‘Exorcist' and schoolgirl's father escape POCSO Act conviction due to doubts over her age
Trigger warning: the following article has references to child sexual abuse, sexual assault, and rape. Reader discretion advised.
An 'exorcist' and the father of a schoolgirl have escaped punishment under the Protection of Children from Sexual Offences (POCSO) Act of 2012 because of the prosecution's failure to prove she was only 16 years old when the duo subjected her to sexual assault and aggravated penetrative sexual assault, respectively.
A Division Bench of Justices A.D. Jagadish Chandira and K. Rajasekar held that a certificate issued by the school headmistress was insufficient to prove the age of the victim. A radiologist who conducted the ossification test was not examined, and the test report was not marked as evidence before the trial court, they said.
The judges, therefore, set aside the conviction of the girl's father Gunasekaran and the 'exorcist' Sivakumar for the offences under Sections 7 (sexual assault) and 5 (aggravated penetrative sexual assault) of the POCSO Act, which the trial court had invoked to impose five years of rigorous imprisonment and life sentence, respectively.
Charged under rape
Nevertheless, since Additional Public Prosecutor A. Thiruvadi Kumar had succeeded in proving the other facts of the case before the High Court, the Division Bench convicted the girl's father under Section 354 (outraging a woman's modesty) of the Indian Penal Code (IPC) and sentenced him to three years of simple imprisonment.
The Bench also found the 'exorcist' guilty under Section 376(1) (rape) of the IPC and sentenced him to rigorous imprisonment for 10 years. It also reduced the fine amount of ₹5 lakh imposed on him by the trial court under the POCSO Act to ₹25,000 for the IPC offence, with a default sentence of one year of simple imprisonment.
The judges further ordered that the compensation of ₹7 lakh ordered to be paid to the victim by the trial court by invoking the provisions of the POCSO Act, should instead be paid from the Tamil Nadu Victim Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes 2018.
What is the case about?
According to the Inspector of an All Women Police Station in Ramanathapuram, the girl was first molested by her father in 2018 when she was 14 years old and studying in Class VII.
He later moved abroad for a job. Subsequent to his return to the country in 2020 due to COVID-19, the convict continued to sexually assault his daughter and threatened her with dire consequences if it was revealed to her mother. Meanwhile, the mother, concerned about her daughter's changes in behaviour, took her to the 'exorcist' for remedy.
The exorcist, however, further subjected the girl to penetrative sexual assault in 2021. The girl then opened up to her mother, who immediately called the child helpline 1098, leading to the registration of the POCSO Act case against the father and the 'exorcist'.
Accused found guilty
Though the convicts raised multiple grounds to attack the prosecution case on merits and attempted to get acquitted from all charges, the judges rejected those grounds and held that the evidence adduced by the prosecution was sufficient to prove the guilt of the accused beyond all reasonable doubt.
The Division Bench also observed there was nothing wrong on the part of the trial court in having conducted a joint trial against the two convicts though the charges levelled against them were of different periods, spanning between 2018 and 2021, and the alleged offences too had occurred at different places.
'The accused have understood the charges for which they have been facing the trial and they were not able to establish prejudice, if any, caused to them... This court finds that no prejudice had been caused to them due to their joint trial and there is no miscarriage of justice against the accused,' the Bench concluded.
The judgment was reserved at the Madurai Bench of the Madras High Court but delivered at its principal seat in Chennai.
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