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GAUHATI HIGH COURT
Michael Zothankhuma and
Sanjeev Kumar Sharma, JJ.
Satish Ray (Mandal) @ Satish Mandal @ Satish Ch Ray – Appellant
versus
State of Assam and Anr. – Respondent
Crl.A. No.267 of 2023
Decided on 26.5.2026
Counsel for the Parties:
For the Appellant:Mr. R. Ali. …Advocate.
For the Respondent No.1: Mr. R.R. Kaushik, Addl. P.P., Assam.
For the Respondent No.2: Mr. S.N. Tamuli, Amicus Curiae.
Oral testimony of a victim in sexual assault cases holds precedence over medical evidence unless the latter completely refutes the occurrence. The absence of physical injury or an intact hymen does not negate the legal definition of penetrative sexual assault, which includes even the slightest degree of penetration.
Headnote:(A) Protection of Children from Sexual Offences Act - Section 6 - Indian Penal Code - Section 376(AB) - Code of Criminal Procedure - Section 164 - Aggravated penetrative sexual assault - Conviction challenged on grounds of lack of consistency between statement recorded before magistrate and trial testimony - Medical report showing intact hymen and absence of injury - Whether such findings negate charge of sexual assault. (Paras 2, 3, 4)
(B) Evidence - Oral testimony of victim - Precedence over medical findings - Medical reports suggesting absence of recent sexual activity do not automatically invalidate victim's account - Penetrative sexual assault defined as slightest degree of penetration - Intact hymen does not preclude finding of penetration. (Paras 15, 16, 17, 18, 19, 21, 22)
Facts of the case:
The appellant was convicted for aggravated penetrative sexual assault on a minor. The defense contended that the victim's statement recorded before a magistrate used the vague term "bad act," which failed to corroborate the specific allegation of sexual intercourse made during trial. Furthermore, the medical report indicated an intact hymen and no physical injuries, suggesting no penetration occurred.
Findings of Court:
The court observed that the term "bad act" must be interpreted in light of the surrounding circumstances. Given the victim's clear testimony regarding the insertion of the male organ, the statement recorded before the magistrate provided sufficient consistency. The court further held that medical evidence indicating an intact hymen does not disprove penetration, as the law recognizes even the slightest degree of penetration as sufficient for the offence.
Issues: Whether the victim's statement recorded under the Code of Criminal Procedure sufficiently supports the trial testimony when the former uses ambiguous terminology, and whether medical evidence of an intact hymen is conclusive proof against the occurrence of penetrative sexual assault.
Ratio Decidendi: Oral testimony of a victim, if found cogent and reliable, takes precedence over medical evidence unless the latter completely refutes the possibility of the occurrence. Penetrative sexual assault is a legal conclusion, not a medical one, and does not require complete penetration or physical injury to the private parts.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. overview of criminal appeal regarding pocso and ipc convictions. (Para 1 , 2) |
| 2. contention regarding sufficiency of testimony and medical evidence correlation. (Para 3 , 4 , 5 , 6) |
| 3. interpretation of ambiguous terminology in prior statements vs trial testimony. (Para 8 , 9 , 12 , 13) |
| 4. evidence provided by victim in trial and cross-examination details. (Para 10 , 11) |
| 5. oral testimony prevails over medical evidence in sexual assault cases. (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 6. final confirmation of conviction due to credible witness testimony. (Para 23 , 24 , 25) |
ORDER (CAV)
M. Zothankhuma, J.—Heard Mr. R. Ali, learned counsel for the appellant. Also heard Mr. R.R. Kaushik, learned Addl. PP for the State and Mr. S.N. Tamuli, learned Amicus Curiae for the respondent No. 2.
2. This appeal has been made challenging the conviction of the appellant under Section 6 of the POCSO Act and Section 376(AB) of the IPC, vide the impugned judgment dated 20.06.2023, passed by the Court of the Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta in Special POCSO Case No.66/2020, for having caused aggravated penetrative sexual assault on the victim girl, aged 9 years. The appellant was thereafter sentenced to undergo rigorous imprisonment for 20 years and to pay a fine of Rs.10,000/-, in default, simple imprisonment for another year under Section 6 of the POCSO Act only, in view of Section 42 of the POCSO Act.
3. The appellant’s counsel submits that the conviction of the appellant under Section 6 of the POCSO Act and Section 376(AB) IPC is not sustainable in law, in view of the fact that the testimony of the victim given before the learned Trial Court has not been corroborated by her statement recorded under Section 164 Cr.P.C. He submits that the victim in her 164 Cr.P.C statement has only stated that the appellant had committed “bad act” on her after removing her clothes. The said use of the word “bad act” does not in any way conclusively prove that there had been sexual intercourse between the appellant and the victim. The word “bad act” can also mean many other things, other than sexual intercourse. Though the appellant in her evidence in the learned Trial Court has stated that the appellant had inserted his penis into the vagina of the victim, the same not being corroborated by the victim’s statement under Section 164 Cr.P.C, due to the use of the word “bad act”, the conviction of the appellant for an offence punishable under Section 6 of the POCSO Act could not be said to have been proved.
4. The learned counsel for the appellant further submits that the Doctor (PW- 6), who examined the victim and the Medical Report does not prove that there was penetration of the vagina of the victim by the penis of the appellant, inasmuch as, the hymen was intact, though there was redness around the hymen and tenderness on touch. Further, the opinion of the Doctor was that there was no evidence of sexual intercourse detected at the time of examination nor were there any evidence of injury on her body or private parts, except for the redness around the hymen. In view of the medical evidence it could not be said that a case of rape had been made out against the appellant. In this respect, he has relied upon the judgment of this Court in the case of Manirul Islam vs. State of Assam & Another, reported in 2021 (3) GLT 128. The learned counsel for the appellant in support of his submission has also relied upon the judgment of this Court in the case of Shah Alam (MD) vs. State of Assam & Another, reported in 2026 (2) GLT 1.
5. The appellant counsel submits that in view of the above reasons, the impugned judgment should be set aside and the appellant should be acquitted from the charges framed against him.
6. Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State and Mr. S.N. Tamuli, learned Amicus Curiae for the respondent no.2, on the other hand submit that there is no infirmity with the convicti
