During a trial of a child sexual abuse case filed under the POCSO Act, an accused exploited a typographical error to defeat the case, as reported by Bar and Bench. In 2017, a 2-year-old girl was sexually abused by her neighbor. The child’s mother had left the child with the accused to buy food outside. She found the child missing from the courtyard when she returned home. The mother found the child weeping. Later, the daughter told her mother that the neighbor had kissed her in her private parts. White-colored semen had also been found on the child’s underwear. Then she called her husband, who was out of station. He asked her to inform other neighbors about the suspect’s actions. Two days after the assault, the victim was hospitalized. The doctor recorded the complaint of sexual assault only then, and the police registered a case under Section 10 of the POCSO Act.
During the hearing in the trial court in 2018, the judge held that the ‘medical evidence’ did not support the allegations of sexual assault. Despite acquitting the accused of all charges, the trial court questioned the lack of a satisfactory explanation for the delay in registering the police complaint. The trial court misinterpreted an error made by a typist during the trial. The word ‘semen’ was mistakenly written as ‘semman’ (red soil color in Tamil). Due to the technical error, the accused claimed there was no semen in the undergarments.
Observations
Madras High Court noted that the onus for rebutting the presumption of guilt lies with the accused and not the prosecution when the parents appealed the trial court’s decision. According to Section 29 of the POCSO Act 2012, it is for the accused to defend himself once the prosecution has proven the offense and the court has drawn its presumption. In contrast to a general principle of criminal law, which states that a person is innocent until proven guilty, this act violates this principle.
Madras High Court rejected the objections raised by the trial court, stating that people in rural areas often are unaware of how to handle such cases of child sexual abuse. The Court said, ‘The trial courts are often not applying their minds and exercising their inherent power either to instruct for reinvestigation or to summon relevant records, and only they are seeking proof beyond reasonable doubt and taking advantage of flaws in the investigation to assist the defendant. In cases like this, we cannot give much weight to the technical ground of proof ‘.
Writing English words in Tamil is dangerous
Additionally, the Court noted that no mother of a victim, especially one who was illiterate in rural areas, would immediately call the police, and the prosecution and court failed to carry out their duty when they focused on technicalities like the delay in filing the complaint. According to Judge Velmuragan, handling the case late would be fatal to the prosecution. The trial court misinterpreted the typographical error of ‘semman’ and attributed a wrong meaning to it. There is (danger) in writing an English word in Tamil, which [can] completely turn the case of the prosecution, and the defense has taken a flimsy defense that P.W.1 characterizes as ‘semman color’ according to the Court.
The Trial Court judge failed to understand POCSO Act
According to the High Court, the trial court judge failed to understand the scope and purpose 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. Madras High Court mentioned the lack of neighbors’ testimony or the lack of medical evidence that is probable in a village setting, or the delay caused in examining the victim.
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Madras High Court reverses Culrpit’s conviction
After overturning the trial court’s judgment, the Madras High Court ordered 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 stated.
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