The mandate in the Protection of Children from Sexual Offences (POCSO) Act, 2012 that the special courts should ensure that the child is not called repeatedly to testify in the court “would not mean that the accused can be deprived of his right to cross-examination in a trial, particularly when the offence is punishable beyond 10 years,” the High Court of Karnataka said.
The court also observed that once the victim crosses 18 years, the rigor of Section 33(5) of the POCSO Act gets diluted, as it is the child-victim, defined to mean a person below 18 years of age, who should not be called for cross-examination or re-examination repeatedly.
Justice M. Nagaprasanna made these observations while allowing the plea made on behalf of a 23-year-old accused man to recall the child victim for cross-examination in a peculiar situation after the victim’s father, in his cross-examination before the special court had said that the accused did not commit sexual act on his daughter.
The accused is none other than the son of the elder sister of the victim’s father where as the complaint was lodged by the victim’s mother. The victim had crossed 18 years of age when the application for recalling her for cross examination was filed.
Frivolous reasons
“A reading of Section 33(5) of the POCSO Act would clearly indicate the intention behind such enactment that in genuine cases the child-victim is not harassed... The mandatory nature to recall the witness for cross-examination, if the evidence appears to be essential, is always necessary for a just decision in a case, except in cases where repeated applications under Section 311 of the CrPC are filed on frivolous reasons,” the court observed.
On noticing that the victim in the present case has already crossed 18 years, the court said that “on the child attaining 18 years of age, the rigor under Section 33(5) of the Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of the victim under Section 311 of the Code of Criminal Procedure.”
“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,” the court said, while allowing plea for recalling of the victim for cross-examination again.
The trial court had rejected the plea for recalling the victim stating that cross-examination was completed long ago.
