Deposition Of Child Witness 'Tutored': Bombay High Court Acquits Accused In POCSO Case

Justice Anuja Prabhudessai, disbelieving the child witness testimony before the trial court, as well as casting doubt on the child's mother's deposition, observed,

"It is well known that a child witness, by reason of his/her tender age is a pliable witness. He/she is amenable to tutoring and inducement and is often prone to telling imaginative and exaggerated stories. Hence the evidence of a child witness needs to be scrutinized with extreme care and caution."

The court, after going through the trial records with respect to the victim child's testimony noted that she had herself admitted during the cross-examination to being a tutored witness "and hence no implicit reliance can be placed on her evidence."

"She (the victim) has admitted in her cross examination that her parents were present at the time of recording her statement under Section 164 of Cr.P.C.. She has stated that her parents had told her how to give the statement. She has further stated that she was questioned by the police about the incident and that her mother had given the answers, which were taken down in writing. She has admitted that her parents had told her how to depose before the Court," noted Justice Prabhudessai.

The court was hearing an appeal against conviction by a resident of Thane on a complaint filed by the mother of the victim – all of them residents of the same building. The petitioner was convicted in 2019 under sections 376 (punishment for rape) and 354 (A) (1) (i) (for physical contact and advances involving unwelcome and explicit sexual overtures) of the Indian Penal Code and sections 4 (punishment for penetrative sexual assault) and 8 (punishment for sexual assault) of the Protection of Children from Sexual Offences Act.

The accusation was that, in December 2017, when the victim and her friends were playing bat and ball on the 5th floor (the floor on which the accused used to reside, a floor above the victim), the accused took them to his room and offered them chocolates. He then sent her friends out of the room, closed the door, made her lie down on the bed, removed her pant and touched her private parts. He then told her not to disclose the incident to her mother.

The doctor's deposition too was against the prosecution's case. She told the court that there were no injuries on the private parts of the victim and that "everything was normal." The medical evidence, therefore, too ruled out the possibility of insertion of finger in the victim's vagina.

The accused, who used to live with his wife and two children had pleaded that his house was just above the house of the victim's and that there was a quarrel between them over leakage of water from his toilet. Therefore, he was falsely implicated in the case. The HC believed in this defence of his and observed that the trial court had held the accused guilty of all offences solely on the basis of the statement of the victim, who was a child of five years of age, but had not taken into consideration these material omissions and discrepancies, which render the evidence of the child unreliable and the possibility of material improvement in the victim's evidence.

Case Title: Janaradhan Pandurang Kapse v. State of Maharashtra

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