Chennai, July 17, 2021: The Madras High Court recently pulled up a trial court for “not applying its mind” which led to the acquittal of an accused charged with sexual assault of a minor, simply on the basis of a typing error during trial when the word ‘semen’ was written as ‘semman’, which is a Tamil word that means red soil colour.
While setting aside the acquittal of the man charged with the aggravated sexual assault of a child aged two years and nine months, the High Court emphasised that in such cases the onus to rebut a presumption of guilt is on the accused, as u/s 29 of the POCSO Act.
Going by the background of the case, it was found that the incident took place four years back when a mother found her child missing from the courtyard where she had left her with a neighbour. Later, the child was found weeping and on being asked she complained of the neighbour for kissing on her private parts.
The worrying mother found semen-like liquid on the child’s vaginal region, and after informing her husband who was out of station, took the child to the hospital two days later after she got a fever. At this point, the doctor recorded the complaint of sexual assault, following which the police registered a case.
The Trial court acquitted the accused upon finding that the medical evidence does not support the allegations of sexual assault, that the presumption u/s 29 of the POCSO Act cannot be invoked and that there was no satisfactory explanation for the delay in lodging a complaint.
Addressing the trial court’s observation that there was an unexplained delay in lodging the complaint, the High Court noted that many people, particularly illiterate persons, have no knowledge on how to proceed when such an offence occurs.
A Bench of Justice P Velmurugan observed that the trial courts sometimes fail to apply their minds and exercise their inherent or discretionary power either to direct for reinvestigation or summon relevant records. While they search for proof beyond reasonable doubt, the accused take advantage of the flaw in the investigation on the basis of benefit of doubt, the High Court observed.
Justice Velmurugan opined that even if there is a delay in filing the FIR, in cases like this, the delay is not fatal to the case of the prosecution.
Elaborating how a typo was taken advantage of by the accused, the High Court said that erroneously when the typist made a spelling error while writing the word “semen” as “semman”, which is a Tamil word that means red soil colour, the defence argued that no semen was found on the child victim or her garments. The trial court also misinterpreted the typographical error and attributed a wrong meaning.
The High Court noted that the child’s mother had clearly stated that “semen” was seen on the child’s private parts in her complaint to the police, which is the first available document.
Concluding that the victim’s mother had meant to state “semen” and not “semman” while lodging the police complaint, which was wrongly recorded by the typist, Justice Velmurugan observed that the danger in writing an English word in Tamil had totally turned the case of the prosecution and had taken flimsy defence.
The High Court noted that while the child survivor was produced before the Magistrate for recording of evidence, she was only two years and nine months old at the time. As such, she could not be expected to speak about the incident. Thus, the High Court added that the trial judge had failed to understand the scope and object of the POCSO Act.
Further, the High Court reasoned that the lack of medical evidence was explained by the fact that the doctor had examined the victim child five days after the incident.
The High Court went on to hold that the prosecution has proved the case beyond reasonable doubt on the basis of the testimony of the survivor child’s mother, the police complaint, the entry made by the doctor in an accident register and the report prepared by the judicial magistrate u/s 164 of the CrPC.
The High Court ultimately overturned the trial court’s acquittal of the accused and directed him to appear before the Court on the question of sentencing.