LAWS(KAR)-2019-3-199

SHRIMANTH Vs. STATE THROUGH NELOGI P S

Decided On March 26, 2019
SHRIMANTH Appellant
V/S
State Through Nelogi P S Respondents

JUDGEMENT

(1.) This petition is filed under Section 482 of Cr.P.C., seeking to set aside the order dated 07.03.2019 passed by II-Additional Sessions Judge, Kalaburagi, in Special Case (POCSO) No.10/2018 in rejecting the application filed by accused Nos.2 to 4 under Section 311 of Cr.P.C., for recalling PW.1/victim for the purpose of cross-examination.

(2.) Factual matrix of the petition are as under:

(3.) It is relevant to state that, on 25.04.2018, PW.1 who is the victim-girl was examined-in-chief for the prosecution and on that day, learned counsel for accused Nos.2 to 4 sought for time to cross-examine PW.1. The trial Court declined to grant time and taken the cross-examination of PW.1 by accused Nos.2 to 4 as nil. Therefore, accused Nos.2 to 4 filed an application under Section 311 of Cr.P.C., to recall PW.1 for crossexamination. In the said case, the cognizance was taken on 09.03.2018. The trial Court has noted the scope of Section 35(1) of the POCSO Act which clearly says that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offences. In the impugned order, the trial Court has also noted the provisions of Section 33(5) of the POCSO Act which clearly says that the victim shall not be called repeatedly to testify in the Court. Even though the learned counsel for the accused is aware of the scope and object of Section 33(5) of the POCSO Act, he has not yet cross-examined PW.1/victim. It has observed that if the victim does not support the prosecution, the accused will take advantage and if the victim supports, by hook or crook, the accused will seek adjournment and try to win over the victim and her parents. For these reasons, the trial Court rejected the application filed by the accused under Section 311 of Cr.P.C., for recalling PW.1/victim girl for cross-examination.