VIGNESHWARAN Vs. STATE

JUDGEMENT

(1.) This petition has been filed challenging the order passed by the Court below dismissing the application filed in Crl MP No.1562 of 2023 under Sec. 311 of Cr.PC to recall PW1 for cross examination.

(2.) Heard Mr.R.Radha Pandian, learned counsel for the petitioner and Mr.A.Damodaran, learned Additional Public Prosecutor for respondent.

(3.) The petitioner is undergoing trial before the Court below for offence under Sec. 3 (A) R/W 4(2) of POCSO Act, 2012 and Sec. 506(i) of IPC. The prosecution examined the victim child as PW1 and the parents of the victim boy as PW2 and 3. PW1 was examined in chief on the side of the prosecution on 2/11/2023. On that day, the child was not cross examined and hence, the evidence of PW1 was closed. Thereafter the case was adjourned to 27/11/2023. The case was thereafter posted on 4/12/2023 and on that day, the parents of the victim child viz., PW2 and 3 were examined in chief. On the same day, the counsel appearing on behalf of the petitioner filed an application under Sec. 311 of Cr.PC to recall PW1 for cross examination. The Court below has dismissed this application mainly relying upon Sec. 33(5) of the POCSO Act on the ground that the child cannot be recalled to testify before the Court again and again and under go the mental agony by recalling the incident.