In a significant judgment, the Madras High Court has held that an accused in a Protection of Children from Sexual Offences (POCSO) case might be allowed to cross-examine the survivor, who was a minor at the time of occurrence, but an adult (21 years old) now.
Justice A D Jagadish Chandira gave the ruling while allowing a criminal original petition from S Ganeshan of Coimbatore, recently.
In this case, the petitioner has been charged for the offences under Section 366 of the IPC, Section 5(l) read with Section 6 of the POCSO Act (sexual assault) and under Section 9 of the Prohibition of Child Marriage Act, 2006. Section 29 of the POCSO Act stated that the Special Court for POCSO cases shall presume that the accused has committed or abetted or attempted to commit the offence as the case may be, unless, the contrary is proved.
“In view of this, a heavy burden is caused on the petitioner to rebut the presumption which operates against him. The three prosecution witnesses (PWs) — two doctors and the victim — are crucial to the case. If the witnesses are not cross-examined, the evidence stands unrebutted and it would amount to a case of no defence resulting in grave prejudice to the petitioner. In this case, the victim is now aged about 21 years and she will not fall within the definition of ‘child’ so as to attract Sec. 33(5) of the POCSO Act.”
“In view of the peculiar facts and circumstances of the instant case, this court is of the opinion that a chance should be given to the petitioner to recall the three witnesses, who had not been cross-examined so far. Therefore, the impugned order in respect of the three witnesses stands set aside on condition that the petitioner shall deposit ₹ 6,000 before the trial court on the next hearing date and file an application to recall the witnesses. The trial judge shall recall and fix a date for their appearance and on such date, the petitioner shall cross-examine the witnesses without any delay. If the petitioner fails to cross-examine the witnesses on the date of their appearance, the petitioner shall lose the chance of further cross-examining the witnesses. Each of the witnesses shall be paid ₹ 2,000 on the date of their appearance before the trial court,” the judge said.
The trial court on December 4, 2021 had rejected the petitioner’s plea on the ground that the main witness, the survivor, was a ‘child’ and that as per Section 33(5) of the POCSO Act, the child witness cannot be called repeatedly to testify in the court.
Petitioner’s counsel pointed out to Justice Chandira that on the date of occurrence, the survivor was a minor. As of now, she is 21 years old and the bar under Section 33(5) of the POCSO Act will not operate any more against the petitioner.
The petitioner was facing serious charges under the POCSO Act and there was a statutory presumption operating against him under Section 29 of the POCSO Act. He had not cross-examined the survivor so far and in the event of non cross-examination, it would amount to a case of no defence resulting in grave prejudice to the petitioner.
The evidence of the three witnesses are essential in arriving at a just decision of the case. Failure to give an opportunity to cross-examine the witnesses would be a violation of the constitutional guarantee to the accused and it would result in vitiating the trial, he had added.