Assam HC Cuts Life Term To 6½ Years In POCSO Case, Finds Sexual Assault Proved But Penetration Unproved

The appellant was convicted by the Special Judge, Jorhat, for aggravated penetrative sexual assault on a seven-year-old girl under Section 6 of the POCSO Act read with Section 376(AB) IPC and sentenced to life imprisonment.

The prosecution alleged that on 25 February 2020 the appellant lured the child into his house and sexually assaulted her; the child’s mother lodged the FIR the following day.

On appeal, the appellant argued that the child’s statements under Sections 161 and 164 CrPC described contact between the parties’ private parts, not penetration, and that the medical evidence did not establish penetration.

The State and the victim’s amicus accepted that the statements and medical evidence did not conclusively establish penetration, but submitted that the evidence supported sexual assault aggravated by the child’s age.

Section 3 of the POCSO Act defines penetrative sexual assault, punishable under Section 6 when aggravated; Section 7 defines sexual assault, while Section 9(m) treats sexual assault on a child below twelve years as aggravated and Section 10 prescribes its punishment.

Under Section 145 of the Evidence Act, a witness’s prior statement may be used to contradict that witness if the required foundation is laid; statements under Section 161 CrPC may be used for contradiction, and statements under Section 164 CrPC may be used for contradiction or corroboration, as stated in R. Shaji v. State of Kerala, (2013) 14 SCC 266.

The Court also applied Section 42 of the POCSO Act in explaining the Trial Court’s sentencing under the POCSO provision rather than the corresponding IPC provision.

The child’s statements under Sections 161 and 164 CrPC described the appellant’s private parts touching hers, but did not state that penetration occurred; the Court found that these prior statements contradicted her trial testimony alleging insertion, after the defence put the relevant matter to her and the investigating officer.

The medical evidence—including an intact hymen and no detected recent sexual intercourse or injuries—did not independently establish penetration, though the Court noted that those findings alone would not rule out rape.

The prosecution therefore failed to establish the foundational fact of penetrative sexual assault beyond reasonable doubt, and the Court held that no presumption of guilt as to that offence arose.

However, the child’s trial testimony, supported by her Section 164 statement and PW-3’s account of what the child had reported, established sexual assault; the age evidence placed her below twelve, attracting Section 9(m).

It modified the Trial Court’s judgment and sentenced the appellant to six years and six months’ rigorous imprisonment and a fine of ₹5,000, with six months’ rigorous imprisonment in default; custody already undergone was to be set off against the sentence.

The appeal was disposed of and the trial court record was directed to be returned.