Gauhati HC Cuts 20-Year POCSO Sentence To 5 Years, Finding Finger Penetration Unproved But Touching Inside Child’s Underwear Proved

The appellant was convicted by the Special Judge, POCSO, under Section 376AB IPC read with Section 4(2) of the POCSO Act and sentenced to 20 years’ rigorous imprisonment and a fine.

The prosecution alleged that, on 27 December 2020, the appellant inserted his finger into the six-year-old victim’s vagina while she was at his home; the victim and her mother said she bled afterwards.

The FIR was lodged on 2 January 2021, and the victim was medically examined on 4 January 2021.

On appeal, the appellant challenged the reliability of the evidence, relying, among other things, on the clean underwear observed by a witness, the absence of injury recorded by the doctor, and the delay in reporting.

Section 7 of the POCSO Act covers sexual assault involving physical contact with sexual intent, without penetration; Section 9(m) treats such assault as aggravated where the child is below 12 years, and Section 10 prescribes its punishment.

The Court treated proof of penetration as necessary to sustain the more serious conviction and assessed the evidence as a whole, including the victim’s testimony, medical evidence and surrounding circumstances.

It cited State of U.P. v. Manoj Kumar Pandey, (2009) 1 SCC 72, Deepak v. State of Haryana, (2015) 4 SCC 762, and State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, for the principle that delay in reporting sexual offences is not, by itself, fatal and may have varied explanations.

The Court invoked Section 216 CrPC as the basis for altering the charge.

The Court found reasonable doubt about penetration: the witness who saw the victim’s underwear shortly after the incident described it as clean, the doctor recorded no bleeding or injury on examination, and the alleged insertion of a wire was unsupported by the victim’s Section 164 statement or other evidence.

It also regarded the explanation for the reporting and examination delays as doubtful in the circumstances, including the mother’s not seeking medical examination when the FIR was lodged.

The Court nevertheless accepted the victim’s evidence that the appellant put his hand inside her underwear and touched her private parts.

Because the victim was under 12, it considered that conduct to constitute aggravated sexual assault under Sections 7 and 9(m), punishable under Section 10.

Although the Court acknowledged that delay alone does not discredit a sexual-offence complaint, it considered the delay alongside the other circumstances in assessing whether penetration had been proved.

Altering the charge under Section 216 CrPC, it convicted the appellant under Section 10 and sentenced him to five years’ rigorous imprisonment and a fine of ₹15,000, with three months’ rigorous imprisonment in default.

Time already served was to be set off, and the trial judgment was modified accordingly.