“Issue notice on the Special Leave Petition as well as on the prayer for bail,” a Division Bench of Justices Sanjay Kishan Kaul and MM Sundresh ordered.
It was the case of the appellants that the statement of the victim under Section 164 of the Code of Criminal Procedure 1973 cannot be considered substantive evidence. However, that alone has been used by the trial court and subsequently by the Madras High Court to convict the appellant when all the witnesses turned hostile, the counsel for accused pointed out.
The appellant was convicted by the trial court for the offences under Section 9 (f), (m), (l), (p) punishable under Section 10 of the POCSO Act 2012 and Section 506(i) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of seven years with a fine of ₹10,000. On appeal, the Madras High Court had upheld the decision of the trial court.
The case of the prosecution was that the girl was studying in 4th standard in a school, where the appellant was teacher. In late 2019, during a lunch break, the appellant took the victim to a lane situated near the school building, pinched, sucked her breasts, hugged her and committed repeated sexual offences.
The High Court had noted that all the witnesses examined on the side of the prosecution turned hostile and did not support the case. The Court noted that medical evidence does not support the case of the prosecution and there was a delay in lodging the complaint, which was not properly explained by the prosecution.
Despite these observations, single-Judge Justice P Velmurugan had upheld the trial court ruling.
“It is not necessary that in all the cases, medical evidence should be corroborated with the evidence of the victim. In this case, the victim has stated that the appellant took her to the lane situated between the School building and committed the sexual assault, which is not penetrative sexual assault and hence it is not necessary that there should be any injuries on the parts of the body of the victim child and the complaint also does not say so. Cases like this, mere delay in filing the FIR, is not fatal to the case of the prosecution and also the reason for delay though specifically not given, one cannot expect the family members of the victim child would rush to the Police immediately soon after the occurrence,” the High Court had held.
While upholding the order of the trial court, the High Court held:
“Even though, the victim and the other witnesses turned hostile, the victim, during cross examination by the prosecution has clearly stated that the accused has committed the sexual assault. It is settled proposition of law that the evidence of the hostile witness would not be totally rejected. If spoken in favour of the prosecution or the accused are required to be subjected to close scrutiny and the portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon.”
Senior Advocate S Nagamuthu, Advocate-on-Record MP Parthiban, advocates AS Vairawan, R Sudhakaran, Shalini Mishra, T Hari Hara Sudhan and Vikash GR appeared for the appellant.
In October last year, the Madras High Court had convicted another schoolteacher for sexual assault of a 4-year-old student.
In that judgment, the High Court had held that a child victim of sexual assault cannot be expected to narrate the incident like a parrot
Source: Barandbench
