The court said the application for recall of a witness must be bona fide and genuine (File)
The Supreme Court on Wednesday stressed that a minor survivor of sexual assault should not be repeatedly called to testify before the trial court.
A bench headed by Justice Sudhanshu Dhulia said that the child who has suffered a traumatic experience of sexual offence should not be called time and again to testify about the same incident.
The court was hearing a plea challenging the orders of the High Court of Orissa and the Additional Sessions Judge-cum-Special Court under the Protection of Children from Sexual Offences (POCSO) Act, Nayagarh, which denied recalling a minor survivor for re-examination as a witness.
Allegedly, the accused kidnapped the minor girl, got her married at a temple, and forced her to make sexual relations. Later, the survivor was rescued by her parents with the help of the police.
The accused were booked in 2020 under the relevant sections of the Indian Penal Code, POCSO Act, and Prohibition of Child Marriage Act.
In the course of trial, the special court rejected the application moved by the accused for recalling the survivor for re-examination as witness. The trial court relied upon Section 33 (5) of the POCSO Act mandating that a child will not be called in the court to testify.
Upholding the decision, the Supreme Court said, "POCSO Act is a special legislation, which was enacted to protect children from sexual offences and for safeguarding their interests and ensuring the well-being of the child at every stage of trial of offences under the Act. A bare perusal of Section 33 (5) of the Act indicates that a duty is cast upon the special court to ensure that a child is not repeatedly called to give his/her testimony before the court."
It added that although Section 33 (5) would not act as an absolute bar to recall the survivor for re-examination as a witness, each case must be looked at in the context of its individual facts and circumstances.
The Supreme Court noted that the survivor was around 15-year-old at the time of incident and the defence counsel was already given the opportunity to cross-examine the minor twice.
Dismissing the special leave petition filed by the accused, the top court said, "Ample opportunities were given to the defence counsel to cross-examine the victim. When the victim has been examined and then cross-examined at length twice already, mechanically allowing an application for recall of the victim, especially in trial of offences under the POCSO Act, would defeat the very purpose of the statute."
The court also said the application for recall of a witness must be bona fide and genuine, and should not be allowed as a matter of course.
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