# POCSO: Since section 29 of the Act necessitates the accused to rebut the case it is just to recall the witness for cross examination

- Link: https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/
- Published: 2024-01-16T10:32:31+00:00
- Author: Reshma Azath

Contents

 * [Prayer](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#prayer)
 * [Facts](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#facts)
 * [State submission](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#state-submission)
 * [Placing reliance on Hon’ble Apex Court Judgment](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#placing-reliance-on-honble-apex-court-judgment)
 * [Hon’ble High court’s view](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#honble-high-courts-view)
 * [Section 29 POCSO and recall](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#section-29-pocso-and-recall)
 * [Party](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#party)
 * [Further study](https://section1.in/pocso-since-section-29-of-the-act-necessitates-the-accused-to-rebut-the-case-it-is-just-to-recall-the-witness-for-cross-examination/#further-study)

##### Prayer

This Criminal Original Petition filed under Section 482 Cr.P.C., to call for the
entire records of the order dated 04.12.2021 in Crl.M.P.No.953 of 2021 in Spl.C.
C.No.21 of 2019 passed by the learned Sessions Judge for Special Court for Exclusive
Trial of Offences under POCSO Act, Coimbatore, set aside the same.

##### Facts

2.Learned counsel for the petitioner would submit that the petitioner is an accused
facing trial for the offence under Section 366 of IPC, Section 5(l) read with Section
6 of the POCSO Act, 2012 and under Section 9 of the Prohibition of Child Marriage
Act 2006. There are 12 witnesses in this case and the petitioner had cross examined
all the witnesses, excepting PW2/Victim and doctors viz., PW7 and PW8. The petitioner
had changed the counsel now and since the earlier Advocate was not instructed properly,
certain vital questions were left out to the witnesses, the petitioner had filed
the present petition seeking to recall the witnesses, after the appointment of new
counsel.

3. Learned counsel for the petitioner would further submit that the Trial Court 
relied on the decisions of the Hon’ble Supreme Court in Vinod Kumar Vs State of 
Punjab reported in 2015 (3) SCC 220 and also in the case of State NCT of Delhi VsShir
Kumar Yadav reported in (2016) 2 SCC 402, and had dismissed the petition holding
that change of counsel cannot be a ground to recall the witnesses.

4. Learned counsel would further submit that the Trial Court while dismissing the
petitioner, had further held that PW2/victim is 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. He would submit that on the date of occurrence, PW2/victim was a minor
and as of now, she is 21 years old and the bar under Section 33(5) of the POCSO 
Act will not operate against the petitioner. The learned counsel would further reiterate
that the petitioner is facing serious charges under the Provisions of the POCSO 
Act and there is statutory presumption operating against the petitioner under Section
29 of the POCSO Act, 2012. The petitioner has not cross-examined PW2/victim so far
and in the event of non cross-examination, it would amount a case of no defence 
resulting in grave prejudice to the petitioner. The evidence of PW2/victim, PW7 
and PW8/Doctors are essential 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 be resulting in vitiating the trial. Learned
counsel would further submit that though the petition has been filed to recall PW1
to PW12, the petitioner now restricts his claim to recall the witnesses PW2, PW7
and PW8 only.

##### State submission

5.Mr.A.Gokulakrishnan, learned Additional Public Prosecutor would vehemently opposes
stating that the Trial Court had rightly found that change of counsel cannot be 
a reason for recalling the witnesses and had rightly dismissed the same. The Trial
Court had also relied on the Judgment of the Honb’le Apex Court in the case of Vinod
Kumar Vs State of Punjab reported in 2015 (3) SCC 220, and dismissed the application.
However, he would fairly concede that the victim is aged about 21 years now.

##### Placing reliance on Hon’ble Apex Court Judgment

7. It is mandatory for a Court to recall witness for further cross-examination if
his evidence appears to be essential for just decision of the case. There is no 
bar for a Court to recall a witness for further cross examination. There is no bar
for a Court to recall a witness for further cross examination. In **[Godrej Pacific Tech. Ltd. Vs Computer Joint India Ltd](https://main.sci.gov.in/jonew/judis/32157.pdf)**
which has rightly by referring to Section 311 of the Code, the Hon’ble Apex Court
has held:

> “The section is manifestly in two parts. Whereas the word used in the first part
> is “may”, the second part uses “shall”. In consequence, the first part gives purely
> discretionary authority to a criminal court and enables it at any stage of an 
> enquiry, trial or proceeding under the Code (a) to summon anyone as a witness,
> or (b) to examine any person present in the court, or (c) to recall and reexamine
> any person whose evidence has already mandatory and compels the court to take 
> any of the aforementioned steps if the new evidence appears to it essential to
> the just decision of the case. This is a supplementary provision enabling, and
> in certain circumstances imposing on the court the duty of examining a material
> witness who would not be otherwise brought before it. It is couched in the widest
> possible terms and calls for no limitation, either with regard to the stage at
> which the powers of the court should be exercised, or with regard to the manner
> in which it should be exercised. It is not only the prerogative but also the plain
> duty of a court to examine such of those witnesses as it considers absolutely 
> necessary for doing justice between the State and the subject. There is a duty
> cast upon the court to arrive at the truth by all lawful means and one of such
> means is the examination of witnesses of its own accord when for certain obvious
> reasons either party is not prepared to call witnesses who are known to be in 
> a position to speak important relevant facts.”

##### Hon’ble High court’s view

9. In that view of the aforesaid, this Court is of the view that cross-examination
of the prosecution witnesses being an essential right of the accused, it is evident
that non-cross examination of the said witnesses will put the petitioner to prejudice.
In such circumstances, it is not unjust to afford an opportunity to the petitioner
to cross-examine PWs.1 to 3 by recalling them.

##### Section 29 POCSO and recall

10. As per Section 29 of the POCSO Act, unless the contrary is proved, the Special
Court 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.

11. In view of the above, a heavy burden is caused on the petitioner to rebut the
presumption which operates against him. As stated above, PW2, PW7 & PW8 are crucial
witnesses. 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.

12. 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 PW2,
PW7 and PW8 who have not been cross-examined so far. Therefore, the impugned order
in respect of PW2, PW7 and PW8 stands set aside on condition that the petitioner
shall deposit a sum of Rs.6,000/- before the Trial Court on the next hearing date
and file an application to recall the witnesses PW2, PW7 and PW8. The Trial Judge
shall recall and fix date for their appearance and on suchdate, 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 loose
the chance of further cross-examining the witnesses. Each of the witnesses shall
be paid Rs.2,000/- on the date of their appearance before the Trial Court. This 
Criminal Original Petition stands allowed with the above observations. Consequently,
connected Criminal Miscellaneous Petition is closed

##### Party

S.Ganeshan,… Petitioner Vs State Represented by The Inspector of Police, Periyanaikkanpalayam
Police Station, Coimbatore. … Respondent – Citation: Crl.O.P.No.4131 of 2022 and
Crl.M.P.No.2060 of 2022 DATED: 07.03.2022 – Coram:In The High Court Of Judicature
At Madras, The Hon’bleMr.JusticeA.D.JagadishChandira

**[https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/640583](https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/640583)**

##### Further study

https://demonew.section1.in/section-311-cr-p-c-recall-may-be-allowed-if-no-occasion-
to-bring-relevant-facts-at-initial-deposition/

https://demonew.section1.in/hostile-witness-a-detailed-study/

 

### Further Study

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