The Bombay High Court has held that a child victim's admission that she had memorized what was read to her by the police does not, by itself, establish that she was tutored. The Court observed that where the victim remains steadfast in cross-examination, and her material testimony remains intact, such an admission cannot be treated as sufficient to discredit her evidence.

Justice Abhay S. Waghwase was hearing an appeal filed by a person convicted under Sections 376-A and 506 of the IPC and Sections 4(2) and 6(1) of the POCSO Act, challenging the judgment of the Special Judge (POCSO), Aurangabad. The prosecution alleged that the minor victim had gone to the appellant's shop to purchase biscuits and bread, where he took her inside and sexually assaulted her.

The appellant contended that the victim's testimony could not be relied upon because, during cross-examination, she stated that she was asked to memorize what had been told to her. He argued that this demonstrated tutoring and rendered her evidence unreliable.

The Court noted that the victim stood steadfast in her cross and her material remained intact. Regarding answer that she memorized her statement, the Court held:

“Her answer that, she memorized her statement, in itself cannot be said to be tutored one. Events about she visiting the shop for purchasing biscuits show that, she is corroborating her mother's testimony who has deposed that she was asked to bring biscuits and bread for her younger brother who was crying.”

The Court further noted the evidence that the child vomited repeatedly after returning home and subsequently woke up crying during sleep.

“Informant mother as well as victim have stated that, after returning home, victim had repeatedly vomited. This itself shows that victim was so traumatized due to the incident that she vomited two to three times, and also according to mother she woke up while in sleep and started crying,” the Court remarked.

The Court rejected the contention that the absence of injuries undermined the prosecution case, observing that having regard to the nature of the allegations, the absence of injuries was not unexpected. It also noted that the medical papers had been admitted by the defence at trial and therefore could not subsequently be questioned in appeal.

The Court noted that although the mother had referred to an inquiry conducted by police before registration of the FIR, there was no material showing that a different version had been given during that inquiry. The victim's statement under Section 164 CrPC also contained no variance with her testimony before the Court sufficient to cast doubt on the prosecution case.

Finding no perversity in the Special Court's appreciation of the evidence, the High Court dismissed the appeal and upheld the conviction.

Case Title: Baliram Sitaram Chavan v. The State of Maharashtra [Criminal Appeal No. 1160 of 2023]

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