BHIMASHANKAR Vs. STATE

JUDGEMENT

(1.) This petition is filed under Section 482 of Cr.P.C., seeking to set aside the order dated 19.01.2019 passed on the application under Section 311 of Cr.PC for recalling the PW1 on the file of II Addl. Dist. and Sessions Judge, Kalaburagi in Spl. Case (POCSO) No.53/2017.

(2.) The facts of the case leading to this petition are as follows: The complainant who is the mother of the victim lodged the complaint alleging that the accused who is resident of the same village and was very friendly with her daughter aged about 17 years. Further she has alleged on 04.08.2017, her daughter went to attend the nature call and did not return. Thereafter, herself along with another daughter went in search of the victim and at about 09.00 PM the complainant and her another daughter found the victim girl along with accused in a compromising position in a shed belonging to Bheemashankar on seeing the complainant-accused took his cloths and ran away from the spot. On enquiry the victim girl revealed that the accused had committed sexual assault on her. On the basis of the said complaint, respondent-police registered the case and after investigation filed charge sheet before the Special Court. The victim was examined before the trial Court on 09.01.2018 as PW1 and on that day the counsel for the accused-petitioner herein sought time for cross examination of the said witness. The request was rejected on the ground that there are no sufficient cause for granting adjournment. Thereafter, the petitioner kept quite for about one year and after examination of all other witnesses filed an application under Section 311 of Cr.PC to recall the PW1 for cross examination and the said application was filed on 01.01.2019. The prosecution opposed the said application. The learned Judge of the Special Court after hearing both the parties rejected the application by the order dated 19.01.2019 citing the provisions of Section 35(1) and 33(5) of POCSO Act.

(3.) The petitioner has stated that on 09.01.2018, the Senior Counsel was admitted in the hospital and hence he could not cross examine PW1. Now all the material witnesses have been examined except official witness. The counsel has cross examined all other witnesses. For the adjudication of the case, the cross examination of PW1 is very essential and without her cross examination it will seriously prejudice the defense of the accused. Therefore, the impugned order is liable to be set aside and PW1 may be recalled for cross examination.