MURUGESAN Vs. STATE

JUDGEMENT

(1.) The Petitioner/Accused in Spl.S.C. No.254 of 2023 (Old Spl.S.C. No.21 of 2023 on the file of Fast Track Mahila Court at Dharmapuri) was convicted by the learned Sessions Judge, Special Court to deal with cases related to POCSO Act, Dharmapuri, by Judgment, dtd. 5/3/2024 and sentenced to undergo 20 years' Rigorous Imprisonment and to pay a Fine of Rs.25,000,.00 in default, to undergo one year Simple Imprisonment, for the offence under Ss. 5(m), 5(n) r/w 6(1) of Protection of Children from Sexual Offices Act [POCSO Act]. Against which, the present Appeal.

(2.) Mr. S. Shanmugavelayutham, the learned Senior Counsel appearing for the Appellant submitted that the Victim was examined as PW2 in this case, Ex.P3/Statement given to the Police and Ex.P4/Sec. 164-Statement marked through her. These two documents along with her evidence before the Court would not go together, but this has to be brought on record by way of cross examination. In this case, PW2 and some more Witnesses not cross-examined. Therefore, the Petitioner filed a petition under Sec. 311, Cr.P.C. in Crl.M.P. No.1179 of 2023 to recall PW1 to PW4 and the Trial Court, by Order, dtd. 18/8/2023, permitted to recall PW1, PW3 & PW4, but disallowed as regards PW2/Victim. Thereafter, the Petitioner filed Crl.M.P. No.263 of 2023 to recall PW12/Dr. Kanimozhi and the same was allowed by Order, dtd. 4/12/2023. Again, the Petitioner filed a Petition in Crl.M.P. No.357 of 2023 to recall PW20/Dr. Prabha, which was also allowed by the Trial Court by Order, dtd. 6/1/2024. He would submit that restriction under Sec. 33(5) of POCSO Act is that it has to be ensured that the child is not called repeatedly to testify in the Court. Repeatedly means again and again or frequently and testifying is by way of solemn declaration of oath to give evidence as Witness. Hence, without recalling and subject to cross-examination, the evidence cannot be testified in view of gross variance in the evidence of PW2 to her earlier statements. In support of his contention, the learned Senior Counsel relied upon the decision of this Court in the case of M. Kannan v. State, 2017 (1) MWN (Cr.) 565 (DB) : 2018 Crl.L.J. 116, wherein in an identical situation, this Court set aside the conviction and remanded back the case to trial to the limited extent of denial of cross-examination.

(3.) The learned Senior Counsel further submitted that the Trial Court convicted the Petitioner in Spl.S.C. No.254 of 2023, on 5/3/2024. During the trial PW1 to PW20 examined. Ex.P1 to P22 marked. The Trial Court in its Judgment recorded that the occurrence taken place on 4/12/2022 and on that day, the Victim/PW2 is aged below 18 years. Admittedly, in this case, the Victim Girl/PW2 was not cross-examined. Some more Witnesses also not cross-examined. The Trial Court permitted to recall and cross-examination of other Witnesses, except PW2, who is the Victim, citing Sec. 33(5) of the POCSO Act that the child/Victim not to be called repeatedly to testify in the Court. The Petitioner not cross-examined PW1 to PW4. Hence, the Appellant herein filed a Petition under Sec. 311, Cr.P.C. in Crl.M.P. No.1179/2023 to recall PW1 to PW4. The Trial Court, by Order, dtd. 18/8/2023, permitted the Petitioner to recall PW1, PW3 and PW4 but disallowed as regards PW2/Victim citing Sec. 33(5) of the POCSO Act. He further submitted that in the entire Judgment, the evidence of PW1/Mother of the Victim is being discussed in detail. The Trial Court failed to see that the evidence of PW2/Victim is contrary to her Sec. 164(5)-Statement/(Ex.P4) and her Statement before the Trial Court and S.161-Statement recorded by the Police, which is recorded as Ex.P3. There is total contradictions/variations in these three statements.