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Right Of Accused To Cross-Examine Prosecutrix Can’t Always Be Denied Only Because Of Section 33(5), POCSO Act: Uttarakhand High Court

[24 March 2022] The Court noted that neither the order-sheet, nor the deposition (comments on the deposition), shows that the appellant’s lawyer was not ready to cross-examine the child witness on 09.08.2019 when her examination-in-chief was conducted. So, the Court presumed that, on that day, the counsel for the accused-appellant was present, but the Court itself took up other cases for trial etc. leaving the examination of the child halfway.
In view of the above circumstances, it was held that it was ‘erroneous’ on the part of the Additional Sessions Judge/FTSC to reject the application to recall the child witness only on the ground that Subsection (5) of Section 33 of the POCSO Act provides that repeated attendance of the child should be avoided. Moreover, it was stressed that an accused, who is charged for committing serious offence like rape and penetrative sexual intercourse, should be given an adequate opportunity to cross-examine the witness.

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