Cannot Expect Victim Child To Speak About The Occurrence In A Parrot Version: Madras HC Reverses Acquittal Of School Teacher For Sexually Assaulting 4 Year Old Student

The Madras High Court has recently set aside a trial court order acquitting a school teacher in Puducherry who had been charged with sexual assaulting a minor student by observing that a four-year old child cannot be expected to give cogent evidence regarding the sexual assault suffered. The teacher, Earlam Periera, had been sentenced on two counts under the Protection of Children from Sexual Offences (POCSO) Act. 

Justice P. Velmurugan observed,

"The victim being a child, who only aged about 5 years at the time of occurrence, cannot speak about the occurrence in all the stages by parrot version and it could not be expected from the victim that she should remember all the incidents and the acts of the accused..for the said reason we cannot throw away the evidence of the victim child, who in fact subjected to sexual assault by the respondent/accused"

The Court further proceeded to opine that findings of the trial court is erroneous as the trial Judge had failed to consider that a 4 year old child may not be able to recollect the incident of sexual assault in great detail.

"The learned trial Judge has failed to consider the facts that 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 further observed.

Background

In the instant case, the accused was working as a English teacher at St. Joseph Play School, Thiruvalluvar Street, Sugumar Nagar, Kalitheerthalkuppam, Puducherry. On several occasions prior to April, 2018 he had sexually assaulted the minor victim was his student by forcibly making her sit on his lap and after school hours. On March 27, 2018 the accused had also allegedly threatened the minor victim by saying that if she discloses the incidents of sexual harassment to anyone, he would kill her.

Subsequently, on April 2, 2018 the minor had confided in her mother about the incidents following which a case had been registered against the accused for offences under Section 6 and 10 of the POCSO Act and under Section 506(ii) of the IPC.

Observations

Pursuant to the perusal of the rival submissions, the Court rejected the contention that the victim had been tutored by her mother. The Court observed that the minor cannot be expected to remember all the details and that it was natural for the mother to assist the victim in her recollection.

"Naturally the mother, out of anxiety, might have aided the child by saying the name of the parts of the body, since the child being 4 years old could not remember and say all the acts of the accused and hence it does not mean that the mother only taught the entire things. The mother, due to anxiety, might have exaggerated certain things, but for which, it cannot be concluded that entire case of the prosecution is false and set up by P.W.1 the mother of the victim child", the Court remarked.

It was also noted by the Court that in such cases, the delay in registering a case against the accused is not fatal to the case of the prosecution as it is natural for the mother to worry about the future of the child and reputation of the family.

Elucidating further that culprits cannot be allowed to be acquitted merely on technical grounds, the Court observed,

"The culprits are escaping for the technical reason 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. Therefore, mere technicalities should not be allowed to stand in the way of administration of justice"

It was further stated that trial courts are indulging in the practice of not applying their minds and searching for proof beyond all reasonable doubt by taking undue advantage of the flaw in the investigation.

"But 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 Court further opined.

Accordingly, the Court set aside the judgment of the trial court dated October 6, 2020 acquitting the accused and proceeded to sentence the accused to 10 years of rigorous imprisonment along with the imposition of fine of Rs.10,000. 

"Considering the representations made by the respondent/accused and the age of the victim child and the offence committed, which is grave in nature and also the fact that the respondent has committed the offence in the School itself, while working as Teacher, there is no mitigating circumstances to award lesser punishment", the Court ruled.  

Case Title: State v. Earlam Periera

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