"Child witness amenable to tutoring:" Bombay High Court acquits man of POCSO charges

Child witnesses are amenable to tutoring, the Bombay High Court observed while reversing the conviction of a man accused of offence of rape and sexual assault of a 5-year-old child under Indian Penal Code and Protection of Children from Sexual Offences (POCOS) Act (Janardan Pandurang Kapse v. State of Maharashtra).Single-judge Justice Anuja Prabhudessai said that evidence of a child witness needs to be scrutinized with extreme care and caution since child witnesses are prone to telling exaggerated stories due to their tender age."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 judgment said..The factual matrix leading to the first information report (FIR) was that the mother of the victim was informed that the appellant, Janardhan Kapse, had allegedly sexually assaulted her child. The mother also claimed to have discovered injuries to the victim's private parts. The mother, therefore, lodged a complaint based on which the FIR was registered. .The trial court ruled that Kapse was guilty of the offence. Assailing the order, the appellant contended that he had been falsely implicated in the case. There was a quarrel between him and the complainant over leakage of water from his toilet and he had refused to carry out repair works, the appellant submitted in his appeal..The High Court noted that law was set in motion on the basis of the narrative given by the child and evidence in such case needs to be scrutinized with extreme caution and care. "The learned Judge has held the appellant guilty of these offences solely on the basis of the statement of the victim who is a child of 5 years of age," the High Court said..The Court further noted from the evidence that the victim during her cross-examination had conceded that her parents were present at the time of recording her statement under Section 164 of the Code of Criminal Procedure. She further agreed that her parents had told her how to give the statement and depose before the Court. The victim also conceded that when she was being questioned by the police, her mother was present and had given all answers which were taken down in writing. ."PW2 (victim) on her own admission is a tutor witness and hence no implicit reliance can be placed on her evidence," Justice Prabhudessai concluded..Justice Prabhudessai also noted that the medical evidence ruled out possibility of any insertions into the victim's private parts as was claimed in the complaint. The court relied upon the deposition of the medical officer who had examined the victim. "She has deposed that there were no injuries on the private parts of the victim and that everything was normal," the Court observed in its order acquitting the appellant..[Read judgment]