The Supreme Court of India on Monday issued notice in a plea challenging the Madras High Court's order confirming conviction and sentence imposed on a teacher for committing the offence of aggravated sexual assault with against a student under the POCSO Act.
A Bench comprising Justice SK Kaul and Justice MM Sundresh has issued notice on the Special Leave Petition as well as on the prayer for bail.
The Bench took note of the submissions made by the counsel appearing for the petitioner contending that the statement of the victim under Section 164 Cr.P.C. is not substantive evidence but that alone has been used to convict the petitioner when all the witnesses have turned hostile.
In the present case, the Trial Court had convicted the Petitioner under Sections 10 and 9(f)(m)(I)(p) of POCSO(Amendment) Act of 2019 and under Section 506(i) of IPC and sentenced him to undergo rigorous imprisonment for 7 years with fine of Rs. 10,000 for the offence under the POCSO Act and to undergo Rigorous Imprisonment for 2 years for the offence under the IPC.
The petitioner has argued that the judgements of the Trial Court and the Appellate Court are perverse as the conviction was recorded and sentence was imposed based on no evidence.
According to the case, the girl aged 10 years was studying in 4th Standard in a government school where the Petitioner was working as a teacher. The allegation is that on 25.10.2019, and on 04.11.2019 he took the child to a small lane situated by the side of the school building and touched her breast. This according to the prosecution is an aggravated sexual assault in terms of the POCSO Act.
The petition has pointed out that the father of the girl who made the complaint to the police has turned hostile, has not stated anything incriminating against the Petitioner and has disowned the complaint upon which the case was registered. He further stated that as dictated by the police, he made statement to the magistrate during investigation.
The petition has also stated that the alleged survivor of sexual assault, has not stated anything incriminating against the Petitioner in her evidence and therefore the whole case should have collapsed.
The petitioner has also pointed out that there is no medical evidence to probabilize the case of the prosecution, and with absolutely no evidence against the Petitioner, the Trial Court and the High court has strangely convicted the Petitioner based on the statement recorded u/s 164 of Cr.P.C.
"The said statement being a former statement cannot be treated as substantive evidence at all as the same could be used for the purpose of corroboration u/s 157 of the Evidence Act and for contradiction u/s 145 of the Evidence Act. There is no provision in the POCSO Act making such a statement as relevant or as substantive evidence overlooking the provisions of the Indian Evidence Act. Thus, the judgements of the Trail Court and the High Court are perverse and so they are liable to be set aside," the petition has argued.
Case Title: Prem Kumar vs State Rep by Inspector of Police