When 'Semen' became 'Semman' (red soil colour in Tamil): How a typo during trial contributed to the acquittal of a POCSO accused

While setting aside the acquittal of a man charged with the aggravated sexual assault of a child aged two years and nine months, the Madras High Court recently emphasised that in such cases, the onus to rebut a presumption of guilt is on the accused, as under Section 29 of the Protection of Children from Sexual Offences Act (POCSO Act), 2012 (Prema v. State).

Once the prosecution proved the offence and the Court has drawn the presumption under Section 29 of the POCSO Act, it is for the accused to rebut the presumption, the Court said.

Section 29 of the POCSO Act lays down that if a person is prosecuted for committing, abetting to commit or attempting to commit certain offences under the POCSO Act, including aggravated sexual assault, the Court shall presume that such person guilty of the same unless the contrary is proved. This is at variance with the general principle followed in criminal law, i.e. "innocent until proven guilty."

Or, as explained in the judgment authored by Justice P Velmurugan:

"Though it is settled proposition of law that the accused need not come into the witness box and prove his innocence, however, this is not an offence comes under IPC, this is the offence comes under the POCSO Act. 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."

Case background

In the case at hand, the Court found that the accused had not rebutted the presumption. As such, it proceeded to hold him guilty of the offence punishable under Section 10 (punishment for aggravated sexual assault of a child) of the POCSO Act.

As per the prosecution, the incident took place in 2017 when a mother left her two-year-old child with a neighbour when she went out to buy food. On the way back, she found her child missing from the courtyard where she had left her with the neighbour. After the child was found weeping, she is stated to have complained that the neighbour had kissed her on her private parts.

On removing the child's undergarments, the mother also noticed a white coloured, semen-like liquid on the child's vaginal region. Since the mother's husband was out of station, she made a phone call to him upon which he told her to inform other neighbours. The child was taken 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.

In 2018, a trial court acquitted the accused upon finding that the medical evidence does not support the allegations of sexual assault, that the presumption under Section 29 of the POCSO Act cannot be invoked and that there was no satisfactory explanation for the delay in lodging a complaint. The evidence of the child's mother was also found to be unsatisfactory by the trial court.

Aggrieved by the ruling, the child's mother moved the High Court.

Culprits escape for technical reasons: Court on how investigators and courts fail in their role

The case prompted the Court to lament about how investigation agencies and trial courts sometimes fail in their role and thereby allow the accused to take advantage of technical defects.

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 or whom they should approach.

In this case, the judge opined that the Investigating Officer should have taken little more effort, but failed to do so. The victim's mother was an illiterate, helpless lady who did not know what to do, he noted. If she had known what to do, she would have immediately taken the victim child either to the hospital or to the police or produced the victim child to a Social Welfare Officer, the Court said.

Further, it observed:

"... the culprits are escaping for technical reason(s) and unfortunately Investigation Wing also not upto the standard and due to either defect in investigation or fault in investigation, most of the cases, the culprits are escaping. 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 and only they 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 cases like this, we cannot give much importance to the technical ground of proof."

In cases like this, that too in the village, no mother would rush to the police station immediately soon after the occurrence, the Court added.

"Naturally, the mother would think about the future of the child and reputation of the family," Justice Velmuragan opined.

He went on to observe 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.

How a typo was taken advantage of by the defence

Among the more alarming defects noticed in this case arose out of an error made by a typist during the trial, when the word "semen" was written as "semman", which is a Tamil word that means red soil colour.

The typo was taken advantage of by the defence to argue 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 was told.

The High Court noted that the child's mother had clearly stated that "semen" was seen on the child's private part in her complaint to the police, which is the first available document.

Concluding that she had meant to state "semen" and not "semman" as wrongly recorded by the typist, Justice Velmurugan observed:

"An illiterate lady, she did not state as “seman”, it is the person, who written the complaint has mentioned as white colour liquid like semen from the private part of the victim child, for which, she cannot be faulted...the Typist typed as “semman” instead of seman. Hence, there is [danger] in writing an English word in Tamil, which [can] totally turn the case of the prosecution and admittedly, the defence side has taken flimsy defence that P.W.1 has stated as “semman colour.”"

Prosecution has proved the case beyond doubt, accused has failed to rebut: Court

The Court noted that while the child victim was produced before the Magistrate for recording 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, since she was an infant at the time and would not have known what is happening to her. The trial judge failed to understand the scope and object of the POCSO Act, the High Court added.

"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 opined.

Further, the Court reasoned that the the lack of medical evidence was explained by the fact that the doctor had examined the victim child five days after the incident.

While a neighbour who was alleged to have been informed of the incident by the victim's mother denied the same, the Court opined that this was not surprising.

"Normally, in the village, if the accused family and the victim family are in the same locality and the neighbours would not support any of the families and they reluctant to say anything against anyone of the families and support one of the families," the Court said.

The Court went on to hold that the prosecution has proved the case beyond reasonable doubt on the basis of the victim's mother's testimony, the police complaint, the entry made by the doctor in an accident register and the report prepared by the judicial magistrate under Section 164 of the Code of Criminal Procedure (CrPC).

Coupled with this, the Court found that the accused had not rebutted the presumption drawn under Section 29 of the POCSO Act.

"Though the prosecution [has] not examined the Doctor, one who made entry in the Accident Register and medical examination was not conducted on the victim child on the date of admission, the mere defect in 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," the Court added.

The Court ultimately overturned the trial court's acquittal of the accused and directed him to appear before the Court on the question of sentencing.

Advocate Deepika Murali appeared for the victim's mother (appellant). Government advocate (criminal side) TP Savitha appeared for the State. Advocate S Paneer Selvam appeared for the accused.

[Read Judgment]