 Act for the sexual assault of a four-year-old student stated that a child who only aged about 5 years at the time of occurrence, cannot speak about the occurrence in all the stages by parrot version and it could not be expected from the victim that she should remember all the incidents.){kind=link}
The Madras High Court has convicted a school teacher under the Protection of Children from Sexual Offences (POCSO) Act for the sexual assault of a four-year-old student. The HC stated that a child so young at the time of occurrence cannot parrot it at all times and it could not be expected from the victim that she should remember all the incidents.
A single-judge bench of Justice P. Velmurugan concluded that the respondent/accused has committed the offence and the Court has invoked presumption clause and it is for the accused to rebut the presumption in the manner known to law. Though it is a settled proposition of law that the accused need not come into the witness box and prove his innocence, however, this is not an offence which comes under IPC, this offence comes under POCSO Act.
The bench noted, “The finding of the trial court is completely erroneous and that in cases of aggravated sexual assault on a child, who was only studying UKG, the support of medical evidence is not always a necessity and evidence of the sole victim would suffice to record conviction.”
“Why are you torturing me by keeping hands there and in school, sir also doing the same,” the girl shouted at her mother while crying when the mother was giving her a bath. On hearing the above statement, naturally the mother, out of anxiety, might have aided the child by saying the name of the parts of the body, since the child being 4 years old could not remember and say all the acts of the accused and hence it does not mean that the mother only taught the entire things as she is not in a position to communicate all her grievance verbally,” said the court.
The bench held, “The representations made by the school teacher/respondent/accused and the age of the victim child and the offence committed, which is grave in nature and also the fact that the respondent has committed the offence in the school itself, while working as teacher, there is no mitigating circumstances to award lesser punishment. The respondent is convicted for the offence under Sections 5(f) and 5(m) of the POCSO Act. Since for the above offence under the POCSO Act, minimum punishment prescribed is imprisonment of 10 years, the respondent/accused is sentenced to undergo rigorous imprisonment for a period of 10 years and fine of Rs 10,000, in default, to undergo rigorous imprisonment for a further period of one year for the offences under Section 5(f) of the POCSO Act and sentenced to undergo rigorous imprisonment for a period of 10 years and fine of Rs 10,000, in default, to undergo rigorous imprisonment for a further period of one year for the offence under Section 5(m) POCSO Act. The sentence of imprisonment shall run concurrently.”
The respondent stated that the mother of the child tried to have close relationship with him and since he rejected the same, she foisted a false case. In his defence, he stated that he never committed the offence as projected by the prosecution and false case has been foisted against him and he is the sole breadwinner of his family and prays for the mercy of the court.
The Court did not accept any of his contentions, since most of the witnesses including the independent witnesses deposed that the respondent/ accused used to keep the victim child on his lap and the victim also clearly stated about the offence committed by the respondent/ accused.
The court rebuked the trial court while saying, “The trial courts also sometimes not applying their minds and searching for proof beyond all 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. In this case, the victim is an infant, aged below 5 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 inability of the victim child, the culprit cannot be escaped from the clutches of law.”
The bench further remarked, “The culprits are escaping for the technical reason and unfortunately Investigation Wing also not up to the standard and due to either defect in investigation or fault in investigation, most of the cases, the culprits are escaping. Therefore, mere technicalities should not be allowed to stand in the way of administration of justice.”
The POCSO Act itself designed in such a way that once the prosecution proved the offence and the Court drawn the presumption under Section 29 of the POCSO Act, it is for the accused to rebut the presumption, but, in this case, this Court finds that the respondent/ accused has committed the offence of aggravated penetrative sexual assault and draw presumption under Section 29 of the POCSO Act and also finds that the respondent / accused has not rebutted the presumption.