Recalling Child Witness U/S 33(5) POCSO Act To Fill Up Lacuna In Evidence Not Legally Sustainable: Kerala HC
The Kerala High Court observed that recalling a child witness under Section 33(5) of the POCSO Act to fill up a lacuna or omission in evidence is not legally sustainable.
The Bench dismissed a petition challenging the order of the trial court which disallowed the recalling of a child witness in a case under the Protection of Children from Sexual Offences Act (POCSO). The petition was filed under Section 482 of the CrPC to quash the order from the Fast Track Special Court for POCSO Cases.
A Single Bench of Justice A. Badharudeen observed, “It appears that the attempt of the petitioner is to fill up the lacuna and omission in evidence resulted due to laches in evidence at the instance of the counsel for the petitioner by recalling PW1 where Section 33(5) of the POCSO Act would apply. In fact, such a plea is not legally sustainable.”
Advocate Roshen D. Alexander represented the petitioner, while Sr. PP Renjith George appeared for the respondents.
The accused argued that a few material questions were omitted during the cross-examination of a child witness and therefore had requested the court to recall the witness to rectify this omission.
Relying on the case of Vineeth v. State of Kerala (2022 KHC OnLine 8065), the petitioner contended that the bar under Section 33(5) of the POCSO Act was not absolute and that in appropriate cases, recalling a child witness was permissible. However, the prosecution opposed the plea, arguing that the attempt to recall the witness aimed to fill gaps in evidence after the completion of the trial, which is not legally permissible.
The Bench agreed that while the POCSO Act discourages repeated examination of child witnesses, it does not prohibit recalling them entirely. However, the Court held that such recalls should be absolutely necessary for the just decision of the case and should not be used to fill the “lacuna in evidence.”
“As per Section 33(5) of the POCSO Act, it has been provided that the Special Court shall ensure that the child is not recalled repeatedly to testify in the court. This provision to be read and understood to hold that repeated examination of the child shall be avoided and this provision shall not be interpreted to hold that recalling of the child witness is prohibited in toto,” the Court remarked.
The Court clarified that “the bar under Section 33(5) of the POCSO Act is not absolute and in an appropriate case, in order to meet the ends of justice, relaxation of the mandate under Section 33(5) of the POCSO Act is legally permissible.”
Accordingly, the High Court dismissed the petition.
Cause Title: Jerin Joy v. State of Kerala & Anr. (Neutral Citation: 2024:KER:33678)
Appearance:
Petitioner: Advocates Roshen.D.Alexander, Tina Alex Thomas, Harimohan and Kamal Roy M.
Respondents: Sr. PP Renjith George
