The careful evaluation of child witness testimony and the need for corroboration in criminal cases.

1. The appellant seeks to assail judgment and order dated 09.05.2016 in Special Case (POCSO) 37/2013 delivered by the Special Judge, Yavatmal, by and under which, the appellant is convicted of offences punishable under sections 451, 376 (2)(i)(j) (1) of the Indian Penal Code and section 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and is sentenced to suffer rigorous imprisonment for ten years and fine of Rs.5000/- for offence punishable under section 376 (2)(i) (j)(1) of I.P.C. and section 6 of POCSO Act.

2. Heard Shri Hajare, the learned counsel for the appellant-accused (hereinafter referred to as the “accused”) and Shri H.R. Dhumale, the learned Additional Public Prosecutor for the State.

3. Shri R.D. Hajare, the learned counsel for the accused has a two fold submission to advance. He contends that the evidence on record is grossly insufficient to bring home the charge under sections 451, 376 (2)(i)(j)(1) of I.P.C. and section 4 and 6 of the POCSO Act. Shri Hajare contends that the entire prosecution case is based on the testimony of two child witnesses who according to the prosecution are eye witnesses to the incident. Shri Hajare would contend that the victim is admittedly mentally challenged and was not examined during the trial. P.W.1 Shri Manohar Dandekar is examined since he has recorded the statement of the victim. The learned counsel for the accused would urge, which is the second submission in the alternate, that the evidence of P.W.1 does not suggest sexual intercourse and even if the entire testimony of P.W.1 is taken at face value, the only offence which is made out is under section 354A and 354B of I.P.C. read with section 8 of POCSO Act. Shri Hajare invites my attention to the testimony of the two child witnesses Mayur and Gayatri who are examined as P.W.2 and P.W.4 respectively. The testimony of P.W.4 Gayatri is subjected to severe criticism on the ground that the witness admits that she was tutored. The testimony of the other child witness Mayur is also subjected to similar criticism. Shri Hajare, the learned counsel for the accused would submit that even if arguendo the testimony of the two child witnesses is considered as reliable and believable, the testimony does not make any reference to an act of penetration of the male organ in the vagina of the victim. Shri Hajare would urge that even if the evidence of two child witnesses is considered credible, the prosecution has not established the ingredients of offences punishable under sections 451, 376 (2)(i)(j) (1) of I.P.C. and section 4 and 6 of the POCSO Act.

4. Shri Dhumale, the Additional Public Prosecutor, per contra, would urge that there is no reason why the evidence of the two child witnesses is Mayur and Gayatri should not be considered as confidence inspiring. A stray admission by Gayatri that she and Mayur were tutored is not sufficient to discard the testimony of Mayur and Gayatri. Looking at the respective ages of Mayur and Gayatri when they entered the witness box, it is but obvious that the witnesses would be given some idea as to what to expect in the witness box. It is true that in response to suggestion by the defence Gayatri admits that she was tutored. But then, such an admission has to be viewed in the context of the age of the witness and the real possibility of the witness not really understanding the import or implication of either the question or the answer. It is quite possible and indeed probable that the two child witnesses may have been told either by the elders or somebody else that they must speak the truth or to depose in the Court about the happenings on the date of the incident without any fear or apprehension. Shri Dhumale, the learned A.P.P. would then, urge that other than the evidence of the victim, as has come on record through P.W.1 Manohar Dandekar, and the evidence of the two eye witnesses Mayur and Gayatri, the medical evidence is clinching. The ocular evidence is