High Court orders retrial in child sexual abuse case

High Court has overruled a 15 year old prison sentence passed on a man convicted of sexually abusing his child, ordering a retrial.

As the case involves children, High Court did not disclose which court had passed the initial sentence. As per the sentence, the case was submitted in September 2021 and concluded in October 2023.

The man, identified as Mohamed Niyaz, was convicted of sexually abusing a child while in a position of trust and sentenced to 15 years in prison. The ruling was appealed at the High Court claiming that he had been convicted of touching the 6 year old on her genitals and chest without having ample evidence as defined in an earlier Supreme Court ruling, and against Article 143 (d) of the Constitution which states that lower courts must abide by rulings of higher courts.

In High Court, the man claimed that he was washing the child after they passed urine, and there is no way to do this without touching them. He further said that the report from the doctor who observed the child indicates that no harm had come to the child. The man also said that the claims the child had made in the investigation are the result of statements made by the mother, who had questioned the child through her own resentments against him. As such, questions are raised about the veracity of the mother's statement as well, the man said. The two are a divorced couple.

It was further said that the expert who conducted a psychological assessment of the child had not been summoned to court and questioned about the doubts created regarding the questions asked of her. Furthermore, in passing the verdict, the court had wrongly relied on the report, the appeal said. In addition to this, the date and time of the alleged incident is also unknown, which makes the charges against the Criminal Procedure Code, they said.

The State stated in court that the child's statement included things that a child of that age would not have fabricated. The fact that the child's medico-legal report indicated no harm had come to the child is no reason to dismiss the statements made by the child, they said. Dismissing Niyaz's claims that there is no direct statement from the child in the case, the State said that a video recording of the interview with the child had been submitted to the lower court, and the court had verified the child's statement.

The High Court's ruling on May 29 said that the child's mother had had suspicions and questioned her after the child said 'Father, don't do this' in her sleep, attesting to the same in court. The mother had said that the child had admitted that the father touched her and made her do some other things as well after extensive questioning. The mother's statement also alleged that the child had told her that the father has shown 'indecent videos' to her on his phone.

The mother provided two statements to the investigation, in the first of which she said that the child had been told to not tell anyone even if the father touches her. When asked if the father touched her in such places, the child had said that he had not, and had never spoken of such things, the mother said in her statement. However, her second statement said that the father touches her while showering her and washing urine, and makes the child do other sexual acts. The statement says that the child earlier refused to disclose this because the father had told her not to tell anyone about it.

The maternal grandmother had also given a similar statement in court.

The High Court's ruling said the statements from both parents indicated that there was resentment between them. It also noted that despite there being several discrepancies between the child's statement and that of the grandmother, the lower court had ruled that the statements need not be fully dismissed.

As per the High Court ruling, the child had shared more information with the psychologist than she had during the investigation. As such, she had said that such acts had been committed against her, she was shown indecent videos and provided many details, the High Court ruling noted. However, the expert who conducted the psychological assessment was not summoned to court to verify if the statements had been indeed made by the child even when they contradicted the statements made by the mother and grandmother. Nor was there any reason provided for the failure to summon the expert in the case conclusion report.

The court had decided this while even the State and the defence had been advocating that the expert needs to be questioned. As indicated in the lower court statements, the expert was not summoned after the magistrate had said that the expert was unable to attend then and it would take a long period of time to summon them and take their statement.

In light of all this, the High Court ruled that the lower court had failed to verify the statements in the assessment report and ascertain if it was extraordinarily factual. The High Court said that justice cannot be reached in this case without summoning the expert who conducted the assessment and allowing the defence to question them, and without the court once again reviewing the other evidence in the case.

Based on this, the High Court ruled for the lower court to conduct a retrial and to cancel the current 15 year prison sentence.