CHENNAI: Observing that a typographical error in recording the word ‘semen’ as the Tamil word ‘semmann’, meaning red soil, cannot contribute to the acquittal of a man booked under the POCSO Act for sexually assaulting a child, the Madras High Court has set aside a trial court order that acquitted him of all charges. The issue pertains to the victim’s mother moving a plea in the High Court, seeking for the trial court order to be set aside.
The petitioner said her two-year-old daughter was sexually abused by her neighbour in 2017, after she left the girl with him and went to buy groceries. The weeping child told her the neighbour “kissed” her on her private parts. The victim’s mother found semen on the child’s underwear, and then called her husband, who was out of station at the time.
The trial court in 2018 misinterpreted an error made by a typist during the trial. The word ‘semen’ was mistakenly written as ‘semman’. The defence counsel exploited the technical error to suggest that no semen was found in the girl’s undergarments, and the accused was acquitted on those grounds. Justice P Velmurugan, who heard the appeal, in his orders lamented the investigation and the trial court verdict.
“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... 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 (in) cases like this, we cannot give much importance to the technical ground of proof,” he said. The court further said 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 a person is innocent until proven guilty. The judge stressed 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 totally turned the case of the prosecution, and admittedly, the defence side has taken flimsy defence that the mother stated as “semman colour,” the court observed.
The court added that no mother of a victim, especially an illiterate woman in a rural area, would immediately go to the police in such cases and the prosecution and court failed in their duties when they stressed technicalities such as a delay in lodging the complaint. The high court, ordering the accused to be present before it for sentencing, observed, “... 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.”