Bengaluru: The Karnataka HC has recently ruled that the bar on calling the minor victim of a sexual offence repeatedly for cross-examination gets diluted once he or she attains 18 years of age. Section 33(5) of the Pocso Act-2012 says the child should not be called for testifying in the court repeatedly. On turning 18 years of age, the victim can be called for further cross-examination under Section 311 of the CrPC, the court has said. In a Pocso case, the court has permitted the petitioner to cross-examine the survivor, who crossed 18 years on April 2 this year. The judge has said the word 'child' is defined under Pocso Act to mean a person below 18 years and once the child attains that age, the rigour under section 33(5) of the Act gets diluted.
Protection to child in Pocso case gets diluted after he/she turns 18: HC
The bar on calling the minor victim of a sexual offence repeatedly for cross-examination gets diluted once he or she attains 18 years of age. Consequently, the victim can be called for further cross-examination under section 311 of the CrPC, the high court has ruled in a recent judgment.
Section 33(5) of the Protection of Children from Sexual Offences (Pocso) Act-2012 says the child should not be called for testifying in the court repeatedly.
Allowing the petition filed by an accused in a Pocso case, justice M Nagaprasanna has permitted the petitioner to cross-examine the survivor, who crossed 18 years on April 2, 2022. However, the judge has made it clear that the accused will not be entitled to file repeated applications under section 311 of the CrPC.
The judge has pointed out that the word 'child' is defined under section 2(1)(d) of the (Pocso) Act, to mean a person below 18 years and once the child attains that age, the rigour under section 33(5) of the Act gets diluted.
"It is more so in cases where the accused is alleged to have committed offences punishable under the Act as there is presumption under section 29 of the Act against the accused. To bring in evidence contrary to the presumption is a heavy burden cast upon the accused for offences punishable under the Act. Therefore, to rebut such presumption, as also, due to the peculiar reasons in the case at hand, the victim ought to have been permitted to be cross-examined by accepting the application seeking to recall the witness. This would be imperative to see that the trial does not result in miscarriage of justice in any manner and such miscarriage is prevented at any juncture," the judge has observed.
The petitioner was accused of indulging in certain acts with the survivor in April 2018 when her parents were not at home. The girl's mother lodged a complaint and the case was registered under sections 376 and 506 of the IPC as well as sections 4 and 5 of Pocso Act. Incidentally, the petitioner is the son of the elder sister of the complainant's husband.
The girl's father deposed that there was no sexual act committed by the petitioner-accused, who submitted an application on March 28, 2022, invoking section 311 of CrPC to cross-examine the girl. However, on April 7, 2022, the trial court rejected the said application, citing the bar contained under section 33(5) of the Pocso Act.
Challenging the rejection order, the petitioner approached the court, arguing that serious prejudice will be caused to the defence if the girl's cross-examination is not permitted, especially in the light of the admission by her father that the accused hasn't committed sexual act on the survivor and there was ill-will between the parents of the accused and the girl.
