While hearing a recent matter in the POCSO Case, the Bombay high court noted a five-year-old survivor stated how her parents had told her to give a statement against the accused. The high court has now set aside a May 2019 conviction in the said case.
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 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.
A special trial court had convicted the accused on charges of rape and POCSO, largely on the basis of the child and her mother’s testimony, reported TOI.
The accused had appealed against his conviction and concurrent sentence of seven years’ rigorous imprisonment for rape under Section 376 of the IPC and Sections 4 and 8 of POCSO for sexual assault and three years for sexual harassment under Section 354-A allegedly committed in 2017.
The child’s mother admitted to a “quarrel” between her and the convicted-accused “over leakage of water from his toilet”. Thus the high court did not rule out a possibility of false implication in the matter.
Bombay High Court
The high court said,
The child by her own admission is a tutored witness and hence no implicit reliance can be placed on her evidence.
The high also doubted the mother’s version as medical evidence ruled out rape. After hearing the appeal of the accused, Justice Anuja Prabhudessai observed the medical opinion by a doctor who examined the child showed “everything was normal” and there were no injuries. The judge remarked,
Medical evidence rules out the possibility of…and does not support the charge of rape under IPC or penetrative sexual assault as defined under Section 3 of POCSO Act of 2012, punishable under Section 4.
The judgement added,
It is well known that a child witness, by reason of his/her tender age, is a pliable witness.
The high court further went on to say,
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 scrutinised with extreme care and caution.
The judge said the girl had deposed during trial in her cross examination that she “was questioned by the police about the incident and her mother had given the answers… She has admitted her parents had told her how to depose before the court.
Citing other discrepancies and “improvements” in the evidence, the high court observed that the trial court did not consider such “material omissions and discrepancies”. The high court also said the mother’s conduct in not taking the child to a doctor despite allegedly noticing an injury and claiming she complained of passing reddish urine, “is unnatural and casts a doubt on truthfulness and credibility of the entire prosecution version”.
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