Petitioner facing POCSO trial sought recall of the child victim five years after her testimony, following amendment of charge. The High Court upheld dismissal of the application, citing the delay, near-completion of trial, and the statutory mandate against repeatedly calling child victims to testify.
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SUNDER SINGH BISHT .....Petitioner
Through: Mr. B.P. Pandey, Mr. R.B. Singh, Mr. Shubham Patel and Mr. Vineet Pandey, Advocates.
versus
THE STATE GOVT OF NCT OF DELHI .....Respondent Through: Ms. Manjeet Arya, APP for State with SI Dev Rani PS Badarpur, Delhi. Ms. Thonpinao Thangal, Advocate (Amicus Curiae) for the prosecutrix.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT (ORAL)
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day while she was alone and sleeping in the house, the petitioner unlocked the door from outside and lied upon her whereafter he also removed her as well as his own clothes and thereafter inserted his ‘ susu wali jagah’ in her ‘ susu wali jagah’ . He did it for 15 minutes. He also threatened her with a knife so as not to tell the incident to anyone. After one/two days, he again came to her house and did the same thing. Petitioner did the said act on three occasions i.e. 12.10.2017, 14.10.2017 and 16.10.2017. When she developed stomach ache, she informed about the incident to her mother on 12.06.2018 whereafter the case was registered and investigation commenced.
In view of the aforesaid testimony, the Trial Court vide order dated 31.10.2019 amended the charge. As per the amended charge, the petitioner was charged for the offences punishable under Sections 376(2)(i)(n)/506 and Section 6 of POCSO Act. The petitioner pleaded being not guilty and claimed trial. Apparently, the trial has progressed and reached near its culmination as the matter is now stated to be listed for final arguments. The petitioner in the meantime has preferred an application seeking reexamination of the child victim. The said application came to be filed on 06.08.2024. It was contended that on account of inadvertence, the victim could not be re-examined after alteration of charge. Seeking fair adjudication, recall of the child victim was prayed. The application came to be dismissed by the impugned order by observing that the said application was filed after a delay of 5 years and the child victim could not be recalled as the petitioner has failed to show as to how his case is prejudiced.
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contended that recall of the child victim after 5 years would compel her to again undergo trauma associated with the event. She also referred to Section 33(5) of POCSO Act which stipulates that child victim should not be repeatedly called to testify in Court. Ld. Amicus Curiae further invited attention to the cross-examination conducted on behalf of the petitioner to submit that all the suggestions were put to the child victim.
“6. The principles which would guide the exercise of a Court’s power under Section 311 of the Cr.P.C were succinctly summed up by this Court in State (NCT of Delhi) v. Shiv Kumar Yadav (2016) 2 SCC 402. It was laid down by this Court that first, the plea for recall of a witness under Section 311 must be bona fide and genuine. Secondly, applications for
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recall of a witness under Section 311 should not be allowed as a matter of course and the discretion given to the Court must be exercised judiciously, not arbitrarily.
9. From a perusal of the record of the case, it is abundantly clear that 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. Hence, we find no error or illegality in the impugned order of the High Court or the Order dt. 10.10.2023 of the Special Court.”
MANOJ KUMAR OHRI, J
DECEMBER 11, 2024 ga
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1 issue framed by the court
Whether the trial court erred in dismissing the petitioner's belated application for re-examination of the child victim after alteration of charge.
Colour shows how this judgement treated each authority
Madhab Chandra Pradhan & Ors. v. State of OdishaRelied on¶5
SLP (Crl.) No. 10082/2024
3 provisions across 2 enactments
Sunder Singh Bisht
The State Govt of NCT of Delhi
Manoj Kumar Ohri
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
