Absence of injury no ground to say there was no sex abuse: Madras high court

Chennai: Observing that when parents, who discover that their child has been abused often find themselves experiencing a range of feelings from confusion and anger to horror, disgust, grief and betrayal and many will feel frustrated and helpless and some find themselves feeling a sense of numbness, the Madras high court has upheld the conviction and sentence of 10 years rigorous imprisonment awarded to an accused, who kidnapped and sexually assaulted a 12-year-old girl in Erode district.

Dismissing the appeal filed by the accused P.Prakash, Justice S.Vaidyanathan said, “The accused does not deserve for any leniency from this court, as the acquittal of a person like the accused will tantamount to posing a threat to female children and there may be a possibility of losing their virginity at the young age itself”.  

“Nowadays, several couples are facing infertility problem in India, on account of which, they are longing for a child and when that child is abused and assaulted sexually, it will amount to removal of a bud from a plant to prevent flower and fruit from forming”, the judge added.

The case of the prosecution was that the mother of the victim minor girl, had lodged a complaint on May 27, 2016, against the accused, stating that on May 27, 2016, at about 5 pm,  while her second daughter aged about 12 years, was playing hike and seek game with her friends, the accused forcibly took her to his house and committed a sexual assault on the victim minor girl, which resulted in registration of a case for the offences under section 366 IPC and section 6 read with 18 of the Protection of Children from Sexual Offences Act (POCSO Act). After trial, the Sessions Court (Mahalir Fast Track Court), Erode convicted and sentenced the accused to 10 years RI for offences under section 366 IPC and 7 years RI under the POCSO Act. Aggrieved, the accused filed the present appeal.

The judge said the counsel for the appellant placed much reliance on the statement made by Dr Malarvizhi that in the event of any physical violence, there must have been bodily injury on the person, who was subjected to such violence, in the absence of which, it cannot be said that the victim minor girl was subjected to sexual harassment. It was a highly fallacious argument advanced by the counsel for the accused in as much as a minor girl did not even know as to what for she was being pulled in and touched and therefore, an inference can be drawn that there cannot be much resistance on the side of a minor girl and in the absence of any opposition, naturally, there was no possibility of sustaining any injury on the body. Mere absence of bodily injury cannot be a ground to say that there was no offence at all, especially, when it was reported that semen was detected on the churidar. Thus, the version of the victim minor girl has been duly supported by the report of the forensic sciences department, as the vi
ctim minor girl in her 164 statement before the Chief Judicial Magistrate, Erode had clearly stated that when the accused had touched her, some liquid like water fell on her churidar pant and on seeing the same, she had run out of the house and the said deposition cannot be said to be a tutored one. Even though, this court thought of incorporating the deposition of the girl in the order, in the interest of the child and with a view to avoid inclusion of obscene words contained in the deposition, this court has refrained from extraction of those contents, the judge added.

The judge said on the side of the accused, no iota of evidence has been furnished to show that he was falsely implicated in this case owing to the previous enmity and a mother cannot play with the life of her daughter in order to gain financially or any other thing. The problem of sexual harassment relates to the roles which were attributed to men and women in social and economic life, which, in turn, directly or indirectly, affects women's positions in the labor market, the judge added.