POCSO Act | When Procedural Lapses Do Not Cause Any Dent In Prosecution, Trial Will Not Be Vitiated: Madras High Court

The bench of Justice SS Sundar and Justice Sunder Mohan thus confirmed the conviction of a man accused of committing penetrative sexual assault on his minor daughter from the age of 7 to 12. The court however modified the death sentence to that of life imprisonment noting that the case was not “rarest of rare” warranting a death penalty.

“Though the learned senior counsels appearing for both accused, pointed out violations of statutory provisions, this Court is of the view that the violations that we have already elaborated earlier are meant to ensure that the victim is provided with a child-friendly atmosphere while recording the statement during the investigation and while recording her evidence in the trial. These provisions also are to ensure that the accused gets a fair trial. It is needless to say that procedure is a handmaid of justice. If in a given case, it is found that the procedural lapses have not impacted or caused any dent in the prosecution case or while appreciating the evidence of the victim, then those procedural lapses would not vitiate the trial,” the court observed.

Highlighting that the procedures were meant to be followed, the court added that in the present case, the procedural lapses had not caused any prejudice to the accused or had rendered the evidence of the minor doubtful.

During the referred trial, the State Public Prosecutor informed the court that the evidence of the victim was cogent, clear and inspired confidence. He added that the evidence of the victim was corroborated by the evidence of other witnesses and the Medico-Legal Examination report and the Accident register.

On the other hand, the counsels for the accused pointed out to several procedural irregularities contending that the accused did not get a fair trial and that the trial stood vitiated. On behalf of the accused mother, it was argued that even if the victim’s version was to be accepted it would only suggest that the mother had silently suffered the abuses committed by the father on the victim child and could not be guilty of abetting the offence.

The court observed that the victim’s evidence was cogent and convincing and could be the sole basis to determine the guilt of the accused and the absence of any other corroboration did not make any difference. Though the court also noted that the witnesses were not effectively cross examined, the court added that it could not lead to an inference that the accused did not get a fair opportunity in the trial. The court also noted that merely because some questions were not put to the witnesses, the trial will not be vitiated.

With respect to the mother, who was accused of abetting the offence, the court observed that the evidence did not suggest in any manner that the mother had instigated the father to commit the offence, or engaged in conspiracy with him to commit the offence. The court also noted that even of it was assumed that the mother was aiding the father in the commission of the offence, there was no mens rea or intention as the mother had protested to the father.

The court noted that as per the prosecution evidence, the mother had protested at every stage but was abused and beaten by the father who intimidated her of dire consequences. Thus, the court noted that the mother’s knowledge of the illegal act and her omission to prevent it or complain about it would not amount to “intentional aiding”. The court however held her guilty of the offence under Section 21(1) of the POCSO Act for not reporting the commission of the offence.

While modifying the sentence, the court observed that though the offence committed by the father was gruesome, it did not fall within any of the parameters laid down by the Supreme Court in Bachan Singh’s case and Macchi Singh’s case. Considering the conduct of the accused after the accused, the court noted that there was nothing to show that he was a menace to the society and there was no possibility of reformation at all. The court thus modified the sentence imposed on the father from death to that of life imprisonment.

Counsel for the Appellant: Mr.Hasan Mohammed Jinnah State Public Prosecutor Assisted by Ms.J.R.Archana, M.Sumi Arnice Mrs.A.Sahana Fathima

Counsel for the Respondent: Mr.R.Rajarathinam, Sr.Counsel for Mr.A.Ashwinkumar, Mr.Abudukumar Rajarathinam, Sr. Counsel for Mr.S.Ashok Kumar

Citation: 2023 LiveLaw (Mad) 362

Case Title: State v XXX

Case No: R.T. No.2 of 2022