A typographical error, in which the word 'semen' was written as 'semman,' meaning red soil in Tamil, helped a Tamil Nadu man secure an acquittal in a child sexual assault case, allowing him to walk free for almost three years, a recent judgment delivered by the Madras High Court has revealed. The Madras High Court bench of Justice P Velmurugan was hearing an appeal filed by a woman against the acquittal of a man accused of sexually assaulting her two-year-old daughter.
The case is from 2017, when the woman had left her daughter, then aged two years and nine months, with a neighbour before she went to buy groceries. She dropped the child off in the courtyard, and when she returned, the child was not there. After she called out her daughter's name, the neighbour brought the girl out with him and they left. Upon reaching home, the child refused to eat and began to cry, complaining of pain in her private parts. When the mother checked her clothes, she found white stains on the girl’s body and on her undergarments. When the pain continued for a second day, the child’s mother took her to the hospital and a medical examination was conducted, after which it was established that it was a case of sexual assault. The police were informed and a case was registered. The neighbour was booked under the Protection of Children from Sexual Offences (POCSO) Act. However, after the trial, a POCSO court acquitted the accused neighbour, stating that the prosecution has failed to prove the case beyond a reasonable doubt.
The mother then filed an appeal in the Madras High Court, and the court earlier this month set aside the accused’s acquittal and sentenced him to life imprisonment. The Madras High Court’s order dated July 2, 2021, reveals how the defence counsel took advantage of a typo made during the trial.
The judgment, first accessed by Bar and Bench, noted that in the petition, the woman’s counsel had submitted that when the woman's statement was recorded, the word “semen” in English was typed as “semman” in Tamil. “Taking advantage of that mistake committed by the typist, during the trial, the defence has taken the main defence that P.W.1 (the mother) has stated in her evidence that she found “semman colour” which means red soil colour...” the petition said.
The court took noted that the complaint, which was recorded by the police, clearly shows that the woman had said 'semen'," and that she saw a "white colour fluid" on the private parts of the child." The court noted that “subsequently, the word “semen” in English was misinterpreted as “semman” i.e. Red soil in Tamil.” The court said that the document “clearly shows” that there was a “white colour fluid drop from the private part of the victim child and also the inner garment of the victim child.”
“Hence, it is dangerous to write an English word in Tamil, which has totally turned the case of the prosecution, and admittedly, the defence side has taken flimsy defence that P.W.1 has stated as 'semman colour',” Justice P Velmurugan said, also noting that as per the evidence, the doctor who medically examined her had said the two-year-old was sexually assaulted.
The court set aside the trial court’s order, observing, “The trial courts also sometimes (are) not applying their minds and exercising their inherent or discretionary power either, to direct for reinvestigation or summon relevant records; and they are only 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.”
The court said that in this case, the victim is a child and so she cannot explain her version and spell out the crime. Therefore, the mother’s statement should be relied upon. The High Court said that just because the child cannot speak out, it should not mean that the culprit is allowed to escape the clutches of law.
The Madras High Court said it has come to the conclusion that the accused has committed the offence and asked the accused to appear in court and rebut the charges.
“This Court finds that the accused committed the offence under Section 9 of POCSO Act which is punishable under Section 10 of the Act and the judgment of acquittal passed by the trial Court is liable to be set aside,” the Madras High Court said in the judgment, noting that the onus of rebutting a charge stands with the accused when it is a case of child sexual abuse.