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Monday, July 26, 2021

‘Semman’ for ‘semen’: Madras HC says POCSO judge misinterpreted typo, overturns acquittal

In September 2018, the trial judge had acquitted the accused, saying there was no medical evidence to support the claim that the child had been sexually assaulted.

Written by Arun Janardhanan | Chennai |
July 18, 2021 1:58:07 am
The trial court’s order was challenged in the High Court, which pronounced its order earlier this month.

Madras High Court has overturned the acquittal of an accused in the rape of a three-year-old girl after it was found that the trial court had “misinterpreted a typographical error” due to which the word ‘semen’ had been recorded as ‘semman’ in the case evidence.

‘Semman’ means red sand in Tamil.

In September 2018, the trial judge had acquitted the accused, saying there was no medical evidence to support the claim that the child had been sexually assaulted.

The trial court’s order was challenged in the High Court, which pronounced its order earlier this month.

After the crime, the child’s mother had categorically stated that they had found a “semen-like white colour liquid present on the victim child’s vaginal region”.

However, the High Court order said, the English word ‘semen’ was typed as ‘semman’ in Tamil while recording evidence before the trial court.

The order said that the defence lawyers had focussed on this error, and argued that the victim’s mother had only stated in her evidence that she found “semman colour”, which means red soil colour.

The High Court said: “…The trial Court has misinterpreted a typographical error and attributed a wrong meaning.” The HC said the trial judge also failed to note that the child had been admitted to hospital with aggravated pain in her private part and fever, which was nothing but an “indisputable fact” that there was sexual assault.

The court also noted that under Section 7 of the POCSO Act, touching of the vagina, penis, anus or breast of the child with sexual intent would amount to a sexual assault.

“The learned trial Judge has failed to appreciate the evidence of the prosecution and wrongly applied the provisions of law and erroneously acquitted the second respondent (accused) stating that the prosecution has failed to prove its case,” the High Court order said.

Also, the court noted, the trial Judge failed to understand the scope and object of the POCSO Act. The victim, who was hardly three years old, was produced before the magistrate even though she “cannot expect such an infant to speak about the occurrence even she did not understand, what is good touch and bad touch and the intention of the culprit is to be seen in this type of offence”.

The medical examination was conducted four days after the crime in September 2017. The HC observed that the trial judge had failed to appreciate the oral and documentary evidence, and “given much importance to the delay in lodging the FIR… Trial Judge has failed to consider the decisions of the Hon’ble Supreme Court in various cases, recognised that in cases of sexual offence, there could be a delay in filing the FIR, due to various reasons… Delay by itself cannot be a ground to throw the case of the prosecution.”

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