Sexual Assault Victim 'Confides' In School Counsellor 6 Yrs After Incident, Kerala POCSO Court Says Delay Not Fatal, Convicts 63-Yr-Old

The Fast Track Special Court (POCSO), Thiruvananthapuram has convicted a 63 year old man to 7 years imprisonment under the Section 9(m) r/w 10 of the POCSO Act, 2012 for sexually assaulting his 9 year old neighbour in the year 2014.

The incident was disclosed 6 years later when the victim confided in her school counsellor. The Court found the delay of 6 years in registration of the FIR had been satisfactorily explained by the prosecution, and accepted the same. 

"Researches and studies show that there are numerous reasons why a child or even a grown up adult may not disclose about a sexual assault and it may linger at the bottom of their heart as their dirty, scary secret, but they open up or disclose it to someone they find they can confide in or someone whom they trust will listen to them and not judge them etc. In the instant case, according to PW1 she was afraid of the incident and also not aware of the nature of the event that occurred to her. Her subsequent reluctance to visit the house of the accused also shows that she had distanced herself from (the accused) after the incident, which unfortunately her parents failed to notice earlier. Many such factors contribute to non-disclosure of sexual assault by children", the Special Judge Aaj Sudarshan observed while convicting the accused.

It therefore ascertained that the delay of 6 years in lodging the FIR could not be considered as fatal to the prosecution when the victim had explained the reasons which had also acquired the confidence of the Court.

The Prosecution case was that the accused had sexually assaulted the victim when she was 9 years old, and residing with her grandparents. The accused was the victim's neighbour, and his family was to the family of the victim. The incident allegedly took place when the victim had sought the help of the neighbours including that of the accused on the instructions of her grandmother, after her grandfather developed discomfort in the chest. The accused had instructed his wife to take the victim to their house when the latter's grandfather was taken to the hospital, and it was there that the assault took place. 

The incident came to light when the victim disclosed the event to her school counsellor, after her mother took her for counselling on January 6, 2020, due to her exhibiting behavioural disorders, laziness, lack of interest in studying, loss of appetite, and so on. 

It was submitted by the Public Prosecutor R.S. Vijay Mohan that after the incident, the accused used to run away whenever he saw the victim, which was indicative of his guilt or shame. "The reason given by PW1 that she was afraid to disclose the incident to anyone soon after the incident can be because of many factors as understood from the evidence adduced like, the close relationship of her family with the family of the accused, she was residing with aged grandparents and not with her parents which must have resulted in mental agony to a small child of 9 years while her brother got to live with her parents, living with grandparents and living away from parents must have created an emotional and mental distance in her mind with her parents, non-awareness of what actually took place on the night of 01/01/2014, her fear on re-visiting the incident which she described as near death experience, lack of close friends at school, and so on", it was further submitted. 

It was argued by the defense counsel Advocate Biju S.S. that it was a false case preferred on the instigation of the maternal aunt of the victim. It was contended that there had been a civil dispute with respect to a pathway between her maternal aunt and the accused. It was argued that otherwise, the victim, who was a brilliant and bright child who had come to know about sexual abuse while studying in Class 4 would have disclosed the same when it had occurred. It was thus contended that the accused had been falsely implicated in this case. 

The Court in this case was of the opinion that the delay of 6 years in registration of FIR had been well explained by the prosecution in the circumstances. 

"...it is to be borne in mind that no girl wishes to falsely implicate a man in a case stating that the man had sexually assaulted her. The delay in disclosing the unfortunate event to anyone causing delay of 6 years in registering Ext P18 FIR is well explained by PW1", it observed. 

The Court also relied on the Apex Court decision in Tulsidas Kanolkar v. State of Goa (2003), to emphasize that delay in lodging the FIR cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. 

"In the instant case, PW1 was afraid to disclose the incident and was also unaware of the catastrophe which had befallen on her. So, the delay in lodging Ext P18 FIR does not in any way render the prosecution version brittle", it held. 

The Court further took note of the victim's statement that she was unaware of any civil dispute between her maternal aunt and the accused. 

"That apart, it may be noted that hardly any family member would fit a person in a POCSO case to take revenge by risking the future and honour of their child. Not all people are hard hearted to bring dishonour to their child. Life of a female child ends when a false accusation is levelled by her against a person only to take revenge on him", the Court observed. 

Having found that the prosecution had thus proved the sexual assault through the evidences submitted, the Court thus convicted the accused. It sentenced him to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.25,000/-. In default of payment of the fine amount, the accused was directed to undergo rigorous imprisonment for a term of 6 months. The Court added that in case the fine amount was realized, it would have to be be given to the victim as compensation. 

"The accused is entitled to get set off on the substantive sentence for the period from 23/01/2020 till 11/02/2020 the period he had undergone detention as an under trial prisoner", it added. 

Case Title: State v. Sundaresan Nair

Click Here To Read/Download The Judgment