[POCSO] Madras High Court convicts schoolteacher for sexual assault of 4-year-old

A child victim of sexual assault cannot be expected to narrate the incident like a parrot, observed the Madras High Court recently while convicting a school teacher under the Protection of Children from Sexual Offences (POCSO) Act for the sexual assault of a four-year-old student (State v. Earlam Periera)..The observation was made by the Court in response to contentions that there were differences in the statements given by the victims and amid allegations that the child had been tutored by her mother..In the case at hand, the Court noted that since the victim was only about four or five years when the incident occurred, she would not have been able to speak about it in " parrot version."."The victim child was only 4 years and she may not know what is happening to her and act of the respondent is 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 Court said.Justice P Velmurugan was dealing with a case where a teacher stood accused of forcing a UKG student onto his lap, and molesting her, including by inserting his finger into her private parts..The child spoke about the sexual assault while she was being bathed by her mother. As recorded in the Court's order, when the mother was cleaning the child's private parts, the child cried out, saying, “why are you giving torture by keeping hand there and in the school, the sir also doing the same." .The trial court acquitted the teacher on finding that the statements of the child victim and her parents were not consistent, cogent and trustworthy, and further that there was no medical evidence to support the allegations. .Upon the trial court verdict being challenged before the High Court, however, Justice Velmurugan opined, "The finding of the trial Court is completely erroneous and that, in cases of aggravated sexual assault on a child who was only studying U.K.G., the support of medical evidence is not always a necessity and evidence of the sole victim would suffice to record conviction.".The Judge further lamented that the culprits in sexual assault cases are often escaping due to technical reasons, adding that the investigation wing is also not up to the task. "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 Court said. .The Court added that even trial courts are sometimes not applying their minds in such cases, while searching for "proof beyond all reasonable doubt.""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 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 High Court said. .The High Court proceeded to overturn the acquittal of the accused school teacher, after also factoring in the following aspects:.Since the victim was only four years old, she cannot be expected to speak about the incident to her parents immediately as even she did not understand what was happening to her. Even before the victim finally spoke of the incident, her activities were stated to not have been normal. The Court was told that she used to wake up from sleep and had cried, saying that she felt burning in her vagina. Contusions were found over her chest, it was submitted. The victim may not have revealed about the incident earlier out of fear, the Court observed. Even if there were some exaggerations in the mother's statement of events, it cannot be concluded that the entire case was made up by the mother. The same could be due to anxiety. Without a strong reason, no mother will go to the extent of making allegations of this nature by using her own child, the Court said. This was in response to an allegation made by the accused that the child's mother was acting out of vengeance as she used to speak of personal matters to the accused, which the accused then divulged to her husband. In cases like this, delay in registering the case is not fatal. No mother would rush to the police station immediately after the occurrence. Naturally, the mother would think about the future of the child and reputation of the family, the Court said. Rejecting allegations that the child was tutored by her mother, the Court said that the mother may have only explained to the child things not understood or forgotten. .The Court added that the accused had failed to rebut the presumption of guilt, as required under Section 29 of the POCSO Act. The Court, therefore, allowed the appeal and set aside the acquittal of the accused. ."The victim child has every right to live with dignity and to enjoy the rights guaranteed under the constitution. Therefore the evidence of the victim child cannot be simply brushed away for the reasons stated by the trial Court," the Court emphasised. .[Read Judgment]