The Gauhati High Court has affirmed a 20-year rigorous imprisonment sentence for a man convicted of repeatedly assaulting his 13-year-old adopted daughter, while voicing grave concern over the continued administration of the banned two-finger test by medical examiners.
A division bench comprising Justice Michael Zothankhuma and Justice Rajesh Mazumdar dismissed the convict’s appeal against a July 17, 2023 trial court judgment. In its July 23 ruling, the bench upheld the conviction under Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, which carries a 20-year prison sentence and a fine of Rs 10,000.
Judicial Concern Over Banned Medical Practice
During the proceedings, the bench expressed shock that an examining doctor recorded findings based on a two-finger examination of the minor victim. The judges noted that the Supreme Court had unequivocally barred the procedure in landmark decisions, including Lillu vs State of Haryana (2013) and State of Jharkhand vs Sainendra Kumar Rai (2022).
The bench emphasized that per-vaginum examinations lack scientific validity and re-traumatize survivors while violating their fundamental rights to privacy, dignity, and physical and mental integrity. The court reiterated Supreme Court directives holding that medical professionals who perform such tests are guilty of professional misconduct.
The judges further clarified that physical markers such as hymenal status do not constitute proof of sexual assault or prior intercourse, as hymenal tearing can result from various non-sexual causes. They also referenced 2014 Union Health Ministry guidelines that expressly forbid per-vaginum testing to determine sexual violence, though noting those directives remain advisory rather than legally binding.
Details Of Abuse And Reporting
The criminal proceedings stemmed from events beginning in April 2022, when the 13-year-old victim was repeatedly subjected to sexual assault by her adoptive father. According to court records, the abuse occurred while the girl’s foster mother was away at work. The survivor testified that the accused beat her with a stick and threatened to kill her whenever she attempted to resist.
Although the victim initially informed her foster mother, she was advised not to disclose the abuse. Unable to bear the ongoing trauma, the child eventually confided in a neighbour months later. This led local villagers to inform law enforcement, resulting in a First Information Report (FIR) being registered in September 2022.
Rejection Of Defense Claims
The High Court deemed the survivor’s testimony consistent, credible, and fully corroborated by her statement recorded before a magistrate under Section 164 of the Code of Criminal Procedure. The bench noted that defense counsel failed to shake her testimony during cross-examination.
Addressing the appellant’s argument regarding the multi-month delay in filing the FIR, the bench stated that delayed reporting is common in cases involving family members or legal guardians, citing established judicial precedent.
The court also dismissed the convict’s claim that he was falsely implicated following a dispute over the child’s school attendance and mobile phone usage. The judges observed that this defense theory was unsupported by evidence and was never put to the survivor during cross-examination, rendering it an afterthought.
Additionally, the bench highlighted a procedural omission during the investigation, where the police investigating officer failed to list the survivor as a prosecution witness in the chargesheet. The trial court judge rectified this lapse by summoning the girl as a court witness, ensuring her testimony became part of the official record.
The court also noted that an extra-judicial confession allegedly made by the accused to villagers provided further corroborating evidence. Finding no legal infirmity in the trial court’s decision, the High Court dismissed the appeal and ordered that fees be paid to the amicus curiae who assisted in the case.
