The Bombay high court hearing the appeal against the conviction by the accused in the case Janaradhan Pandurang Kapse vs. the State of Maharashtra. The facts of the present appeal are that the accused and victim resides in the same building. In 2017 the victim was playing with her friends on the fifth floor on which the accused resides with his wife and two children. The accused took them to his house and offered chocolate to them. Afterwards, he sent all the other children back to their home except the victim. He asked the victim to lie down on his bed and touched her private parts. The accused then told her not to disclose this to anyone.
The complaint was filed by the mother of the victim against the accused. In 2019 trial court on the basis of the testimony of the victim held the accused guilty. The trial court convicted the accused under section 376 for the punishment of rape and section 354(A)(1)(i) of IPC and section 4 ( deals with punishment of penetrative sexual assault) and section 8 (deals with punishment for sexual assault) of protection of children from sexual offence act.
The high court observed the disposition of the doctor that the victim is perfectly normal and there were no injuries on her private parts. The accused said in his defence that there was a quarrel between the family of the victim and the family of the accused due to the leakage of the toilet in his apartment.
The high court also observed the testimony of a child witness, during cross-examination she herself admitted that she was tutored by her parents. Under section 164 of CRPC, she admitted in her statement that her parents told her how to give statements. Her mother gave the answers to questions asked by the police to the victim.
The court acquitted the accused of the rape of a five-year girl on the rationale that the testimony by child witness is not reliable due to her tender age and can easily be induced or tutored.