Holding that a four year-old child can not be expected to give cogent evidence with regard to the sexual assault on her, the Madras High Court has set aside a trial court order acquitting a school teacher in Puducherry charged with the crime on the minor and awarded him 10 years' Rigorous Imprisonment and also imposed a fine of Rs 10,000.
Justice P Velmurugan passed the conviction order recently after setting aside an order of the lower court, which had acquitted Earlam Periera.
Earlier, Puducherry Public Prosecutor D Bharatha Chakravarthy (since elevated to the post of High Court judge and expected to assume office on October 20) submitted that the victim being a child, who was only aged about four years at the time of occurrence of the incident in March 2018, cannot speak about the occurrence in all the stages by parrot version and it could not be expected from her that she should remember all the incidents and the acts of the accused.
She may forget something and the mother, to whom the victim stated about the sexual assault committed by the accused, may remember those acts.
"Therefore, for the said reason we cannot throw away the evidence of the victim child, who in fact was subjected to sexual assault by the accused," he contended.
By his order dated October 6, 2020, the trial court judge acquitted the accused, who was booked under the Protection of Children from Sexual
Offences (POCSO) Act, on the main ground that the evidence of the parents of the victim child were not consistent, cogent and trustworthy and medical evidence also did not support the case of the prosecution. The trial court judge had come to the conclusion that based on their evidence, conviction cannot be recorded against the accused and the prosecution had failed to prove its case beyond all reasonable doubts.
Reversing the trial judge order, Justice Velmurugan held that the finding of the trial court was completely erroneous.
In cases of aggravated sexual assault on a child, who was only studying UKG at the time, the support of medical evidence was not always a necessity and the evidence of the sole victim would suffice to record conviction.
Rejecting the contention that the mother had falsely implicated the accused in the case due to previous enmity, the judge said that without any strong reason, no mother would go to the extent of making allegations of this nature by using her own child.
Turning down another contention that there was enormous delay in lodging the complaint, the judge said that no mother would rush to the police station immediately after the occurrence. Naturally, the mother would think about the future of the child and the reputation of the family. In cases like this, the delay was not fatal to the case of the prosecution. As stated earlier, since the victim child was only four years old, one cannot expect her to speak everything, even if she did not understand what was happening to her.
When she felt pain in her private parts, she complained the same to her mother and the mother explained the same to the police.
In this case, there was no eye-witness. She also stated that the accused used to keep her on his lap and insert his fingers into her private parts. In cases like this, mere delay in filing the FIR was not fatal to the case of the prosecution and also the reason for the delay, though specifically not given, one cannot expect the family members of the victim child would rush to the police immediately soon after the occurrence.
The trial judge had failed to consider the facts that the victim was only four years and she might not know what was happening to her and if the act of the accused was good or bad and in that situation, the court cannot expect the victim child to speak about the occurrence in all the stages in a parrot version, the judge said.
The trial courts also, sometimes not applying their minds, searched for proof beyond all reasonable doubt and taking advantage of the flaw in the investigation, gave the benefit of doubt to the accused. "But in cases like this, we cannot give much importance to the technical ground of proof. In this case, the victim is an infant, aged below five years, 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," the judge said.
The culprit cannot escape the law, he said and awarded the sentence.
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