising the inherent weakness of an extra-judicial confession, it found that the statement was supported by the victim’s evidence and other circumstances and therefore furnished additional corroboration.

The fact that the victim had been omitted from the charge-sheet did not render her evidence inadmissible; the Trial Court was entitled to examine her as a Court Witness, and her testimony remained materially unshaken in cross-examination.

It held that the prosecution proved beyond reasonable doubt that the appellant had repeatedly subjected his 13-year-old adopted daughter to penetrative sexual assault, constituting aggravated penetrative sexual assault under Sections 5(n) and 6 of the POCSO Act.

The delay in the FIR, absence of injuries, medical examination, omission of the victim from the charge-sheet, and the appellant’s Section 313 explanation did not create reasonable doubt.

The appeal was dismissed and the conviction and sentence of 20 years’ rigorous imprisonment with a ₹10,000 fine were upheld; the Trial Court Record was directed to be returned.