An accused in a case of child sexual abuse under the POCSO Act was able to exploit a typo of the word ‘semen’ to secure acquittal in a trial court in Tamil Nadu, reported Bar and Bench.
The case pertains to the sexual abuse of a 2-year-old child in 2017 by her neighbour. The child’s mother had left the child with the accused to buy food from outside. On returning home, she found that the child was missing from the courtyard. The child was found by the mother weeping. She had later informed the mother that the neighbour had ‘kissed’ her in her private parts. The victim’s mother had also found white coloured semen on the underwear of the child’s vaginal area. She then called her husband, who was out of the station at that time.
He asked her to alarm other neighbours about the action of the accused. The victim was taken to the hospital two days after being subjected to sexual assault. It was only then that the doctor recorded the complaint of sexual assault and the police registered a case under Section 10 of the POCSO Act.
The accused was acquitted by the trial court on technical grounds
During the hearing in the trial Court in 2018, the judge held that the ‘medical evidence’ did not support the allegations of the sexual assault. While acquitting the accused on all charges, the trial court questioned the lack of a satisfactory explanation for the delay in registering the police complaint.
Surprisingly, the trial court misinterpreted an error made by a typist during the trial. The word ‘ semen’ was mistakingly written as ‘semman’ (red soil colour in Tamil). The accused exploited the technical error to suggest that no semen was found in the undergarments worn by the girl.
Observations made by the Madras High Court
When the victim’s parents filed an appeal against the trial Court’s decision at the Madras High Court, the latter noted that the onus to rebut the presumption of guilt lies with the accused and not the prosecution. The Court held that under Section 29 of the POCSO Act 2012, it is for the accused to defend himself once the prosecution proved the offence and the Court had drawn its presumption. This act stands in contrast to the general principle of criminal law, which says that a person is innocent until proven guilty.
Dismissing the objections raised by the trial court, the Madras High Court contended that people in rural areas often don’t have knowledge on how to proceed with such child sexual abuse cases. The Court stated, “The trial Courts also, sometimes not applying their minds and exercising their inherent or discretionary power either to direct for reinvestigation or summon relevant records and only they are searching for proof beyond reasonable doubt and taking advantage of the flaw in the investigation, giving the benefit of doubt to the accused. But cases like this, we cannot give much importance to the technical ground of proof.”
There is danger in writing English word in Tamil : Madras HC
The Court further added that no mother of a victim, especially an illiterate woman in rural areas, would immediately go to the police in such cases and the prosecution and court failed in their duties when they stressed on technicalities like delay in the complaint.
Justice Velmuragan opined that a delay on the part of the victim’s family in filing the case would be fatal to the case of the prosecution. He pointed out that the trial court misinterpreted the typographical error of ‘semman’ and attributed a wrong meaning to it. “Hence, there is (danger) in writing an English word in Tamil, which [can] totally turn the case of the prosecution and admittedly, the defence side has taken flimsy defence that P.W.1 has stated as “semman colour,” the Court observed.
Trial Court judge failed to understand the scope of POCSO Act, says Madras High Court
The High Court further contended that the trial court judge failed to understand the scope and objective of the POCSO Act. “In this case, the victim is an infant, aged below 3 years, she is not in a position to speak out the charges of crimes or atrocities, under such circumstances, the mother has spoken and no corroboration can be expected, since because the innocence of the mother and the inability of the victim child, the culprit cannot be escaped from the clutches of law,” the Court ruled. The Madras High Court emphasised that the lack of neighbour’s testimony or the lack of medical evidence was probable in a village setup or the delay caused in getting the victim examined.
Madras HC overturns culrpit’s acquittal
While overturning the Judgement of the trial court, the Madras High Court directed the accused to appear before it for sentencing. “Though the prosecution (has) not examined the Doctor, one who made an entry in the Accident Register and medical examination was not conducted on the victim child on the date of admission, the mere defect in the investigation is not fatal to the case of the prosecution and the second respondent / accused cannot be acquitted on the sole ground of defective investigation,” it concluded.
